SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) May 25, 1994
MIRAGE RESORTS, INCORPORATED
______________________________________________________
(Exact name of Registrant as specified in its charter)
Nevada 1-6697 88-0058016
____________________________________________________________________
(State or other juris- (Commission (IRS Employer
diction of incorporation) File No.) Identification No.)
3400 Las Vegas Boulevard South, Las Vegas, Nevada 89109
_____________________________________________________________________
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (702) 791-7111
_____________________________________________________________________
(Former name or former address, if changed since last report)
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Item 5. Other Events.
On May 25, 1994, the Registrant obtained a $525 million
five-year reducing revolving credit facility (the
"Facility") from a group of 18 commercial banks led by
Bank of America National Trust and Savings Association.
The Facility replaces the Registrant's prior $150 million
bank credit facility. Borrowings under the Facility are
tied, at the Registrant's option, to the prime rate or
the one-, two-, three- or six-month London Interbank
Offered Rate ("LIBOR"). The interest rate for borrowings
tied to the one-month LIBOR is currently approximately 6%
per annum. Borrowings under the Facility are available
for working capital and general corporate purposes,
including the development of new gaming projects and the
retirement of outstanding indebtedness.
Borrowings under the Facility are collateralized by a
first lien on most of the Registrant's and its
subsidiaries' (other than non-Restricted Subsidiaries, as
defined) previously unencumbered assets, including
Shadow Creek Golf Course and the Dunes site. At such
time as the first mortgage notes collateralized by The
Mirage and the Treasure Island hotel-casinos are no longer
outstanding, the Facility will also be collateralized by
a first lien on those properties. The Registrant's non-
Restricted Subsidiaries include those which own and
operate the Golden Nugget and Golden-Nugget Laughlin
hotel-casinos, and borrowings under the Facility are
not collateralized by those properties.
The Reducing Revolving Loan Agreement (the "Loan
Agreement") governing the Facility contains a number of
covenants applicable to the Registrant and its
subsidiaries (other than non-Restricted Subsidiaries),
including those relating to the maintenance of specified
tangible net worth, interest charge coverage and
leverage ratios and certain limitations on further
indebtedness, liens, capital expenditures, investments
and dividends and stock repurchases. A copy of the Loan
Agreement is filed as an exhibit to this Form 8-K.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
99. Reducing Revolving Loan Agreement, dated as of May 25,
1994, among the Registrant, THE MIRAGE CASINO-HOTEL,
Treasure Island Corp., MR Realty, MH, INC., each bank
party thereto, Bank of America National Trust and Savings
Association, Bankers Trust Company, The Long-Term Credit
Bank of Japan, Ltd., Los Angeles Agency and Societe
Generale, as Co-Agents, and Bank of America National
Trust and Savings Association, as Administrative Co-Agent
(without Schedules or Exhibits).
2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
MIRAGE RESORTS, INCORPORATED
(Registrant)
Date: June 15, 1994 By: DANIEL R. LEE
________________________________
Senior Vice President-Finance
and Development, Chief Financial
Officer and Treasurer
3
REDUCING REVOLVING LOAN AGREEMENT
Dated as of May 25, 1994
among
MIRAGE RESORTS, INCORPORATED
THE MIRAGE CASINO-HOTEL
TREASURE ISLAND CORP.
MR REALTY
MH, INC.
THE BANKS HEREIN NAMED
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
BANKERS TRUST COMPANY
THE LONG-TERM CREDIT BANK OF JAPAN, LTD., LOS ANGELES AGENCY
SOCIETE GENERALE,
as Co-Agents
and
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as Administrative Co-Agent
EXHIBIT 99
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TABLE OF CONTENTS
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Page
Article 1 DEFINITIONS AND ACCOUNTING TERMS 1
1.1 Defined Terms 1
1.2 Use of Defined Terms 39
1.3 Accounting Terms 40
1.4 Rounding 40
1.5 Exhibits and Schedules 40
1.6 References to "Borrowers and their Subsidiaries" 40
1.7 Miscellaneous Terms 40
Article 2 LOANS 41
2.1 Committed Loans-General 41
2.2 Alternate Base Rate Loans 42
2.3 Eurodollar Rate Loans 43
2.4 Competitive Advances 43
2.5 Letters of Credit 47
2.6 Voluntary Reduction of Commitment 51
2.7 Contingent Reduction of Commitment 51
2.8 Special Reduction of Commitment 51
2.9 Optional Termination of Commitment 52
2.10 Administrative Co-Agent's Right to Assume
Funds Available for Advances 52
2.11 Swing Line 53
Article 3 PAYMENTS AND FEES 55
3.1 Principal and Interest 55
3.2 Arrangement Fee 57
3.3 Upfront Fees 57
3.4 Commitment Fees 57
3.5 Letter of Credit Fees 57
3.6 Agency Fees 58
3.7 Increased Commitment Costs 58
3.8 Eurodollar Costs and Related Matters 59
3.9 Late Payments 63
3.10 Computation of Interest and Fees 63
3.11 Non-Banking Days 63
3.12 Manner and Treatment of Payments 64
3.13 Funding Sources 65
3.14 Failure to Charge Not Subsequent Waiver 65
3.15 Administrative Co-Agent's Right to Assume
Payments Will be Made by Borrowers 66
3.16 Fee Determination Detail 66
3.17 Survivability 66
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Article 4 REPRESENTATIONS AND WARRANTIES 67
4.1 Existence and Qualification; Power; Compliance
With Laws 67
4.2 Authority; Compliance With Other Agreements and
Instruments and Government Regulations 67
4.3 No Governmental Approvals Required 68
4.4 Subsidiaries 68
4.5 Financial Statements 69
4.6 No Other Liabilities; No Material Adverse Changes 70
4.7 Title to Property 70
4.8 Intangible Assets 70
4.9 Public Utility Holding Company Act 70
4.10 Litigation 70
4.11 Binding Obligations 71
4.12 No Default 71
4.13 ERISA 71
4.14 Regulations G, T, U and X; Investment Company Act 71
4.15 Disclosure 72
4.16 Tax Liability 72
4.17 Projections 72
4.18 Hazardous Materials 72
4.19 Developed Properties 73
4.20 Gaming Laws 73
4.21 Security Interests 73
Article 5 AFFIRMATIVE COVENANTS (OTHER THAN INFORMATION
AND REPORTING REQUIREMENTS) 74
5.1 Payment of Taxes and Other Potential Liens 74
5.2 Preservation of Existence 74
5.3 Maintenance of Properties 74
5.4 Maintenance of Insurance 75
5.5 Compliance With Laws 75
5.6 Inspection Rights 75
5.7 Keeping of Records and Books of Account 75
5.8 Compliance With Agreements 76
5.9 Use of Proceeds 76
5.10 The Mirage/TI Property 76
5.11 Other Future Collateral 77
5.12 New Significant Subsidiaries 77
5.13 Hazardous Materials Laws 77
5.14 Pledge Agreement (Gaming) 78
5.15 Water Permit Rights 78
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Article 6 NEGATIVE COVENANTS 79
6.1 Prepayment of Indebtedness 79
6.2 Payment of Subordinated Obligations 79
6.3 Disposition of Property 80
6.4 Mergers 82
6.5 Hostile Acquisitions 83
6.6 Distributions 83
6.7 ERISA 83
6.8 Change in Nature of Business 84
6.9 Liens, Negative Pledges and Rights of Others 84
6.10 Indebtedness and Guaranty Obligations 85
6.11 Transactions with Affiliates 87
6.12 Tangible Net Worth 87
6.13 Interest Charge Coverage 88
6.14 Leverage Ratio 88
6.15 Capital Expenditures 88
6.16 New Venture Capital Expenditures 90
6.17 New Venture Investments 90
6.18 Investments 91
6.19 Subsidiary Indebtedness 93
6.20 Significant Subsidiaries 93
6.21 The Spin-Off Companies 93
Article 7 INFORMATION AND REPORTING REQUIREMENTS 94
7.1 Financial and Business Information 94
7.2 Compliance Certificates 98
Article 8 CONDITIONS 99
8.1 Initial Advances, Etc. 99
8.2 Any Increasing Advance, Etc. 102
8.3 Any Advance 103
Article 9 EVENTS OF DEFAULT AND REMEDIES UPON EVENT
OF DEFAULT 104
9.1 Events of Default 104
9.2 Remedies Upon Event of Default 106
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Article 10 THE ADMINISTRATIVE CO-AGENT 110
10.1 Appointment and Authorization 110
10.2 Administrative Co-Agent and Affiliates 110
10.3 Proportionate Interest in any Collateral 110
10.4 Banks' Credit Decisions 111
10.5 Action by Administrative Co-Agent 111
10.6 Liability of Administrative Co-Agent 112
10.7 Indemnification 114
10.8 Successor Administrative Co-Agent 114
10.9 Foreclosure on Collateral 115
10.10 No Obligations of Borrowers 115
Article 11 MISCELLANEOUS 117
11.1 Cumulative Remedies; No Waiver 117
11.2 Amendments; Consents 117
11.3 Costs, Expenses and Taxes 118
11.4 Nature of Banks' Obligations 119
11.5 Survival of Representations and Warranties 120
11.6 Notices 120
11.7 Execution of Loan Documents 120
11.8 Binding Effect; Assignment 121
11.9 Right of Setoff 123
11.10 Sharing of Setoffs 124
11.11 Indemnity by Borrowers 124
11.12 Nonliability of the Banks 126
11.13 No Third Parties Benefited 127
11.14 Confidentiality 127
11.15 Further Assurances 128
11.16 Integration 128
11.17 Governing Law 128
11.18 Severability of Provisions 128
11.19 Headings 128
11.20 Time of the Essence 129
11.21 Foreign Banks and Participants 129
11.22 Hazardous Material Indemnity 129
11.23 Gaming Boards 130
11.24 Joint and Several 130
11.25 Removal of a Bank 131
11.26 Waiver of Right to Trial by Jury 131
11.27 Purported Oral Amendments 131
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Exhibits
________
A - Commitment Assignment and Acceptance
B - Committed Advance Note
C - Competitive Advance Note
D - Competitive Bid
E - Competitive Bid Request
F - Compliance Certificate
G - Deed of Trust
H - Mirage/TI Property Deed of Trust
I-1- Opinion of Counsel
I-2- Opinion of Counsel
J-1- Pledge Agreement (Gaming)
J-2- Pledge Agreement (Non-Gaming)
K - Request for Letter of Credit
L - Request for Loan
M - Security Agreement
N - Subsidiary Guaranty
O - Joint Borrower Provisions
Schedules
_________
1.1 Bank Commitments
4.3 Governmental Approvals
4.4 Subsidiaries
4.7 Existing Liens, Negative Pledges and Rights of Others
4.10 Material Litigation
4.18 Environmental Matters
4.19 Developed Properties
5.10 Permitted Title Exceptions (Mirage/TI Property)
6.10 Existing Indebtedness
6.18 Existing Investments
6.21 Spin-Off Company Transactions
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REDUCING REVOLVING LOAN AGREEMENT
_________________________________
Dated as of May 25, 1994
This REDUCING REVOLVING LOAN AGREEMENT ("Agreement") is
entered into by and among Mirage Resorts, Incorporated, a
Nevada corporation ("Parent"), THE MIRAGE CASINO-HOTEL, a
Nevada corporation ("Company"), Treasure Island Corp., a Nevada
corporation ("TI"), MR Realty, a Nevada corporation ("MRR"),
MH, INC., a Nevada corporation ("MHI"), each bank whose name is
set forth on the signature pages of this Agreement and each
lender which may hereafter become a party to this Agreement
pursuant to Section 11.8 (collectively, the "Banks" and
individually, a "Bank"), Bank of America National Trust and
Savings Association, Bankers Trust Company, The Long-Term
Credit Bank of Japan, Ltd., Los Angeles Agency and Societe
Generale, as Co-Agents, and Bank of America National Trust and
Savings Association, as Administrative Co-Agent.
In consideration of the mutual covenants and agreements
herein contained, the parties hereto covenant and agree as
follows:
Article 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms. As used in this Agreement, the
following terms shall have the meanings set forth below:
"Adjusted EBIT" means, for any fiscal period, the sum
of (a) EBIT for that fiscal period, plus (b) any
Adjustment Amount for that fiscal period, minus (c) any
taxes on or measured by income paid or payable in Cash
with respect to such fiscal period.
"Adjusted EBITDA" means, with respect to any fiscal
period, EBITDA for that fiscal period plus any Adjustment
Amount for that fiscal period.
"Adjustment Amount" means, with respect to any fiscal
period, the sum of (a) any pre-opening and related promo
tional expenses recorded during that fiscal period with
respect to the opening of Treasure Island, the Dunes
Project or the Other Gaming Project plus (b) any write-
downs during that fiscal period of, or losses recognized
during that fiscal period on disposition of, assets owned
by Parent or any of its Restricted Subsidiaries located
in New Jersey, net of any related income tax benefit, up
to a maximum of $24,000,000.
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"Administrative Co-Agent" means Bank of America
National Trust and Savings Association, when acting in
its capacity as the Administrative Co-Agent under any of
the Loan Documents, or any successor Administrative Co-
Agent.
"Administrative Co-Agent's Office" means the
Administrative Co-Agent's address as set forth on the
signature pages of this Agreement, or such other address
as the Administrative Co-Agent hereafter may designate by
written notice to Borrowers and the Banks.
"Advance" means any advance made or to be made by any
Bank to Borrowers as provided in Article 2, and includes
each Alternate Base Rate Advance, Eurodollar Rate
Advance, Committed Advance and Competitive Advance.
"Affiliate" means, as to any Person, any other Person
which directly or indirectly controls, or is under common
control with, or is controlled by, such Person. As used
in this definition, "control" (and the correlative terms,
"controlled by" and "under common control with") shall
mean possession, directly or indirectly, of power to
direct or cause the direction of management or policies
(whether through ownership of securities or partnership
or other ownership interests, by contract or otherwise);
provided that, in any event, any Person that owns,
directly or indirectly, 10% or more of the securities
having ordinary voting power for the election of
directors or other governing body of a corporation that
has more than 100 record holders of such securities, or
10% or more of the partnership or other ownership
interests of any other Person that has more than 100
record holders of such interests, will be deemed to
control such corporation, partnership or other Person.
"Aggregate Effective Amount" means, as of any date of
determination and with respect to all Letters of Credit
then outstanding, the sum of (a) the aggregate effective
face amounts of all such Letters of Credit not then paid
by the Issuing Bank plus (b) the aggregate amounts paid
by the Issuing Bank under such Letters of Credit not then
reimbursed to the Issuing Bank by Borrowers pursuant to
Section 2.5(d) and not the subject of Advances made
pursuant to Section 2.5(e).
"Agreement" means this Reducing Revolving Loan
Agreement, either as originally executed or as it may
from time to time be supplemented, modified, amended,
restated or extended.
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"Alternate Base Rate" means, as of any date of
determination, the rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to the higher
of (a) the Reference Rate in effect on such date and
(b) the Federal Funds Rate in effect on such date plus
1/2 of 1% (50 basis points).
"Alternate Base Rate Advance" means a Committed
Advance made hereunder and specified to be an Alternate
Base Rate Advance in accordance with Article 2.
"Alternate Base Rate Loan" means a Committed Loan
made hereunder and specified to be an Alternate Base Rate
Loan in accordance with Article 2.
"Annualized Adjusted EBITDA" means, as of the last
day of each Fiscal Quarter, (a) Adjusted EBITDA for the
fiscal period consisting of that Fiscal Quarter and the
three immediately preceding Fiscal Quarters plus (b) with
respect to any such fiscal period in which
Treasure Island, the Dunes Project or the Other Gaming
Project (whichever is applicable, herein the "Project")
is open for business for at least one (1) full Fiscal
Quarter but less than four (4) full Fiscal Quarters, such
amount as is necessary to reflect the annualization of
Adjusted EBITDA attributable to the Project using the
following conventions: (i) if the Project has been open
for business for less than one (1) full Fiscal Quarter,
no annualization adjustment shall be made, (ii) if the
Project has been open for business for one (1) full
Fiscal Quarter, the Project's Adjusted EBITDA for that
Fiscal Quarter shall be multiplied by four and then by
90%, (iii) if the Project has been open for business
two (2) full Fiscal Quarters, the Project's Adjusted
EBITDA for those Fiscal Quarters shall be multiplied by
two and then by 95% and (iv) if the Project has been open
for business for three (3) full Fiscal Quarters, the
Project's Adjusted EBITDA for those Fiscal Quarters shall
be multiplied by four thirds (4/3).
"Annualized Funded Debt Ratio" means, as of the last
day of each Fiscal Quarter, the ratio of (a) Average
Quarterly Funded Debt to (b) Annualized Adjusted EBITDA,
as such ratio is set forth in the most recent Compliance
Certificate delivered by Borrowers pursuant to
Section 7.2 (or a Certificate of a Responsible Official
pursuant to Section 7.1(c), if applicable); provided that
(i) if such Compliance Certificate (or Certificate of a
Responsible Official, if applicable) is subsequently
determined to be in error, then any resulting change in
the Applicable Pricing Level shall be made retroactively
and (ii) if no Compliance Certificate (or Certificate of
a Responsible Official, if applicable) has been delivered
within the 60 day period following the end of a Fiscal
Quarter, the Administrative Co-Agent may determine such
ratio.
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"Applicable Alternate Base Rate Margin" means, for
each Pricing Period, the interest rate margin set forth
below (expressed in basis points) opposite the Applicable
Pricing Level for that Pricing Period:
Applicable
Pricing Level Margin
_____________ ______
I 0
II 0
III 25.00
IV 62.50
V 100.00
VI 150.00
"Applicable Commitment Fee Rate" means, for each
Pricing Period, the rate set forth below (expressed in
basis points) opposite the Applicable Pricing Level for
that Pricing Period:
Applicable
Pricing Level Commitment Fee
_____________ ______________
I 31.25
II 35.00
III 37.50
IV 43.75
V 50.00
VI 50.00
"Applicable Eurodollar Rate Margin" means, for each
Pricing Period, the interest rate margin set forth below
(expressed in basis points) opposite the Applicable
Pricing Level for that Pricing Period:
Applicable
Pricing Level Margin
_____________ ______
I 75.00
II 100.00
III 125.00
IV 162.50
V 200.00
VI 250.00
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"Applicable Letter of Credit Fee" means, for each
Pricing Period, the per annum rate set forth as the
interest rate margin in the definition of "Applicable
Eurodollar Rate Margin" opposite the Applicable Pricing
Level for that Pricing Period.
"Applicable Pricing Level" means, for each Pricing
Period, the pricing level set forth below opposite the
pricing criteria achieved by Borrowers as of the first
day of that Pricing Period (and, if such pricing criteria
are set forth opposite different pricing levels, then the
pricing level set forth below opposite the less
creditworthy of such pricing criteria):
Pricing Level Pricing Criteria
_____________ ________________
Annualized Funded Senior
Debt Ratio Debt Rating
_________________ ___________
I Less than 1.00 to 1.00 At least A- or A3
II Equal to or greater than At least BBB or Baa2
1.00 to 1.00 but less
than 1.50 to 1.00
III Equal to or greater than At least BBB- or Baa3
1.50 to 1.00 but less
than 2.25 to 1.00
IV Equal to or greater than At least BB+ or Ba1
2.25 to 1.00 but less
than 3.00 to 1.00
V Equal to or greater than At least BB- or Ba3
3.00 to 1.00 but less
than 3.50 to 1.00
VI Equal to or greater than Below BB- or Ba3
3.50 to 1.00 (or unrated)
"Arranger" means BA Securities, Inc.
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"Average Quarterly Funded Debt" means, as of the last
day of each Fiscal Quarter, the average of the principal
amounts outstanding of all Funded Debt of Borrowers and
the Restricted Subsidiaries on the last day of each of
the calendar months comprising such Fiscal Quarter.
"Banking Day" means any Monday, Tuesday, Wednesday,
Thursday or Friday, other than a day on which banks are
authorized or required to be closed in California, Nevada
or New York.
"Borrowers" means, collectively, Parent, the Company,
TI, MRR and MHI.
"Capital Expenditure" means any expenditure that is
considered a capital expenditure under Generally Accepted
Accounting Principles, including any amount which is
required to be treated as an asset subject to a Capital
Lease Obligation; provided, however, that Capital
Expenditures to replace or restore Property theretofore
owned by Borrowers or any Restricted Subsidiary that is
damaged, destroyed or taken by a Governmental Agency
under eminent domain shall not be deemed to be Capital
Expenditures to the extent funded by the proceeds of
insurance or eminent domain awards received by Borrowers
or the Restricted Subsidiary.
"Capital Lease Obligations" means all monetary
obligations of a Person under any leasing or similar
arrangement which, in accordance with Generally Accepted
Accounting Principles, is classified as a capital lease.
"Cash" means, when used in connection with any Per-
son, all monetary and non-monetary items owned by that
Person that are treated as cash in accordance with Gen-
erally Accepted Accounting Principles, consistently
applied.
"Cash Equivalents" means, when used in connection
with any Person, that Person's Investments in:
(a) Government Securities due within one year after
the date of the making of the Investment;
(b) readily marketable direct obligations of any
State of the United States of America or any political
subdivision of any such State or any public agency or
instrumentality thereof given on the date of such Invest-
ment a credit rating of at least Aa by Moody's Investors
Service, Inc. or AA by Standard & Poor's Corporation, in
each case due within one year from the making of the
Investment;
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(c) certificates of deposit issued by, bank deposits
in, eurodollar deposits through, bankers' acceptances of,
and repurchase agreements covering Government Securities
executed by, any bank incorporated under the Laws of the
United States of America, any State thereof or the
District of Columbia and having on the date of such
Investment combined capital, surplus and undivided profits
of at least $250,000,000, or total assets of at least
$5,000,000,000, in each case due within one year after the
date of the making of the Investment;
(d) certificates of deposit issued by, bank deposits
in, eurodollar deposits through, bankers' acceptances of,
and repurchase agreements covering Government Securities
executed by, any branch or office located in the United
States of America of a bank incorporated under the
Laws of any jurisdiction outside the United States of
America having on the date of such Investment combined
capital, surplus and undivided profits of at least
$500,000,000, or total assets of at least $15,000,000,000,
in each case due within one year after the date of the
making of the Investment;
(e) repurchase agreements covering Government
Securities executed by a broker or dealer registered under
Section 15(b) of the Securities Exchange Act of 1934, as
amended, having on the date of the Investment capital of
at least $50,000,000, due within 90 days after the date of
the making of the Investment; provided that the maker of
the Investment receives written confirmation of the
transfer to it of record ownership of the Government
Securities on the books of a "primary dealer" in such
Government Securities on the books of such registered
broker or dealer, as soon as practicable after the making
of the Investment;
(f) readily marketable commercial paper of
corporations doing business in and incorporated under the
Laws of the United States of America or any State thereof
or of any corporation that is the holding company for a
bank described in clause (c) or (d) above given on the
date of such Investment a credit rating of at least P-1 by
Moody's Investors Service, Inc. or A-1 by Standard &
Poor's Corporation, in each case due within 90 days after
the date of the making of the Investment;
(g) "money market preferred stock" issued by a
corporation incorporated under the Laws of the United
States of America or any State thereof given on the date
of such Investment a credit rating of at least Aa by
Moody's Investors Service, Inc. and AA by Standard &
Poor's Corporation, in each case having an investment
period not exceeding 50 days; provided that (i) the amount
of all such Investments issued by the same issuer does not
exceed $5,000,000 and (ii) the aggregate amount of all
such Investments does not exceed $15,000,000; and
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(h) a readily redeemable "money market mutual fund"
sponsored by a bank described in clause (c) or (d) hereof,
or a registered broker or dealer described in clause (e)
hereof, that has and maintains an investment policy
limiting its investments primarily to instruments of the
types described in clauses (a) through (g) hereof and
having on the date of such Investment total assets of at
least $1,000,000,000.
"Cash Interest Expense" means Interest Expense
payable in Cash.
"Certificate of a Responsible Official" means a
certificate signed by a Responsible Official of the
Person providing the certificate.
"Change in Control" means (a) Stephen A. Wynn ceases
for any reason (except only his death or disability) to
be the chief executive officer of Parent, (b) Stephen A.
Wynn ceases for any reason (except only his death) to own
beneficially at least 7,500,000 shares of Common Stock
(subject to adjustment in the event of a stock split,
reverse stock split, stock dividend or other recapitali-
zation), (c) the estate of Stephen A. Wynn ceases for any
reason to own beneficially at least 5,000,000 shares of
Common Stock (subject to adjustment as aforesaid),
(d) any transaction or series of related transactions in
which any Unrelated Person or two or more Unrelated
Persons acting in concert acquire beneficial ownership
(within the meaning of Rule 13d-3(a)(1) under the
Securities Exchange Act of 1934, as amended), directly or
indirectly, of 25% or more of the outstanding Common
Stock, or (e) any event or circumstance constituting a
"change in control" or other similar occurrence under
documentation evidencing or governing any Indebtedness of
Borrowers of $25,000,000 or more which results in an
obligation of Borrowers to prepay, purchase, offer to
purchase, redeem or defease such Indebtedness. For
purposes of the foregoing, the term "Unrelated Person"
means any Person other than (a) Stephen A. Wynn or a
Person with which Stephen A. Wynn is affiliated or
associated, within the meanings of such terms under the
Securities Exchange Act of 1934, as amended, (b) a
Subsidiary of Parent or (c) an employee stock ownership
plan or other employee benefit plan covering the
employees of Parent and its Subsidiaries.
"Closing Date" means the time and Banking Day on
which the conditions set forth in Section 8.1 are
satisfied or waived. The Administrative Co-Agent shall
notify Borrowers and the Banks of the date that is the
Closing Date.
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"Co-Agents" means, collectively, Bank of America
National Trust and Savings Association, Bankers Trust
Company, The Long-Term Credit Bank of Japan, Ltd.,
Los Angeles Agency, and Societe Generale.
"Code" means the Internal Revenue Code of 1986, as
amended or replaced and as in effect from time to time.
"Collateral" means all of the collateral covered by
the Collateral Documents.
"Collateral Documents" means, collectively, the
Security Agreement, the Pledge Agreement (Gaming), the
Pledge Agreement (Non-Gaming), the Deed of Trust, the
Mirage/TI Deed of Trust, and any other security
agreement, pledge agreement, deed of trust, mortgage or
other collateral security agreement hereafter executed
and delivered by Borrowers or the Significant
Subsidiaries to secure the Obligations.
"Commercial Paper Outstandings" means, as of any date
of determination, the aggregate principal amount of
commercial paper of Parent permitted under
Section 6.10(f) that is outstanding on that date.
"Commitment" means, subject to Sections 2.6, 2.7
and 2.8, $525,000,000. The respective Pro Rata Shares of
the Banks with respect to the Commitment are set forth in
Schedule 1.1.
"Commitment Assignment and Acceptance" means a
commitment assignment and acceptance substantially in the
form of Exhibit A.
"Committed Advance" means an Advance made to
Borrowers by any Bank in accordance with its Pro Rata
Share of the Commitment pursuant to Section 2.1.
"Committed Advance Note" means the promissory note
made by Borrowers to a Bank evidencing the Committed
Advances under that Bank's Pro Rata Share of the
Commitment, substantially in the form of Exhibit B,
either as originally executed or as the same may from
time to time be supplemented, modified, amended, renewed,
extended or supplanted.
"Committed Loans" means Loans that are comprised of
Committed Advances.
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"Common Stock" means the common stock of Parent or
its successor by merger.
"Company" means THE MIRAGE CASINO-HOTEL, a Nevada
corporation, and its successors and permitted assigns.
"Competitive Advance" means an Advance made to
Borrowers by any Bank not determined by that Bank's Pro
Rata Share of the Commitment pursuant to Section 2.4.
"Competitive Advance Note" means the promissory note
made by Borrowers in favor of a Bank to evidence the
Competitive Advances made by that Bank, substantially in
the form of Exhibit C, either as originally executed or
as the same may from time to time be supplemented,
modified, amended, renewed, extended or supplanted.
"Competitive Bid" means (a) a written bid to provide
a Competitive Advance substantially in the form of
Exhibit D, signed by a Responsible Official of a Bank and
properly completed to provide all information required to
be included therein or (b) at the election of any Bank, a
telephonic bid by that Bank to provide a Competitive
Advance which, if so made, shall be made by a Responsible
Official of that Bank and deemed to have been made
incorporating the substance of Exhibit D, and shall
promptly be confirmed by a written Competitive Bid.
"Competitive Bid Request" means (a) a written request
submitted by Borrower to the Administrative Co-Agent to
provide a Competitive Bid, substantially in the form of
Exhibit E, signed by a Responsible Official of any of
Borrowers and properly completed to provide all
information required to be included therein or (b) at the
election of Borrowers, a telephonic request by Borrowers
to the Administrative Co-Agent to provide a Competitive
Bid which, if so made, shall be made by a Responsible
Official of Borrowers and deemed to have been made
incorporating the substance of Exhibit E, and shall
promptly be confirmed by a written Competitive Bid
Request.
"Completion Guaranty" means a Guaranty Obligation
given by any of Borrowers or a Restricted Subsidiary to a
holder of Indebtedness of, or an obligee of, a
New Venture Entity which obligates any of Borrowers or
the Restricted Subsidiary (a) to cause the completion of
construction of a New Venture, (b) to provide funding for
all or a portion of any construction cost overruns with
respect thereto, and/or (c) to cause the New Venture
Entity to perform any of its Contractual Obligations
(other than in respect of the repayment of any
Indebtedness or other monetary obligation of the New
Venture Entity) to an obligee of the New Venture Entity.
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"Compliance Certificate" means a certificate in the
form of Exhibit F, properly completed and signed by a
Senior Officer of Borrowers.
"Contractual Obligation" means, as to any Person, any
provision of any outstanding security issued by that
Person or of any material agreement, instrument or under
taking to which that Person is a party or by which it or
any of its Property is bound.
"Debtor Relief Laws" means the Bankruptcy Code of the
United States of America, as amended from time to time,
and all other applicable liquidation, conservatorship,
bankruptcy, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief Laws
from time to time in effect affecting the rights of
creditors generally.
"Deed of Trust" means the deed of trust to be
executed and delivered by MRR (with respect to the Dunes
Property) and MHI (with respect to the Shadow Creek
Property), in the form of Exhibit G, either as originally
executed or as it may from time to time be supplemented,
modified, amended, extended or supplanted.
"Default" means any event that, with the giving of
any applicable notice or passage of time specified in
Section 9.1, or both, would be an Event of Default.
"Default Rate" means the interest rate prescribed in
Section 3.9.
"Designated Deposit Account" means a deposit account
to be maintained by Borrowers with Bank of America
National Trust and Savings Association, as from time to
time designated by Borrowers by written notification to
the Administrative Co-Agent.
"Designated Eurodollar Market" means, with respect to
any Eurodollar Rate Loan, (a) the London Eurodollar
Market, (b) if prime banks in the London Eurodollar
Market are at the relevant time not accepting deposits of
Dollars or if the Administrative Co-Agent determines in
good faith that the London Eurodollar Market does not
represent at the relevant time the effective pricing to
the Banks for deposits of Dollars in the London
Eurodollar Market, the Cayman Islands Eurodollar Market
or (c) if prime banks in the Cayman Islands Eurodollar
Market are at the relevant time not accepting deposits of
Dollars or if the Administrative Co-Agent determines in
good faith that the Cayman Islands Eurodollar Market does
not represent at the relevant time the effective pricing
to the Banks for deposits of Dollars in the
Cayman Islands Eurodollar Market, such other Eurodollar
Market as may from time to time be selected by the
Administrative Co-Agent with the approval of Borrowers
and the Requisite Banks.
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"Developed Property" means, as of any date of
determination, a casino, hotel, casino/hotel, resort,
casino/resort, riverboat casino, dockside casino, golf
course, entertainment center or similar facility owned by
Borrowers or any of the Restricted Subsidiaries (or owned
by a Person in which Borrowers or any of the Restricted
Subsidiaries holds an Investment) and which is at such
date substantially complete and open for business.
"Disposition" means the voluntary sale, transfer or
other disposition of any asset of Borrowers or any of the
Restricted Subsidiaries other than (a) Cash, Cash
Equivalents, inventory or other assets sold, leased or
otherwise disposed of in the ordinary course of business
of Borrowers or a Restricted Subsidiary, (b) equipment
sold or otherwise disposed of where substantially similar
equipment in replacement thereof has theretofore been
acquired, or thereafter within 90 days is acquired, by
Borrowers or a Restricted Subsidiary, or where Borrowers
or the Restricted Subsidiary determine in good faith that
the failure to replace such equipment will not be
detrimental to the business of Borrowers or the
Restricted Subsidiary and (c) a disposition to Borrowers
or a Restricted Subsidiary.
"Disqualified Stock" means any capital stock,
warrants, options or other rights to acquire capital
stock (but excluding any debt security which is conver-
tible, or exchangeable, for capital stock), which, by its
terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the
happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder
thereof, in whole or in part, on or prior to the Maturity
Date; provided that the aforementioned interests shall
not be Disqualified Stock if they are redeemable prior to
the Maturity Date only if the board of directors of
Parent determines in its judgment that as a result of a
holder or beneficial owner owning such interests
(i) Borrowers or a Subsidiary of Borrowers has lost or
may lose any license or franchise from any Gaming Board
held by Borrowers or any Subsidiary of Borrowers
necessary to conduct any portion of the business of
Borrowers or such Subsidiary of Borrowers or (ii) any
Gaming Board has taken or may take action to materially
restrict or impair the operations of Borrowers or its
Subsidiaries, which license, franchise or action is
conditioned upon some or all of the holders or beneficial
owners of such interests being licensed or found
qualified or suitable to own such interests.
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"Distribution" means, with respect to any shares of
capital stock or any warrant or option to purchase an
equity security or other equity security issued by a
Person, (i) the retirement, redemption, purchase, or
other acquisition for Cash or for Property by such Person
of any such security, (ii) the declaration or (without
duplication) payment by such Person of any dividend in
Cash or in Property on or with respect to any such
security, (iii) any Investment by such Person in the
holder of 5% or more of any such security if a purpose of
such Investment is to avoid characterization of the
transaction as a Distribution and (iv) any other payment
in Cash or Property by such Person constituting a
distribution under applicable Laws with respect to such
security.
"Dollars" or "$" means United States dollars.
"Domestic Reference Bank" means Bank of America
National Trust and Savings Association.
"Dunes Project" means a new major hotel-casino
contemplated to be constructed by MRR on the
Dunes Property. The Gold Strike Project is not the Dunes
Project.
"Dunes Property" means the approximately 164 acres of
Real Property located in Las Vegas, Nevada, formerly
occupied by the Dunes Hotel, Casino and Country Club and
now owned by MRR.
"EBIT" means, for any fiscal period, the sum of
(a) Net Income for that period, plus (b) any
extraordinary loss reflected in such Net Income, minus
(c) any extraordinary gain reflected in such Net Income,
plus (d) Interest Expense for that period, plus (e) the
aggregate amount of federal and state taxes on or
measured by income for that period (whether or not
payable during that period), in each case as determined
in accordance with Generally Accepted Accounting
Principles and, in the case of items (d) and (e), only to
the extent deducted in the determination of Net Income
for that period; provided, however, that for purposes of
this Agreement, any of the foregoing that is attributable
to the Spin-Off Companies or Unrestricted New Venture
Entities shall be excluded.
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"EBITDA" means, for any fiscal period, the sum of
(a) EBIT for that period plus (b) depreciation, amorti-
zation and all other non-cash expenses for that period,
determined in accordance with Generally Accepted
Accounting Principles; provided, however, that for
purposes of this Agreement, any of the foregoing that is
attributable to the Spin-Off Companies or Unrestricted
New Venture Entities shall be excluded.
"Eligible Assignee" means (a) another Bank, (b) with
respect to any Bank, any Affiliate of that Bank and
(c) any commercial bank having a combined capital and
surplus of $100,000,000 or more that is (i) organized
under the Laws of the United States of America, any State
thereof or the District of Columbia or (ii) organized
under the Laws of any other country which is a member of
the Organization for Economic Cooperation and
Development, or a political subdivision of such a
country, provided that (A) such bank is acting through a
branch or agency located in the United States of America
and (B) is otherwise exempt from withholding of tax on
interest and delivers Form 1001 or Form 4224 pursuant to
Section 11.21 at the time of any assignment pursuant to
Section 11.8.
"ERISA" means the Employee Retirement Income Security
Act of 1974, and any regulations issued pursuant thereto,
as amended or replaced and as in effect from time to
time.
"Eurodollar Banking Day" means any Banking Day on
which dealings in Dollar deposits are conducted by and
among banks in the Designated Eurodollar Market.
"Eurodollar Base Rate" means, with respect to any
Eurodollar Rate Loan, the interest rate per annum
(rounded upward, if necessary, to the next 1/16 of 1%) at
which deposits in Dollars are offered by the Eurodollar
Reference Bank to prime banks in the Designated Euro-
dollar Market at or about 11:00 a.m. local time in the
Designated Eurodollar Market, two (2) Eurodollar Banking
Days before the first day of the applicable Eurodollar
Period in an aggregate amount approximately equal to the
amount of the Advance made by the Eurodollar Reference
Bank with respect to such Eurodollar Rate Loan and for a
period of time comparable to the number of days in the
applicable Eurodollar Period. The determination of the
Eurodollar Base Rate by the Administrative Co-Agent shall
be conclusive in the absence of manifest error.
"Eurodollar Lending Office" means, as to each Bank,
its office or branch so designated by written notice to
Borrowers and the Administrative Co-Agent as its Euro-
dollar Lending Office. If no Eurodollar Lending Office
is designated by a Bank, its Eurodollar Lending Office
shall be its office at its address for purposes of
notices hereunder.
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"Eurodollar Market" means a regular established
market located outside the United States of America by
and among banks for the solicitation, offer and
acceptance of Dollar deposits in such banks.
"Eurodollar Obligations" means eurocurrency
liabilities, as defined in Regulation D.
"Eurodollar Period" means, as to each Eurodollar Rate
Loan, the period commencing on the date specified by
Borrowers pursuant to Section 2.1(b) and ending 1, 2, 3
or 6 months (or, with the written consent of all of the
Banks, any other period) thereafter, as specified by
Borrowers in the applicable Request for Loan; provided
that:
(a) The first day of any Eurodollar Period shall be
a Eurodollar Banking Day;
(b) Any Eurodollar Period that would otherwise end
on a day that is not a Eurodollar Banking Day shall be
extended to the next succeeding Eurodollar Banking Day
unless such Eurodollar Banking Day falls in another
calendar month, in which case such Eurodollar Period
shall end on the next preceding Eurodollar Banking Day;
(c) No Eurodollar Period shall extend beyond the
next Reduction Date unless, on that Reduction Date,
either (i) the aggregate Indebtedness evidenced by the
Committed Advance Notes will not exceed the Commitment
(after giving effect to any reduction required to be made
on such Reduction Date pursuant to Section 2.7) or
(ii) the sum of (A) the aggregate principal amount of
Alternate Base Rate Loans plus (B) the aggregate
principal amount of all Eurodollar Rate Loans with a
Eurodollar Period ending on or prior to that Reduction
Date is at least equal to the Reduction Amount for that
Reduction Date; and
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<PAGE>
(d) No Eurodollar Period shall extend beyond the
Maturity Date.
"Eurodollar Rate" means, with respect to any Euro-
dollar Rate Loan, an interest rate per annum (rounded
upward, if necessary, to the nearest 1/16 of one percent)
determined pursuant to the following formula:
Eurodollar Eurodollar Base Rate
____________________
Rate = 1.00 - Eurodollar Reserve Percentage
"Eurodollar Rate Advance" means a Committed Advance
made hereunder and specified to be a Eurodollar Rate
Advance in accordance with Article 2.
"Eurodollar Rate Loan" means a Committed Loan made
hereunder and specified to be a Eurodollar Rate Loan in
accordance with Article 2.
"Eurodollar Reference Bank" means Bank of America
National Trust and Savings Association.
"Eurodollar Reserve Percentage" means, with respect
to any Eurodollar Rate Loan, the maximum reserve percent
age (expressed as a decimal, rounded upward, if
necessary, to the nearest 1/100th of 1%) in effect on the
date the Eurodollar Base Rate for that Eurodollar Rate
Loan is determined (whether or not applicable to any
Bank) under regulations issued from time to time by the
Federal Reserve Board for determining the maximum reserve
requirement (including any emergency, supplemental or
other marginal reserve requirement) with respect to
eurocurrency funding (currently referred to as
"eurocurrency liabilities") having a term comparable to
the Interest Period for such Eurodollar Rate Loan. The
determination by the Administrative Co-Agent of any
applicable Eurodollar Reserve Percentage shall be conclu-
sive in the absence of manifest error.
"Event of Default" shall have the meaning provided in
Section 9.1.
"Existing Subordinated Debt" means the 9 1/4% Series B
Senior Subordinated Notes Due March 15, 2003 issued by
GNS FINANCE CORP. and guaranteed by the Company.
"Federal Funds Rate" means, as of any date of deter-
mination, the rate set forth in the weekly statistical
release designated as H.15(519), or any successor publica-
tion, published by the Federal Reserve Board (including
any such successor, "H.15(519)") for such date opposite
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the caption "Federal Funds (Effective)". If for any rele-
vant date such rate is not yet published in H.15(519),
the rate for such date will be the rate set forth in the
daily statistical release designated as the Composite
3:30 p.m. Quotations for U.S. Government Securities, or
any successor publication, published by the Federal
Reserve Bank of New York (including any such successor,
the "Composite 3:30 p.m. Quotation") for such date under
the caption "Federal Funds Effective Rate". If on any
relevant date the appropriate rate for such date is not
yet published in either H.15(519) or the Composite
3:30 p.m. Quotations, the rate for such date will be the
arithmetic mean of the rates for the last transaction in
overnight Federal funds arranged prior to 9:00 a.m.
(New York City time) on that date by each of three
leading brokers of Federal funds transactions in
New York City selected by the Administrative Co-Agent.
For purposes of this Agreement, any change in the
Alternate Base Rate due to a change in the Federal Funds
Rate shall be effective as of the opening of business on
the effective date of such change.
"FIRREA" means the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, as it may be
amended from time to time.
"Fiscal Quarter" means the fiscal quarter of
Borrowers consisting of a three-month fiscal period
ending on each March 31, June 30, September 30 and
December 31.
"Fiscal Year" means the fiscal year of Borrowers
consisting of a twelve-month period ending on each
December 31.
"Funded Debt" means, as of any date of determination,
without duplication, the sum of (a) all principal
Indebtedness of Borrowers and the Restricted Subsidiaries
for borrowed money (including debt securities issued by
Borrowers or any of the Restricted Subsidiaries) on that
date, plus (b) the aggregate amount of all Capital Lease
Obligations of Borrowers and the Restricted Subsidiaries
on that date, plus (c) all Letters of Credit outstanding
on that date.
"Gaming Board" means, collectively, (a) the Nevada
Gaming Commission, (b) the Nevada State Gaming Control
Board, and (c) any other Governmental Agency that holds
regulatory, licensing or permit authority over gambling,
gaming or casino activities conducted by Borrowers and
the Restricted Subsidiaries within its jurisdiction.
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"Gaming Laws" means all Laws pursuant to which any
Gaming Board possesses regulatory, licensing or permit
authority over gambling, gaming or casino activities
conducted by Borrowers and the Restricted Subsidiaries
within its jurisdiction.
"Generally Accepted Accounting Principles" means, as
of any date of determination, accounting principles
(a) set forth as generally accepted in then currently
effective Opinions of the Accounting Principles Board of
the American Institute of Certified Public Accountants,
(b) set forth as generally accepted in then currently
effective Statements of the Financial Accounting
Standards Board or (c) that are then approved by such
other entity as may be approved by a significant segment
of the accounting profession in the United States of
America. The term "consistently applied," as used in
connection therewith, means that the accounting
principles applied are consistent in all material
respects with those applied at prior dates or for prior
periods.
"GNS Mortgage Notes" means the Zero Coupon First
Mortgage Notes Due March 15, 1998 issued by GNS FINANCE
CORP., guaranteed by the Company and governed and secured
by the Mirage/TI First Mortgage Documents.
"Gold Strike Project" means the themed entertainment
resort to be constructed on a portion of the Dunes
Property by Parent and Gold Strike Resorts as announced
on May 11, 1994.
"Government Securities" means readily marketable
(a) direct full faith and credit obligations of the
United States of America or obligations guaranteed by the
full faith and credit of the United States of America and
(b) obligations of an agency or instrumentality of, or
corporation owned, controlled or sponsored by, the United
States of America that are generally considered in the
securities industry to be implicit obligations of the
United States of America.
"Governmental Agency" means (a) any international,
foreign, federal, state, county or municipal government,
or political subdivision thereof, (b) any governmental or
quasi-governmental agency, authority, board, bureau,
commission, department, instrumentality or public body,
or (c) any court or administrative tribunal of competent
jurisdiction.
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"Guaranty Obligation" means, as to any Person, any
(a) guarantee by that Person of Indebtedness of, or other
obligation performable by, any other Person or (b) assur-
ance given by that Person to an obligee of any other
Person with respect to the performance of an obligation
by, or the financial condition of, such other Person,
whether direct, indirect or contingent, including any
purchase or repurchase agreement covering such obligation
or any collateral security therefor, any agreement to
provide funds (by means of loans, capital contributions
or otherwise) to such other Person, any agreement to
support the solvency or level of any balance sheet item
of such other Person or any "keep-well" or other
arrangement of whatever nature given for the purpose of
assuring or holding harmless such obligee against loss
with respect to any obligation of such other Person;
provided, however, that the term Guaranty Obligation
shall not include endorsements of instruments for deposit
or collection in the ordinary course of business. The
amount of any Guaranty Obligation shall be deemed to be
an amount equal to the stated or determinable amount of
the related primary obligation (unless the Guaranty
Obligation is limited by its terms to a lesser amount, in
which case to the extent of such amount) or, if not
stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by
the Person in good faith. The amount of any Guaranty
Obligation consisting of a Completion Guaranty shall be
deemed to be zero unless and until Borrowers or any of
the Restricted Subsidiaries has determined, or in good
faith should determine based on all information then
available to it, that performance by Borrowers or the
Restricted Subsidiary of its obligations under the
Completion Guaranty is at least reasonably possible
(within the meaning of such term under Financial
Accounting Standards Board Statement No. 5) and,
notwithstanding the preceding sentence, if such
performance is at least reasonably possible the amount
thereof shall, if not stated or determinable, be deemed
the reasonably anticipated liability in respect thereof
as determined by Borrowers or the Restricted Subsidiary
in good faith.
"Hazardous Materials" means substances defined as
hazardous substances pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. 9601 et seq., or as hazardous, toxic or
pollutant pursuant to the Hazardous Materials Trans-
portation Act, 49 U.S.C. 1801, et seq., the Resource
Conservation and Recovery Act, 42 U.S.C. 6901, et seq.,
or any other applicable Hazardous Materials Law, in each
case as such Laws are amended from time to time.
"Hazardous Materials Laws" means all federal, state
or local laws, ordinances, rules or regulations governing
the disposal of Hazardous Materials applicable to any of
the Real Property.
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"Indebtedness" means, as to any Person (without
duplication), (a) indebtedness of such Person for
borrowed money or for the deferred purchase price of
Property (excluding trade and other accounts payable in
the ordinary course of business in accordance with
customary trade terms), including any Guaranty Obligation
for any such indebtedness, (b) indebtedness of such
Person of the nature described in clause (a) that is
non-recourse to the credit of such Person but is secured
by assets of such Person, to the extent of the value of
such assets, (c) Capital Lease Obligations of such
Person, (d) indebtedness of such Person arising under
bankers' acceptance facilities or under facilities for
the discount of accounts receivable of such Person,
(e) any direct or contingent obligations of such Person
under letters of credit issued for the account of such
Person and (f) any net obligations of such Person under a
Swap Agreement.
"Intangible Assets" means assets that are considered
intangible assets under Generally Accepted Accounting
Principles, including customer lists, goodwill, computer
software, copyrights, trade names, trademarks and
patents.
"Interest Charge Coverage" means, as of the last day
of each Fiscal Quarter (including the last day of a
Fiscal Quarter which is also the last day of a Fiscal
Year), the ratio of (a) Adjusted EBIT for the fiscal
period consisting of that Fiscal Quarter and the three
immediately preceding Fiscal Quarters to (b) Interest
Charges of Borrowers and the Restricted Subsidiaries for
that fiscal period.
"Interest Charges" means, as of the last day of any
fiscal period, the sum of (a) Cash Interest Expense for
that fiscal period, plus (b) all interest payable in Cash
incurred during that fiscal period which is capitalized
under Generally Accepted Accounting Principles; provided,
however, that for purposes of this Agreement, any such
capitalized interest attributable to the Spin-Off
Companies or Unrestricted New Venture Entities shall be
excluded.
"Interest Differential" means, with respect to any
prepayment of a Eurodollar Rate Loan on a day other than
the last day of the applicable Interest Period and with
respect to any failure to borrow a Eurodollar Rate Loan
on the date or in the amount specified in any Request for
Loan, (a) the per annum interest rate payable (or, with
respect to a failure to borrow, the interest rate which
would have been payable) pursuant to Section 3.1(c) with
respect to the Eurodollar Rate Loan minus (b) the
Eurodollar Rate on, or as near as practicable to the date
of the prepayment or failure to borrow for a Eurodollar
Rate Loan with an Interest Period commencing on such date
and ending on the last day of the Interest Period of the
Eurodollar Rate Loan so prepaid or which would have been
borrowed on such date.
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"Interest Expense" means, as of the last day of any
fiscal period, the sum of (a) all interest, fees, charges
and related expenses paid or payable (without
duplication) for that fiscal period to a lender in
connection with borrowed money or the deferred purchase
price of assets that are considered "interest expense"
under Generally Accepted Accounting Principles, plus
(b) the portion of rent paid or payable (without
duplication) for that fiscal period under Capital Lease
Obligations that should be treated as interest in
accordance with Financial Accounting Standards Board
Statement No. 13; provided, however, that for purposes of
this Agreement, any interest expense attributable to the
Spin-Off Companies or Unrestricted New Venture Entities
shall be excluded.
"Interest Period" means, with respect to any
Eurodollar Rate Loan, the related Eurodollar Period.
"Investment" means, when used in connection with any
Person, any investment by or of that Person, whether by
means of purchase or other acquisition of stock or other
securities of any other Person or by means of a loan,
advance creating a debt, capital contribution, guaranty
or other debt or equity participation or interest in any
other Person, including any partnership and joint venture
interests of such Person. The amount of any Investment
shall be the amount actually invested, without adjustment
for subsequent increases or decreases in the value of
such Investment.
"Involuntary Qualified New Venture Disposition" means
a Qualified New Venture Disposition pursuant to an obliga
tion of the New Venture Investor to sell, or the right of
any other Person to purchase, the ownership interest in
the New Venture Entity, which obligation or right was
created substantially concurrently with the acquisition
of such ownership interest in the New Venture Entity.
"Issuing Bank" means Bank of America National
Trust and Savings Association.
"Laws" means, collectively, all international,
foreign, federal, state and local statutes, treaties,
rules, regulations, ordinances, codes and administrative
or judicial precedents.
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"Letters of Credit" means any of the standby letters
of credit issued by the Issuing Bank under the Commitment
pursuant to Section 2.5, either as originally issued or
as the same may be supplemented, modified, amended,
renewed, extended or supplanted.
"Leverage Ratio" means, as of the last day of any
Fiscal Quarter (including the last day of a Fiscal
Quarter which is also the last day of a Fiscal Year), the
ratio of (a) Average Quarterly Funded Debt as of that
date to (b) Adjusted EBITDA for the fiscal period
consisting of that Fiscal Quarter and the three
immediately preceding Fiscal Quarters.
"License Revocation" means the revocation, failure to
renew or suspension of, or the appointment of a receiver,
supervisor or similar official with respect to, any
casino, gambling or gaming license issued by any Gaming
Board covering any casino or gaming facility of Borrowers
and the Restricted Subsidiaries.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment for security, security
interest, encumbrance, lien or charge of any kind,
whether voluntarily incurred or arising by operation of
Law or otherwise, affecting any Property, including any
agreement to grant any of the foregoing, any conditional
sale or other title retention agreement, any lease in the
nature of a security interest, and/or the filing of or
agreement to give any financing statement (other than a
precautionary financing statement with respect to a lease
that is not in the nature of a security interest) under
the Uniform Commercial Code or comparable Law of any
jurisdiction with respect to any Property.
"Loan" means the aggregate of the Advances made at
any one time by the Banks pursuant to Article 2.
"Loan Documents" means, collectively, this Agreement,
the Notes, the Subsidiary Guaranty, the Swing Line
Documents, the Collateral Documents, any Secured Swap
Agreement, any Request for Loan, any Request for Letter
of Credit, any Compliance Certificate and any other agree-
ments of any type or nature hereafter executed and
delivered by Borrowers or any of the Restricted Subsidi-
aries or Affiliates to the Administrative Co-Agent or to
any Bank in any way relating to or in furtherance of this
Agreement, in each case either as originally executed or
as the same may from time to time be supplemented,
modified, amended, restated, extended or supplanted.
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"Majority Banks" means, for purposes of Sections 6.16
and 6.17, Banks having in the aggregate more than 50% of
the Commitment then in effect.
"Margin Stock" means "margin stock" as such term is
defined in Regulation G or U.
"Material Adverse Effect" means any set of circum-
stances or events which (a) has or could reasonably be
expected to have any material adverse effect whatsoever
upon the validity or enforceability of any Loan Document,
(b) is or could reasonably be expected to be material and
adverse to the condition (financial or otherwise),
business operations or prospects of Borrowers and the
Restricted Subsidiaries, taken as a whole, or
(c) materially impairs or could reasonably be expected to
materially impair the ability of Borrowers and the
Restricted Subsidiaries, taken as a whole, to perform the
Obligations.
"Maturity Date" means the date that is five (5) years
after the Closing Date, but not later than June 30, 1999.
"Maximum Competitive Advance" means, with respect to
any Competitive Bid made by a Bank, the amount set forth
therein as the maximum Competitive Advance which that
Bank is willing to make in response to the related
Competitive Bid Request.
"Mirage/TI First Mortgage Documents" means (a) the
indentures governing the GNS Mortgage Notes and the
TI Mortgage Notes and (b) the first priority fee simple
and leasehold deeds of trust on the Mirage/TI Property
securing the GNS Mortgage Notes and the TI Mortgage Notes
on a pari passu basis.
"Mirage/TI Property" means the approximately
100 acres of Real Property located in Las Vegas, Nevada,
occupied by The Mirage and by Treasure Island, and owned
by the Company.
"Mirage/TI Property Deed of Trust" means an amended
and restated deed of trust in the form of Exhibit H
covering the Mirage/TI Property (and the Dunes Property
and Shadow Creek Property) to be executed and delivered
by the Company, TI, MRR and MHI pursuant to Section 5.10.
"Multiemployer Plan" means any employee benefit plan
of the type described in Section 4001(a)(3) of ERISA.
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"Negative Pledge" means a Contractual Obligation that
contains a covenant binding on Borrowers or any of the
Restricted Subsidiaries that prohibits Liens on any of
its or their Property, other than (a) any such covenant
contained in a Contractual Obligation granting a Lien
permitted under Section 6.9 which affects only the
Property that is the subject of such permitted Lien and
(b) any such covenant that does not apply to Liens
securing the Obligations.
"Net Cash Proceeds" means Net Proceeds to the extent
consisting of Cash.
"Net Income" means, with respect to any fiscal
period, the consolidated net income of Parent and its
Subsidiaries for that period, determined in accordance
with Generally Accepted Accounting Principles, consis-
tently applied; provided, however, that for purposes of
this Agreement, the results of operations of the Spin-Off
Companies and Unrestricted New Venture Entities for such
fiscal period shall be excluded.
"Net Proceeds" means, with respect to any Disposi-
tion, the gross sales proceeds received by Borrowers and
the Restricted Subsidiaries from such Disposition
(including Cash, Property and the assumption by the
purchaser of any liability of Borrowers or the Restricted
Subsidiaries) net of brokerage commissions, legal
expenses and other transactional costs payable by
Borrowers and the Restricted Subsidiaries with respect to
such Disposition and net of an amount determined in good
faith by Parent to be the estimated amount of income
taxes payable by Parent attributable to such Disposition.
"New Venture" means a casino, hotel, casino/hotel,
resort, casino/resort, riverboat casino, dockside casino,
golf course, entertainment center or similar facility (or
any site or proposed site for any of the foregoing) owned
or to be owned by Borrowers or any of the Restricted
Subsidiaries (or owned or to be owned by a Person in
which Borrowers, any of the Restricted Subsidiaries or a
New Venture Entity owned directly or indirectly by
Borrowers or any of the Restricted Subsidiaries holds an
Investment) and which is not at the Closing Date a
Developed Property.
"New Venture Basket" means, as of any date of
determination, (a) $200,000,000 plus (b) if Borrowers
have delivered a written notice to the Administrative
Co-Agent stating that neither the Dunes Project nor the
Other Gaming Project will be undertaken by Borrowers,
$200,000,000 plus (c) an amount equal to the lesser of
(i) the aggregate principal amount of TI Mortgage Notes
paid in full or otherwise extinguished subsequent to
April 1, 1994 and through such date or (ii) the aggregate
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net proceeds (whether consisting of cash or of TI
Mortgage Notes taken in exchange) received by (A) Parent
from the issuance and sale of capital stock of Parent
(including upon any conversion or exchange of debt
securities of Parent issued after April 1, 1994 into or
for such capital stock) after April 1, 1994 and through
such date and (B) Borrowers or any Restricted Subsidiary
from the issuance and sale of Subordinated Obligations
pursuant to Section 6.10(h) after April 1, 1994 and
through such date, minus the Other Basket Usage.
"New Venture Capital Expenditure" means any Capital
Expenditure of Borrowers or any of the Restricted Sub-
sidiaries (a) with respect to a New Venture or (b) which
adds to or further improves any Developed Property
(including a New Venture that becomes a Developed
Property subsequent to the Closing Date).
"New Venture Entity" means the Person that directly
owns a New Venture.
"New Venture Investment" means any Investment by
Borrowers or any of the Restricted Subsidiaries in a New
Venture Entity; provided that neither (a) the acquisition
by Borrowers or any of the Restricted Subsidiaries of all
or any portion of another Person's ownership interest in
a New Venture Entity pursuant to an obligation or right
of such Person to sell, or an obligation or right of
Borrowers or any of the Restricted Subsidiaries to
purchase, such ownership interest, which obligation or
right was created substantially concurrently with the
acquisition of such ownership interest in the New Venture
Entity, nor (b) the issuance by Borrowers or a Restricted
Subsidiary of a Guaranty Obligation permitted by
Section 6.10(i) with respect to a New Venture Entity
shall in either case be considered to be a New Venture
Investment.
"New Venture Investor" means, with respect to any
New Venture Investment, whichever of Borrowers or the
Restricted Subsidiaries is the direct holder of such New
Venture Investment.
"Notes" means, collectively, the Committed Advance
Notes and the Competitive Advance Notes.
"Obligations" means all present and future obliga-
tions of every kind or nature of Borrowers or any Party
at any time and from time to time owed to the
Administrative Co-Agent or the Banks or any one or more
of them, under any one or more of the Loan Documents,
whether due or to become due, matured or unmatured,
liquidated or unliquidated, or contingent or
noncontingent, including obligations of performance as
well as obligations of payment, and including interest
that accrues after the commencement of any proceeding
under any Debtor Relief Law by or against Borrowers or
any Subsidiary or Affiliate of Borrowers.
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"Opinions of Counsel" means the favorable written
legal opinions of (a) Peter C. Walsh, Esq., Assistant
General Counsel of Parent and (b) Schreck, Jones,
Bernhard, Woloson & Godfrey, Chartered, special counsel
to Borrowers and the Restricted Subsidiaries, sub-
stantially in the form of Exhibits I-1 and I-2,
respectively, together with copies of all factual
certificates and legal opinions upon which such counsel
has relied.
"Other Basket Usage" means, as of any date of
determination, (a) when used in the definition of "New
Venture Basket", (i) if the Stage I Reduction Test has
not then been met, the amount by which Restricted
Payments on that date exceed the sum of (A) $75,000,000
plus (B) an amount equal to 50% of cumulative Net Income
for the period commencing January 1, 1995 and ending on
the last day of the most recently-ended Fiscal Quarter
(taken as a single fiscal period) and (ii) if the Stage I
Reduction Test has then been met, the amount by which
Restricted Payments on that date exceed the sum of
(A) $125,000,000 plus (B) an amount equal to 50% of
cumulative Net Income for the period commencing
January 1, 1995 and ending on the last day of the most
recently-ended Fiscal Quarter (taken as a single fiscal
period) and (b) when used in the definition of
"Restricted Payment Basket", the amount by which the
aggregate New Venture Capital Expenditures and New
Venture Investments made subsequent to the Closing Date
exceeds the aggregate of the amounts described in
clauses (a) and (b) of the definition of "New Venture
Basket."
"Other Gaming Project" means a new major gaming
project which may be constructed, in lieu of the
Dunes Project, by Parent or a Restricted Subsidiary at a
location other than the Dunes Property for an aggregate
project cost of not less than $500,000,000.
"Parent" means Mirage Resorts, Incorporated, a Nevada
corporation, and its successors and permitted assigns.
"Party" means any Person other than the Administra-
tive Co-Agent, the Co-Agents and the Banks, which now or
hereafter is a party to any of the Loan Documents.
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"PBGC" means the Pension Benefit Guaranty Corporation
or any successor thereof established under ERISA.
"Pension Plan" means any "employee pension benefit
plan" (as such term is defined in Section 3(2) of ERISA),
other than a Multiemployer Plan, which is subject to
Title IV of ERISA and is maintained by Borrowers or any
of its Subsidiaries or to which Borrowers or any of its
Subsidiaries contributes or has an obligation to
contribute.
"Permitted Encumbrances" means:
(a) Inchoate Liens incident to
construction on or maintenance of Real Property; or
Liens incident to construction on or maintenance of
Real Property now or hereafter filed of record for
which adequate reserves have been set aside (or
deposits made pursuant to applicable Law) and which
are being contested in good faith by appropriate
proceedings and have not proceeded to judgment,
provided that, by reason of nonpayment of the
obligations secured by such Liens, no such Real
Property is subject to a material risk of loss or
forfeiture;
(b) Liens for taxes and assessments
on Real Property which are not yet past due; or
Liens for taxes and assessments on Real Property for
which adequate reserves have been set aside and are
being contested in good faith by appropriate
proceedings and have not proceeded to judgment,
provided that, by reason of nonpayment of the obli-
gations secured by such Liens, no such Real Property
is subject to a material risk of loss or forfeiture;
(c) minor defects and irregularities
in title to any Real Property which in the aggregate
do not materially impair the fair market value or
use of the Real Property for the purposes for which
it is or may reasonably be expected to be held;
(d) easements, exceptions,
reservations, or other agreements for the purpose of
pipelines, conduits, cables, wire communication
lines, power lines and substations, streets, trails,
walkways, drainage, irrigation, water, and sewerage
purposes, dikes, canals, ditches, the removal of
oil, gas, coal, or other minerals, and other like
purposes affecting Real Property, facilities, or
equipment which in the aggregate do not materially
burden or impair the fair market value or use of
such Real Property for the purposes for which it is
or may reasonably be expected to be held;
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(e) easements, exceptions,
reservations, or other agreements for the purpose of
facilitating the joint or common use of Property in
or adjacent to a shopping center or similar Real
Property project affecting Real Property which in
the aggregate do not materially burden or impair the
fair market value or use of such Property for the
purposes for which it is or may reasonably be
expected to be held;
(f) rights reserved to or vested in
any Governmental Agency to control or regulate, or
obligations or duties to any Governmental Agency
with respect to, the use of any Real Property;
(g) rights reserved to or vested in
any Governmental Agency to control or regulate, or
obligations or duties to any Governmental Agency
with respect to, any right, power, franchise, grant,
license, or permit;
(h) present or future zoning laws and
ordinances or other laws and ordinances restricting
the occupancy, use, or enjoyment of Real Property;
(i) statutory Liens, other than those
described in clauses (a) or (b) above, arising in
the ordinary course of business with respect to
obligations which are not delinquent or are being
contested in good faith, provided that, if
delinquent, adequate reserves have been set aside
with respect thereto and, by reason of nonpayment,
no Property is subject to a material risk of loss or
forfeiture;
(j) covenants, conditions, and
restrictions affecting the use of Real Property
which in the aggregate do not materially impair the
fair market value or use of the Real Property for
the purposes for which it is or may reasonably be
expected to be held;
(k) rights of tenants under leases
and rental agreements covering Real Property entered
into in the ordinary course of business of the
Person owning such Real Property;
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(l) Liens consisting of pledges or
deposits to secure obligations under workers'
compensation laws or similar legislation, including
Liens of judgments thereunder which are not
currently dischargeable;
(m) Liens consisting of pledges or
deposits of Property to secure performance in
connection with operating leases made in the
ordinary course of business to which Borrowers or a
Subsidiary of Borrowers is a party as lessee,
provided the aggregate value of all such pledges and
deposits in connection with any such lease does not
at any time exceed 20% of the annual fixed rentals
payable under such lease;
(n) Liens consisting of deposits of
Property to secure bids made with respect to, or
performance of, contracts (other than contracts
creating or evidencing an extension of credit to the
depositor) in the ordinary course of business;
(o) Liens consisting of any right of
offset, or statutory bankers' lien, on bank deposit
accounts maintained in the ordinary course of
business so long as such bank deposit accounts are
not established or maintained for the purpose of
providing such right of offset or bankers' lien;
(p) Liens consisting of deposits of
Property to secure statutory obligations of
Borrowers or a Subsidiary of Borrowers in the
ordinary course of its business;
(q) Liens consisting of deposits of
Property to secure (or in lieu of) surety, appeal or
customs bonds in proceedings to which Borrowers or a
Subsidiary of Borrowers is a party in the ordinary
course of its business;
(r) Liens created by or resulting
from any litigation or legal proceeding involving
Borrowers or a Subsidiary of Borrowers in the
ordinary course of its business which is currently
being contested in good faith by appropriate
proceedings, provided that adequate reserves have
been set aside and no material Property is subject
to a material risk of loss or forfeiture; and
(s) other non-consensual Liens
incurred in the ordinary course of business but not
in connection with an extension of credit, which do
not in the aggregate, when taken together with all
other Liens, materially impair the value or use of
the Property of the Borrowers and the Subsidiaries
of Borrowers, taken as a whole.
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"Permitted Right of Others" means a Right of Others
consisting of (a) an interest (other than a legal or
equitable co-ownership interest, an option or right to
acquire a legal or equitable co-ownership interest and
any interest of a ground lessor under a ground lease),
that does not materially impair the value or use of Prop-
erty for the purposes for which it is or may reasonably
be expected to be held, (b) an option or right to acquire
a Lien that would be a Permitted Encumbrance, (c) the
subordination of a lease or sublease in favor of a
financing entity and (d) a license, or similar right, of
or to Intangible Assets granted in the ordinary course of
business.
"Person" means any individual or entity, including a
trustee, corporation, limited liability company, general
partnership, limited partnership, joint stock company,
trust, estate, unincorporated organization, business
association, firm, joint venture, Governmental Agency, or
other entity.
"Pledge Agreement (Gaming)" means the pledge
agreement to be executed and delivered by Parent and the
Company, in the form of Exhibit J-1, either as originally
executed or as it may from time to time be supplemented,
modified, amended, extended or supplanted.
"Pledge Agreement (Non-Gaming)" means the pledge
agreement to be executed and delivered by Borrowers and
the Restricted Subsidiaries, in the form of Exhibit J-2,
either as originally executed or as it may from time to
time be supplemented, modified, amended, extended or
supplanted.
"Pledged Collateral (Gaming)" means the certificates
evidencing all of the shares of capital stock held by
Parent or any of the Restricted Subsidiaries in all
Subsidiaries of Parent (other than the Spin-Off
Companies) that hold a gaming license or permit from any
Gaming Authority.
"Pledged Collateral (Non-Gaming)" means the
certificates evidencing all of the shares of capital
stock held by Borrowers or any of the Restricted
Subsidiaries in all Subsidiaries of Parent other than
(a) the Spin-Off Companies and (b) any Subsidiary that
holds a gaming license or permit from any Gaming
Authority.
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"Pricing Occurrence" means (a) with respect to any
change in the Annualized Funded Debt Ratio which results
in a change in the Applicable Pricing Level, the earlier
of (i) the date upon which Borrowers deliver the
Compliance Certificate to the Administrative Co-Agent
reflecting such changed Annualized Funded Debt Ratio or
(ii) the date upon which Borrowers are required by
Section 7.2 to deliver such Compliance Certificate and
(b) with respect to any change in the Senior Debt Rating
which results in a change in the Applicable Pricing
Level, the date which is five (5) Banking Days after the
Administrative Co-Agent has received evidence reasonably
satisfactory to it of such change.
"Pricing Period" means (a) the period commencing on
the Closing Date and ending on the first Pricing
Occurrence to occur thereafter and (b) each subsequent
period commencing on the date of a Pricing Occurrence and
ending on the next Pricing Occurrence to occur.
"Prior Syndicated Credit Facility" means that certain
Credit Agreement dated as of October 23, 1992, as
amended, among the Company, Parent and a syndicate of
banks.
"Project Commencement Date" means, with respect to
the Dunes Project or the Other Gaming Project, the date
on which the construction foundations for such Project
have been substantially commenced, as determined by the
Bank of America Construction Services Group.
"Project Key Date" means, with respect to the
Dunes Project or the Other Gaming Project, the date on
which the erection of steel framing above grade for such
Project has been substantially commenced, as determined
by the Bank of America Construction Services Group.
"Projections" means the financial projections
contained in the Confidential Information Memorandum
distributed by or on behalf of Borrowers to the Banks on
or about April 1, 1994, as amended by that certain letter
from Parent to the Banks dated May 16, 1994.
"Property" means any interest in any kind of property
or asset, whether real, personal or mixed, or tangible or
intangible.
"Pro Rata Share" means, with respect to each Bank,
the percentage of the Commitment set forth opposite the
name of that Bank on Schedule 1.1.
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"Qualified New Venture Disposition" means a
Disposition of all or any portion of a New Venture
Investor's ownership interest in a New Venture Entity
pursuant to an obligation or right of the New Venture
Investor to sell, or an obligation or right of any other
Person to purchase, such ownership interest, which
obligation or right was created substantially
concurrently with the acquisition of such ownership
interest in the New Venture Entity.
"Quarterly Payment Date" means each June 30,
September 30, December 31 and March 31.
"Real Property" means, as of any date of determina-
tion, all real Property then or theretofore owned, leased
or occupied by Borrowers or any of the Restricted
Subsidiaries.
"Reduction Amount" means any Stage I Reduction Amount
or any Stage II Reduction Amount.
"Reduction Date" means any Stage I Reduction Date or
any Stage II Reduction Date.
"Reference Rate" means the rate of interest publicly
announced from time to time by the Domestic Reference
Bank in San Francisco, California (or other headquarters
city of the Domestic Reference Bank), as its "reference
rate." It is a rate set by the Domestic Reference Bank
based upon various factors including the Domestic
Reference Bank's costs and desired return, general
economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be
priced at, above, or below such announced rate. Any
change in the Reference Rate announced by the Domestic
Reference Bank shall take effect at the opening of
business on the day specified in the public announcement
of such change.
"Regulation D" means Regulation D, as at any time
amended, of the Board of Governors of the Federal Reserve
System, or any other regulation in substance substituted
therefor.
"Regulations G, T, U and X" means Regulations G, T, U
and X, as at any time amended, of the Board of Governors
of the Federal Reserve System, or any other regulations
in substance substituted therefor.
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"Request for Letter of Credit" means a written
request for a Letter of Credit substantially in the form
of Exhibit K, signed by a Responsible Official of any of
Borrowers, on behalf of Borrowers, and properly completed
to provide all information required to be included
therein.
"Request for Loan" means a written request for a Loan
substantially in the form of Exhibit L, signed by a
Responsible Official of any of Borrowers, on behalf of
Borrowers, and properly completed to provide all
information required to be included therein.
"Requirement of Law" means, as to any Person, the
articles or certificate of incorporation and by-laws or
other organizational or governing documents of such
Person, and any Law, or judgment, award, decree, writ or
determination of a Governmental Agency, in each case
applicable to or binding upon such Person or any of its
Property or to which such Person or any of its Property
is subject.
"Requisite Banks" means (a) as of any date of
determination if the Commitment is then in effect, Banks
having in the aggregate 65% or more of the Commitment
then in effect and (b) as of any date of determination if
the Commitment has then been terminated and there is then
any Indebtedness evidenced by the Notes, Banks holding
Notes evidencing in the aggregate 65% or more of the
aggregate Indebtedness then evidenced by the Notes.
"Responsible Official" means (a) when used with
reference to a Person other than an individual, any
corporate officer of such Person, general partner of such
Person, corporate officer of a corporate general partner
of such Person, or corporate officer of a corporate
general partner of a partnership that is a general
partner of such Person, or any other responsible official
thereof duly acting on behalf thereof (including, in the
case of Parent, its Director of Finance), and (b) when
used with reference to a Person who is an individual,
such Person. Any document or certificate hereunder that
is signed or executed by a Responsible Official of
another Person shall be conclusively presumed to have
been authorized by all necessary corporate, partnership
and/or other action on the part of such other Person.
"Restricted Payment Basket" means, as of any date of
determination, (a) if the Stage I Reduction Test has not
then been met, the sum of $75,000,000 plus (i) an amount
equal to 100% of the net cash proceeds received by Parent
from the issuance and sale of capital stock of Parent
(including upon any conversion or exchange of debt
securities of Parent issued after April 1, 1994 into or
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for such capital stock), plus (ii) an amount equal to 50%
of the net cash proceeds received by Borrowers after
April 1, 1994 by reason of the issuance and sale of
Subordinated Obligations of Borrowers or any Restricted
Subsidiary but only to the extent that such net cash
proceeds do not result in the aggregate of all
outstanding Subordinated Obligations being in excess of
$200,000,000, plus (iii) an amount equal to 50% of
cumulative Net Income for the period commencing
January 1, 1995 and ending on the last day of the most
recently-ended Fiscal Quarter (taken as a single fiscal
period), minus the Other Basket Usage and (b) if the
Stage I Reduction Test has then been met, the sum of
$125,000,000 plus (i) the amount described in
clause (a)(i) above, plus (ii) the amount described in
clause (a)(ii) above except that the percentage therein
set forth shall be 100% rather than 50%, plus (iii) the
amount described in clause (a)(iii) above, minus the
Other Basket Usage.
"Restricted Payments" means, as of any date of
determination, (a) Distributions described in
Section 6.6(e) made by Parent after April 1, 1994 and
through such date, (b) payments with respect to
Subordinated Obligations described in Section 6.2(a) made
by Borrowers and the Restricted Subsidiaries after
April 1, 1994 and through such date and (c) Investments
described in and permitted by Section 6.18(l) outstanding
on such date.
"Restricted Subsidiary" means, as of any date of
determination, all Subsidiaries of Parent other than
(a) the Borrowers, (b) the Spin-Off Companies and (c) any
Unrestricted New Venture Entities; provided that
Borrowers may (i) with the written consent of all other
Persons holding an equity investment in a New Venture
Entity, designate such New Venture Entity as a Restricted
Subsidiary even if it is not a "Subsidiary" of Parent or
(ii) designate all or any of the Spin-Off Companies as a
Restricted Subsidiary if no Default or Event of Default
would result therefrom.
"Right of Others" means, as to any Property in which
a Person has an interest, any legal or equitable right,
title or other interest (other than a Lien) held by any
other Person in that Property, and any option or right
held by any other Person to acquire any such right, title
or other interest in that Property, including any option
or right to acquire a Lien; provided, however, that
(a) any covenant restricting the use or disposition of
Property of such Person contained in any Contractual
Obligation of such Person and (b) any provision contained
in a contract creating a right of payment or performance
in favor of a Person that conditions, limits, restricts,
diminishes, transfers or terminates such right, shall not
be deemed to constitute a Right of Others.
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"Secured Swap Agreement" means a Swap Agreement
between Borrowers and a Bank.
"Security Agreement" means the security agreement to
be executed and delivered by Borrowers and the
Significant Subsidiaries, in the form of Exhibit M,
either as originally executed or as it may from time to
time be supplemented, modified, amended, extended or
supplanted.
"Senior Debt Rating" means the rating of the
TI Mortgage Notes or (if the TI Mortgage Notes are no
longer outstanding) of the GNS Mortgage Notes, as
determined by either Standard & Poor's Corporation or
Moody's Investors Service, Inc. (and, if by both such
rating agencies, then the more creditworthy of such
credit ratings), or if neither the TI Mortgage Notes nor
the GNS Mortgage Notes are outstanding, the implicit
credit rating for senior secured debt securities of
Borrowers based on the credit ratings of other securities
of Borrowers by such rating agencies.
"Senior Officer" means the (a) chief executive
officer, (b) president, (c) executive vice president,
(d) senior vice president, (e) chief financial officer,
(f) treasurer or (g) assistant treasurer of each of
Borrowers.
"Shadow Creek Property" means the approximately
307 acres of Real Property located in North Las Vegas,
Nevada, comprising (a) the "Shadow Creek Golf Course"
comprising approximately 242 acres, (b) unimproved future
residential sites located within the Shadow Creek Golf
Course comprising approximately 16 acres and (c) an
unimproved site located adjacent to the Shadow Creek Golf
Course comprising approximately 65 acres.
"Significant Subsidiary" means, as of any date of
determination, each Restricted Subsidiary that had on the
last day of the Fiscal Quarter then most recently ended
assets (other than assets consisting of notes or accounts
receivable due from Parent or a Restricted Subsidiary or
unamortized debt issuance costs) with a book value or
fair market value of $1,000,000 or more, except
AC Holding Corp. and AC Holding Corp. II.
"Special Commitment Reduction Amount" means (a) if
the Dunes Property as it exists on the Closing Date is
sold in its entirety, an amount equal to the excess of
(i) the greater of (A) the fair market value of the
consideration received by MRR upon such sale, but not in
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excess of $150,000,000 or (B) $100,000,000 over (ii) the
aggregate principal amount of TI Mortgage Notes plus the
aggregate accreted principal value of GNS Mortgage Notes,
in either case paid in full or otherwise extinguished
subsequent to April 1, 1994 through the date of such sale
or (b) if less than the entirety of the Dunes Property is
sold, an amount calculated pursuant to clause (a), except
that each Dollar amount set forth in clause (a)(i) shall
be proportionately reduced by the same percentage as the
percentage of the acreage sold is of the acreage of the
Dunes Property as it exists on the Closing Date.
"Special Eurodollar Circumstance" means the appli-
cation or adoption after the Closing Date of any Law or
interpretation, or any change therein or thereof, or any
change in the interpretation or administration thereof by
any Governmental Agency, central bank or comparable
authority charged with the interpretation or
administration thereof, or compliance by any Bank or its
Eurodollar Lending Office with any request or directive
(whether or not having the force of Law) of any such
Governmental Agency, central bank or comparable
authority, or the existence or occurrence of
circumstances affecting the Designated Eurodollar Market
generally that are beyond the reasonable control of the
Banks.
"Spin-Off Companies" means those Subsidiaries of
Parent which on the Closing Date own or operate the
Golden Nugget hotel-casino in Las Vegas, Nevada and the
Golden Nugget hotel-casino in Laughlin, Nevada (with a
related motel in Bullhead City, Arizona) and related
properties, including GNLV, CORP., GNL, CORP.,
Golden Nugget, Inc., GNLV FINANCE CORP., Golden Nugget
Manufacturing Corp., GNLV Holding Corp., Golden Nugget
Experience Corp., Golden Nugget Lawrenceburg, Inc. and
any other Subsidiaries of Parent so designated on
Schedule 4.4, and any holding company for all or any of
the foregoing.
"Stage I Reduction Amount" means, with respect to any
Stage I Reduction Date, the amount necessary to reduce
the then applicable Commitment to the level set forth
below opposite that Stage I Reduction Date:
Stage I
Reduction Date Commitment Level
______________ ________________
June 30, 1997 $495,000,000
September 30, 1997 $465,000,000
December 31, 1997 $435,000,000
"Stage I Reduction Date" means each of (a) June 30,
1997, (b) September 30, 1997 and (c) December 31, 1997.
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"Stage I Reduction Test" means, with respect to each
Stage I Reduction Date, that both of the following tests
are then met: (a) all of the TI Mortgage Notes have been
paid in full, defeased in accordance with the Mirage/TI
First Mortgage Documents or otherwise extinguished and
(b) the Senior Debt Rating is BBB-/Baa3 or better.
"Stage II Reduction Amount" means (a) with respect to
any Stage II Reduction Date where the Stage II Reduction
Test has never previously been achieved, the amount
necessary to reduce the then applicable Commitment to the
level set forth below opposite that Stage II Reduction
Date:
Stage II
Reduction Date Commitment Level
______________ ________________
March 31, 1998 $400,000,000
June 30, 1998 $365,000,000
September 30, 1998 $330,000,000
December 31, 1998 $295,000,000
March 31, 1999 $260,000,000;
and (b) with respect to any Stage II Reduction Date where
the Stage II Reduction Test has previously been achieved
on a Stage II Reduction Date, $35,000,000.
"Stage II Reduction Date" means each of (a) March 31,
1998, (b) June 30, 1998, (c) September 30, 1998,
(d) December 31, 1998 and (e) March 31, 1999.
"Stage II Reduction Test" means, with respect to each
Stage II Reduction Date, that all of the following tests
are then met: (a) all of the TI Mortgage Notes have been
paid in full, defeased in accordance with the Mirage/TI
First Mortgage Documents or otherwise extinguished,
(b) all of the GNS Mortgage Notes have been paid in full,
defeased in accordance with the Mirage/TI First Mortgage
Documents or otherwise extinguished, (c) the Senior Debt
Rating is BBB-/Baa3 or better and (d) the Company has
executed and delivered the Mirage/TI Property Deed of
Trust pursuant to Section 5.10.
"Stockholders' Equity" means, as of any date of
determination and with respect to any Person, the
consolidated stockholders' equity of the Person as of
that date determined in accordance with Generally
Accepted Accounting Principles; provided that there shall
be excluded from Stockholders' Equity any amount
attributable to Disqualified Stock.
"Subordinated Obligations" means (a) the Existing
Subordinated Debt and (b) any other Indebtedness of
Borrowers or a Restricted Subsidiary which is
subordinated in right of payment to the Obligations and
issued pursuant to Section 6.10(h).
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"Subsidiary" means, as of any date of determination
and with respect to any Person, any corporation, limited
liability company or partnership (whether or not, in
either case, characterized as such or as a "joint
venture"), whether now existing or hereafter organized or
acquired: (a) in the case of a corporation or limited
liability company, of which a majority of the securities
having ordinary voting power for the election of
directors or other governing body (other than securities
having such power only by reason of the happening of a
contingency) are at the time beneficially owned by such
Person and/or one or more Subsidiaries of such Person, or
(b) in the case of a partnership, of which a majority of
the partnership or other ownership interests are at the
time beneficially owned by such Person and/or one or more
of its Subsidiaries.
"Subsidiary Guaranty" means the continuing guaranty
of the Obligations to be executed and delivered by the
Significant Subsidiaries, in the form of Exhibit N,
either as originally executed or as it may from time to
time be supplemented, modified, amended, extended or
supplemented.
"Swap Agreement" means a written agreement between
Borrowers and one or more financial institutions
providing for "swap", "cap", "collar" or other interest
rate protection with respect to any Indebtedness.
"Swing Line" means the revolving line of credit
established by the Swing Line Bank in favor of Borrowers
pursuant to Section 2.11.
"Swing Line Bank" means Bank of America Nevada.
"Swing Line Documents" means the promissory note and
any other documents executed by Borrowers in favor of the
Swing Line Bank in connection with the Swing Line.
"Swing Line Loans" means loans made by the Swing Line
Bank to Borrowers pursuant to Section 2.11.
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal Indebtedness of
Borrowers on all Swing Line Loans then outstanding.
"Tangible Net Worth" means, as of any date of deter
mination, the Stockholders' Equity of Parent and its
Subsidiaries on that date minus the aggregate Intangible
Assets of Parent and its Subsidiaries on that date;
provided, however, that for purposes of this Agreement,
any Stockholders' Equity and Intangible Assets attributa-
ble to the Spin-Off Companies or Unrestricted New Venture
Entities shall be excluded.
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"The Mirage" means The Mirage hotel-casino located in
Las Vegas, Nevada (on Real Property owned by the
Company), and owned by the Company.
"TI Mortgage Notes" means the 9 7/8% First Mortgage
Notes Due October 1, 2000 issued by Treasure Island
Finance Corp., guaranteed by the Company and TI and
governed and secured by the Mirage/TI First Mortgage
Documents.
"Title Company" means Commonwealth Land Title
Insurance Company or such other title insurance company
as is reasonably acceptable to the Administrative Co-
Agent.
"to the best knowledge of" means, when modifying a
representation, warranty or other statement of any
Person, that the fact or situation described therein is
known by the Person (or, in the case of a Person other
than a natural Person, known by a Responsible Official of
that Person) making the representation, warranty or other
statement, or with the exercise of reasonable due
diligence under the circumstances (in accordance with the
standard of what a reasonable Person in similar circum-
stances would have done) would have been known by the
Person (or, in the case of a Person other than a natural
Person, would have been known by a Responsible Official
of that Person).
"Treasure Island" means the Treasure Island
hotel-casino located in Las Vegas, Nevada (on Real
Property owned by the Company and leased to TI), and
owned by TI.
"type", when used with respect to any Loan or
Advance, means the designation of whether such Loan or
Advance is an Alternate Base Rate Loan or Advance, or a
Eurodollar Rate Loan or Advance.
"Unrestricted New Venture Entity" means (a) any
New Venture Entity in which any single Person other than
Parent and its Subsidiaries owns an equity interest that
is larger than the equity interest owned by Parent and
its Subsidiaries and (b) any other New Venture Entity
(except a Restricted Subsidiary) designated by Borrowers
to be an Unrestricted New Venture Entity by written
notice thereof to the Administrative Co-Agent; provided,
however, that any Unrestricted New Venture Entity may at
any time be redesignated as a Restricted Subsidiary by
written notice thereof to the Administrative Co-Agent.
1.2 Use of Defined Terms. Any defined term used in the
plural shall refer to all members of the relevant class, and
any defined term used in the singular shall refer to any one or
more of the members of the relevant class.
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1.3 Accounting Terms. All accounting terms not
specifically defined in this Agreement shall be construed in
conformity with, and all financial data required to be
submitted by this Agreement shall be prepared in conformity
with, Generally Accepted Accounting Principles applied on a
consistent basis, except as otherwise specifically prescribed
herein. In the event that Generally Accepted Accounting
Principles change during the term of this Agreement such that
the covenants contained in Sections 6.12 through 6.17 would
then be calculated in a different manner or with different
components, (a) Borrowers and the Banks agree to amend this
Agreement in such respects as are necessary to conform those
covenants as criteria for evaluating Borrowers' financial
condition to substantially the same criteria as were effective
prior to such change in Generally Accepted Accounting
Principles and (b) Borrowers shall be deemed to be in com-
pliance with the covenants contained in the aforesaid Sections
during the 90-day period following any such change in Generally
Accepted Accounting Principles if and to the extent that Bor-
rowers would have been in compliance therewith under Generally
Accepted Accounting Principles as in effect immediately prior
to such change.
1.4 Rounding. Any financial ratios required to be main
tained by Borrowers pursuant to this Agreement shall be
calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the
number of places by which such ratio is expressed in this
Agreement and rounding the result up or down to the nearest
number (with a round-up if there is no nearest number) to the
number of places by which such ratio is expressed in this
Agreement.
1.5 Exhibits and Schedules. All Exhibits and Schedules
to this Agreement, either as originally existing or as the same
may from time to time be supplemented, modified or amended, are
incorporated herein by this reference. A matter disclosed on
any Schedule shall be deemed disclosed on all Schedules.
1.6 References to "Borrowers and their Subsidiaries".
Any reference herein to "Borrowers and their Subsidiaries" or
the like shall refer solely to Borrowers during such times, if
any, as Borrowers shall have no Subsidiaries.
1.7 Miscellaneous Terms. The term "or" is disjunctive;
the term "and" is conjunctive. The term "shall" is mandatory;
the term "may" is permissive. Masculine terms also apply
to females; feminine terms also apply to males. The term
"including" is by way of example and not limitation.
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Article 2
LOANS
_____
2.1 Committed Loans-General.
(a) Subject to the terms and conditions set forth in this
Agreement, at any time and from time to time from the Closing
Date through the Maturity Date, each Bank shall, pro rata
according to that Bank's Pro Rata Share of the then applicable
Commitment, make Committed Advances to Borrowers under the
Commitment in such amounts as Borrowers may request that do not
result in the sum of (i) the aggregate principal amount
outstanding under the Notes, plus (ii) the Aggregate Effective
Amount of all outstanding Letters of Credit, plus (iii) the Swing
Line Outstandings, plus (iv) the Commercial Paper Outstandings
exceeding the then applicable Commitment. Subject to the
limitations set forth herein, Borrowers may borrow, repay and
reborrow under the Commitment without premium or penalty.
(b) Subject to the next sentence, each Committed Loan
shall be made pursuant to a Request for Loan which shall specify
the requested (i) date of such Loan, (ii) type of Loan,
(iii) amount of such Loan, and (iv) in the case of a Eurodollar
Rate Loan, the Interest Period for such Loan. Unless the
Administrative Co-Agent has notified, in its sole and absolute
discretion, Borrowers to the contrary, a Loan may be requested by
telephone by a Responsible Official of Borrowers, in which case
Borrowers shall confirm such request by promptly delivering a
Request for Loan in person or by telecopier conforming to the
preceding sentence to the Administrative Co-Agent. Administrative
Co-Agent shall incur no liability whatsoever hereunder in acting
upon any telephonic request for Loan purportedly made by a
Responsible Official of Borrowers, which hereby agree to indemnify
the Administrative Co-Agent from any loss, cost, expense or
liability as a result of so acting.
(c) Promptly following receipt of a Request for Loan,
the Administrative Co-Agent shall notify each Bank by telephone
or telecopier (and if by telephone, promptly confirmed by
telecopier) of the date and type of the Loan, the applicable
Interest Period, and that Bank's Pro Rata Share of the Loan. Not
later than 11:00 a.m., San Francisco time, on the date specified
for any Loan (which must be a Banking Day), each Bank shall make
its Pro Rata Share of the Loan in immediately available funds
available to the Administrative Co-Agent at the Administrative
Co-Agent's Office. Upon satisfaction or waiver of the applicable
conditions set forth in Article 8, all Advances shall be credited
on that date in immediately available funds to the Designated
Deposit Account.
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(d) Unless the Requisite Banks otherwise consent, each
Committed Loan shall be not less than $5,000,000.
(e) The Committed Advances made by each Bank shall be
evidenced by that Bank's Committed Advance Note.
(f) A Request for Loan shall be irrevocable upon the
Administrative Co-Agent's first notification thereof.
(g) If no Request for Loan (or telephonic request for Loan
referred to in the second sentence of Section 2.1(b), if
applicable) has been made within the requisite notice periods
set forth in Section 2.2 or 2.3 in connection with a Loan which,
if made and giving effect to the application of the proceeds
thereof, would not increase the outstanding principal Indebtedness
evidenced by the Committed Advance Notes, then Borrowers shall be
deemed to have requested, as of the date upon which the related
then outstanding Loan is due pursuant to Section 3.1(f)(i), an
Alternate Base Rate Loan in an amount equal to the amount
necessary to cause the outstanding principal Indebtedness
evidenced by the Notes to remain the same and, subject to Section
8.3, the Banks shall make the Advances necessary to make such
Loan notwithstanding Sections 2.1(b), 2.2 and 2.3.
(h) If a Loan is to be made on the same date that another
Loan is due and payable, Borrowers or the Banks, as the case may
be, shall make available to the Administrative Co-Agent the net
amount of funds giving effect to both such Loans and the effect
for purposes of this Agreement shall be the same as if separate
transfers of funds had been made with respect to each such Loan.
2.2 Alternate Base Rate Loans. Each request by Borrowers
for an Alternate Base Rate Loan shall be made pursuant to a
Request for Loan (or telephonic or other request for loan referred
to in the second sentence of Section 2.1(b), if applicable)
received by the Administrative Co-Agent, at the Administrative
Co-Agent's Office, not later than 9:00 a.m. San Francisco time,
on the date (which must be a Banking Day) of the requested
Alternate Base Rate Loan. All Committed Loans shall constitute
Alternate Base Rate Loans unless properly designated as a Euro-
dollar Rate Loan pursuant to Section 2.3.
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2.3 Eurodollar Rate Loans.
(a) Each request by Borrowers for a Eurodollar Rate Loan
shall be made pursuant to a Request for Loan (or telephonic or
other request for Loan referred to in the second sentence of
Section 2.1(b), if applicable) received by the Administrative
Co-Agent, at the Administrative Co-Agent's Office, not later
than 10:00 a.m., San Francisco time, at least three (3) Euro-
dollar Banking Days before the first day of the applicable Euro-
dollar Period.
(b) On the date which is two (2) Eurodollar Banking Days
before the first day of the applicable Eurodollar Period, the
Administrative Co-Agent shall confirm its determination of the
applicable Eurodollar Rate (which determination shall be
conclusive in the absence of manifest error) and promptly shall
give notice of the same to Borrowers and the Banks by telephone
or telecopier (and if by telephone, promptly confirmed by
telecopier).
(c) Unless the Administrative Co-Agent and the Requisite
Banks otherwise consent, no more than ten (10) Eurodollar Rate
Loans shall be outstanding at any one time.
(d) No Eurodollar Rate Loan may be requested during the
existence of a Default or Event of Default.
(e) Nothing contained herein shall require any Bank to
fund any Eurodollar Rate Advance in the Designated Eurodollar
Market.
2.4 Competitive Advances.
(a) Subject to the terms and conditions hereof, at any
time and from time to time from the Closing Date through the
Maturity Date, but only so long as the Senior Debt Rating is
BBB-/Baa3 or higher, each Bank may in its sole and absolute
discretion make Competitive Advances to Borrowers in such
principal amounts as Borrowers may request pursuant to a
Competitive Bid Request that do not result in (i) the
aggregate outstanding principal Indebtedness evidenced by the
Competitive Advance Notes being in excess of the lesser of
(A) $200,000,000 or (B) an amount equal to 38.5% of the then
applicable Commitment or (ii) the sum of (A) the aggregate
principal Indebtedness evidenced by the Notes plus (B) the
Aggregate Effective Amount of all outstanding Letters of Credit
plus (C) the Swing Line Outstandings plus (D) the Commercial Paper
Outstandings being in excess of the then applicable Commitment.
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(b) Borrowers shall request Competitive Advances by
submitting a Competitive Bid Request to the Administrative
Co-Agent, which Competitive Bid Request shall specify the
relevant date, amount and maturity for the proposed Competitive
Advance and shall state whether a Competitive Bid is requested
on the basis of a fixed interest rate (an "Absolute Rate Bid") or
on the basis of a margin over the Eurodollar Base Rate (a
"Eurodollar Margin Bid"). Any Competitive Bid Request made by
telephone shall promptly be confirmed by the delivery to
Administrative Co-Agent in person or by telecopier of a written
Competitive Bid Request. The Administrative Co-Agent shall incur
no liability whatsoever hereunder in acting upon any telephonic
Competitive Bid Request purportedly made by a Responsible Official
of Borrowers, which hereby agrees to indemnify the Administrative
Co-Agent from any loss, cost, expense or liability as a result of
so acting. The Competitive Bid Request must be received by the
Administrative Co-Agent not later than 9:00 a.m. San Francisco
time on a Banking Day that is at least one (1) Banking Day prior
to the date of the proposed Competitive Advance if an Absolute
Rate Bid is requested; if a Eurodollar Margin Bid is requested,
it must be received by the Administrative Co-Agent at least five
(5) Banking Days prior to the date of the proposed Competitive
Advance.
(c) Unless the Administrative Co-Agent otherwise agrees,
in its sole and absolute discretion, no Competitive Bid Request
shall be made by Borrowers if Borrowers have, within the
immediately preceding five (5) Banking Days, submitted another
Competitive Bid Request.
(d) Each Competitive Bid Request must be made for a
Competitive Advance of at least $5,000,000 and shall be in an
integral multiple of $1,000,000.
(e) No Competitive Bid Request shall be made for a
Competitive Advance with a maturity of less than 14 days or more
than 180 days, or with a maturity date subsequent to the Maturity
Date.
(f) The Administrative Co-Agent shall, promptly after
receipt of a Competitive Bid Request, notify the Banks thereof by
telephone and provide the Banks a copy thereof by telecopier. Any
Bank may, by written notice to the Administrative Co-Agent, advise
the Administrative Co-Agent that it elects not to be so notified
of Competitive Bid Requests, in which case the Administrative
Co-Agent shall not notify such Bank of the Competitive Bid Request.
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(g) Each Bank receiving a Competitive Bid Request may, in
its sole and absolute discretion, make or not make a Competitive
Bid responsive to the Competitive Bid Request. Each Competitive
Bid shall be submitted to the Administrative Co-Agent not later
than 7:30 a.m. (or, in the case of the Domestic Reference Bank,
not later than 7:15 a.m.) San Francisco time, in the case of
a Eurodollar Margin Bid, on the date which is four (4) Banking
Days prior to the requested Competitive Advance and, in the case
of an Absolute Rate Bid, on the date of the requested Competitive
Advance. Any Competitive Bid received by the Administrative Co-
Agent after 7:30 a.m. (or 7:15 a.m. in the case of the Domestic
Reference Bank) on such date shall be disregarded for purposes of
this Agreement. Any Competitive Bid made by telephone shall
promptly be confirmed by the delivery to the Administrative
Co-Agent in person or by telecopier of a written Competitive Bid.
The Administrative Co-Agent shall incur no liability whatsoever
hereunder in acting upon any telephonic Competitive Bid
purportedly made by a Responsible Official of a Bank, each of
which hereby agrees to indemnify the Administrative Co-Agent from
any loss, cost, expense or liability as a result of so acting with
respect to that Bank.
(h) Each Competitive Bid shall specify the fixed interest
rate or the margin over the Eurodollar Base Rate, as
applicable, for the offered Maximum Competitive Advance set forth
in the Competitive Bid. The Maximum Competitive Advance offered
by a Bank in a Competitive Bid may be less than the Competitive
Advance requested by Borrowers in the Competitive Bid Request, but
shall be an integral multiple of $1,000,000. Any Competitive Bid
which offers an interest rate other than a fixed interest rate or
a margin over the Eurodollar Base Rate, is in a form other than
set forth in Exhibit D or which otherwise contains any term,
condition or provision not contained in the Competitive Bid
Request shall be disregarded for purposes of this Agreement. A
Competitive Bid once submitted to the Administrative Co-Agent
shall be irrevocable until 8:30 a.m. San Francisco time, in the
case of a Eurodollar Margin Bid, on the date which is three (3)
Banking Days prior to the requested Competitive Advance and, in
the case of an Absolute Rate Bid, on the date of the proposed
Competitive Advance set forth in the related Competitive Bid
Request, and shall expire by its terms at such time unless
accepted by Borrowers prior thereto.
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(i) Promptly after 7:30 a.m. San Francisco time, in the
case of a Eurodollar Margin Loan, on the date which is four (4)
Banking Days prior to the date of the proposed Competitive Advance
and, in the case of an Absolute Rate Bid, on the date of the
proposed Competitive Advance, the Administrative Co-Agent shall
notify Borrowers of the names of the Banks providing Competitive
Bids to the Administrative Co-Agent at or before 7:30 a.m. on that
date (or 7:15 a.m. in the case of the Domestic Reference Bank) and
the Maximum Competitive Advance and fixed interest rate or margin
over the Eurodollar Base Rate set forth by each such Bank in its
Competitive Bid. The Administrative Co-Agent shall promptly
confirm such notification in writing delivered in person or by
telecopier to Borrowers.
(j) Borrowers may, in their sole and absolute discretion,
reject any or all of the Competitive Bids. If Borrowers accept
any Competitive Bid, the following shall apply: (a) Borrowers
must accept all Absolute Rate Bids at all lower fixed interest
rates before accepting any portion of an Absolute Rate Bid at a
higher fixed interest rate, (b) Borrowers must accept all
Eurodollar Margin Bids at all lower margins over the Eurodollar
Base Rate before accepting any portion of a Eurodollar Margin Bid
at a higher margin over the Eurodollar Base Rate, (c) if two or
more Banks have submitted a Competitive Bid at the same fixed
interest rate or margin, then Borrowers must accept either all of
such Competitive Bids or accept such Competitive Bids in the same
proportion as the Maximum Competitive Advance of each Bank bears
to the aggregate Maximum Competitive Advances of all such Banks,
and (d) Borrowers may not accept Competitive Bids for an aggregate
amount in excess of the requested Competitive Advance set forth in
the Competitive Bid Request. Acceptance by Borrowers of a
Eurodollar Margin Rate Bid must be made prior to 8:30 a.m. on the
date which is three (3) Banking Days prior to the requested
Competitive Advance and acceptance by Borrowers of an Absolute
Rate Bid must be made prior to 8:30 a.m. on the date of the
requested Competitive Advance. Acceptance of a Competitive Bid by
Borrowers shall be irrevocable upon communication thereof to the
Administrative Co-Agent. The Administrative Co-Agent shall
promptly notify each of the Banks whose Competitive Bid has been
accepted by Borrowers by telephone, which notification shall
promptly be confirmed in writing delivered in person or by
telecopier to such Banks. Any Competitive Bid not accepted by
Borrowers by 8:30 a.m., in the case of a Eurodollar Margin Bid, on
the date which is three (3) Banking Days prior to the proposed
Competitive Advance or, in the case of an Absolute Rate Bid, on
the date of the proposed Competitive Bid, shall be deemed rejected.
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(k) In the case of a Eurodollar Margin Bid, the
Administrative Co-Agent shall determine the Eurodollar Base Rate
on the date which is two (2) Eurodollar Banking Days prior to the
date of the proposed Competitive Advance, and shall promptly
thereafter notify Borrowers and the Banks whose Eurodollar Margin
Bids were accepted by Borrowers of such Eurodollar Base Rate.
(l) A Bank whose Competitive Bid has been accepted by
Borrowers shall make the Competitive Advance in accordance with
the Competitive Bid Request and with its Competitive Bid, subject
to the applicable conditions set forth in this Agreement, by
making funds immediately available to the Administrative Co-Agent
at the Administrative Co-Agent's Office in the amount of such
Competitive Advance not later than 12:00 noon, San Francisco time,
on the date set forth in the Competitive Bid Request. The
Administrative Co-Agent shall then promptly credit the Competitive
Advance in immediately available funds to the Designated Deposit
Account.
(m) The Administrative Co-Agent shall notify Borrowers and
the Banks promptly after any Competitive Advance is made of the
amounts and maturity of such Competitive Advances and the identity
of the Banks making such Competitive Advances.
(n) The Competitive Advances made by a Bank shall be
evidenced by that Bank's Competitive Advance Note.
2.5 Letters of Credit.
(a) Subject to the terms and conditions hereof,
at any time and from time to time from the Closing Date
through the Maturity Date, the Issuing Bank shall issue
such Letters of Credit under the Commitment as Borrowers
may request by a Request for Letter of Credit; provided
that (i) giving effect to all such Letters of Credit, the
sum of (A) the aggregate principal amount outstanding
under the Notes, plus (B) the Aggregate Effective Amount
of all outstanding Letters of Credit plus (C) the
Swing Line Outstandings plus (D) the Commercial Paper
Outstandings do not exceed the then applicable Commitment
and (ii) the Aggregate Effective Amount under all
outstanding Letters of Credit shall not exceed
$50,000,000. Each Letter of Credit shall be in a form
reasonably acceptable to the Issuing Bank. Unless all
the Banks otherwise consent in a writing delivered to the
Administrative Co-Agent, the term of any Letter of Credit
shall not exceed one (1) year or extend beyond the
Maturity Date. A Request for Letter of Credit shall be
irrevocable absent the consent of the Issuing Bank.
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(b) Each Request for Letter of Credit shall be
submitted to the Issuing Bank, with a copy to the
Administrative Co-Agent, at least five (5) Banking Days
prior to the date upon which the related Letter of Credit
is proposed to be issued. The Administrative Co-Agent
shall promptly notify the Issuing Bank whether such
Request for Letter of Credit, and the issuance of a
Letter of Credit pursuant thereto, conforms to the
requirements of this Agreement. Upon issuance of a
Letter of Credit, the Issuing Bank shall promptly notify
the Administrative Co-Agent, and the Administrative Co-
Agent shall promptly notify the Banks, of the amount and
terms thereof.
(c) Upon the issuance of a Letter of Credit, each
Bank shall be deemed to have purchased a pro rata par-
ticipation in such Letter of Credit from the Issuing Bank
in an amount equal to that Bank's Pro Rata Share of the
Commitment. Without limiting the scope and nature of
each Bank's participation in any Letter of Credit, to the
extent that the Issuing Bank has not been reimbursed by
Borrowers for any payment required to be made by the
Issuing Bank under any Letter of Credit, each Bank shall,
pro rata according to its Pro Rata Share of the
Commitment, reimburse the Issuing Bank through the
Administrative Co-Agent promptly upon demand for the
amount of such payment. The obligation of each Bank to
so reimburse the Issuing Bank shall be absolute and uncon-
ditional and shall not be affected by the occurrence of
an Event of Default or any other occurrence or event.
Any such reimbursement shall not relieve or otherwise
impair the obligation of Borrowers to reimburse the
Issuing Bank for the amount of any payment made by the
Issuing Bank under any Letter of Credit together with
interest as hereinafter provided.
(d) Borrowers agree to pay to the Issuing Bank
through the Administrative Co-Agent an amount equal to
any payment made by the Issuing Bank with respect to each
Letter of Credit within one (1) Banking Day after demand
made by the Issuing Bank therefor, together with interest
on such amount from the date of any payment made by the
Issuing Bank at the Default Rate. The principal amount
of any such payment shall be used to reimburse the
Issuing Bank for the payment made by it under the Letter
of Credit. Each Bank that has reimbursed the Issuing
Bank pursuant to Section 2.5(c) for its Pro Rata Share of
any payment made by the Issuing Bank under a Letter of
Credit shall thereupon acquire a pro rata participation,
to the extent of such reimbursement, in the claim of the
Issuing Bank against Borrowers under this Section 2.5(d)
and shall share, in accordance with that pro-rata
participation, in any payment made by Borrowers with
respect to such claim.
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(e) If Borrowers fail to make the payment
required by Section 2.5(d) within the time period therein
set forth, in lieu of the reimbursement to the Issuing
Bank under Section 2.5(c) the Issuing Bank may (but is
not required to), without notice to or the consent of
Borrowers, instruct the Administrative Co-Agent to cause
Advances to be made by the Banks under the Commitment in
an aggregate amount equal to the amount paid by the
Issuing Bank with respect to that Letter of Credit and,
for this purpose, the conditions precedent set forth in
Article 8 shall not apply. The proceeds of such Advances
shall be paid to the Issuing Bank to reimburse it for the
payment made by it under the Letter of Credit. Such
Advances shall be payable upon demand and shall bear
interest at the Default Rate.
(f) The issuance of any supplement, modification,
amendment, renewal, or extension to or of any Letter of
Credit shall be treated in all respects the same as the
issuance of a new Letter of Credit.
(g) The obligation of Borrowers to pay to the
Issuing Bank the amount of any payment made by the
Issuing Bank under any Letter of Credit shall be abso-
lute, unconditional, and irrevocable, subject only to
performance by the Issuing Bank of its obligations to
Borrowers under Nevada Revised Statutes Section 104.5109.
Without limiting the foregoing, Borrowers' obligations
shall not be affected by any of the following
circumstances:
(i) any lack of validity or enforceability
of the Letter of Credit, this Agreement, or
any other agreement or instrument relating
thereto;
(ii) any amendment or waiver of or any
consent to departure from the Letter of Credit,
this Agreement, or any other agreement or
instrument relating thereto, with the consent of
Borrowers;
(iii) the existence of any claim, setoff,
defense, or other rights which Borrowers may
have at any time against the Issuing Bank, the
Administrative Co-Agent or any Bank, any
beneficiary of the Letter of Credit (or any
persons or entities for whom any such beneficiary
may be acting) or any other Person, whether in
connection with the Letter of Credit, this
Agreement, or any other agreement or instrument
relating thereto, or any unrelated transactions;
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(iv) any demand, statement, or any other
document presented under the Letter of Credit
proving to be forged, fraudulent, invalid, or
insufficient in any respect or any statement
therein being untrue or inaccurate in any respect
whatsoever so long as any such document appeared
to comply with the terms of the Letter of Credit;
(v) payment by the Issuing Bank in good
faith under the Letter of Credit against
presentation of a draft or any accompanying
document which does not strictly comply with the
terms of the Letter of Credit;
(vi) the existence, character, quality,
quantity, condition, packing, value or delivery
of any Property purported to be represented by
documents presented in connection with any Letter
of Credit or for any difference between any
such Property and the character, quality,
quantity, condition, or value of such Property as
described in such documents;
(vii) the time, place, manner, order or
contents of shipments or deliveries of Property
as described in documents presented in connection
with any Letter of Credit or the existence,
nature and extent of any insurance relative
thereto;
(viii) the solvency or financial
responsibility of any party issuing any documents
in connection with a Letter of Credit;
(ix) any failure or delay in notice of
shipments or arrival of any Property;
(x) any error in the transmission of any
message relating to a Letter of Credit not caused
by the Issuing Bank, or any delay or interruption in
any such message;
(xi) any error, neglect or default of any
correspondent of the Issuing Bank in connection with
a Letter of Credit;
(xii) any consequence arising from acts
of God, war, insurrection, civil unrest,
disturbances, labor disputes, emergency conditions
or other causes beyond the control of the Issuing
Bank;
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(xiii) so long as the Issuing Bank in
good faith determines that the contract or document
appears to comply with the terms of the Letter of
Credit, the form, accuracy, genuineness or legal
effect of any contract or document referred to in any
document submitted to the Issuing Bank in connection
with a Letter of Credit; and
(xiv) where the Issuing Bank has acted in
good faith and observed general banking usage, any
other circumstances whatsoever.
(h) The Issuing Bank shall be entitled to the pro-
tection accorded to the Administrative Co-Agent pursuant
to Section 10.6, mutatis mutandis.
(i) The Uniform Code of Practice for Documentary
Credits, as published in its most current version by the
International Chamber of Commerce, shall be deemed a part
of this Section and shall apply to all Letters of Credit
to the extent not inconsistent with applicable Law.
2.6 Voluntary Reduction of Commitment. Borrowers shall
have the right, at any time and from time to time, without
penalty or charge, upon at least three (3) Banking Days' prior
written notice by a Responsible Official of Borrowers to the
Administrative Co-Agent, voluntarily to reduce, permanently and
irrevocably, in aggregate principal amounts in an integral
multiple of $1,000,000 but not less than $5,000,000, or to
terminate, all or a portion of the then undisbursed portion of
the Commitment, provided that any such reduction or termination
shall be accompanied by payment of all accrued and unpaid
commitment fees with respect to the portion of the Commitment
being reduced or terminated. The Administrative Co-Agent shall
promptly notify the Banks of any reduction or termination of
the Commitment under this Section.
2.7 Contingent Reduction of Commitment. If, on any
Stage I Reduction Date, the Stage I Reduction Test is not
satisfied, the Commitment shall automatically be reduced on
that Stage I Reduction Date by the applicable Stage I Reduction
Amount. If, on any Stage II Reduction Date, the Stage II
Reduction Test is not satisfied, the Commitment shall
automatically be reduced on that Stage II Reduction Date by the
applicable Stage II Reduction Amount. A reduction in the
Commitment under this Section shall not be reversible upon any
subsequent satisfaction of the Stage I Reduction Test or
Stage II Reduction Test, as the case may be.
2.8 Special Reduction of Commitment. If all or any
portion of the Dunes Property is sold in a transaction
permitted by Section 6.3(b), the Commitment shall automatically
be reduced as of the date of such sale by the Special Commit-
ment Reduction Amount; provided that such reduction may be
deferred at the election of Borrowers for a period extending up
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to sixty (60) days after the later of (i) the date of such sale
or (ii) April 1, 1995 if (a) the sale of the Dunes Property is
for all Cash consideration and (b) the Net Cash Proceeds of
such sale are immediately pledged to the Administrative
Co-Agent pursuant to a blocked deposit account agreement in a
form reasonably acceptable to the Administrative Co-Agent until
the end of such period.
2.9 Optional Termination of Commitment. Following the
occurrence of a Change in Control, the Requisite Banks may in
their sole and absolute discretion elect, during the
thirty (30) day period immediately subsequent to the later of
(a) such occurrence or (b) the earlier of (i) receipt of
Borrowers' written notice to the Administrative Co-Agent of
such occurrence or (ii) if no such notice has been received by
the Administrative Co-Agent, the date upon which the
Administrative Co-Agent has actual knowledge thereof, to
terminate the Commitment, in which case the Commitment shall be
terminated effective on the date which is thirty (30) days
subsequent to written notice from the Administrative Co-Agent
to Borrowers thereof.
2.10 Administrative Co-Agent's Right to Assume Funds
Available for Advances. Unless the Administrative Co-Agent
shall have been notified by any Bank no later than the Banking
Day prior to the funding by the Administrative Co-Agent of any
Loan that such Bank does not intend to make available
to the Administrative Co-Agent such Bank's portion of the total
amount of such Loan, the Administrative Co-Agent may assume
that such Bank has made such amount available to the
Administrative Co-Agent on the date of the Loan and the
Administrative Co-Agent may, in reliance upon such assumption,
make available to Borrowers a corresponding amount. If the
Administrative Co-Agent has made funds available to Borrowers
based on such assumption and such corresponding amount is not
in fact made available to the Administrative Co-Agent by such
Bank, the Administrative Co-Agent shall be entitled to
recover such corresponding amount on demand from such Bank. If
such Bank does not pay such corresponding amount forthwith
upon the Administrative Co-Agent's demand therefor, the
Administrative Co-Agent promptly shall notify Borrowers and
Borrowers shall pay such corresponding amount to the
Administrative Co-Agent. The Administrative Co-Agent also
shall be entitled to recover from such Bank interest on such
corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative
Co-Agent to Borrowers to the date such corresponding amount
is recovered by the Administrative Co-Agent, at a rate per
annum equal to the daily Federal Funds Rate. Nothing herein
shall be deemed to relieve any Bank from its obligation to
fulfill its share of the Commitment or to prejudice any
rights which the Administrative Co-Agent or Borrowers may have
against any Bank as a result of any default by such Bank
hereunder.
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2.11 Swing Line. The Swing Line Bank shall from time
to time through the day prior to the Maturity Date make Swing
Line Loans to Borrowers in such amounts as Borrowers may
request, provided that (i) giving effect to such Swing Line
Loan, the Swing Line Outstandings do not exceed $10,000,000,
(ii) without the consent of all of the Banks, no Swing Line
Loan may be made during the continuation of an Event of Default
and (iii) the Swing Line Bank has not given at least twenty-
four (24) hours prior notice to Borrowers that availability
under the Swing Line is suspended or terminated. Borrowers
may borrow, repay and reborrow under this Section. Unless
notified to the contrary by the Swing Line Bank, borrowings
under the Swing Line may be made in amounts which are
integral multiples of $100,000 upon telephonic request by a
Responsible Official of Borrowers made to the Swing Line
Bank not later than 3:00 p.m., Las Vegas time, on the Banking
Day of the requested borrowing (which telephonic request shall
be promptly confirmed in writing by telecopier). Promptly
after receipt of such a request for borrowing, the Swing
Line Bank shall obtain telephonic verification from the
Administrative Co-Agent that, giving effect to such request,
availability for Loans will exist under Section 2.1 (and
such verification shall be promptly confirmed in writing by
telecopier). Unless notified to the contrary by the Swing
Line Bank, each repayment of a Swing Line Loan shall be in an
amount which is an integral multiple of $100,000. If
Borrowers instruct the Swing Line Bank to debit its demand
deposit account at the Swing Line Bank in the amount of any
payment with respect to a Swing Line Loan, or the Swing Line
Bank otherwise receives repayment, after 3:00 p.m., Las Vegas
time, on a Banking Day, such payment shall be deemed received
on the next Banking Day. The Swing Line Bank shall promptly
notify the Administrative Co-Agent of the Swing Loan
Outstandings each time there is a change therein.
Swing Line Loans shall bear interest at a fluctuating
rate per annum equal to the Alternate Base Rate plus the
Applicable Alternate Base Rate Margin, payable on such dates,
not more frequent than monthly, as may be specified by the
Swing Line Bank and in any event on the Maturity Date. The
Swing Line Bank shall be responsible for invoicing Borrowers
for such interest. The interest payable on Swing Line Loans is
solely for the account of the Swing Line Bank.
The Swing Line Loans shall be payable on demand made
by the Swing Line Bank and in any event on the Maturity Date.
Upon the making of a Swing Line Loan, each Bank shall
be deemed to have purchased from the Swing Line Bank a partici-
pation therein in an amount equal to that Bank's Pro Rata Share
of the Commitment times the amount of the Swing Line Loan.
Upon demand made by the Swing Line Bank, each Bank shall,
according to its Pro Rata Share of the Commitment, promptly
provide to the Swing Line Bank its purchase price therefor in
an amount equal to its participation therein. The obligation
of each Bank to so provide its purchase price to the Swing Line
Bank shall be absolute and unconditional and shall not be
affected by the occurrence of an Event of Default or any other
occurrence or event.
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In the event that the Swing Line Outstandings are in
excess of $5,000,000 on three (3) consecutive Banking Days,
then on the next Banking Day (unless Borrowers have made other
arrangements acceptable to the Swing Line Bank to reduce the
Swing Line Outstandings below $5,000,000), Borrowers shall
request a Committed Loan pursuant to Section 2.1(a) in an
amount complying with Section 2.1(d) and sufficient to reduce
the Swing Line Outstandings below $5,000,000. The
Administrative Co-Agent shall automatically provide such amount
to the Swing Line Bank (which the Swing Line Bank shall then
apply to the Swing Line Outstandings) and credit any balance of
the Committed Loan in immediately available funds to the
Designated Deposit Account. In the event that Borrowers fail
to request a Committed Loan within the time specified by
Section 2.2 on any such date, the Administrative Co-Agent may,
but is not required to, without notice to or the consent of
Borrowers, cause Committed Advances to be made by the Banks
under the Commitment in the amount necessary to comply with
Section 2.1(d) and sufficient to reduce the Swing Line
Outstandings below $5,000,000 and, for this purpose, the
conditions precedent set forth in Sections 8.1, 8.2 and 8.3
shall not apply. The proceeds of such Committed Advances shall
be paid to the Swing Line Bank for application to the Swing
Line Outstandings.
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Article 3
PAYMENTS AND FEES
_________________
3.1 Principal and Interest.
(a) Interest shall be payable on the outstanding
daily unpaid principal amount of each Advance from the date
thereof until payment in full is made and shall accrue and be
payable at the rates set forth or provided for herein before
and after default, before and after maturity, before and after
judgment, and before and after the commencement of any
proceeding under any Debtor Relief Law, with interest on overdue
interest at the Default Rate to the fullest extent permitted by
applicable Laws.
(b) Interest accrued on each Alternate Base Rate Loan
on each Quarterly Payment Date, and on the date of any prepay-
ment of the Notes pursuant to Section 3.1(f), shall be due and
payable on that day. Except as otherwise provided in Section
3.9, the unpaid principal amount of any Alternate Base Rate Loan
shall bear interest at a fluctuating rate per annum equal to the
Alternate Base Rate plus the Applicable Alternate Base Rate
Margin. Each change in the interest rate under this Section
3.1(b) due to a change in the Alternate Base Rate shall take
effect simultaneously with the corresponding change in the
Alternate Base Rate.
(c) Interest accrued on each Eurodollar Rate Loan which
is for a term of three months or less shall be due and payable on
the last day of the related Eurodollar Period. Interest accrued
on each other Eurodollar Rate Loan shall be due and payable on
the date which is three months after the date such Eurodollar
Rate Loan was made (and, in the event that all of the Banks have
approved a Eurodollar Period of longer than six months, every
three months thereafter through the last day of the Eurodollar
Period) and on the last day of the related Eurodollar Period.
Except as otherwise provided in Sections 3.1(e) and 3.9, the
unpaid principal amount of any Eurodollar Rate Loan shall bear
interest at a rate per annum equal to the Eurodollar Rate for
that Eurodollar Rate Loan plus the Applicable Eurodollar Rate
Margin.
(d) Interest accrued on each Competitive Advance which
is for a term of 90 days or less shall be due and payable on the
maturity date of the Competitive Advance. Interest accrued on
each other Competitive Advance shall be due and payable on the
date which is 90 days after the date such Competitive Advance was
made and on the maturity date of the Competitive Advance. Each
Competitive Advance shall bear interest at the rate per annum set
forth in the related Competitive Bid.
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(e) During the existence of a Default or Event of Default,
the Requisite Banks may determine that any or all then
outstanding Eurodollar Rate Loans shall be converted to
Alternate Base Rate Loans. Such conversion shall be effective
upon notice to Borrowers from the Requisite Banks (or from the
Administrative Co-Agent on behalf of the Requisite Banks) and
shall continue so long as such Default or Event of Default
continues to exist.
(f) If not sooner paid, the principal Indebtedness
evidenced by the Notes shall be payable as follows:
(i) the principal amount of each Eurodollar Rate Loan
shall be payable (subject to Section 2.1(g)) on the last
day of the Interest Period for such Loan;
(ii) the principal amount of each Competitive Advance
shall be payable on the maturity date specified in the
related Competitive Bid;
(iii) the amount, if any, by which the sum of (A) the
principal outstanding Indebtedness evidenced by the Notes,
plus (B) the Aggregate Effective Amount of all outstanding
Letters of Credit, plus (C) the Swing Line Outstandings,
plus (D) the Commercial Paper Outstandings at any time
exceeds the Commitment shall be payable immediately and
shall be applied to the Committed Advance Notes; and
(iv) the principal Indebtedness evidenced by the Notes
shall in any event be payable on the Maturity Date.
(g) The Committed Advance Notes may, at any time and from
time to time, voluntarily be paid or prepaid in whole or in part
without premium or penalty, except that with respect to any
voluntary prepayment under this Section (i) any partial prepayment
shall be not less than $5,000,000, (ii) the Administrative Co-Agent
shall have received written notice of any prepayment by 9:00 a.m.
San Francisco time on the date of prepayment (which must be a
Banking Day) in the case of an Alternate Base Rate Loan, and, in the
case of a Eurodollar Rate Loan, three (3) Banking Days before the
date of prepayment, which notice shall identify the date and amount
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of the prepayment and the Loan(s) being prepaid, (iii) each
prepayment of principal shall be accompanied by payment of interest
accrued to the date of payment on the amount of principal paid and
(iv) any payment or prepayment of all or any part of any Eurodollar
Rate Loan on a day other than the last day of the applicable
Interest Period shall be subject to Section 3.8(d).
(h) No Competitive Advance Note may be prepaid without the
prior written consent of the Bank holding such Competitive Advance
Note.
3.2 Arrangement Fee. On the Closing Date, Borrowers
shall pay to the Arranger an arrangement fee in the amount
heretofore agreed upon by letter agreement between Borrowers
and the Arranger. Such arrangement fee is for the services
of the Arranger in arranging the credit facilities under
this Agreement and is fully earned when paid. The arrangement
fee paid to the Arranger is solely for its own account and is
nonrefundable.
3.3 Upfront Fees. On the Closing Date, Borrowers shall
pay to the Administrative Co-Agent, for the respective accounts
of the Co-Agents, upfront fees in the respective amounts
heretofore agreed upon by letter agreement between Borrowers
and each Co-Agent. On the Closing Date, Borrowers shall
further pay to the Administrative Co-Agent, for the respective
accounts of the Banks (other than the Co-Agents) pro rata
according to their Pro Rata Share of the Commitment, an upfront
fee in an amount set forth in a letter from the Arranger to
each Bank and acknowledged by that Bank as the applicable
upfront fee for such Bank. Such upfront fees are for the
credit facilities committed by each Bank under this Agreement
and are fully earned when paid. The upfront fees paid to each
Bank are solely for its own account and are nonrefundable.
3.4 Commitment Fees. From the Closing Date, Borrowers
shall pay to the Administrative Co-Agent, for the ratable
accounts of the Banks pro rata according to their Pro Rata
Share of the Commitment, a commitment fee equal to the
Applicable Commitment Fee Rate per annum times the average
daily amount by which the Commitment exceeds the sum of (a)
the aggregate principal Indebtedness evidenced by the
Committed Advance Notes (excluding the Competitive
Advances and Swing Line Outstandings) plus (b) the Aggregate
Effective Amount of all Letters of Credit outstanding. The
commitment fee shall be payable quarterly in arrears on each
Quarterly Payment Date and on the Maturity Date.
3.5 Letter of Credit Fees. Concurrently with the
issuance of each Letter of Credit, Borrowers shall pay a letter
of credit issuance fee to the Issuing Bank, for the sole
account of the Issuing Bank, in an amount set forth in a
letter agreement between Borrowers and the Issuing Bank.
Borrowers shall also concurrently pay to the Administrative
Co-Agent, for the ratable account of the Banks in accordance
with their Pro Rata Share of the Commitment, a standby letter
of credit fee in an amount equal to the Applicable Letter of
Credit Fee times the face amount of such Letter of Credit
through the termination or expiration of such Letter of Credit.
The letter of credit issuance fee and the standby letter
of credit fee are nonrefundable.
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3.6 Agency Fees. Borrowers shall pay to the
Administrative Co-Agent an agency fee in such amounts and at
such times as heretofore agreed upon by letter agreement
between Borrowers and the Administrative Co-Agent. The agency
fee is for the services to be performed by the Administrative
Co-Agent in acting as Administrative Co-Agent and is fully
earned on the date paid. The agency fee paid to the
Administrative Co-Agent is solely for its own account and is
nonrefundable.
3.7 Increased Commitment Costs. If any Bank shall
determine in good faith that the introduction after the Closing
Date of any applicable law, rule, regulation or guideline
regarding capital adequacy, or any change therein or any change
in the interpretation or administration thereof by any central
bank or other Governmental Agency charged with the
interpretation or administration thereof, or compliance by such
Bank (or its Eurodollar Lending Office) or any corporation
controlling the Bank, with any request, guideline or
directive regarding capital adequacy (whether or not having
the force of law) of any such central bank or other
authority, affects or would affect the amount of capital
required or expected to be maintained by such Bank or any
corporation controlling such Bank and (taking into con-
sideration such Bank's or such corporation's policies with
respect to capital adequacy and such Bank's desired return on
capital) determines in good faith that the amount of such
capital is increased, or the rate of return on capital is
reduced, as a consequence of its obligations under this
Agreement, then, within ten (10) Banking Days after demand of
such Bank, Borrowers shall pay to such Bank, from time to
time as specified in good faith by such Bank, additional
amounts sufficient to compensate such Bank in light of such
circumstances, to the extent reasonably allocable to such
obligations under this Agreement. Each Bank's determination
of such amounts shall be conclusive in the absence of
manifest error.
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3.8 Eurodollar Costs and Related Matters.
(a) If, after the date hereof, the existence or
occurrence of any Special Eurodollar Circumstance:
(1) shall subject any Bank or its Eurodollar
Lending Office to any tax, duty or other charge or
cost with respect to any Eurodollar Rate Advance,
any of its Notes evidencing Eurodollar Rate Loans
or its obligation to make Eurodollar Rate Advances,
or shall change the basis of taxation of payments
to any Bank attributable to the principal of or
interest on any Eurodollar Rate Advance or any
other amounts due under this Agreement in respect
of any Eurodollar Rate Advance, any of its Notes
evidencing Eurodollar Rate Loans or its obligation
to make Eurodollar Rate Advances, excluding, in the
case of each Bank, the Administrative Co-Agent,
each Co-Agent and each Eligible Assignee, and any
Affiliate or Eurodollar Lending Office thereof, (i)
taxes imposed on or measured in whole or in part
by its overall net income, gross income or gross
receipts or capital and franchise taxes imposed on
it, by (A) any jurisdiction (or political
subdivision thereof) in which it is organized or
maintains its principal office or Eurodollar
Lending Office or (B) any jurisdiction (or
political subdivision thereof) in which it is
"doing business" (unless it would not be doing
business in such jurisdiction (or political sub-
division thereof) absent the transactions
contemplated hereby), (ii) any withholding taxes or
other taxes based on gross income imposed by the
United States of America (other than withholding
taxes and taxes based on gross income resulting
from or attributable to any change in any law, rule
or regulation or any change in the interpretation
or administration of any law, rule or regulation by
any Governmental Agency) or (iii) any withholding
taxes or other taxes based on gross income imposed
by the United States of America for any period with
respect to which it has failed to provide Borrowers
with the appropriate form or forms required by
Section 11.21, to the extent such forms are then
required by applicable Laws;
(2) shall impose, modify or deem applicable any
reserve not applicable or deemed applicable on the date
hereof (including, without limitation, any reserve
imposed by the Board of Governors of the Federal
Reserve System, but excluding the Eurodollar Reserve
Percentage taken into account in calculating the
Eurodollar Rate), special deposit, capital or similar
requirements against assets of, deposits with or for
the account of, or credit extended by, any Bank or its
Eurodollar Lending Office; or
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(3) shall impose on any Bank or its Eurodollar
Lending Office or the Designated Eurodollar Market any
other condition affecting any Eurodollar Rate Advance,
any of its Notes evidencing Eurodollar Rate Loans, its
obligation to make Eurodollar Rate Advances or this
Agreement, or shall otherwise affect any of the same;
and the result of any of the foregoing, as determined in
good faith by such Bank, increases the cost to such Bank
or its Eurodollar Lending Office of making or maintaining
any Eurodollar Rate Advance or in respect of any
Eurodollar Rate Advance, any of its Notes evidencing
Eurodollar Rate Loans or its obligation to make
Eurodollar Rate Advances or reduces the amount of any sum
received or receivable by such Bank or its Eurodollar
Lending Office with respect to any Eurodollar Rate
Advance, any of its Notes evidencing Eurodollar Rate
Loans or its obligation to make Eurodollar Rate Advances
(assuming such Bank's Eurodollar Lending Office had
funded 100% of its Eurodollar Rate Advance in the Desig-
nated Eurodollar Market), then, within five (5) Banking
Days after demand by such Bank (with a copy to the
Administrative Co-Agent), Borrowers shall pay to such
Bank such additional amount or amounts as will compensate
such Bank for such increased cost or reduction
(determined as though such Bank's Eurodollar Lending
Office had funded 100% of its Eurodollar Rate Advance in
the Designated Eurodollar Market). Borrowers hereby
indemnify each Bank against, and agree to hold each Bank
harmless from and reimburse such Bank within
ten (10) Banking Days after demand for (without
duplication) all costs, expenses, claims, penalties,
liabilities, losses, reasonable legal fees and damages
incurred or sustained by each Bank in connection with
this Agreement, or any of the rights, obligations or
transactions provided for or contemplated herein, as a
direct result of the existence or occurrence of any
Special Eurodollar Circumstance. A statement of any Bank
claiming compensation under this subsection and setting
forth in reasonable detail the additional amount or
amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error. Each Bank agrees to
endeavor promptly to notify Borrowers of any event of
which it has actual knowledge, occurring after the Closing
Date, which will entitle such Bank to compensation pursuant
to this Section, and agrees to designate a different
Eurodollar Lending Office if such designation will avoid
the need for or reduce the amount of such compensation and
will not, in the good faith judgment of such Bank, other-
wise be materially disadvantageous to such Bank. If any
Bank claims compensation under this Section, Borrowers
may at any time, upon at least four (4) Eurodollar Banking
Days' prior notice to the Administrative Co-Agent and such
Bank and upon payment in full of the amounts provided for
in this Section through the date of such payment plus any
prepayment fee required by Section 3.8(d), pay in full the
affected Eurodollar Rate Advances of such Bank or request
that such Eurodollar Rate Advances be converted to Alternate
Base Rate Advances.
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(b) If, after the date hereof, the existence or
occurrence of any Special Eurodollar Circumstance shall, in
the good faith opinion of any Bank, make it unlawful or
impossible for such Bank or its Eurodollar Lending Office to
make, maintain or fund its portion of any Eurodollar Rate
Loan, or materially restrict the authority of such Bank to
purchase or sell, or to take deposits of, Dollars in the
Designated Eurodollar Market, or to determine or charge
interest rates based upon the Eurodollar Rate, and such Bank
shall so notify the Administrative Co-Agent, then such
Bank's obligation to make Eurodollar Rate Advances shall be
suspended for the duration of such illegality or
impossibility and the Administrative Co-Agent forthwith
shall give notice thereof to the other Banks and Borrowers.
Upon receipt of such notice, the outstanding principal
amount of such Bank's Eurodollar Rate Advances, together
with accrued interest thereon, automatically shall be
converted to Alternate Base Rate Advances with Interest
Periods corresponding to the Eurodollar Loans of which such
Eurodollar Rate Advances were a part on either (1) the last
day of the Eurodollar Period(s) applicable to such Euro-
dollar Rate Advances if such Bank may lawfully continue to
maintain and fund such Eurodollar Rate Advances to such
day(s) o r (2) immediately if such Bank may not lawfully
continue to fund and maintain such Eurodollar Rate Advances
to such day(s), provided that in such event the conversion
shall not be subject to payment of a prepayment fee under
Section 3.8(d). Each Bank agrees to endeavor promptly to
notify Borrowers of any event of which it has actual
knowledge, occurring after the Closing Date, which will
cause that Bank to notify the Administrative Co-Agent under
this Section 3.8(b), and agrees to designate a different
Eurodollar Lending Office if such designation will avoid the
need for such notice and will not, in the good faith judg-
ment of such Bank, otherwise be materially disadvantageous
to such Bank. In the event that any Bank is unable, for the
reasons set forth above, to make, maintain or fund its
portion of any Eurodollar Rate Loan, such Bank shall fund
such amount as an Alternate Base Rate Advance for the same
period of time, and such amount shall be treated in all
respects as an Alternate Base Rate Advance. Any Bank whose
obligation to make Eurodollar Rate Advances has been
suspended under this Section 3.8(b) shall promptly notify
the Administrative Co-Agent and Borrowers of the cessation
of the Special Eurodollar Circumstance which gave rise to
such suspension.
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(c) If, with respect to any proposed Eurodollar Rate
Loan:
(1) the Administrative Co-Agent reasonably
determines that, by reason of circumstances affecting
the Designated Eurodollar Market generally that are
beyond the reasonable control of the Banks, deposits
in Dollars (in the applicable amounts) are not being
offered to any Bank in the Designated Eurodollar
Market for the applicable Eurodollar Period; or
(2) the Requisite Banks advise the Administrative
Co-Agent that the Eurodollar Rate as determined by the
Administrative Co-Agent (i) does not represent the
effective pricing to such Banks for deposits in
Dollars in the Designated Eurodollar Market in the
relevant amount for the applicable Eurodollar Period,
or (ii) will not adequately and fairly reflect the
cost to such Banks of making the applicable Eurodollar
Rate Advances;
then the Administrative Co-Agent forthwith shall give
notice thereof to Borrowers and the Banks, whereupon
until the Administrative Co-Agent notifies Borrowers that
the circumstances giving rise to such suspension no
longer exist, the obligation of the Banks to make any
future Eurodollar Rate Advances shall be suspended. If
at the time of such notice there is then pending a
Request for Loan that specifies a Eurodollar Rate Loan,
such Request for Loan shall be deemed to specify an
Alternate Base Rate Loan.
(d) Upon payment or prepayment of any Eurodollar Rate
Advance (other than as the result of a conversion required
under Section 3.1(e) or 3.8(b), on a day other than the last
day in the applicable Eurodollar Period (whether voluntarily,
involuntarily, by reason of acceleration, or otherwise), or
upon the failure of Borrowers (for a reason other than the
failure of a Bank to make an Advance) to borrow on the date or
in the amount specified for a Eurodollar Rate Loan in any
Request for Loan, Borrowers shall pay to the appropriate Bank
within ten (10) Banking Days after demand a prepayment fee or
failure to borrow fee, as the case may be (determined as though
100% of the Eurodollar Rate Advance had been funded in the
Designated Eurodollar Market) equal to the sum of:
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(1) the principal amount of the Eurodollar Rate
Advance prepaid or not borrowed, as the case may be,
times [the number of days between the date of prepay-
ment or failure to borrow, as applicable, and the last
day in the applicable Eurodollar Period], divided by
360, times the applicable Interest Differential (pro-
vided that the product of the foregoing formula must
be a positive number); plus
(2) all out-of-pocket expenses incurred by the
Bank reasonably attributable to such payment, prepay-
ment or failure to borrow.
Each Bank's determination of the amount of any prepayment fee
payable under this Section 3.8(d) shall be conclusive in the
absence of manifest error.
3.9 Late Payments. If any installment of principal or
interest or any fee or cost or other amount payable under any
Loan Document to the Administrative Co-Agent or any Bank is not
paid when due, it shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the
sum of the Alternate Base Rate plus the Applicable Alternate
Base Rate Margin plus 2%, to the fullest extent permitted by
applicable Laws. Accrued and unpaid interest on past due
amounts (including, without limitation, interest on past due
interest) shall be compounded monthly, on the last day of each
calendar month, to the fullest extent permitted by applicable
Laws.
3.10 Computation of Interest and Fees. Computation of
interest on Alternate Base Rate Loans shall be calculated on
the basis of a year of 365 or 366 days, as the case may be, and
the actual number of days elapsed; computation of interest on
Eurodollar Rate Loans and all fees under this Agreement shall
be calculated on the basis of a year of 360 days and the actual
number of days elapsed. Borrowers acknowledge that such latter
calculation method will result in a higher yield to the Banks
than a method based on a year of 365 or 366 days. Interest
shall accrue on each Loan for the day on which the Loan is
made; interest shall not accrue on a Loan, or any portion
thereof, for the day on which the Loan or such portion is paid.
Any Loan that is repaid on the same day on which it is made
shall bear interest for one day.
3.11 Non-Banking Days. If any payment to be made by
Borrowers or any other Party under any Loan Document shall come
due on a day other than a Banking Day, payment shall instead be
considered due on the next succeeding Banking Day and the
extension of time shall be reflected in computing interest and
fees.
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3.12 Manner and Treatment of Payments.
(a) Each payment hereunder (except payments
pursuant to Sections 2.11, 3.7, 3.8, 11.3, 11.11 and
11.22) or on the Notes or under any other Loan Document
shall be made to the Administrative Co-Agent, at the
Administrative Co-Agent's Office, for the account of
each of the Banks or the Administrative Co-Agent, as
the case may be, in immediately available funds not later
than 11:00 a.m., San Francisco time, on the day of payment
(which must be a Banking Day). All payments received after
11:00 a.m., San Francisco time, on any Banking Day, shall
be deemed received on the next succeeding Banking Day.
The amount of all payments received by the Administrative
Co-Agent for the account of each Bank shall be immediately
paid by the Administrative Co-Agent to the applicable
Bank in immediately available funds and, if such payment
was received by the Administrative Co-Agent by 11:00 a.m.,
San Francisco time, on a Banking Day and not so made
available to the account of a Bank on that Banking Day,
the Administrative Co-Agent shall reimburse that Bank for
the cost to such Bank of funding the amount of such pay-
ment at the Federal Funds Rate. All payments shall be made
in lawful money of the United States of America.
(b) Each payment or prepayment on account of any
Committed Loan shall be applied pro rata according to the
outstanding Advances made by each Bank comprising such
Committed Loan. Each payment or (subject to Section
3.1(g)) prepayment on account of a Competitive Advance
shall be applied to the Competitive Advance Note held by
the Bank which made such Competitive Advance.
(c) Each Bank shall use its best efforts to keep a
record of Advances made by it and payments received by it
with respect to each of its Notes and, subject to Section
10.6(g), such record shall, as against Borrowers, be pre-
sumptive evidence of the amounts owing. Notwithstanding
the foregoing sentence, no Bank shall be liable to any
Party for any failure to keep such a record.
(d) Each payment of any amount payable by Borrowers
or any other Party under this Agreement or any other Loan
Document shall be made free and clear of, and without
reduction by reason of, any taxes, assessments or other
charges imposed by any Governmental Agency, central bank or
comparable authority, excluding, in the case of each Bank,
the Administrative Co-Agent, each Co-Agent and each Eligible
Assignee, and any Affiliate or Eurodollar Lending Office
thereof, (i) taxes imposed on or measured in whole or in
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part by its overall net income, gross income or gross
receipts or capital and franchise taxes imposed on it, by
(A) any jurisdiction (or political subdivision thereof) in
which it is organized or maintains its principal office or
Eurodollar Lending Office or (B) any jurisdiction (or
political subdivision thereof) in which it is "doing
business" (unless it would not be doing business in such
jurisdiction (or political subdivision thereof) absent the
transactions contemplated hereby), (ii) any withholding
taxes or other taxes based on gross income imposed by the
United States of America (other than withholding taxes and
taxes based on gross income resulting from or attributable
to any change in any law, rule or regulation or any change
in the interpretation or administration of any law, rule or
regulation by any Governmental Agency) or (iii) any with-
holding taxes or other taxes based on gross income imposed
by the United States of America for any period with respect
to which it has failed to provide Borrowers with the
appropriate form or forms required by Section 11.21, to the
extent such forms are then required by applicable Laws (all
such non-excluded taxes, assessments or other charges being
hereinafter referred to as "Taxes"). To the extent that
Borrowers are obligated by applicable Laws to make any
deduction or withholding on account of Taxes from any amount
payable to any Bank under this Agreement, Borrowers shall
(i) make such deduction or withholding and pay the same to
the relevant Governmental Agency and (ii) pay such
additional amount to that Bank as is necessary to result in
that Bank's receiving a net after-Tax amount equal to the
amount to which that Bank would have been entitled under
this Agreement absent such deduction or withholding. If
and when receipt of such payment results in an excess pay-
ment or credit to that Bank on account of such Taxes, that
Bank shall promptly refund such excess to Borrowers.
3.13 Funding Sources. Nothing in this Agreement shall be
deemed to obligate any Bank to obtain the funds for any Loan or
Advance in any particular place or manner or to constitute a
representation by any Bank that it has obtained or will obtain
the funds for any Loan or Advance in any particular place or
manner.
3.14 Failure to Charge Not Subsequent Waiver. Any
decision by the Administrative Co-Agent or any Bank not to
require payment of any interest (including interest arising under
Section 3.9), fee, cost or other amount payable under any Loan
Document, or to calculate any amount payable by a particular
method, on any occasion shall in no way limit or be deemed a
waiver of the Administrative Co-Agent's or such Bank's right to
require full payment of any interest (including interest arising
under Section 3.9), fee, cost or other amount payable under any
Loan Document, or to calculate an amount payable by another
method that is not inconsistent with this Agreement, on any other
or subsequent occasion.
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3.15 Administrative Co-Agent's Right to Assume Payments
Will be Made by Borrowers. Unless the Administrative Co-Agent
shall have been notified by Borrowers prior to the date on which
any payment to be made by Borrowers hereunder is due that
Borrowers do not intend to remit such payment, the Administrative
Co-Agent may, in its discretion, assume that Borrowers have
remitted such payment when so due and the Administrative Co-
Agent may, in its discretion and in reliance upon such assump-
tion, make available to each Bank on such payment date an
amount equal to such Bank's share of such assumed payment. If
Borrowers have not in fact remitted such payment to the
Administrative Co-Agent, each Bank shall forthwith on demand
repay to the Administrative Co-Agent the amount of such assumed
payment made available to such Bank, together with interest
thereon in respect of each day from and including the date such
amount was made available by the Administrative Co-Agent to
such Bank to the date such amount is repaid to the
Administrative Co-Agent at the Federal Funds Rate.
3.16 Fee Determination Detail. The Administrative Co-
Agent, and any Bank, shall provide reasonable detail to
Borrowers regarding the manner in which the amount of any payment
to the Administrative Co-Agent and the Banks, or that Bank,
under Article 3 has been determined, concurrently with demand
forsuch payment.
3.17 Survivability. All of Borrowers' obligations
under Sections 3.7 and 3.8 shall survive for ninety (90) days
following the date on which the Commitment is terminated, all
Loans hereunder are fully paid and all Letters of Credit have
expired.
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Article 4
REPRESENTATIONS AND WARRANTIES
______________________________
Borrowers represent and warrant to the Banks, as of
the date hereof and as of the Closing Date, that:
4.1 Existence and Qualification; Power; Compliance With
Laws. Each of Borrowers is a corporation duly formed, validly
existing and in good standing under the Laws of Nevada. Each
of Borrowers is duly qualified or registered to transact
business and is in good standing in each other jurisdiction in
which the conduct of its business or the ownership or leasing
of its Properties makes such qualification or registration
necessary, except where the failure so to qualify or register
and to be in good standing would not constitute a Material
Adverse Effect. Each of Borrowers has all requisite corporate
power and authority to conduct its business, to own and lease
its Properties and to execute and deliver each Loan Document to
which it is a Party and to perform its Obligations. All
outstanding shares of capital stock of Parent are duly
authorized, validly issued, fully paid and non-assessable, and
no holder thereof has any enforceable right of rescission under
any applicable state or federal securities Laws. Each of
Borrowers is in compliance with all Laws and other legal
requirements applicable to its business, has obtained all
authorizations, consents, approvals, orders, licenses and
permits from, and has accomplished all filings, registrations
and qualifications with, or obtained exemptions from any of the
foregoing from, any Governmental Agency that are necessary for
the transaction of its business, except where the failure so to
comply, file, register, qualify or obtain exemptions does not
constitute a Material Adverse Effect.
4.2 Authority; Compliance With Other Agreements and
Instruments and Government Regulations. The execution,
delivery and performance by each of Borrowers and each
Significant Subsidiary of the Loan Documents to which it is a
Party have been duly authorized by all necessary corporate
action, and do not and will not:
(a) Require any consent or approval not heretofore
obtained of any partner, director, stockholder, security
holder or creditor of such Party;
(b) Violate or conflict with any provision of such
Party's charter, articles of incorporation or bylaws, as
applicable;
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(c) Result in or require the creation or imposition
of any Lien or Right of Others upon or with respect to any
Property now owned or leased or hereafter acquired by such
Party;
(d) Violate any Requirement of Law applicable to such
Party, subject to obtaining the authorizations from, or filings
with, the Governmental Agencies described in Schedule 4.3;
(e) Result in a breach of or constitute a default
under, or cause or permit the acceleration of any obligation owed
under, any indenture or loan or credit agreement or any other
Contractual Obligation to which such Party is a party or by which
such Party or any of its Property is bound or affected;
and none of Borrowers or any Significant Subsidiary is in
violation of, or default under, any Requirement of Law or
Contractual Obligation, or any indenture, loan or credit
agreement described in Section 4.2(e), in any respect that
constitutes a Material Adverse Effect.
4.3 No Governmental Approvals Required. Except as set
forth in Schedule 4.3 or previously obtained or made, no
authorization, consent, approval, order, license or permit
from, or filing, registration or qualification with, any
Governmental Agency is or will be required to authorize or
permit under applicable Laws the execution, delivery and
performance by Borrowers and the Significant Subsidiaries of
the Loan Documents to which it is a Party. All authorizations
from, or filings with, any Governmental Agency described in
Schedule 4.3 will be accomplished as of the Closing Date or
such other date as is specified in Schedule 4.3.
4.4 Subsidiaries.
(a) Schedule 4.4 hereto correctly sets forth the
names, form of legal entity, number of shares of capital
stock issued and outstanding, number of shares owned by
Borrowers or a Subsidiary of Borrowers (specifying such
owner) and jurisdictions of organization of all Subsidiaries
of Parent (other than Borrowers) and specifies which thereof,
as of the Closing Date, are Significant Subsidiaries,
Spin-Off Companies and Unrestricted New Venture Entities.
Except as described in Schedule 4.4 or Schedule 6.18,
Borrowers do not own any capital stock, equity interest or
debt security which is convertible, or exchangeable, for
capital stock or equity interests in any Person. Unless
otherwise indicated in Schedule 4.4, all of the outstanding
shares of capital stock, or all of the units of equity
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interest, as the case may be, of each Restricted Subsidiary
are owned of record and beneficially by Parent, there are no
outstanding options, warrants or other rights to purchase
capital stock of any such Subsidiary, and all such shares or
equity interests so owned are duly authorized, validly issued,
fully paid and non-assessable, and were issued in compliance
with all applicable state and federal securities and other
Laws, and are free and clear of all Liens and Rights of
Others, except for Permitted Encumbrances and Permitted
Rights of Others.
(b) Each Significant Subsidiary is a corporation duly
formed, validly existing and in good standing under the Laws
jurisdiction of organization, is duly qualified to do
business as a foreign organization and is in good standing
as such in each jurisdiction in which the conduct of its
business or the ownership or leasing of its Properties makes
such qualification necessary (except where the failure to be
so duly qualified and in good standing does not constitute
a Material Adverse Effect), and has all requisite power and
authority to conduct its business and to own and lease its
Properties.
(c) Each Restricted Subsidiary is in compliance with
all Laws and other requirements applicable to its business
and has obtained all authorizations, consents, approvals,
orders, licenses, and permits from, and each such Subsidiary
has accomplished all filings, registrations, and qualifi-
cations with, or obtained exemptions from any of the
foregoing from, any Governmental Agency that are necessary
for the transaction of its business, except where the
failure to be in such compliance, obtain such authorizations,
consents, approvals, orders, licenses, and permits,
accomplish such filings, registrations, and qualifications,
or obtain such exemptions, does not constitute a Material
Adverse Effect.
4.5 Financial Statements. Borrowers have furnished to
the Banks (a) the audited consolidated financial statements
of Parent and its Subsidiaries for the Fiscal Year ended
December 31, 1993 and (b) the unaudited consolidating balance
sheet and statement of operations of Parent and its
Subsidiaries for the Fiscal Year ended December 31, 1993. The
financial statements described in clause (a) fairly present in
all material respects the financial condition, results of
operations and changes in financial position, and the balance
sheet and statement of operations described in clause (b)
fairly present the financial condition and results of
operations, of Parent and its Subsidiaries as of such dates and
for such periods in conformity with Generally Accepted
Accounting Principles, consistently applied.
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4.6 No Other Liabilities; No Material Adverse Changes.
Borrowers and the Restricted Subsidiaries do not have any
material liability or material contingent liability not
reflected or disclosed in the balance sheet described in
Section 4.5(b), other than liabilities and contingent
liabilities arising in the ordinary course of business since
the date of such financial statements. As of the Closing Date,
no circumstance or event has occurred that constitutes a
Material Adverse Effect since December 31, 1993, or, as of any
date subsequent to the Closing Date, since the Closing Date.
4.7 Title to Property. Borrowers and the Restricted
Subsidiaries have valid title to the Property reflected in the
balance sheet described in Section 4.5(b), other than items of
Property which are immaterial to Borrowers and the Restricted
Subsidiaries, taken as a whole, and Property subsequently sold
or disposed of in the ordinary course of business, free and
clear of all Liens and Rights of Others, other than Liens or
Rights of Others described in Schedule 4.7 or permitted by
Section 6.9.
4.8 Intangible Assets. Borrowers and the Restricted
Subsidiaries own, or possess the right to use to the extent
necessary in their respective businesses, all material trade
marks, trade names, copyrights, patents, patent rights,
computer software, licenses and other Intangible Assets that
are used in the conduct of their businesses as now operated,
and no such Intangible Asset, to the best knowledge of
Borrowers, conflicts with the valid trademark, trade name,
copyright, patent, patent right or Intangible Asset of any
other Person to the extent that such conflict constitutes a
Material Adverse Effect.
4.9 Public Utility Holding Company Act. Neither any of
Borrowers nor any Restricted Subsidiary is a "holding company",
or a "subsidiary company" of a "holding company", or an "affil-
iate" 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.
4.10 Litigation. Except for (a) any matter fully covered
as to subject matter and amount (subject to applicable deductibles
and retentions) by insurance for which the insurance carrier
has not asserted lack of subject matter coverage or reserved
its right to do so, (b) any matter, or series of related
matters, involving a claim against Borrowers or any of the
Restricted Subsidiaries of less than $5,000,000, (c) matters of an
administrative nature not involving a claim or charge against
Borrowers or any of the Restricted Subsidiaries and (d) matters
set forth in Schedule 4.10, there are no actions, suits, pro-
ceedings or investigations pending as to which Borrowers or
any of the Restricted Subsidiaries have been served or have
received notice or, to the best knowledge of Borrowers, threatened
against or affecting Borrowers or any of the Restricted Sub-
sidiaries or any Property of any of them before any Governmental
Agency.
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4.11 Binding Obligations. Each of the Loan Documents to
which any of Borrowers or the Significant Subsidiaries is a
Party will, when executed and delivered by such Party, constitute
the legal, valid and binding obligation of such Party, enforceable
against such Party in accordance with its terms, except as
enforcement may be limited by Debtor Relief Laws, Gaming Laws
or equitable principles relating to the granting of specific
performance and other equitable remedies as a matter of
judicial discretion.
4.12 No Default. No event has occurred and is continuing
that is a Default or Event of Default.
4.13 ERISA.
(a) With respect to each Pension Plan:
(i) such Pension Plan complies in all material
respects with ERISA and any other applicable Laws to the
extent that noncompliance could reasonably be expected to
have a Material Adverse Effect;
(ii) such Pension Plan has not incurred any
"accumulated funding deficiency" (as defined in Section 302
of ERISA) that could reasonably be expected to have a
Material Adverse Effect;
(iii) no "reportable event" (as defined in Section
4043 of ERISA) has occurred that could reasonably be
expected to have a Material Adverse Effect; and
(iv) none of Borrowers nor any of their
Subsidiaries has engaged in any non-exempt "prohibited
transaction" (as defined in Section 4975 of the Code) that
could reasonably be expected to have a Material Adverse
Effect.
(b) None of Borrowers nor any of the Restricted
Subsidiaries has incurred or expects to incur any withdrawal
liability to any Multiemployer Plan that could reasonably be
expected to have a Material Adverse Effect.
4.14 Regulations G, T, U and X; Investment Company Act. No
part of the proceeds of any Loan hereunder will be used to
purchase or carry, or to extend credit to others for the
purpose of purchasing or carrying, any Margin Stock in violation
of Regulations G, T, U and X. Neither any of Borrowers nor any of
the Restricted Subsidiaries is or is required to be registered as
an "investment company" under the Investment Company Act of 1940.
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4.15 Disclosure. No written statement made by a Senior
Officer to the Administrative Co-Agent or any Bank in connection
with this Agreement, or in connection with any Loan, as of the date
thereof contained any untrue statement of a material fact or omitted
a material fact necessary to make the statement made not misleading
in light of all the circumstances existing at the date the statement
was made.
4.16 Tax Liability. Borrowers and the Restricted Subsid-
iaries have filed all tax returns which are required to be filed,
and have paid, or made provision for the payment of, all taxes with
respect to the periods, Property or transactions covered by said
returns, or pursuant to any assessment received by Borrowers or
any of the Restricted Subsidiaries, except (a) such taxes, if any,
as are being contested in good faith by appropriate proceedings
and as to which adequate reserves have been established and main-
tained and (b) immaterial taxes so long as no material item or
portion of Property of Borrowers or any of the Restricted
Subsidiaries is in jeopardy of being seized, levied upon or
forfeited.
4.17 Projections. As of the Closing Date, to the best know-
ledge of Borrowers, the assumptions set forth in the Projections are
reasonable and consistent with each other and with all facts
known to Borrowers, and the Projections are reasonably based on
such assumptions. Nothing in this Section 4.17 shall be construed
as a representation or covenant that the Projections in fact
will be achieved.
4.18 Hazardous Materials. Except as described in
Schedule 4.18, (a) none of Borrowers nor any of the Restricted
Subsidiaries at any time has disposed of, discharged, released or
threatened the release of any Hazardous Materials on, from or under
the Real Property in violation of any Hazardous Materials Law
that would individually or in the aggregate constitute a Material
Adverse Effect, (b) to the best knowledge of Borrowers, no
condition exists that violates any Hazardous Material Law affecting
any Real Property except for such violations that would not
individually or in the aggregate have a Material Adverse Effect,
(c) no Real Property or any portion thereof is or has been utilized
by Borrowers or any of the Restricted Subsidiaries as a site for
the manufacture of any Hazardous Materials and (d) to the extent
that any Hazardous Materials are used, generated or stored by
Borrowers or any of the Restricted Subsidiaries on any Real
Property, or transported to or from such Real Property by Borrowers
or any of the Restricted Subsidiaries, such use, generation, storage
and transportation are in compliance in all material respects with
all Hazardous Materials Laws.
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4.19 Developed Properties. As of the Closing Date, the
facilities described on Schedule 4.19 comprise all of the Developed
Property owned by Borrowers and the Restricted Subsidiaries.
4.20 Gaming Laws. Each of Borrowers and the Restricted
Subsidiaries is in compliance in all material respects with all
Gaming Laws that are applicable to it.
4.21 Security Interests. Upon the execution and delivery of
the Security Agreement, the Security Agreement will create a
valid first priority security interest in the Collateral
described therein securing the Obligations (subject only to
Permitted Encumbrances, Permitted Rights of Others and matters
disclosed in Schedule 4.7 and to such qualifications and
exceptions as are contained in the Uniform Commercial Code with
respect to the priority of security interests perfected by
means other than the filing of a financing statement or with
respect to the creation of security interests in the Property to
which Division 9 of the Uniform Commercial Code does not apply)
and all action necessary to perfect the security interests so
created, other than filing of the UCC-1 financing statements
delivered to the Administrative Co-Agent pursuant to Section 8.1
with the appropriate Governmental Agency have been taken and com-
pleted. Upon the execution and delivery of the Pledge Agreement
(Gaming), the Pledge Agreement (Gaming) will create a valid first
priority security interest in the Pledged Collateral (Gaming) and
upon delivery of the Pledged Collateral (Gaming) to the Administra-
tive Co-Agent (or its designee) in the State of Nevada all action
necessary to perfect the security interest so created has been
taken and completed. Upon the execution and delivery of the
Pledge Agreement (Non-Gaming), the Pledge Agreement (Non-Gaming)
will create a valid first priority security interest in the
Pledged Collateral (Non-Gaming) and upon delivery of the Pledged
Collateral (Non-Gaming) to the Administrative Co-Agent (or its
designee) all action necessary to perfect the security interest so
created has been taken and completed. Upon the execution and
delivery of the Deed of Trust, the Deed of Trust will create a
valid Lien in the Collateral described therein securing the
Obligations, other than those arising under Sections 4.18, 5.13
and 11.22, (subject only to Permitted Encumbrances, Permitted
Rights of Others and matters described in Schedule 4.7), and all
action necessary to perfect the Lien so created, other than
recordation or filing thereof with the appropriate Governmental
Agencies, will have been taken and completed.
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Article 5
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)
_______________________
So long as any Advance remains unpaid, or any other
Obligation remains unpaid or unperformed, or any portion of the
Commitment remains in force, Borrowers shall, and shall cause
each of the Restricted Subsidiaries to, unless the
Administrative Co-Agent (with the written approval of the
Requisite Banks) otherwise consents:
5.1 Payment of Taxes and Other Potential Liens. Pay and
discharge promptly all taxes, assessments and governmental
charges or levies imposed upon any of them, upon their respec-
tive Property or any part thereof and upon their respective
income or profits or any part thereof, except that Borrowers
and the Restricted Subsidiaries shall not be required to pay or
cause to be paid (a) any tax, assessment, charge or levy that
is not yet past due, or is being contested in good faith by
appropriate proceedings so long as the relevant entity has
established and maintains adequate reserves for the payment of
the same or (b) any immaterial tax so long as no material item
or portion of Property of Borrowers or any of the Restricted
Subsidiaries is in jeopardy of being seized, levied upon or
forfeited.
5.2 Preservation of Existence. Preserve and maintain their
respective existences in the jurisdiction of their formation
and all material authorizations, rights, franchises,
privileges, consents, approvals, orders, licenses, permits, or
registrations from any Governmental Agency that are necessary
for the transaction of their respective business, except where
the failure to so preserve and maintain the existence of any
Restricted Subsidiary and such authorizations would not
constitute a Material Adverse Effect and except that a merger
permitted by Section 6.4 shall not constitute a violation of
this covenant; and qualify and remain qualified to transact
business in each jurisdiction in which such qualification is
necessary in view of their respective business or the ownership
or leasing of their respective Properties except where the
failure to so qualify or remain qualified would not constitute
a Material Adverse Effect.
5.3 Maintenance of Properties. Maintain, preserve and
protect all of their respective depreciable Properties in good
order and condition, subject to wear and tear in the ordinary
course of business, and not permit any waste of their respec-
tive Properties, except that the failure to maintain, preserve
and protect a particular item of depreciable Property that is
not of significant value, either intrinsically or to the
operations of Borrowers and the Restricted Subsidiaries, taken
as a whole, shall not constitute a violation of this covenant.
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5.4 Maintenance of Insurance. Maintain liability, casualty
and other insurance (subject to customary deductibles and
retentions) with responsible insurance companies in such
amounts and against such risks as is carried by responsible
companies engaged in similar businesses and owning similar
assets in the general areas in which Borrowers and the
Restricted Subsidiaries operate and, in any event, such
insurance as may be required under the Deed of Trust and the
Mirage/TI Property Deed of Trust.
5.5 Compliance With Laws. Comply, within the time period,
if any, given for such compliance by the relevant Governmental
Agency or Agencies with enforcement authority, with all
Requirements of Law noncompliance with which constitutes a
Material Adverse Effect, except that Borrowers and the
Restricted Subsidiaries need not comply with a Requirement of
Law then being contested by any of them in good faith by
appropriate proceedings.
5.6 Inspection Rights. Upon reasonable notice, at any time
during regular business hours and as often as requested
(a) (but not so as to materially interfere with the business of
Borrowers or any of the Restricted Subsidiaries or the
performance by any officer of his or her responsibilities),
permit the Administrative Co-Agent or any Bank, or any
authorized employee, agent or representative thereof, to
examine, audit and make copies and abstracts from the records
and books of account of, and to visit and inspect the Proper
ties of, Borrowers and the Restricted Subsidiaries and to dis-
cuss the affairs, finances and accounts of Borrowers and the
Restricted Subsidiaries with any of their officers, key
employees or accountants and, upon request, furnish promptly to
the Administrative Co-Agent or any Bank true copies of all
financial information made available to the board of directors
or audit committee of the board of directors of Borrowers and
(b) (but not so as to materially interfere with the business of
any Unrestricted New Venture Entity or the performance by any
officer of his or her responsibilities), permit any Co-Agent,
or any authorized employee, agent or representative thereof, to
visit and inspect the Properties of such Unrestricted New
Venture Entity and to discuss the affairs, finances and
accounts of the Unrestricted New Venture Entity with any of its
officers, key employees or accountants.
5.7 Keeping of Records and Books of Account. Keep adequate
records and books of account reflecting all financial
transactions in conformity with Generally Accepted Accounting
Principles, consistently applied, and in material conformity
with all applicable requirements of any Governmental Agency
having regulatory jurisdiction over Borrowers or any of the
Restricted Subsidiaries.
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5.8 Compliance With Agreements. Promptly and fully comply
with all Contractual Obligations under all material agreements,
indentures, leases and/or instruments to which any one or more
of them is a party, whether such material agreements,
indentures, leases or instruments are with a Bank or another
Person, except for any such Contractual Obligations (a) the
performance of which would cause a Default or (b) then being
contested by any of them in good faith by appropriate
proceedings or if the failure to comply with such agreements,
indentures, leases or instruments does not constitute a
Material Adverse Effect.
5.9 Use of Proceeds. Use the proceeds of Loans for
(a) retirement of all outstanding obligations under the Prior
Syndicated Credit Facility, (b) the construction of either (but
not both) the Dunes Project or the Other Gaming Project,
(c) the repurchase of the TI Mortgage Notes and/or the
GNS Mortgage Notes, (d) the funding of New Ventures and/or
(e) working capital and general corporate purposes of Borrowers
and the Restricted Subsidiaries.
5.10 The Mirage/TI Property. Upon the payment or other
retirement in full of the TI Mortgage Notes and the GNS
Mortgage Notes, (a) execute the Mirage/TI Property Deed of
Trust and deliver the same to the Administrative Co-Agent for
recordation and filing with the appropriate Governmental
Agencies and (b) provide the Administrative Co-Agent with
(i) an ALTA title insurance policy issued by the Title Company
insuring the Lien of the Mirage/TI Property Deed of Trust (and
amending or replacing the title insurance policy described in
Section 8.1(a)(13)) in the form set forth in Schedule 5.10,
subject only to Permitted Encumbrances and the title exceptions
set forth in Schedule 5.10, in an amount equal to the sum of
the amount of the title insurance policy described in
Section 8.1(a)(13) (or any greater amount then in effect) plus
the fair market value of the Mirage/TI Property as determined
by the appraisals referred to below, but not in any event more
than the then Commitment, (ii) such title re-insurance
agreements from other title insurance companies as the
Administrative Co-Agent may reasonably require, (iii) a current
written appraisal of the Mirage/TI Property prepared by a
qualified independent appraiser acceptable to the Requisite
Banks complying in all respects with FIRREA, (iv) an ALTA
survey of the Mirage/TI Property by a licensed surveyor
acceptable to the Requisite Banks and (v) a written "Phase I"
environmental report with respect to any Hazardous Materials on
or under the Mirage/TI Property prepared by a qualified
independent expert acceptable to the Requisite Banks.
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5.11 Other Future Collateral. Upon the acquisition by
Borrowers or any Restricted Subsidiary of (a) any capital stock
of (i) a new Subsidiary (other than a Spin-Off Company), (ii) a
New Venture Investor or (iii) a corporation or business entity
which is the subject of an Investment described in Section
6.18(k) or 6.18(l) where the amount of the Investment of
Borrowers and the Restricted Subsidiaries therein is
$15,000,000 or more, deliver the certificates evidencing such
capital stock in pledge to the Administrative Co-Agent pursuant
to the Pledge Agreement (Gaming) or Pledge Agreement
(Non-Gaming), as the case may be, (b) any fee simple interest
in real Property with a fair market value of $5,000,000 or more,
execute and deliver to the Administrative Co-Agent a deed of
trust or mortgage (which shall be substantially in the form
of the Deed of Trust) that creates a Lien on such real
Property securing the Obligations subject in priority only to
Permitted Encumbrances and Liens existing on such real
Property prior to such acquisition (and not done in
contemplation thereof) and (c) any vessel or vehicle with
a fair market value of $1,000,000 or more, execute and deliver
to the Administrative Co-Agent such Collateral Documents as
are appropriate therefor as requested by the Administrative
Co-Agent that creates a Lien thereon securing the Obligations
subject in priority only to Permitted Encumbrances and Liens
existing thereon prior to such acquisition (and not done in
contemplation thereof); provided, however, that the foregoing
shall be subject to any applicable provision in the Mirage/TI
First Mortgage Documents that prohibits further Liens on
Property located on or used exclusively in connection with
the Mirage/TI Property.
5.12 New Significant Subsidiaries. Cause each of its
Restricted Subsidiaries which hereafter becomes a Significant
Subsidiary to execute and deliver to the Administrative Co-
Agent an instrument of joinder of the Subsidiary Guaranty and
Security Agreement.
5.13 Hazardous Materials Laws. Keep and maintain all Real
Property and each portion thereof in compliance in all material
respects with all applicable Hazardous Materials Laws and
promptly notify the Administrative Co-Agent in writing
(attaching a copy of any pertinent written material) of (a) any
and all material enforcement, cleanup, removal or other govern
mental or regulatory actions instituted, completed or
threatened in writing by a Governmental Agency pursuant to any
applicable Hazardous Materials Laws, (b) any and all material
claims made or threatened in writing by any Person against
Borrowers relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from any Hazardous
Materials and (c) discovery by any Senior Officer of any of
Borrowers of any material occurrence or condition on any real
Property adjoining or in the vicinity of such Real Property
that could reasonably be expected to cause such Real Property
or any part thereof to be subject to any restrictions on the
ownership, occupancy, transferability or use of such Real
Property under any applicable Hazardous Materials Laws.
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5.14 Pledge Agreement (Gaming). If on the Closing Date the
Administrative Co-Agent has waived the condition precedent set
forth in Section 8.1(a)(7), file and diligently prosecute such
applications as may be necessary to obtain the approvals of all
relevant Gaming Boards for the execution and delivery by
Borrowers of the Pledge Agreement (Gaming) and the pledge of
the Pledged Collateral (Gaming).
5.15 Water Permit Rights. Obtain (or confirm the obtaining
of), as soon as reasonably practicable after the Closing Date,
all necessary permits issuable by the State of Nevada with
respect to the extraction of water from wells located on the
Dunes Property, and promptly thereafter file such Collateral
Documents with the Nevada State Engineer as may be necessary to
perfect the security interest of the Banks with respect to such
water permit rights.
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Article 6
NEGATIVE COVENANTS
__________________
So long as any Advance remains unpaid, or any other
Obligation remains unpaid or unperformed, or any portion of the
Commitment remains in force, Borrowers shall not, and shall not
permit any of the Restricted Subsidiaries to, unless the
Administrative Co-Agent (with the written approval of the
Requisite Banks or, if required by Section 11.2, of all of the
Banks) otherwise consents:
6.1 Prepayment of Indebtedness. Pay any principal or
interest on any Indebtedness of Borrowers or any of the
Restricted Subsidiaries prior to the date when due, or make any
payment or deposit with any Person that has the effect of
providing for the satisfaction of any Indebtedness of Borrowers
or any of the Restricted Subsidiaries prior to the date when
due, in each case if a Default or Event of Default then exists
or would result therefrom;
provided, however, that this Section shall not apply to
prohibit any prepayment to the extent necessary to prevent a
License Revocation if (i) no Default or Event of Default then
exists which is not curable by such prepayment and
(ii) Borrowers have notified the Administrative Co-Agent in
writing of the necessity to invoke this proviso at least ten
(10) Banking Days (or such shorter period as may be necessary
in order to comply with a regulation or order of the relevant
Gaming Board) in advance.
6.2 Payment of Subordinated Obligations. Pay any (a) prin-
cipal (including sinking fund payments) or any other amount
(other than scheduled interest payments) with respect to any
Subordinated Obligation, or purchase or redeem any Subordinated
Obligation, if, giving effect thereto, the aggregate Restricted
Payments would exceed the Restricted Payment Basket or
(b) scheduled interest on any Subordinated Obligation if a
Default or Event of Default then exists or would result
therefrom;
provided, however, that this Section shall not apply to
prohibit any payment to the extent necessary to prevent a
License Revocation if (i) no Default or Event of Default then
exists which is not curable by such payment and (ii) Borrowers
have notified the Administrative Co-Agent in writing of the
necessity to invoke this proviso at least ten (10) Banking Days
(or such shorter period as may be necessary in order to comply
with a regulation or order of the relevant Gaming Board) in
advance.
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6.3 Disposition of Property. Make any Disposition of
its Property, whether now owned or hereafter acquired, except:
(a) a Disposition consisting of a spin-off of the
Spin-Off Companies that Parent believes, based on advice of
its income tax counsel, complies with Section 355 of the
Code;
(b) a Disposition consisting of the sale of all or a
portion of the Dunes Property to a Person not an Affiliate
of Borrowers, provided that (i) no Default or Event of
Default then exists or would result therefrom and (ii)
unless the provision to Section 2.8 applies, the Commitment
is then reduced by the Special Commitment Reduction Amount;
(c) a Disposition consisting of the contribution of up
to 33% of the Dunes Property to a business entity in
exchange for an equity interest in such business entity,
provided that (i) no Default or Event of Default then
exists or would result therefrom, (ii) the portion
contributed does not include any Real Property fronting the
intersection of Las Vegas Boulevard South and Flamingo
Road, (iii) the aggregate direct and indirect equity owner-
ship of Borrowers in such business entity is not less than
50%, (iv) not less than 25% of the business entity's total
capitalization consists of equity and (v) Borrowers
concurrently deliver (or cause to be delivered) the
certificates evidencing such equity ownership in pledge to
the Administrative Co-Agent pursuant to the Pledge Agree-
ment (Gaming) or the Pledge Agreement (Non-Gaming), as
applicable;
(d) a Qualified New Venture Disposition if no Default
or Event of Default then exists or would result therefrom;
(e) an Involuntary Qualified New Venture Disposition
(if a Default or Event of Default then exists or would
result therefrom) if (i) the purchase price payable to the
New Venture Investor is determined pursuant to a formula
or procedure established substantially concurrently with
the creation of the obligation of the New Venture Investor
to sell, or the right of the other Person to purchase, the
ownership interest in the New Venture Entity, (ii) the Net
Cash Proceeds therefrom are paid to the Administrative
Co-Agent promptly after receipt and applied to reduce the
principal Indebtedness outstanding under the Committed
Advance Notes (first, to Alternate Base Rate Loans and
thereafter to Eurodollar Rate Loans, shortest Interest
Periods first) and (iii) Borrowers expressly acknowledge
in writing to the Administrative Co-Agent that further
Advances (other than an Alternate Base Rate Advance with
respect to an Alternate Base Rate Loan which, if made,
would not increase the principal Indebtedness evidenced by
the Committed Advance Notes) under this Agreement are
conditioned, among other things, on the absence of a
Default or Event of Default;
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(f) a Disposition of an Investment in an Unrestricted
New Venture Entity;
(g) a Disposition of an Investment in a New Venture
Entity (other than an Unrestricted New Venture Entity) that
has at the time of the Disposition a fair market value of
less than $5,000,000;
(h) a Disposition of any Investment described in
Section 6.18(a), 6.18(k) or 6.18(l);
(i) a Disposition of aircraft and related assets by
Golden Nugget Aviation Corp.;
(j) a Disposition of Real Property located in the State
of New Jersey which is owned by AC Holding Corp. or AC
Holding Corp. II on the Closing Date;
(k) a Disposition of that portion of the Shadow Creek
Property described in clause (b) or (c) of the definition
of "Shadow Creek Property" in Section 1.1;
(l) a Disposition of land and improvements comprising
The Mirage Center, located at 3260 South Industrial Road,
Las Vegas, Nevada, owned by Golden Nugget Finance Corp. on
the Closing Date;
(m) a Disposition of the residential property (including
the land and improvements thereon) located at 904 Pinehurst
Drive, Las Vegas, Nevada, owned by Golden Nugget Finance
Corp. on the Closing Date;
(n) a Disposition of the land and improvements comprising
the Hauser warehouse, located at 3549 South Industrial Road,
Las Vegas, Nevada, owned by Mirage Laundry Services Corp. on
the Closing Date;
(o) a Disposition of an Investment in, or any or all of
the assets of, a Restricted Subsidiary that is not a Signifi-
cant Subsidiary; and
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(p) a Disposition of the employee parking lot located at
2104 Spring Mountain Road, Las Vegas, Nevada, jointly owned
by the Company and TI on the Closing Date;
provided, however, that this Section shall not apply to
prohibit a Disposition to the extent necessary to prevent a
License Revocation if (i) no Default or Event of Default then
exists which is not curable by such Disposition, (ii) Borrowers
have notified the Administrative Co-Agent in writing of the
necessity to invoke this provision at least ten (10) Banking Days
(or such shorter period as may be necessary in order to comply
with a regulation or order of the relevant Gaming Board) in
advance and (iii) the Net Cash Proceeds from such Disposition
are paid to the Administrative Co-Agent promptly after receipt
and applied to reduce the principal outstanding under the
Committed Advance Notes (first, to Alternate Base Rate Loans
and thereafter to Eurodollar Rate Loans, shortest Interest
Periods first), and provided further that nothing in this
Section shall apply to restrict the Disposition of any of the
equity securities of any Person that holds, directly or
indirectly through a holding company or otherwise, a license
under any Gaming Law to the extent such restriction is unlawful
under that Gaming Law, and provided further that any
Disposition permitted by this Section shall be free of the Lien
created by the Collateral Documents and, subject to any
conditions and procedures set forth in the applicable
Collateral Document, the Administrative Co-Agent shall execute
such releases of such Lien in connection with any such
Disposition as may be requested by Borrowers.
6.4 Mergers. Merge or consolidate with or into any Person,
except:
(a) mergers and consolidations of a Subsidiary of any of
Borrowers into Borrowers or a Restricted Subsidiary (with
any of Borrowers or the Restricted Subsidiary as the
surviving entity) or of Borrowers or Restricted Sub-
sidiaries of Borrowers with each other, provided that
Borrowers and each of such Subsidiaries have executed such
amendments to the Loan Documents as the Administrative
Co-Agent may reasonably determine are appropriate as a
result of such merger; and (b) a merger or consolidation
of Borrowers or any Restricted Subsidiary with any other
Person, provided that (i) either (A) any of Borrowers or
the Restricted Subsidiary is the surviving entity, or (B)
the surviving entity is a corporation organized under the
Laws of a State of the United States of America or the
District of Columbia and, as of the date of such merger or
consolidation, expressly assumes, by an appropriate instru-
ment, the Obligations of Borrowers or the Restricted
Subsidiary, as the case may be, (ii) giving effect thereto
on a pro-forma basis, no Default or Event of Default exists
or would result therefrom, and (iii) as a result thereof,
no Change in Control has occurred.
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6.5 Hostile Acquisitions. Directly or indirectly use the
proceeds of any Committed Loan in connection with the
acquisition of part or all of a voting interest of five
percent (5%) or more in any corporation or other business
entity if such acquisition is opposed by the board of directors
or management of such corporation or business entity unless
(a) Borrowers shall have given each Bank five (5) Banking Days'
prior notice of such acquisition and (b) either (i) no Bank
shall have, within that period, notified Borrowers that it
objects to the use of the proceeds of such Committed Loans for
that purpose and that the corporation or business entity which
is the subject of that acquisition either (A) employs an
officer who is a director of that Bank (or any of its
Affiliates) or (B) has had a customer or business relationship
with that Bank (or any of its Affiliates) or (ii) any Bank
which has so objected is no longer a party to this Agreement
pursuant to Section 11.25.
6.6 Distributions. Make any Distribution, whether from
capital, income or otherwise, and whether in Cash or other
Property, except (a) Distributions by Borrowers or any
Restricted Subsidiary to any of Borrowers or any Restricted
Subsidiary, (b) dividends payable solely in Common Stock or
rights to purchase Common Stock, (c) a Distribution consisting
of the spin-off of the Spin-Off Companies to the stockholders
of Parent, (d) purchases by Parent of Common Stock owned by a
current or former employee of Parent or any of its Subsidiaries
(or the estate of such an employee) at a purchase price not in
excess of the then current publicly-traded market price of the
Common Stock, provided that the aggregate purchase price paid
for all such Common Stock purchased in any Fiscal Year does not
exceed $3,000,000, and (e) Distributions which, giving effect
thereto, would not cause the aggregate Restricted Payments to
exceed the Restricted Payment Basket; provided, however, that
this Section shall not apply to prohibit a Distribution to the
extent necessary to prevent a License Revocation if (i) no
Default or Event of Default then exists which is not curable by
such Distribution and (ii) Borrowers have notified the
Administrative Co-Agent in writing of the necessity to invoke
this proviso at least ten (10) Banking Days (or such shorter
period as may be necessary in order to comply with a regulation
or order of the relevant Gaming Board) in advance.
6.7 ERISA. (a) At any time, permit any Pension Plan to:
(i) engage in any non-exempt "prohibited transaction" (as
defined in Section 4975 of the Code); (ii) fail to comply with
ERISA or any other applicable Laws; (iii) incur any material
"accumulated funding deficiency" (as defined in Section 302 of
ERISA); or (iv) terminate in any manner, which, with respect to
each event listed above, could reasonably be expected to result
in a Material Adverse Effect, or (b) withdraw, completely or
partially, from any Multiemployer Plan if to do so could
reasonably be expected to result in a Material Adverse Effect.
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6.8 Change in Nature of Business. Make any material change
in the nature of the business of Borrowers and the Restricted
Subsidiaries, taken as a whole; provided that the acquisition
of an ownership interest in one or more New Ventures shall not
be construed to violate this covenant.
6.9 Liens, Negative Pledges and Rights of Others. Create,
incur, assume or suffer to exist any Lien, Negative Pledge or
Right of Others of any nature upon or with respect to any of
their respective Properties, or engage in any sale and
leaseback transaction with respect to any of their respective
Properties, whether now owned or hereafter acquired, except:
(a) Permitted Encumbrances and Permitted Rights of
Others;
(b) Liens and Negative Pledges under the Loan Documents;
(c) Liens and Negative Pledges existing on the Closing
Date and disclosed in Schedule 4.7 and any renewals/
extensions or amendments thereof; provided that the
obligations secured or benefited thereby are not increased;
(d) Rights of Others existing on the Closing Date and
disclosed in Schedule 4.7;
(e) Rights of Others consisting of joint holdings of an
ownership interest in a New Venture Entity or consisting of
obligations of Borrowers or the Restricted Subsidiaries to
sell, or rights of other Persons to purchase, the ownership
interests of Borrowers and the Restricted Subsidiaries in a
New Venture Entity, which obligations or rights were
created substantially concurrently with the acquisition of
such ownership interest in the New Venture Entity;
(f) any Lien, Negative Pledge or Right of Others on
shares of any equity security or any warrant or option to
purchase an equity security or any security which is
convertible into an equity security issued by any of
Borrowers or any Restricted Subsidiary that holds, directly
or indirectly through a holding company or otherwise, a
license under any Gaming Law of the State of Nevada;
provided that this clause (f) shall apply only so long as
the Gaming Laws of the State of Nevada provide that the
creation of any restriction on the disposition of any of
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such securities shall not be effective and, if such Gaming
Laws at any time cease to so provide, then this clause (f)
shall be of no further effect; and provided further that if
at any time Borrowers create or suffer to exist a Lien or
Negative Pledge covering such securities in favor of the
holder of any other Indebtedness, it will (subject to any
approval required under the Gaming Laws of the State of
Nevada) concurrently grant a pari-passu Lien or Negative
Pledge likewise covering such securities in favor of the
Administrative Co-Agent for the benefit of the Banks;
(g) Liens on Property acquired by Borrowers or any of the
Restricted Subsidiaries that were in existence at the time of
the acquisition of such Property and were not created in
contemplation of such acquisition;
(h) Liens securing Indebtedness permitted by Section
6.10(d) or 6.10(e) on and limited to the capital assets
acquired, constructed or financed with the proceeds of such
Indebtedness;
(i) any Lien, Negative Pledge or Right of Others created
by an agreement or instrument entered into by Borrowers or a
Restricted Subsidiary in the ordinary course of its business
which consists of a restriction on the assignability, trans-
fer or hypothecation of such agreement or instrument; and
(j) Liens, Negative Pledges and Rights of Others not
described above on Property having in the aggregate a fair
market value of not more than $2,000,000;
provided, that this Section shall not apply to prohibit the
creation of a Lien, Negative Pledge or Right of Others to the
extent necessary to prevent a License Revocation if (i) no
Default or Event of Default then exists which is not curable by
creation of the Lien, Negative Pledge or Right of Others and
(ii) Borrowers have notified the Administrative Co-Agent in
writing of the necessity to invoke this provison at least
ten (10) Banking Days (or such shorter period as may be
necessary in order to comply with a regulation or order of the
relevant Gaming Board) in advance.
6.10 Indebtedness and Guaranty Obligations. Create, incur or
assume any Indebtedness or Guaranty Obligation except:
(a) Indebtedness and Guaranty Obligations existing on the
Closing Date and disclosed in Schedule 6.10, and renewals,
extensions or amendments that do not increase the amount
thereof;
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(b) Indebtedness and Guaranty Obligations under the Loan
Documents;
(c) Indebtedness owed to any of Borrowers or any Re-
stricted Subsidiary;
(d) Indebtedness secured solely by aircraft; provided that
the aggregate principal amount of such Indebtedness outstanding
at any time does not exceed $40,000,000 (and does not, in any
event, when added to the Indebtedness permitted by Section
6.10(e), exceed $70,000,000);
(e) Indebtedness consisting of Capital Leases, or otherwise
incurred to finance the purchase or construction of capital
assets other than aircraft (which shall be deemed to exist if
the Indebtedness is incurred at or within 90 days before or
after the purchase or construction of the capital asset), or to
refinance any such Indebtedness, provided that the aggregate
principal amount of such Indebtedness outstanding at any time
does not exceed $40,000,000 (and does not, in any event, when
added to the Indebtedness permitted by Section 6.10(d), exceed
$70,000,000);
(f) Indebtedness consisting of readily marketable commercial
paper of Parent; provided, that (i) the Senior Debt Rating, as
of the date of issuance thereof, is BBB-/Baa3 or higher and
(ii) the sum of (A) the aggregate principal amount thereof, plus
(B) the aggregate principal amount outstanding under the Notes,
plus (C) the Aggregate Effective Amount of all outstanding
Letters of Credit, plus (D) the Swing Line Outstandings does
not at any time exceed the then applicable Commitment;
(g) Indebtedness consisting of one or more Swap Agreements;
provided, that the aggregate notional amount of Indebtedness
covered by all Secured Swap Agreements shall not exceed
$250,000,000;
(h) Indebtedness that (i) is subordinated to the Obligations
pursuant to subordination provisions at least as favorable to
the Banks as those contained in the Existing Subordinated Debt
or which are approved by the Requisite Banks, (ii) has no
principal payment due, and no sinking fund payment requirement,
prior to the date that is one (1) year after the Maturity Date,
(iii) to the extent subject to any covenants, the Requisite
Banks have determined such covenants are less restrictive on
Borrowers than those contained in this Agreement and (iv) is
subject to representations, warranties, events of default and
other provisions which are determined by the Requisite Banks to
be reasonably (from the standpoint of a senior lender)
acceptable;
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(i) Guaranty Obligations (including Completion Guaranties) in
support of the obligations of other Persons that do not exceed in
the aggregate at any time $100,000,000, provided that the
obligations under such Guaranty Obligations are subordinated in
right of payment to the Obligations; and
(j) Indebtedness not described above that does not exceed in
the aggregate $5,000,000 outstanding at any time.
6.11 Transactions with Affiliates. Enter into any trans-
action of any kind with any Affiliate of Borrowers other than
(a) salary, bonus, employee stock option and other compensation
arrangements with directors or officers in the ordinary course
of business, (b) transactions that are fully disclosed to the
board of directors of Parent and expressly authorized by a
resolution of the board of directors of Parent which is
approved by a majority of the directors not having an interest
in the transaction, (c) transactions between or among Borrowers
and the Restricted Subsidiaries, (d) transactions reasonably
required in connection with the spin-off of the Spin-Off
Companies that do not violate Section 6.21 and (e) transactions
on overall terms at least as favorable to Borrowers or the
Restricted Subsidiaries as would be the case in an arm's-length
transaction between unrelated parties of equal bargaining
power.
6.12 Tangible Net Worth. Permit Tangible Net Worth, as of
the last day of any Fiscal Quarter ending after the Closing
Date, to be less than the sum of (a) $648,500,000 plus (b) an
amount equal to 75% of the sum of (i) Net Income earned in each
Fiscal Quarter ending after March 31, 1994 (with no deduction
for a net loss in any such Fiscal Quarter) plus (ii) the
aggregate Adjustment Amounts recorded for such Fiscal Quarters,
plus (c) an amount equal to 50% of the aggregate increases
in Stockholders' Equity of Parent and the Restricted Sub-
sidiaries after the Closing Date by reason of the issuance and
sale of capital stock of Parent (including upon any conversion
of debt securities of Parent into such capital stock);
provided, however, that upon satisfaction of the Stage I
Reduction Test, the percentage set forth in clause (b) shall
thereafter be 50% and the percentage set forth in clause (c)
shall thereafter be 0%.
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6.13 Interest Charge Coverage. Permit Interest Charge
Coverage, as of the last day of any Fiscal Quarter ending after
the Closing Date, to be less than the ratio set forth below
opposite such Fiscal Quarter or the period during which such
Fiscal Quarter ends:
Period Ratio
______ _____
Closing Date through March 31, 1995 2.25 to 1.00
June 30, 1995 2.50 to 1.00
September 30, 1995 2.75 to 1.00
December 31, 1995 and thereafter 3.00 to 1.00;
provided, however, that (a) if the Project Commencement Date
occurs on or before June 30, 1995, the required minimum ratio
shall continue to be 2.25 to 1.00 through the last day of the
second full Fiscal Quarter after the Dunes Project or Other
Gaming Project opens for business, and the required minimum
ratio shall be 3.00 to 1.00 for the next following Fiscal
Quarter and each Fiscal Quarter thereafter and (b) notwith-
standing clause (a), if the Project Key Date does not occur on
or before December 31, 1995, the required minimum ratio shall
be 3.00 to 1.00 for the Fiscal Quarter ending December 31, 1995
and each Fiscal Quarter thereafter.
6.14 Leverage Ratio. Permit the Leverage Ratio, as of the
last day of any Fiscal Quarter ending after the Closing Date,
to be greater than 3.00 to 1.00; provided, however, that (a) if
the Project Commencement Date occurs on or before June 30,
1995, the maximum permitted ratios as of the last day of the
Fiscal Quarters described below shall be as follows:
Fiscal Quarter Following
Project Commencement Date Ratio
_________________________ _____
Fifth 3.25 to 1.00
Sixth through Eighth 3.50 to 1.00
Ninth 3.25 to 1.00
Tenth and thereafter 3.00 to 1.00;
and (b) notwithstanding clause (a), if the Project Key Date
does not occur on or before December 31, 1995, the maximum
permitted ratio shall be 3.00 to 1.00 for the Fiscal Quarter
ending December 31, 1995 and each Fiscal Quarter thereafter.
6.15 Capital Expenditures. Make, or become legally obli-
gated to make, any Capital Expenditure if to do so would result
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in the aggregate Capital Expenditures made in that Fiscal Year
exceeding (i) in the case of the Fiscal Year ending
December 31, 1994, $35,000,000, (ii) in any other Fiscal
Year, if the Dunes Project or Other Gaming Project is not open
for business at any time during such Fiscal Year, $35,000,000
or (iii) in any other Fiscal Year, if the Dunes Project or
Other Gaming Project is open for business at any time during
such Fiscal Year, $55,000,000, except:
(a) Capital Expenditures not in excess of $650,000,000 to
develop and construct the Dunes Project, provided that (A) the
Project Commencement Date therefore occurs no later than
June 30, 1995 and (B) the Project Key Date therefor occurs no
later than December 31, 1995 (it being understood, if the
Project Commencement Date for the Dunes Project occurs later
than June 30, 1995 or the Project Key Date for the Dunes
Project occurs later than December 31, 1995, that further
Capital Expenditures with respect to the Dunes Project will not
be permitted);
(b) Capital Expenditures not in excess of $45,000,000 and
made after January 1, 1994 and prior to December 31, 1995, for
improvements to The Mirage currently in progress or planned;
(c) Capital Expenditures not in excess of $25,000,000 and
made after January 1, 1994 and prior to December 31, 1994 for
the completion, reconfiguration or improvement of Treasure
Island;
(d) Capital Expenditures to the extent financed by
Indebtedness permitted under Section 6.10(d) or 6.10(e); and
(e) New Venture Capital Expenditures permitted by Section
6.16;
provided, however, that (A) Borrowers may exceed any of the
amounts set forth in clauses (a), (b) or (c) above if the
overage amount is treated as a Capital Expenditure subject to
clause (i), (ii) or (iii) of this Section (as applicable) and,
giving effect thereto, the limitations therein set forth are
not exceeded and (B) if, in any Fiscal Year, Capital
Expenditures made by Borrowers and the Restricted Subsidiaries
(other than those described in clauses (a), (b), (c), (d) or
(e) above) are less than the maximum amount permitted for such
Fiscal Year under clauses (i), (ii) or (iii) above, then such
unused portion of such amount shall be carried over and added
to the maximum amount permitted for the immediately following
Fiscal Year under clause (ii) or (iii) above.
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6.16 New Venture Capital Expenditures. With respect to New
Venture Capital Expenditures:
(a) Make, or enter into any legally binding commitment
to make, any New Venture Capital Expenditure if, giving
effect thereto, the aggregate New Venture Capital
Expenditures and New Venture Investments made by Borrowers
and the Restricted Subsidiaries subsequent to the Closing
Date would exceed the New Venture Basket;
(b) Make, or enter into any legally binding
commitment to make, any New Venture Capital Expenditure if
the aggregate New Venture Capital Expenditures and New
Venture Investments (other than for the Dunes Project)
reasonably anticipated with respect to the related New
Venture (or, in the case of an addition to or improvement
of a Developed Property, with respect to such addition or
improvement) will exceed $150,000,000 without first
obtaining the written consent of the Majority Banks;
(c) If the Dunes Project or the Other Gaming Project
has been commenced, make or enter into any legally binding
commitment to make, any New Venture Capital Expenditure
without first obtaining the written consent of the Majority
Banks, except (i) with respect to one (1) New Venture as to
which the reasonably anticipated aggregate New Venture
Capital Expenditures and New Venture Investments will not
exceed $100,000,000 and (ii) with respect to any New
Venture as to which the reasonably anticipated aggregate
New Venture Capital Expenditures and New Venture Invest-
ments will not exceed $50,000,000; or
(d) Make, or enter into any legally binding
commitment to make, any New Venture Capital Expenditure if a
Default or Event of Default then exists or would result
therefrom.
6.17 New Venture Investments. With respect to New Venture
Investments:
(a) Make, or enter into any legally binding
commitment to make, any New Venture Investment if, giving
effect thereto, the aggregate New Venture Capital Expendi-
tures and New Venture Investments made by Borrowers and
the Restricted Subsidiaries subsequent to the Closing Date
would exceed the New Venture Basket;
(b) Make, or enter into any legally binding
commitment to make, any New Venture Investment (other than for
the Dunes Project) if the aggregate New Venture Capital
Expenditures and New Venture Investments reasonably anticipated
with respect to the related New Venture (or, in the case of an
addition to or improvement of a Developed Property, with
respect to such addition or improvement) will exceed
$150,000,000 without first obtaining the written consent of the
Majority Banks;
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(c) If the Dunes Project or the Other Gaming Project
has been commenced, make or enter into any legally binding
commitment to make, any New Venture Investment without first
obtaining the written consent of the Majority Banks, except
(i) with respect to one (1) New Venture as to which the
reasonably anticipated aggregate New Venture Capital
Expenditures and New Venture Investments will not exceed
$100,000,000 and (ii) with respect to any New Venture as to
which the reasonably anticipated aggregate New Venture Capital
Expenditures and New Venture Investments will not exceed
$50,000,000;
(d) Make, or enter into any legally binding
commitment to make, any New Venture Investment if a Default or
Event of Default then exists or would result therefrom; or
(e) Make any New Venture Investment in an
Unrestricted New Venture Entity if, giving effect thereto, the
aggregate New Venture Investments in all Unrestricted New
Venture Entities made subsequent to the Closing Date would
exceed (i) so long as the Senior Debt Rating is below BBB-
/Baa3, the lesser of (A) an amount equal to thirty
percent (30%) of the New Venture Basket or (B) $120,000,000 or
(ii) so long as the Senior Debt Rating is BBB-/Baa3 or higher,
an amount equal to thirty percent (30%) of the New Venture
Basket.
6.18 Investments. Make or suffer to exist any Investment,
other than:
(a) Investments (other than in Subsidiaries of
Parent) in existence on the Closing Date and disclosed on
Schedule 6.18;
(b) Investments consisting of Cash and Cash
Equivalents;
(c) Investments consisting of advances to officers,
directors and employees of Borrowers and the Restricted
Subsidiaries for travel, entertainment, relocation and
analogous ordinary business purposes;
(d) Investments of Borrowers in any of Borrowers or
any Subsidiary of Parent and Investments of any Restricted
Subsidiary in any of Borrowers or another Subsidiary of Parent;
provided that any Investment in a Spin-Off Company made after
the Closing Date shall be subject to Section 6.21;
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(e) Investments consisting of or evidencing the
extension of credit to customers or suppliers of Borrowers and
the Restricted Subsidiaries in the ordinary course of business
and any Investments received in satisfaction or partial
satisfaction thereof;
(f) Investments received in connection with the
settlement of a bona fide dispute with another Person;
(g) Investments representing all or a portion of the
sales price of Property sold or services provided to another
Person;
(h) New Venture Investments permitted by
Section 6.17;
(i) Investments resulting from the acquisition by
Borrowers or any of the Restricted Subsidiaries of all or a
portion of another Person's ownership interest in a New Venture
Entity pursuant to an obligation or right of such Person to
sell, or an obligation or right of Borrowers or any of its
Restricted Subsidiaries to purchase, such ownership interest,
which obligation or right was created substantially
concurrently with the acquisition of such ownership interest in
the New Venture Entity;
(j) Investments consisting of Guaranty Obligations
permitted by Section 6.10;
(k) Investments not described above that do not
exceed $23,000,000 in the aggregate at any time; provided that
(i) no more than $5,000,000 of such Investments shall consist
of securities or instruments not readily marketable on or in an
established exchange or market and (ii) no more than
$15,000,000 of such Investments shall consist of equity
securities or debt securities rated, on the date of the
Investment, lower than BBB- by Standard & Poor's Corporation
and lower than Baa3 by Moody's Investors Service, Inc. or that
are not rated by such rating agencies; and
(l) Investments of the types permitted by
Section 6.18(k) in excess of $23,000,000 in the aggregate or in
excess of either of the dollar sublimits set forth in
subclause (i) or (ii) thereof if, giving effect thereto, the
aggregate Restricted Payments would not exceed the Restricted
Payment Basket.
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6.19 Subsidiary Indebtedness. Permit (whether or not
otherwise permitted under Section 6.10) any Significant
Subsidiary to create, incur, assume or suffer to exist any
Indebtedness or Guaranty Obligation, except (a) Indebtedness
and Guaranty Obligations in existence on the Closing Date,
(b) the Subsidiary Guaranty, (c) Indebtedness owed to any of
Borrowers or another Restricted Subsidiary, (d) Capital Lease
and purchase money obligations of a Restricted Subsidiary in
respect of Property used by that Subsidiary, (e) Indebtedness
permitted under Section 6.10(d), and (f) other Indebtedness
incurred in the ordinary course of business not in excess, with
respect to any Significant Subsidiary, of $500,000.
6.20 Significant Subsidiaries. Permit any Restricted
Subsidiary that is, as of the Closing Date, a Significant
Subsidiary to cease being a Restricted Subsidiary, except
pursuant to a Disposition permitted by Section 6.3.
6.21 The Spin-Off Companies. Make any Investment in,
transfer any asset to, or engage in any transaction with, the
Spin-Off Companies prior to the spin-off of the Spin-Off
Companies to the stockholders of Parent except in
compliance with Section 6.11(e) or as set forth or described
in Schedule 6.21.
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Article 7
INFORMATION AND REPORTING REQUIREMENTS
______________________________________
7.1 Financial and Business Information. So long as any
Advance remains unpaid, or any other Obligation remains unpaid
or unperformed, or any portion of the Commitment remains in
force, Borrowers shall, unless the Administrative Co-Agent
(with the written approval of the Requisite Banks) otherwise
consents, at Borrowers' sole expense, deliver to the
Administrative Co-Agent for distribution by it to the Banks
one (1) copy (or, in the case of any document which is
professionally printed and bound, a sufficient number of copies
for all of the Banks) of the following:
(a) As soon as practicable, and in any event by the fifteenth
Banking Day in the next following month, an operating revenue
report for the preceding calendar month for each of The Mirage
and Treasure Island (and, after its completion, the Dunes
Project or the Other Gaming Project, as applicable), in a form
reasonably acceptable to the Administrative Co-Agent;
(b) As soon as practicable, and in any event within 60 days
after the end of each Fiscal Quarter (other than the fourth
Fiscal Quarter in any Fiscal Year), (i) the consolidated
balance sheet of Parent and its Subsidiaries as at the end of
such Fiscal Quarter and the consolidated statement of
operations for such Fiscal Quarter, and its statement of cash
flows for the portion of the Fiscal Year ended with such Fiscal
Quarter and (ii) the consolidating (in accordance with past
consolidating practices of Parent) balance sheets and
statements of operations as at and for the portion of the
Fiscal Year ended with such Fiscal Quarter, all in reasonable
detail. Such financial statements shall be certified by a
Senior Officer of Parent as fairly presenting the financial
condition, results of operations and cash flows of Parent and
its Subsidiaries in accordance with Generally Accepted
Accounting Principles (other than footnote disclosures),
consistently applied, as at such date and for such periods,
subject only to normal year-end accruals and audit adjustments;
(c) As soon as practicable, and in any event within 60 days
after the end of the fourth Fiscal Quarter in each Fiscal Year,
a Certificate of a Responsible Official setting forth the
Annualized Funded Debt Ratio as of the last day of such Fiscal
Quarter, and providing reasonable detail as to the calculation
thereof, which calculations shall be based on the preliminary
unaudited financial statements of Parent and its Subsidiaries
for such Fiscal Quarter;
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(d) As soon as practicable, and in any event within 105 days
after the end of each Fiscal Year, (i) the consolidated balance
sheet of Parent and its Subsidiaries as at the end of such
Fiscal Year and the consolidated statements of operations,
stockholders' equity and cash flows, in each case of Parent and
its Subsidiaries for such Fiscal Year and (ii) consolidating
(in accordance with past consolidating practices of Parent)
balance sheets and statements of operations, in each case as at
the end of and for the Fiscal Year, all in reasonable detail.
Such financial statements shall be prepared in accordance with
Generally Accepted Accounting Principles, consistently applied,
and such consolidated balance sheet and consolidated statements
shall be accompanied by a report of independent public
accountants of recognized standing selected by Parent and
reasonably satisfactory to the Requisite Banks, which report
shall be prepared in accordance with generally accepted
auditing standards as at such date, and shall not be subject to
any qualifications or exceptions as to the scope of the audit
nor to any other qualification or exception determined by the
Requisite Banks in their good faith business judgment to be
adverse to the interests of the Banks. Such accountants'
report shall be accompanied by a certificate stating that, in
making the examination pursuant to generally accepted auditing
standards necessary for the certification of such financial
statements and such report, such accountants have obtained no
knowledge of any Default or, if, in the opinion of such
accountants, any such Default shall exist, stating the nature
and status of such Default, and stating that such accountants
have reviewed Parent's financial calculations as at the end of
such Fiscal Year (which shall accompany such certificate) under
Sections 6.12 through 6.14, have read such Sections (including
the definitions of all defined terms used therein) and that
nothing has come to the attention of such accountants in the
course of such examination that would cause them to believe
that the same were not calculated by Parent in the manner
prescribed by this Agreement;
(e) As soon as practicable, and in any event within 75 days
after the commencement of each Fiscal Year, a budget and
projection by Fiscal Quarter for that Fiscal Year and by Fiscal
Year for the next four succeeding Fiscal Years, including for
the first such Fiscal Year, projected consolidated balance
sheets, statements of operations and statements of cash flow
and, for the second and third such Fiscal Years, projected
consolidated condensed balance sheets and statements of
operations and cash flows, of Parent and its Subsidiaries, all
in reasonable detail;
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(f) Promptly after request by the Administrative Co-Agent or
any Bank, copies of any detailed audit reports, management
letters or recommendations submitted to the board of directors
(or the audit committee of the board of directors) of Borrowers
by independent accountants in connection with the accounts or
books of Parent or any of its Subsidiaries, or any audit of any
of them;
(g) As soon as practicable, and in any event within 45 days
(or, in the case of the fourth Fiscal Quarter in each Fiscal
Year, 90 days) after the end of each Fiscal Quarter, a written
report, in form and detail reasonably acceptable to the
Administrative Co-Agent, with respect to the status of each New
Venture, including the amounts of New Venture Capital
Expenditures and New Venture Investments made, and reasonably
anticipated to be made, with respect thereto;
(h) Promptly after the same are available, copies of each
annual report, proxy or financial statement or other report or
communication sent to the stockholders of Parent, and copies of
all annual, regular, periodic and special reports and
registration statements which Parent may file or be required to
file with the Securities and Exchange Commission under
Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, and not otherwise required to be delivered to the
Banks pursuant to other provisions of this Section 7.1;
(i) Promptly after the same are available, copies of the
Nevada "Regulation 6.090 Report" and "6-A Report" and copies of
any written communication to Borrowers or any of the Restricted
Subsidiaries from any Gaming Board advising it of a violation
of or non-compliance with any Gaming Law by Borrowers or any of
the Restricted Subsidiaries;
(j) Promptly after request by the Administrative Co-Agent or
any Bank, copies of any other report or other document that was
filed by Borrowers or any of the Restricted Subsidiaries with
any Governmental Agency;
(k) Promptly upon a Senior Officer becoming aware, and in any
event within ten (10) Banking Days after becoming aware, of the
occurrence of any (i) "reportable event" (as such term is
defined in Section 4043 of ERISA) or (ii) "prohibited
transaction" (as such term is defined in Section 406 of ERISA
or Section 4975 of the Code) in connection with any Pension
Plan or any trust created thereunder, telephonic notice
specifying the nature thereof, and, no more than five
(5) Banking Days after such telephonic notice, written notice
again specifying the nature thereof and specifying what action
Borrowers or any of the Restricted Subsidiaries is taking or
proposes to take with respect thereto, and, when known, any
action taken by the Internal Revenue Service with respect
thereto;
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(l) As soon as practicable, and in any event within
two (2) Banking Days after a Senior Officer becomes aware of
the existence of any condition or event which constitutes a
Default, telephonic notice specifying the nature and period of
existence thereof, and, no more than two (2) Banking Days after
such telephonic notice, written notice again specifying the
nature and period of existence thereof and specifying what
action Borrowers or any of its Restricted Subsidiaries are
taking or propose to take with respect thereto;
(m) Promptly upon a Senior Officer becoming aware that
(i) any Person has commenced a legal proceeding with respect to
a claim against Borrowers or any of the Restricted Subsidiaries
that is $5,000,000 or more in excess of the amount thereof that
is fully covered by insurance, (ii) any creditor or lessor
under a written credit agreement or material lease has asserted
a default thereunder on the part of Borrowers or any of the
Restricted Subsidiaries, (iii) any Person has commenced a legal
proceeding with respect to a claim against Borrowers or any of
the Restricted Subsidiaries under a contract that is not a
credit agreement or material lease in excess of $5,000,000 or
which otherwise may reasonably be expected to result in a
Material Adverse Effect, (iv) any labor union has notified
Borrowers of its intent to strike Borrowers or any of the
Restricted Subsidiaries on a date certain and such strike would
involve more than 100 employees of Borrowers and the Restricted
Subsidiaries, or (v) any Gaming Board has indicated its intent
to consider or act upon a License Revocation or a fine or
penalty of $1,000,000 or more with respect to Borrowers or any
of the Restricted Subsidiaries, a written notice describing the
pertinent facts relating thereto and what action Borrowers or
the Restricted Subsidiaries are taking or propose to take with
respect thereto; and
(n) Such other data and information as from time to time may
be reasonably requested by the Administrative Co-Agent, any
Bank (through the Administrative Co-Agent) or the Requisite
Banks.
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7.2 Compliance Certificates. So long as any Advance
remains unpaid, or any other Obligation remains unpaid or unper
formed, or any portion of the Commitment remains outstanding,
Borrowers shall, at Borrowers' sole expense, deliver to the
Administrative Co-Agent for distribution by it to the Banks
concurrently with the financial statements required pursuant to
Sections 7.1(b) and 7.1(d), one (1) original Compliance
Certificate signed by a Senior Officer.
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Article 8
CONDITIONS
__________
8.1 Initial Advances, Etc.. The obligation of each Bank to
make the initial Advance to be made by it, or the obligation of
the Issuing Bank to issue the initial Letter of Credit (as
applicable), is subject to the following conditions precedent,
each of which shall be satisfied prior to the making of the
initial Advances (unless all of the Banks, in their sole and
absolute discretion, shall agree otherwise):
(a) The Administrative Co-Agent shall have received all of
the following, each of which shall be originals unless
otherwise specified, each properly executed by a Responsible
Official of each party thereto, each dated as of the Closing
Date and each in form and substance satisfactory to the
Administrative Co-Agent and its legal counsel (unless otherwise
specified or, in the case of the date of any of the following,
unless the Administrative Co-Agent otherwise agrees or
directs):
(1) at least one (1) executed counterpart of this Agreement,
together with arrangements satisfactory to the Administrative
Co-Agent for additional executed counterparts, sufficient in
number for distribution to the Banks and Borrowers;
(2) Committed Advance Notes executed by Borrowers in favor
of each Bank, each in a principal amount equal to that Bank's
Pro Rata Share of the Commitment;
(3) Competitive Advance Notes executed by Borrowers in favor
of each Bank, each in the principal amount of $200,000,000;
(4) the Subsidiary Guaranty executed by each Significant
Subsidiary;
(5) the Security Agreement executed by Borrowers and each
Significant Subsidiary;
(6) such financing statements on Form UCC-1 executed by
Borrowers and each Significant Subsidiary with respect to the
Security Agreement as the Administrative Co-Agent may request;
(7) the Pledge Agreement (Gaming) executed by Parent and the
Company, together with the Pledged Collateral (Gaming)
accompanied by appropriate stock powers endorsed in blank
(provided, that to the extent that the requisite approval of
any Gaming Board to the pledge of any of the Pledged Collateral
(Gaming) has not yet been obtained, the Administrative Co-Agent
may, in its discretion, waive delivery thereof pending receipt
of such approval for a period of not more than 90 days);
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(8) the Pledge Agreement (Non-Gaming) executed by Borrowers
and the Restricted Subsidiaries, together with the Pledged
Collateral (Non-Gaming) and accompanied by appropriate stock
powers endorsed in blank;
(9) the Deed of Trust executed by MRR and MHI;
(10) with respect to Borrowers and each Significant
Subsidiary, such documentation as the Administrative Co-Agent
may require to establish the due organization, valid existence
and good standing of Borrowers and each such Subsidiary, its
qualification to engage in business in each material juris-
diction in which it is engaged in business or required to be so
qualified, its authority to execute, deliver and perform any
Loan Documents to which it is a Party, the identity, authority
and capacity of each Responsible Official thereof authorized to
act on its behalf, including certified copies of articles of
incorporation and amendments thereto, bylaws and amendments
thereto, certificates of good standing and/or qualification to
engage in business, tax clearance certificates, certificates of
corporate resolutions, incumbency certificates, Certificates of
Responsible Officials, and the like;
(11) the Opinions of Counsel;
(12) written appraisals by a qualified independent appraiser
acceptable to the Administrative Co-Agent and complying in all
respects with FIRREA of the Dunes Property that reflects a fair
market value thereof of not less than $75,000,000 and of the
Shadow Creek Property that reflects a fair market value thereof
of not less than $30,000,000;
(13) assurances from the Title Company that it is prepared to
issue its ALTA lenders policy insuring the Lien of the Deed of
Trust in an amount not less than the aggregate of the fair
market values of the Dunes Property and the Shadow Creek
Property as determined by the foregoing appraisals, subject
only to such exceptions as are reasonably acceptable to the
Administrative Co-Agent, with such assurances as the
Administrative Co-Agent may reasonably require from title
re-insurers acceptable to the Administrative Co-Agent;
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(14) the ALTA survey of the Dunes Property certified as of
March 20, 1993 and the ALTA survey of the Shadow Creek Property
certified as of May 18, 1994 prepared by licensed surveyors,
together with a Certificate of a Senior Officer of Borrowers to
the effect that no event or circumstance has occurred since
March 20, 1993 and May 18, 1994, respectively, with respect to
the Dunes Property or the Shadow Creek Property which would
cause such surveys to be inaccurate in any respect that is
materially adverse to the interests of the Banks;
(15) the "Phase I/II" environmental report dated October 30,
1992 with respect to the Dunes Property and the "Phase I"
environmental report dated May 27, 1992 with respect to the
Shadow Creek Property, in each case prepared by Western
Technologies, Inc., together with a Certificate of a Senior
Officer of Borrowers to the effect that no event or
circumstance has occurred since October 30, 1992 and May 27,
1992, respectively, with respect to the Shadow Creek Property
or the Dunes Property that would cause such reports to be
inaccurate in any respect that is materially adverse to the
interests of the Banks;
(16) a certificate of insurance issued by Borrowers'
insurance carrier or agent with respect to the insurance
required to be maintained pursuant to the Deed of Trust,
together with lenders' loss payable endorsements thereof on
Form 438BFU or other form acceptable to the Administrative
Co-Agent;
(17) a Certificate of a Responsible Official certifying that
the attached copy of the governing indenture for the Existing
Subordinated Debt is a true copy;
(18) such assurances as the Administrative Co-Agent deems
appropriate that the relevant Gaming Boards have approved the
transactions contemplated by the Loan Documents to the extent
that such approval is required by applicable Gaming Laws;
(19) written evidence that the Prior Syndicated Credit
Facility has been or will be concurrently terminated and all
Liens securing such facility have been or will be concurrently
released;
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(20) a Certificate of a Responsible Official signed by a
Senior Officer of Parent setting forth the Annualized Funded
Debt Ratio as of the last day of the most recently ended Fiscal
Quarter and the Senior Debt Rating as of the Closing Date;
(21) a Certificate of a Responsible Official signed by a
Senior Officer of Parent certifying that the conditions
specified in Sections 8.1(f) and 8.1(g) have been satisfied;
and
(22) such other assurances, certificates, documents, consents
or opinions as the Administrative Co-Agent reasonably may
require.
(b) The arrangement fee payable pursuant to Section 3.2 shall
have been paid.
(c) The upfront fees payable pursuant to Section 3.3 shall
have been paid.
(d) The agency fees payable on the Closing Date pursuant to
Section 3.6 shall have been paid.
(e) The reasonable costs and expenses of the Administrative
Co-Agent in connection with the preparation of the Loan
Documents payable pursuant to Section 11.3, and invoiced to
Borrowers prior to the Closing Date, shall have been paid.
(f) The representations and warranties of Borrowers contained
in Article 4 shall be true and correct.
(g) Borrowers and any other Parties shall be in compliance
with all the terms and provisions of the Loan Documents, and
giving effect to the initial Advance (or initial Letter of
Credit, as applicable) no Default or Event of Default shall
have occurred and be continuing.
(h) All legal matters relating to the Loan Documents shall be
satisfactory to Sheppard, Mullin, Richter & Hampton, special
counsel to the Administrative Co-Agent.
8.2 Any Increasing Advance, Etc. The obligation of each Bank
to make any Advance which would increase the principal amount
outstanding under the Notes, and the obligation of the Issuing
Bank to issue a Letter of Credit, is subject to the following
conditions precedent:
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(a) except (i) for representations and warranties which
expressly speak as of a particular date or are no longer true
and correct as a result of a change which is permitted by this
Agreement or (ii) as disclosed by Borrowers and approved in
writing by the Requisite Banks, the representations and
warranties contained in Article 4 (other than Sections 4.4(a),
4.6 (first sentence), 4.10, 4.17 and 4.19) shall be true and
correct on and as of the date of the Advance as though made on
that date;
(b) other than matters described in Schedule 4.10 or not
required as of the Closing Date to be therein described, there
shall not be then pending or threatened any action, suit,
proceeding or investigation against or affecting Borrowers or
any of the Restricted Subsidiaries or any Property of any of
them before any Governmental Agency that constitutes a Material
Adverse Effect;
(c) the Administrative Co-Agent shall have timely received a
Request for Loan in compliance with Article 2 (or telephonic or
other request for Loan referred to in the second sentence of
Section 2.1(b), if applicable) or the Issuing Bank shall have
received a Request for Letter Credit, as the case may be, in
compliance with Article 2; and
(d) the Administrative Co-Agent shall have received, in form
and substance satisfactory to the Administrative Co-Agent, such
other assurances, certificates, documents or consents related
to the foregoing as the Administrative Co-Agent or Requisite
Banks reasonably may require.
8.3 Any Advance. The obligation of each Bank to make any
Advance (other than an Alternate Base Rate Advance with respect
to an Alternate Base Rate Loan which, if made, would not
increase the outstanding principal Indebtedness evidenced by
the Notes) is subject to the conditions precedent that (a) the
representations and warranties contained in Sections 4.1, 4.2,
4.3, 4.4(b), 4.11, 4.12 (but only with respect to Events of
Default) and 4.14 shall be true and correct in all material
respects on the date of such Advance as though made on that
date except as disclosed by Borrowers and approved in writing
by the Requisite Banks, and (b) except as provided for in
Section 2.1(g), the Administrative Co-Agent shall have timely
received a Request for Loan in compliance with Article 2 (or
telephonic or other request for Loan referred to in the second
sentence of Section 2.1(b), if applicable).
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Article 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
____________________________________________________
9.1 Events of Default. The existence or occurrence of any
one or more of the following events, whatever the reason
therefor and under any circumstances whatsoever, shall consti-
tute an Event of Default:
(a) Borrowers fail to pay any principal on any of the Notes,
or any portion thereof, on the date when due; or
(b) Borrowers fail to pay any interest on any of the Notes,
or any fees under Sections 3.4, 3.5 or 3.6, or any portion
thereof, within five (5) Banking Days after the date when due;
or fail to pay any other fee or amount payable to the Banks
under any Loan Document, or any portion thereof, within five
(5) Banking Days after demand therefor; or
(c) Borrowers fail to comply with any of the covenants
contained in Article 6; or
(d) Borrowers fail to comply with Section 7.1(l) in any
respect that is materially adverse to the interests of the
Banks; or
(e) Borrowers, any of the Significant Subsidiaries or any
other Party fails to perform or observe any other covenant or
agreement (not specified in clause (a), (b), (c) or (d) above)
contained in any Loan Document on its part to be performed or
observed within ten (10) Banking Days after the giving of
notice by the Administrative Co-Agent on behalf of the
Requisite Banks of such Default; or
(f) Any representation or warranty of Borrowers or any of the
Significant Subsidiaries made in any Loan Document, or in any
certificate or other writing delivered by Borrowers or such
Significant Subsidiary pursuant to any Loan Document, proves to
have been incorrect when made or reaffirmed in any respect that
is materially adverse to the interests of the Banks; or
(g) Borrowers or any of the Restricted Subsidiaries (i) fails
to pay the principal, or any principal installment, of any
present or future indebtedness for borrowed money of $5,000,000
or more, or any guaranty of present or future indebtedness for
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borrowed money of $5,000,000 or more, on its part to be paid,
when due (or within any stated grace period), whether at the
stated maturity, upon acceleration, by reason of required
prepayment or otherwise or (ii) fails to perform or observe any
other term, covenant or agreement on its part to be performed
or observed, or suffers any event to occur, in connection with
any present or future indebtedness for borrowed money of
$5,000,000 or more, or of any guaranty of present or future
indebtedness for borrowed money of $5,000,000 or more, if as a
result of such failure or sufferance any holder or holders
thereof (or an agent or trustee on its or their behalf) has the
right to declare such indebtedness due before the date on which
it otherwise would become due; or
(h) Any event occurs which gives the holder or holders of any
Subordinated Obligation (or an agent or trustee on its or their
behalf) the right to declare such Subordinated Obligation due
before the date on which it otherwise would become due, or the
right (other than by reason of a Change in Control) to require
the issuer thereof to redeem or purchase, or offer to redeem or
purchase, all or any portion of any Subordinated Obligation; or
(i) Any Loan Document, at any time after its execution and
delivery and for any reason other than the agreement or action
(or omission to act) of the Banks or satisfaction in full of
all the Obligations ceases to be in full force and effect or is
declared by a court of competent jurisdiction to be null and
void, invalid or unenforceable in any respect which, in any
such event in the reasonable opinion of the Requisite Banks, is
materially adverse to the interests of the Banks; or any Party
thereto denies in writing that it has any or further liability
or obligation under any Loan Document, or purports to revoke,
terminate or rescind same; or
(j) A final judgment against any of Borrowers or any of the
Restricted Subsidiaries is entered for the payment of money in
excess of $1,000,000 and, absent procurement of a stay of
execution, such judgment remains unsatisfied for thirty
(30) calendar days after the date of entry of judgment, or in
any event later than five (5) days prior to the date of any
proposed sale thereunder; or any writ or warrant of attachment
or execution or similar process is issued or levied against all
or any material part of the Property of any such Person and is
not released, vacated or fully bonded within thirty (30)
calendar days after its issue or levy; or
(k) Any of Borrowers or any of the Significant Subsidiaries
institutes or consents to the institution of any proceeding
under a Debtor Relief Law relating to it or to all or any
material part of its Property, or is unable or admits in
writing its inability to pay its debts as they mature, or makes
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an assignment for the benefit of creditors; or applies for or
consents to the appointment of any receiver, trustee,
custodian, conservator, liquidator, rehabilitator or similar
officer for it or for all or any material part of its Property;
or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the
application or consent of that Person and the appointment con-
tinues undischarged or unstayed for sixty (60) calendar days;
or any proceeding under a Debtor Relief Law relating to any
such Person or to all or any part of its Property is instituted
without the consent of that Person and continues undismissed or
unstayed for sixty (60) calendar days; or
(l) The occurrence of an Event of Default (as such term is or
may hereafter be specifically defined in any other Loan
Document) under any other Loan Document; or
(m) A final judgment is entered by a court of competent
jurisdiction that any Subordinated Obligation is not
subordinated in accordance with its terms to the Obligations;
or
(n) Any Pension Plan maintained by Borrowers or any of its
Restricted Subsidiaries is determined to have a material "accu-
mulated funding deficiency" as that term is defined in
Section 302 of ERISA and the result is a Material Adverse
Effect; or
(o) The occurrence of a License Revocation that continues for
four (4) consecutive calendar days with respect to gaming
operations at The Mirage, Treasure Island, the Dunes Project or
any other gaming facility accounting for five percent (5%) or
more of the consolidated gross revenues of Parent and the
Restricted Subsidiaries.
9.2 Remedies Upon Event of Default. Without limiting any
other rights or remedies of the Administrative Co-Agent or the
Banks provided for elsewhere in this Agreement, or the other
Loan Documents, or by applicable Law, or in equity, or
otherwise:
(a) Upon the occurrence, and during the continuance, of any
Event of Default other than an Event of Default described in
Section 9.1(k):
(1) the Commitment to make Advances, the obligation of the
Issuing Bank to issue Letters of Credit and all other
obligations of the Administrative Co-Agent or the Banks and all
rights of Borrowers and any other Parties under the Loan
Documents shall be suspended without notice to or demand upon
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Borrowers, which are expressly waived by Borrowers, except that
all of the Banks or the Requisite Banks (as the case may be, in
accordance with Section 11.2) may waive an Event of Default or,
without waiving, determine, upon terms and conditions
satisfactory to the Banks or Requisite Banks, as the case may
be, to reinstate the Commitment and make further Advances,
which waiver or determination shall apply equally to, and shall
be binding upon, all the Banks;
(2) the Issuing Bank may, with the approval of the
Administrative Co-Agent on behalf of the Requisite Banks,
demand immediate payment by Borrowers of an amount equal to the
aggregate amount of all outstanding Letters of Credit to be
held by the Issuing Bank in an interest-bearing cash collateral
account as collateral hereunder; and
(3) the Requisite Banks may request the Administrative Co-
Agent to, and the Administrative Co-Agent thereupon shall,
terminate the Commitment and/or declare all or any part of the
unpaid principal of all Notes, all interest accrued and unpaid
thereon and all other amounts payable under the Loan Documents
to be forthwith due and payable, whereupon the same shall
become and be forthwith due and payable, without protest,
presentment, notice of dishonor, demand or further notice of
any kind, all of which are expressly waived by Borrowers.
(b) Upon the occurrence of any Event of Default described in
Section 9.1(k):
(1) the Commitment to make Advances, the obligation of the
Issuing Bank to issue Letters of Credit and all other
obligations of the Administrative Co-Agent or the Banks and all
rights of Borrowers and any other Parties under the Loan
Documents shall terminate without notice to or demand upon
Borrowers, which are expressly waived by Borrowers, except that
all the Banks may waive the Event of Default or, without
waiving, determine, upon terms and conditions satisfactory to
all the Banks, to reinstate the Commitment and make further
Advances, which determination shall apply equally to, and shall
be binding upon, all the Banks;
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(2) an amount equal to the aggregate amount of all
outstanding Letters of Credit shall be immediately due and
payable to the Issuing Bank without notice to or demand upon
Borrowers, which are expressly waived by Borrower, to be held
by the Issuing Bank in an interest-bearing cash collateral
account as collateral hereunder; and
(3) the unpaid principal of all Notes, all interest accrued
and unpaid thereon and all other amounts payable under the Loan
Documents shall be forthwith due and payable, without protest,
presentment, notice of dishonor, demand or further notice of
any kind, all of which are expressly waived by Borrowers.
(c) Upon the occurrence of any Event of Default, the Banks
and the Administrative Co-Agent, or any of them, without notice
to (except as expressly provided for in any Loan Document) or
demand upon Borrowers, which are expressly waived by Borrowers
(except as to notices expressly provided for in any Loan
Document), may proceed (but only with the consent of the
Requisite Banks) to protect, exercise and enforce their rights
and remedies under the Loan Documents against Borrowers and any
other Party and such other rights and remedies as are provided
by Law or equity.
(d) The order and manner in which the Banks' rights and
remedies are to be exercised shall be determined by the
Requisite Banks in their sole discretion, and all payments
received by the Administrative Co-Agent and the Banks, or any
of them, shall be applied first to the costs and expenses
(including reasonable attorneys' fees and disbursements and the
reasonably allocated costs of attorneys employed by the
Administrative Co-Agent or by any Bank) of the Administrative
Co-Agent and of the Banks, and thereafter paid pro rata to the
Banks in the same proportions that the aggregate Obligations
owed to each Bank under the Loan Documents bear to the
aggregate Obligations owed under the Loan Documents to all the
Banks, without priority or preference among the Banks. Regard-
less of how each Bank may treat payments for the purpose of its
own accounting, for the purpose of computing Borrowers'
Obligations hereunder and under the Notes, payments shall be
applied first, to the costs and expenses of the Administrative
Co-Agent and the Banks, as set forth above, second, to the
payment of accrued and unpaid interest due under any Loan
Documents to and including the date of such application
(ratably, and without duplication, according to the accrued and
unpaid interest due under each of the Loan Documents), and
third, to the payment of all other amounts (including principal
and fees) then owing to the Administrative Co-Agent or the
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Banks under the Loan Documents. Amounts due to a Bank under a
Secured Swap Agreement shall be considered a principal amount
for purposes of the preceding sentence. No application of
payments will cure any Event of Default, or prevent
acceleration, or continued acceleration, of amounts payable
under the Loan Documents, or prevent the exercise, or continued
exercise, of rights or remedies of the Banks hereunder or
thereunder or at Law or in equity.
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Article 10
THE ADMINISTRATIVE CO-AGENT
___________________________
10.1 Appointment and Authorization. Subject to Section 10.8,
each Bank hereby irrevocably appoints and authorizes the
Administrative Co-Agent to take such action as agent on its
behalf and to exercise such powers under the Loan Documents as
are delegated to the Administrative Co-Agent by the terms
thereof or are reasonably incidental, as determined by the
Administrative Co-Agent, thereto. This appointment and
authorization is intended solely for the purpose of facili-
tating the servicing of the Loans and does not constitute
appointment of the Administrative Co-Agent as trustee for any
Bank or as representative of any Bank for any other purpose
and, except as specifically set forth in the Loan Documents to
the contrary, the Administrative Co-Agent shall take such
action and exercise such powers only in an administrative and
ministerial capacity.
10.2 Administrative Co-Agent and Affiliates. Bank of America
National Trust and Savings Association (and each successor
Administrative Co-Agent) has the same rights and powers under
the Loan Documents as any other Bank and may exercise the same
as though it were not the Administrative Co-Agent, and the term
"Bank" or "Banks" includes Bank of America National Trust and
Savings Association in its individual capacity. Bank of
America National Trust and Savings Association (and each
successor Administrative Co-Agent) and its Affiliates may
accept deposits from, lend money to and generally engage in any
kind of banking, trust or other business with Borrowers, any
Subsidiary thereof, or any Affiliate of Borrowers or any
Subsidiary thereof, as if it were not the Administrative Co-
Agent and without any duty to account therefor to the Banks.
Bank of America National Trust and Savings Association (and
each successor Administrative Co-Agent) need not account to any
other Bank for any monies received by it for reimbursement of
its costs and expenses as Administrative Co-Agent hereunder, or
for any monies received by it in its capacity as a Bank
hereunder. The Administrative Co-Agent shall not be deemed to
hold a fiduciary relationship with any Bank and no implied
covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise
exist against the Administrative Co-Agent.
10.3 Proportionate Interest in any Collateral. The
Administrative Co-Agent, on behalf of all the Banks, shall hold
in accordance with the Loan Documents all items of any
collateral or interests therein received or held by the
Administrative Co-Agent. Subject to the Administrative
Co-Agent's and the Banks' rights to reimbursement for their
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costs and expenses hereunder (including reasonable attorneys'
fees and disbursements and other professional services and the
reasonably allocated costs of attorneys employed by the
Administrative Co-Agent or a Bank) and subject to the
application of payments in accordance with Section 9.2(d), each
Bank shall have an interest in the Banks' interest in the
Collateral or interests therein in the same proportions that
the aggregate Obligations owed such Bank under the Loan
Documents bear to the aggregate Obligations owed under the Loan
Documents to all the Banks, without priority or preference
among the Banks.
10.4 Banks' Credit Decisions. Each Bank agrees that it has,
independently and without reliance upon the Administrative Co-
Agent, any other Bank or the directors, officers, agents,
employees or attorneys of the Administrative Co-Agent or of any
other Bank, and instead in reliance upon information supplied
to it by or on behalf of Borrowers and upon such other
information as it has deemed appropriate, made its own inde-
pendent credit analysis and decision to enter into this
Agreement. Each Bank also agrees that it shall, independently
and without reliance upon the Administrative Co-Agent, any
other Bank or the directors, officers, agents, employees or
attorneys of the Administrative Co-Agent or of any other Bank,
continue to make its own independent credit analyses and deci-
sions in acting or not acting under the Loan Documents.
10.5 Action by Administrative Co-Agent.
(a) Absent actual knowledge of the Administrative
Co-Agent of the existence of a Default, the Administrative
Co-Agent may assume that no Default has occurred and is
continuing, unless the Administrative Co-Agent (or the Bank
that is then the Administrative Co-Agent) has received notice
from Borrowers stating the nature of the Default or has
received notice from a Bank stating the nature of the Default
and that such Bank considers the Default to have occurred and
to be continuing.
(b) The Administrative Co-Agent has only those
obligations under the Loan Documents as are expressly set forth
therein.
(c) Except for any obligation expressly set forth in
the Loan Documents and as long as the Administrative Co-Agent
may assume that no Event of Default has occurred and is
continuing, the Administrative Co-Agent may, but shall not be
required to, exercise its discretion to act or not act, except
that the Administrative Co-Agent shall be required to act or
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not act upon the instructions of the Requisite Banks (or of all
the Banks, to the extent required by Section 11.2) and those
instructions shall be binding upon the Administrative Co-Agent
and all the Banks, provided that the Administrative Co-Agent
shall not be required to act or not act if to do so would be
contrary to any Loan Document or to applicable Law or would
result, in the reasonable judgment of the Administrative
Co-Agent, in substantial risk of liability to the
Administrative Co-Agent.
(d) If the Administrative Co-Agent has received a
notice specified in clause (a), the Administrative Co-Agent
shall immediately give notice thereof to the Banks and shall
act or not act upon the instructions of the Requisite Banks (or
of all the Banks, to the extent required by Section 11.2),
provided that the Administrative Co-Agent shall not be required
to act or not act if to do so would be contrary to any Loan
Document or to applicable Law or would result, in the
reasonable judgment of the Administrative Co-Agent, in
substantial risk of liability to the Administrative Co-Agent,
and except that if the Requisite Banks (or all the Banks, if
required under Section 11.2) fail, for five (5) Banking Days
after the receipt of notice from the Administrative Co-Agent,
to instruct the Administrative Co-Agent, then the
Administrative Co-Agent, in its sole discretion, may act or not
act as it deems advisable for the protection of the interests
of the Banks.
(e) The Administrative Co-Agent shall have no
liability to any Bank for acting, or not acting, as instructed
by the Requisite Banks (or all the Banks, if required under
Section 11.2), notwithstanding any other provision hereof.
10.6 Liability of Administrative Co-Agent. Neither the
Administrative Co-Agent nor any of its directors, officers,
agents, employees or attorneys shall be liable for any action
taken or not taken by them under or in connection with the Loan
Documents, except for their own gross negligence or willful
misconduct. Without limitation on the foregoing, the
Administrative Co-Agent and its directors, officers, agents,
employees and attorneys:
(a) May treat the payee of any Note as the holder
thereof until the Administrative Co-Agent receives notice of
the assignment or transfer thereof, in form satisfactory to the
Administrative Co-Agent, signed by the payee, and may treat
each Bank as the owner of that Bank's interest in the
Obligations for all purposes of this Agreement until the
Administrative Co-Agent receives notice of the assignment or
transfer thereof, in form satisfactory to the Administrative
Co-Agent, signed by that Bank.
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(b) May consult with legal counsel (including in-
house legal counsel), accountants (including in-house
accountants) and other professionals or experts selected by it,
or with legal counsel, accountants or other professionals or
experts for Borrowers and/or their Subsidiaries or the Banks,
and shall not be liable for any action taken or not taken by it
in good faith in accordance with any advice of such legal
counsel, accountants or other professionals or experts.
(c) Shall not be responsible to any Bank for any
statement, warranty or representation made in any of the Loan
Documents or in any notice, certificate, report, request or
other statement (written or oral) given or made in connection
with any of the Loan Documents.
(d) Except to the extent expressly set forth in the
Loan Documents, shall have no duty to ask or inquire as to the
performance or observance by Borrowers or its Subsidiaries of
any of the terms, conditions or covenants of any of the Loan
Documents or to inspect any Collateral or the Property, books
or records of Borrowers or their Subsidiaries.
(e) Will not be responsible to any Bank for the due
execution, legality, validity, enforceability, genuineness,
effectiveness, sufficiency or value of any Loan Document, any
other instrument or writing furnished pursuant thereto or in
connection therewith, or any Collateral.
(f) Will not incur any liability by acting or not
acting in reliance upon any Loan Document, notice, consent,
certificate, statement, request or other instrument or writing
believed by it to be genuine and signed or sent by the proper
party or parties.
(g) Will not incur any liability for any arithmetical
error in computing any amount paid or payable by the
Borrowers or any Subsidiary or Affiliate thereof or paid or
payable to or received or receivable from any Bank under any
Loan Document, including, without limitation, principal,
interest, commitment fees, Advances and other amounts; provided
that, promptly upon discovery of such an error in computation,
the Administrative Co-Agent, the Banks and (to the extent
applicable) Borrowers and/or their Subsidiaries or Affiliates
shall make such adjustments as are necessary to correct such
error and to restore the parties to the position that they
would have occupied had the error not occurred.
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10.7 Indemnification. Each Bank shall, ratably in accordance
with its Pro Rata Share of the Commitment (if the Commitment is
then in effect) or in accordance with its proportion of the
aggregate Indebtedness then evidenced by the Notes (if the
Commitment has then been terminated), indemnify and hold the
Administrative Co-Agent and its directors, officers, agents,
employees and attorneys harmless against any and all liabili-
ties, obligations, losses, damages, penalties, actions, judg-
ments, suits, costs, expenses or disbursements of any kind or
nature whatsoever (including, without limitation, attorneys'
fees and disbursements and allocated costs of attorneys
employed by the Administrative Co-Agent) that may be imposed
on, incurred by or asserted against it or them in any way
relating to or arising out of the Loan Documents (other than
losses incurred by reason of the failure of Borrowers to pay
the Indebtedness represented by the Notes) or any action taken
or not taken by it as Administrative Co-Agent thereunder,
except such as result from its own gross negligence or willful
misconduct. Without limitation on the foregoing, each Bank
shall reimburse the Administrative Co-Agent upon demand for
that Bank's Pro Rata Share of any out-of-pocket cost or expense
incurred by the Administrative Co-Agent in connection with the
negotiation, preparation, execution, delivery, amendment,
waiver, restructuring, reorganization (including a bankruptcy
reorganization), enforcement or attempted enforcement of the
Loan Documents, to the extent that Borrowers or any other Party
is required by Section 11.3 to pay that cost or expense but
fails to do so upon demand. Nothing in this Section 10.7 shall
entitle the Administrative Co-Agent to recover any amount from
the Banks if and to the extent that such amount has theretofore
been recovered from Borrowers or any of their Subsidiaries. To
the extent that the Administrative Co-Agent is later reimbursed
such cost or expense by Borrowers or any of its Subsidiaries,
it shall return the amounts paid to it by the Banks in respect
of such cost or expense.
10.8 Successor Administrative Co-Agent. The Administrative
Co-Agent may, and at the request of the Requisite Banks shall,
resign as Administrative Co-Agent upon thirty (30) days' notice
to the Banks and Borrowers. If the Administrative Co-Agent
shall resign as Administrative Co-Agent under this Agreement,
the Requisite Banks shall appoint from among the Banks a
successor Administrative Co-Agent for the Banks, which
successor administrative co-agent shall be approved by
Borrowers (and such approval shall not be unreasonably withheld
or delayed). If no successor administrative co-agent is
appointed prior to the effective date of the resignation of the
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Administrative Co-Agent, the Administrative Co-Agent may
appoint, after consulting with the Banks and the Borrowers, a
successor administrative co-agent from among the Banks. Upon
the acceptance of its appointment as successor administrative
co-agent hereunder, such successor administrative co-agent
shall succeed to all the rights, powers and duties of the
retiring Administrative Co-Agent and the term "Administrative
Co-Agent" shall mean such successor administrative co-agent and
the retiring Administrative Co-Agent's appointment, powers and
duties as Administrative Co-Agent shall be terminated. After
any retiring Administrative Co-Agent's resignation hereunder as
Administrative Co-Agent, the provisions of this Article 10, and
Sections 11.3, 11.11 and 11.22, shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was
Administrative Co-Agent under this Agreement. If (a) the
Administrative Co-Agent has not been paid its agency fees under
Section 3.6 or has not been reimbursed for any expense
reimbursable to it under Section 11.3, in either case for a
period of at least one (1) year and (b) no successor
administrative co-agent has accepted appointment as
Administrative Co-Agent by the date which is thirty (30) days
following a retiring Administrative Co-Agent's notice of
resignation, the retiring Administrative Co-Agent's resignation
shall nevertheless thereupon become effective and the Banks
shall perform all of the duties of the Administrative Co-Agent
hereunder until such time, if any, as the Requisite Banks
appoint a successor administrative co-agent as provided for
above.
10.9 Foreclosure on Collateral. In the event of foreclosure
or enforcement of the Lien created by any of the Collateral
Documents, title to the Collateral covered thereby shall be
taken and held by the Administrative Co-Agent (or an Affiliate
or designee thereof) pro rata for the benefit of the Banks in
accordance with their Pro Rata Share of the Commitment and
shall be administered in accordance with the standard form of
collateral holding participation agreement used by the
Administrative Co-Agent in comparable syndicated credit
facilities.
10.10 No Obligations of Borrowers. Nothing contained in this
Article 10 shall be deemed to impose upon Borrowers any
obligation in respect of the due and punctual performance by
the Administrative Co-Agent of its obligations to the Banks
under any provision of this Agreement, and Borrowers shall have
no liability to the Administrative Co-Agent or any of the Banks
in respect of any failure by the Administrative Co-Agent or any
Bank to perform any of its obligations to the Administrative
Co-Agent or the Banks under this Agreement. Without limiting
the generality of the foregoing, where any provision of this
Agreement relating to the payment of any amounts due and owing
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under the Loan Documents provides that such payments shall be
made by Borrowers to the Administrative Co-Agent for the
account of the Banks, Borrowers' obligations to the Banks in
respect of such payments shall be deemed to be satisfied upon
the making of such payments to the Administrative Co-Agent in
the manner provided by this Agreement.
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Article 11
MISCELLANEOUS
_____________
11.1 Cumulative Remedies; No Waiver. The rights, powers,
privileges and remedies of the Administrative Co-Agent and the
Banks provided herein or in any Note or other Loan Document are
cumulative and not exclusive of any right, power, privilege or
remedy provided by Law or equity. No failure or delay on the
part of the Administrative Co-Agent or any Bank in exercising
any right, power, privilege or remedy may be, or may be deemed
to be, a waiver thereof; nor may any single or partial exercise
of any right, power, privilege or remedy preclude any other or
further exercise of the same or any other right, power,
privilege or remedy. The terms and conditions of Article 8
hereof are inserted for the sole benefit of the Administrative
Co-Agent and the Banks; the same may be waived in whole or in
part, with or without terms or conditions, in respect of any
Loan or Letter of Credit without prejudicing the Administrative
Co-Agent's or the Banks' rights to assert them in whole or in
part in respect of any other Loan.
11.2 Amendments; Consents. No amendment, modification,
supplement, extension, termination or waiver of any provision
of this Agreement or any other Loan Document, no approval or
consent thereunder, and no consent to any departure by the
Borrowers or any other Party therefrom, may in any event be
effective unless in writing signed by the Requisite Banks (and,
in the case of any amendment, modification or supplement of or
to any Loan Document to which Borrowers is a Party, signed by
Borrowers and, in the case of any amendment, modification or
supplement to Article 10, signed by the Administrative
Co-Agent), and then only in the specific instance and for the
specific purpose given; and, without the approval in writing of
all the Banks, no amendment, modification, supplement,
termination, waiver or consent may be effective:
(a) To amend or modify the principal of, or the
amount of principal, principal prepayments or the rate of
interest payable on, any Note, or the amount of the Commitment
or the Pro Rata Share of any Bank or the amount of any
commitment fee payable to any Bank, or any other fee or amount
payable to any Bank under the Loan Documents or to waive an
Event of Default consisting of the failure of Borrowers to pay
when due principal, interest or any commitment fee;
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(b) To postpone any date fixed for any payment of
principal of, prepayment of principal of or any installment of
interest on, any Note or any installment of any commitment fee,
or to extend the term of the Commitment, or to release the
Subsidiary Guaranty;
(c) to release any material portion of the
Collateral (except as otherwise expressly provided in any Loan
Document);
(d) To amend the provisions of the definition of
"Requisite Banks", "Majority Banks", Articles 8 or 9 or this
Section 11.2 or to amend or waive Section 6.5; or
(e) To amend any provision of this Agreement that
expressly requires the consent or approval of all the Banks.
Any amendment, modification, supplement, termination, waiver or
consent pursuant to this Section 11.2 shall apply equally to,
and shall be binding upon, all the Banks and the Administrative
Co-Agent.
11.3 Costs, Expenses and Taxes. Borrowers shall pay within
five (5) Banking Days after demand, accompanied by an invoice
therefor, the reasonable costs and expenses of the
Administrative Co-Agent in connection with the negotiation,
preparation, syndication, execution and delivery of the Loan
Documents (subject to the limitations set forth in a letter
agreement between Parent and the Arranger entered into prior to
the Closing Date) and any amendment thereto or waiver thereof.
Borrowers shall also pay on demand, accompanied by an invoice
therefor, the reasonable costs and expenses of the
Administrative Co-Agent and the Banks in connection with the
refinancing, restructuring, reorganization (including a
bankruptcy reorganization) and enforcement or attempted
enforcement of the Loan Documents, and any matter related
thereto. The foregoing costs and expenses shall include filing
fees, recording fees, title insurance fees, appraisal fees,
search fees, and other out-of-pocket expenses and the
reasonable fees and out-of-pocket expenses of any legal counsel
(including reasonably allocated costs of legal counsel employed
by the Administrative Co-Agent or any Bank), independent public
accountants and other outside experts retained by the
Administrative Co-Agent or any Bank, whether or not such costs
and expenses are incurred or suffered by the Administrative
Co-Agent or any Bank in connection with or during the course of
any bankruptcy or insolvency proceedings of any of Borrowers or
any Subsidiary thereof. Such costs and expenses shall also
include, in the case of any amendment or waiver of any Loan
Document requested by Borrowers, the administrative costs of
the Administrative Co-Agent reasonably attributable thereto.
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Borrowers shall pay any and all documentary and other taxes,
excluding, in the case of each Bank, the Administrative
Co-Agent, each Co-Agent and each Eligible Assignee, and any
Affiliate or Eurodollar Lending Office thereof, (i) taxes
imposed on or measured in whole or in part by its overall net
income, gross income or gross receipts or capital and franchise
taxes imposed on it by (A) any jurisdiction (or political
subdivision thereof) in which it is organized or maintains its
principal office or Eurodollar Lending Office or (B) any
jurisdiction (or political subdivision thereof) in which it is
"doing business" (unless it would not be doing business in such
jurisdiction (or political subdivision thereof) absent the
transactions contemplated hereby), (ii) any withholding taxes
or other taxes based on gross income imposed by the United
States of America (other than withholding taxes and taxes based
on gross income resulting from or attributable to any change in
any law, rule or regulation or any change in the interpretation
or administration of any law, rule or regulation by any
Governmental Agency) or (iii) any withholding taxes or other
taxes based on gross income imposed by the United States of
America for any period with respect to which it has failed to
provide Borrowers with the appropriate form or forms required
by Section 11.21, to the extent such forms are then required by
applicable Laws, and all costs, expenses, fees and charges
payable or determined to be payable in connection with the
filing or recording of this Agreement, any other Loan Document
or any other instrument or writing to be delivered hereunder or
thereunder, or in connection with any transaction pursuant
hereto or thereto, and shall reimburse, hold harmless and
indemnify the Administrative Co-Agent and the Banks from and
against any and all loss, liability or legal or other expense
with respect to or resulting from any delay in paying or fail-
ure to pay any such tax, cost, expense, fee or charge or that
any of them may suffer or incur by reason of the failure of any
Party to perform any of its Obligations. Any amount payable to
the Administrative Co-Agent or any Bank under this Section 11.3
shall bear interest from the second Banking Day following the
date of demand for payment at the Default Rate.
11.4 Nature of Banks' Obligations. The obligations of the
Banks hereunder are several and not joint or joint and several.
Nothing contained in this Agreement or any other Loan Document
and no action taken by the Administrative Co-Agent or the Banks
or any of them pursuant hereto or thereto may, or may be deemed
to, make the Banks a partnership, an association, a joint
venture or other entity, either among themselves or with the
Borrowers or any Affiliate of any of Borrowers. Each Bank's
obligation to make any Advance pursuant hereto is several and
not joint or joint and several, and in the case of the initial
Advance only is conditioned upon the performance by all other
Banks of their obligations to make initial Advances. A default
by any Bank will not increase the Pro Rata Share of the
Commitment attributable to any other Bank. Any Bank not in
default may, if it desires, assume in such proportion as the
nondefaulting Banks agree the obligations of any Bank in
default, but is not obligated to do so. The Administrative
Co-Agent agrees that it will use its best efforts either to
induce the other Banks to assume the obligations of a Bank in
default or to obtain another Bank, reasonably satisfactory to
Borrowers, to replace such a Bank in default.
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11.5 Survival of Representations and Warranties. All
representations and warranties contained herein or in any other
Loan Document, or in any certificate or other writing delivered
by or on behalf of any one or more of the Parties to any Loan
Document, will survive the making of the Loans hereunder and
the execution and delivery of the Notes, and have been or will
be relied upon by the Administrative Co-Agent and each Bank,
notwithstanding any investigation made by the Administrative
Co-Agent or any Bank or on their behalf.
11.6 Notices. Except as otherwise expressly provided in the
Loan Documents, all notices, requests, demands, directions and
other communications provided for hereunder or under any other
Loan Document must be in writing and must be mailed,
telegraphed, telecopied, dispatched by commercial courier or
delivered to the appropriate party at the address set forth on
the signature pages of this Agreement or other applicable Loan
Document or, as to any party to any Loan Document, at any other
address as may be designated by it in a written notice sent to
all other parties to such Loan Document in accordance with this
Section 11.6. Except as otherwise expressly provided in any
Loan Document, if any notice, request, demand, direction or
other communication required or permitted by any Loan Document
is given by mail it will be effective on the earlier of receipt
or the third calendar day after deposit in the United States
mail with first class or airmail postage prepaid; if given by
telegraph or cable, when delivered to the telegraph company
with charges prepaid; if given by telecopier, when sent; if
dispatched by commercial courier, on the scheduled delivery
date; or if given by personal delivery, when delivered.
11.7 Execution of Loan Documents. Unless the Administrative
Co-Agent otherwise specifies with respect to any Loan Document,
(a) this Agreement and any other Loan Document may be executed
in any number of counterparts and any party hereto or thereto
may execute any counterpart, each of which when executed and
delivered will be deemed to be an original and all of which
counterparts of this Agreement or any other Loan Document, as
the case may be, when taken together will be deemed to be but
one and the same instrument and (b) execution of any such
counterpart may be evidenced by a telecopier transmission of
the signature of such party. The execution of this Agreement
or any other Loan Document by any party hereto or thereto will
not become effective until counterparts hereof or thereof, as
the case may be, have been executed by all the parties hereto
or thereto.
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11.8 Binding Effect; Assignment.
(a) This Agreement and the other Loan Documents to
which Borrowers are a Party will be binding upon and inure to
the benefit of Borrowers, the Administrative Co-Agent, each of
the Banks, and their respective successors and assigns, except
that, except as permitted in Section 6.4, Borrowers may not
assign their rights hereunder or thereunder or any interest
herein or therein without the prior written consent of all the
Banks. Each Bank represents that it is not acquiring its Note
with a view to the distribution thereof within the meaning of
the Securities Act of 1933, as amended (subject to any
requirement that disposition of such Note must be within the
control of such Bank). Any Bank may at any time pledge its
Note or any other instrument evidencing its rights as a Bank
under this Agreement to a Federal Reserve Bank, but no such
pledge shall release that Bank from its obligations hereunder
or grant to such Federal Reserve Bank the rights of a Bank
hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date,
each Bank may assign to one or more Eligible Assignees all or
any portion of its Pro Rata Share of the Commitment; provided
that (i) such Eligible Assignee, if not then a Bank or an
Affiliate of the assigning Bank, shall be approved by each of
the Administrative Co-Agent and Borrowers (neither of which
approvals shall be unreasonably withheld or delayed), (ii) such
assignment shall be evidenced by a Commitment Assignment and
Acceptance, a copy of which shall be furnished to the
Administrative Co-Agent as hereinbelow provided, (iii) except
in the case of an assignment to an Affiliate of the assigning
Bank, to another Bank or of the entire remaining Commitment of
the assigning Bank, the assignment shall not assign a Pro Rata
Share of the Commitment equivalent to less than $10,000,000,
and (iv) the effective date of any such assignment shall be as
specified in the Commitment Assignment and Acceptance, but not
earlier than the date which is five (5) Banking Days after the
date the Administrative Co-Agent has received the Commitment
Assignment and Acceptance. Upon the effective date of such
Commitment Assignment and Acceptance, the Eligible Assignee
named therein shall be a Bank for all purposes of this
Agreement, with the Pro Rata Share of the Commitment therein
set forth and, to the extent of such Pro Rata Share, the
assigning Bank shall be released from its further obligations
under this Agreement. Borrowers agree that they shall execute
and deliver (against delivery by the assigning Bank to
Borrowers of its Notes) to such assignee Bank, Notes evidencing
that assignee Bank's Pro Rata Share of the Commitment, and to
the assigning Bank, Notes evidencing the remaining balance Pro
Rata Share retained by the assigning Bank.
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(c) By executing and delivering a Commitment
Assignment and Acceptance, the Eligible Assignee thereunder
acknowledges and agrees that: (i) other than the representation
and warranty that it is the legal and beneficial owner of the
Pro Rata Share of the Commitment being assigned thereby free
and clear of any adverse claim, the assigning Bank has made no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made
in or in connection with this Agreement or the execution,
legality, validity, enforceability, genuineness or sufficiency
of this Agreement or any other Loan Document; (ii) the
assigning Bank has made no representation or warranty and
assumes no responsibility with respect to the financial
condition of Borrowers or the performance by Borrowers of the
Obligations; (iii) it has received a copy of this Agreement,
together with copies of the most recent financial statements
delivered pursuant to Section 7.1 and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Commitment Assignment
and Acceptance; (iv) it will, independently and without
reliance upon the Administrative Co-Agent or any Bank and based
on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) it
appoints and authorizes the Administrative Co-Agent to take
such action and to exercise such powers under this Agreement as
are delegated to the Administrative Co-Agent by this Agreement;
and (vi) it will perform in accordance with their terms all of
the obligations which by the terms of this Agreement are
required to be performed by it as a Bank.
(d) The Administrative Co-Agent shall maintain at
the Administrative Co-Agent's Office a copy of each Commitment
Assignment and Acceptance delivered to it. After receipt of a
completed Commitment Assignment and Acceptance executed by any
Bank and an Eligible Assignee, and receipt of an assignment fee
of $2,500 from such Eligible Assignee, the Administrative
Co-Agent shall, promptly following the effective date thereof,
provide to Borrowers and the Banks a revised Schedule 1.1
giving effect thereto.
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(e) Each Bank may from time to time grant
participations to one or more banks or other financial
institutions (including another Bank) in a portion of its Pro
Rata Share of the Commitment; provided, however, that (i) such
Bank's obligations under this Agreement shall remain unchanged,
(ii) such Bank shall remain solely responsible to the other
parties hereto for the performance of such obligations,
(iii) the participating banks or other financial institutions
shall not be a Bank hereunder for any purpose except, if the
participation agreement so provides, for the purposes of
Sections 3.7, 3.8, 11.11 and 11.22 but only to the extent that
the cost of such benefits to Borrowers does not exceed the cost
which Borrowers would have incurred in respect of such Bank
absent the participation, (iv) Borrowers, the Administrative
Co-Agent and the other Banks shall continue to deal solely and
directly with such Bank in connection with such Bank's rights
and obligations under this Agreement, (v) the participation
interest shall be expressed as a percentage of the granting
Bank's Pro Rata Share of the Commitment as it then exists and
shall not restrict an increase in the Commitment, or in the
granting Bank's Pro Rata Share of the Commitment, so long as
the amount of the participation interest is not affected
thereby and (vi) the consent of the holder of such par-
ticipation interest shall not be required for amendments or
waivers of provisions of the Loan Documents other than those
which (A) extend the Maturity Date or any other date upon which
any payment of money is due to the Banks, (B) reduce the rate
of interest on the Notes, any fee or any other monetary amount
payable to the Banks, (C) reduce the amount of any installment
of principal due under the Notes, (D) change the definition of
"Requisite Banks" or (E) release any material portion of the
Collateral.
(f) Notwithstanding anything in this Section 11.8 to
the contrary, the rights of the Banks to make assignments of,
and grant participations in, their Pro Rata Shares of the
Commitment shall be subject to the approval of any Gaming
Board, to the extent required by applicable Gaming Laws, and to
compliance with applicable securities laws.
11.9 Right of Setoff. If an Event of Default has occurred and
is continuing, the Administrative Co-Agent or any Bank (but in
each case only with the consent of the Requisite Banks) may
exercise its rights under Article 9 of the Uniform Commercial
Code and other applicable Laws and, to the extent permitted by
applicable Laws, apply any funds in any deposit account main-
tained with it by Borrowers and/or any Property of Borrowers in
its possession against the Obligations.
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11.10 Sharing of Setoffs. Each Bank severally agrees that if it,
through the exercise of any right of setoff, banker's lien or
counterclaim against Borrowers, or otherwise, receives payment
of the Obligations held by it that is ratably more than any
other Bank, through any means, receives in payment of the
Obligations held by that Bank, then, subject to applicable
Laws: (a) the Bank exercising the right of setoff, banker's
lien or counterclaim or otherwise receiving such payment shall
purchase, and shall be deemed to have simultaneously purchased,
from the other Bank a participation in the Obligations held by
the other Bank and shall pay to the other Bank a purchase price
in an amount so that the share of the Obligations held by each
Bank after the exercise of the right of setoff, banker's lien
or counterclaim or receipt of payment shall be in the same
proportion that existed prior to the exercise of the right of
setoff, banker's lien or counterclaim or receipt of payment;
and (b) such other adjustments and purchases of participations
shall be made from time to time as shall be equitable to ensure
that all of the Banks share any payment obtained in respect of
the Obligations ratably in accordance with each Bank's share of
the Obligations immediately prior to, and without taking into
account, the payment; provided that, if all or any portion of a
disproportionate payment obtained as a result of the exercise
of the right of setoff, banker's lien, counterclaim or other
wise is thereafter recovered from the purchasing Bank by
Borrowers or any Person claiming through or succeeding to the
rights of Borrowers, the purchase of a participation shall be
rescinded and the purchase price thereof shall be restored to
the extent of the recovery, but without interest. Each Bank
that purchases a participation in the Obligations pursuant to
this Section 11.10 shall from and after the purchase have the
right to give all notices, requests, demands, directions and
other communications under this Agreement with respect to the
portion of the Obligations purchased to the same extent as
though the purchasing Bank were the original owner of the
Obligations purchased. Borrowers expressly consent to the
foregoing arrangements and agree that any Bank holding a
participation in an Obligation so purchased may exercise any
and all rights of setoff, banker's lien or counterclaim with
respect to the participation as fully as if the Bank were the
original owner of the Obligation purchased.
11.11 Indemnity by Borrowers. Borrowers agree to indemnify,
save and hold harmless the Administrative Co-Agent and each
Bank and their directors, officers, agents, attorneys and
employees (collectively the "Indemnitees") from and against:
(a) any and all claims, demands, actions or causes of action
(except a claim, demand, action, or cause of action for any
amount excluded from the definition of "Taxes" in
Section 3.12(d)) if the claim, demand, action or cause of
action arises out of or relates to any act or omission (or
alleged act or omission) of Borrowers, their Affiliates or any
of their officers, directors or stockholders relating to the
Commitment, the use or contemplated use of proceeds of any
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Loan, or the relationship of Borrowers and the Banks under this
Agreement; (b) any administrative or investigative proceeding
by any Governmental Agency arising out of or related to a
claim, demand, action or cause of action described in
clause (a) above; and (c) any and all liabilities, losses,
costs or expenses (including reasonable attorneys' fees and the
reasonably allocated costs of attorneys employed by any
Indemnitee and disbursements of such attorneys and other
professional services) that any Indemnitee suffers or incurs as
a result of the assertion of any foregoing claim, demand,
action or cause of action; provided that no Indemnitee shall be
entitled to indemnification for any loss caused by its own
gross negligence or willful misconduct or for any loss asserted
against it by another Indemnitee. If any claim, demand, action
or cause of action is asserted against any Indemnitee, such
Indemnitee shall promptly notify Borrowers, but the failure to
so promptly notify Borrowers shall not affect Borrowers'
obligations under this Section unless such failure materially
prejudices Borrowers' right to participate in the contest of
such claim, demand, action or cause of action, as hereinafter
provided. Such Indemnitee may (and shall, if requested by
Borrowers in writing) contest the validity, applicability and
amount of such claim, demand, action or cause of action and
shall permit Borrowers to participate in such contest. Any
Indemnitee that proposes to settle or compromise any claim or
proceeding for which Borrowers may be liable for payment of
indemnity hereunder shall give Borrowers written notice of the
terms of such proposed settlement or compromise reasonably in
advance of settling or compromising such claim or proceeding
and shall obtain Borrowers' prior consent (which shall not be
unreasonably withheld or delayed). In connection with any
claim, demand, action or cause of action covered by this
Section 11.11 against more than one Indemnitee, all such Indem-
nitees shall be represented by the same legal counsel (which
may be a law firm engaged by the Indemnitees or attorneys
employed by an Indemnitee or a combination of the foregoing)
selected by the Indemnitees and reasonably acceptable to
Borrowers; provided, that if such legal counsel determines in
good faith that representing all such Indemnitees would or
could result in a conflict of interest under Laws or ethical
principles applicable to such legal counsel or that a defense
or counterclaim is available to an Indemnitee that is not
available to all such Indemnitees, then to the extent reason
ably necessary to avoid such a conflict of interest or to
permit unqualified assertion of such a defense or counterclaim,
each Indemnitee shall be entitled to separate representation by
legal counsel selected by that Indemnitee and reasonably
acceptable to Borrowers, with all such legal counsel using
reasonable efforts to avoid unnecessary duplication of effort
by counsel for all Indemnitees; and further provided that the
Administrative Co-Agent (as an Indemnitee) shall at all times
be entitled to representation by separate legal counsel (which
may be a law firm or attorneys employed by the Administrative
Co-Agent or a combination of the foregoing). Any obligation or
liability of Borrowers to any Indemnitee under this
Section 11.11 shall survive the expiration or termination of
this Agreement and the repayment of all Loans and the payment
and performance of all other Obligations owed to the Banks.
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11.12 Nonliability of the Banks. Borrowers acknowledge and
agree that:
(a) Any inspections of any Property of
Borrowers made by or through the Administrative Co-Agent or
the Banks are for purposes of administration of the Loan only
and Borrowers are not entitled to rely upon the same (whether
or not such inspections are at the expense of Borrowers);
(b) By accepting or approving anything required to
be observed, performed, fulfilled or given to the
Administrative Co-Agent or the Banks pursuant to the Loan Docu-
ments, neither the Administrative Co-Agent nor the Banks shall
be deemed to have warranted or represented the sufficiency,
legality, effectiveness or legal effect of the same, or of any
term, provision or condition thereof, and such acceptance or
approval thereof shall not constitute a warranty or
representation to anyone with respect thereto by the
Administrative Co-Agent or the Banks;
(c) The relationship between Borrowers and the
Administrative Co-Agent and the Banks is, and shall at all
times remain, solely that of borrowers and lenders; neither the
Administrative Co-Agent nor the Banks shall under any
circumstance be construed to be partners or joint venturers of
Borrowers or their Affiliates; neither the Administrative
Co-Agent nor the Banks shall under any circumstance be deemed
to be in a relationship of confidence or trust or a fiduciary
relationship with Borrowers or their Affiliates, or to owe any
fiduciary duty to Borrowers or their Affiliates; neither the
Administrative Co-Agent nor the Banks undertake or assume any
responsibility or duty to Borrowers or their Affiliates to
select, review, inspect, supervise, pass judgment upon or
inform Borrowers or their Affiliates of any matter in connec-
tion with their Property or the operations of Borrowers or
their Affiliates; Borrowers and their Affiliates shall rely
entirely upon their own judgment with respect to such matters;
and any review, inspection, supervision, exercise of judgment
or supply of information undertaken or assumed by the
Administrative Co-Agent or the Banks in connection with such
matters is solely for the protection of the Administrative
Co-Agent and the Banks and neither Borrowers nor any other
Person is entitled to rely thereon; and
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(d) The Administrative Co-Agent and the Banks shall
not be responsible or liable to any Person for any loss,
damage, liability or claim of any kind relating to injury or
death to Persons or damage to Property caused by the actions,
inaction or negligence of Borrowers and/or its Affiliates and
Borrowers hereby indemnify and hold the Administrative Co-Agent
and the Banks harmless from any such loss, damage, liability or
claim.
11.13 No Third Parties Benefited. This Agreement is made for
the purpose of defining and setting forth certain obligations,
rights and duties of Borrowers, the Administrative Co-Agent and
the Banks in connection with the Loans, and is made for the
sole benefit of Borrowers, the Administrative Co-Agent and the
Banks, and the Administrative Co-Agent's and the Banks'
successors and assigns. Except as provided in Sections 11.8
and 11.11, no other Person shall have any rights of any nature
hereunder or by reason hereof.
11.14 Confidentiality. Each Bank agrees to hold any
confidential information that it may receive from Borrowers
pursuant to this Agreement in confidence, except for disclo-
sure: (a) to other Banks; (b) to legal counsel and accountants
for Borrowers or any Bank; (c) to other professional advisors
to Borrowers or any Bank, provided that the recipient has accep-
ted such information subject to a confidentiality agreement
substantially similar to this Section 11.14; (d) to regulatory
officials having jurisdiction over that Bank; (e) to any Gaming
Board having regulatory jurisdiction over Parent or its
Subsidiaries, provided that each Bank agrees to use its best
efforts to notify Borrowers of any such disclosure unless
prohibited by applicable Laws; (f) as required by Law or legal
process or in connection with any legal proceeding to which
that Bank and any of Borrowers are adverse parties; and (g) to
another financial institution in connection with a disposition
or proposed disposition to that financial institution of all or
part of that Bank's interests hereunder or a participation
interest in its Note, provided that the recipient has accepted
such information subject to a confidentiality agreement
substantially similar to this Section 11.14. For purposes of
the foregoing, "confidential information" shall mean any
information respecting Parent or its Subsidiaries reasonably
considered by Borrowers to be confidential, other than
(i) information previously filed with any Governmental Agency
and available to the public, (ii) information previously
published in any public medium from a source other than,
directly or indirectly, that Bank, and (iii) information
previously disclosed by Borrowers to any Person not associated
with Borrowers without a confidentiality agreement or
obligation substantially similar to this Section 11.14. Noth-
ing in this Section shall be construed to create or give rise
to any fiduciary duty on the part of the Administrative
Co-Agent or the Banks to Borrowers.
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11.15 Further Assurances. Borrowers and the Restricted Subsidiaries
shall, at their expense and without expense to the Banks or the
Administrative Co-Agent, do, execute and deliver such further
acts and documents as any Bank or the Administrative Co-Agent
from time to time reasonably requires for the assuring and
confirming unto the Banks or the Administrative Co-Agent of the
rights hereby created or intended now or hereafter so to be, or
for carrying out the intention or facilitating the performance
of the terms of any Loan Document.
11.16 Integration. This Agreement, together with the other
Loan Documents and the letter agreements referred to in
Sections 3.2, 3.3, 3.5 and 11.3, comprises the complete and
integrated agreement of the parties on the subject matter
hereof and supersedes all prior agreements, written or oral, on
the subject matter hereof. In the event of any conflict
between the provisions of this Agreement and those of any other
Loan Document, the provisions of this Agreement shall control
and govern; provided that the inclusion of supplemental rights
or remedies in favor of the Administrative Co-Agent or the
Banks in any other Loan Document shall not be deemed a conflict
with this Agreement. Each Loan Document was drafted with the
joint participation of the respective parties thereto and shall
be construed neither against nor in favor of any party, but
rather in accordance with the fair meaning thereof.
11.17 Governing Law. Except to the extent otherwise provided
therein, each Loan Document shall be governed by, and construed
and enforced in accordance with, the local Laws of Nevada.
11.18 Severability of Provisions. Any provision in any Loan
Document that is held to be inoperative, unenforceable or
invalid as to any party or in any jurisdiction shall, as to
that party or jurisdiction, be inoperative, unenforceable or
invalid without affecting the remaining provisions or the
operation, enforceability or validity of that provision as to
any other party or in any other jurisdiction, and to this end
the provisions of all Loan Documents are declared to be
severable.
11.19 Headings. Article and Section headings in this Agreement
and the other Loan Documents are included for convenience of
reference only and are not part of this Agreement or the other
Loan Documents for any other purpose.
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11.20 Time of the Essence. Time is of the essence of the
Loan Documents.
11.21 Foreign Banks and Participants. Each Bank, and each
holder of a participation interest herein, that is incorporated
or otherwise organized under the Laws of a jurisdiction other
than the United States of America or any State thereof or the
District of Columbia shall deliver to Borrowers (with a copy to
the Administrative Co-Agent), within twenty (20) days after the
Closing Date (or after accepting an assignment or receiving a
participation interest herein pursuant to Section 11.8, if
applicable) two duly completed copies, signed by a Responsible
Official, of either Form 1001 (relating to such Person and
entitling it to a complete exemption from withholding on all
payments to be made to such Person by Borrowers pursuant to
this Agreement) or Form 4224 (relating to all payments to be
made to such Person by the Borrowers pursuant to this
Agreement) of the United States Internal Revenue Service or
such other evidence (including, if reasonably necessary,
Form W-9) satisfactory to Borrowers and the Administrative
Co-Agent that no withholding under the federal income tax laws
is required with respect to such Person. Thereafter and from
time to time, each such Person shall (a) promptly submit to
Borrowers (with a copy to the Administrative Co-Agent), such
additional duly completed and signed copies of one of such
forms (or such successor forms as shall be adopted from time to
time by the relevant United States taxing authorities) as may
then be available under then current United States laws and
regulations to avoid, or such evidence as is satisfactory to
Borrowers and the Administrative Co-Agent of any available
exemption from, United States withholding taxes in respect of
all payments to be made to such Person by Borrowers pursuant to
this Agreement and (b) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of
such Bank, and as may be reasonably necessary (including the
re-designation of its Eurodollar Lending Office, if any) to
avoid any requirement of applicable Laws that Borrowers make
any deduction or withholding for taxes from amounts payable to
such Person.
11.22 Hazardous Material Indemnity. Each of Borrowers hereby
agrees to indemnify, hold harmless and defend (by counsel
reasonably satisfactory to the Administrative Co-Agent) the
Administrative Co-Agent and each of the Banks and their
respective directors, officers, employees, agents, successors
and assigns from and against any and all claims, losses,
damages, liabilities, fines, penalties, charges, administrative
and judicial proceedings and orders, judgments, remedial action
requirements, enforcement actions of any kind, and all costs
and expenses incurred in connection therewith (including but
not limited to reasonable attorneys' fees and the reasonably
allocated costs of attorneys employed by the Administrative
Co-Agent or any Bank, and expenses to the extent that the
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defense of any such action has not been assumed by Borrowers),
arising directly or indirectly out of (i) the presence on, in,
under or about any Real Property of any Hazardous Materials, or
any releases or discharges of any Hazardous Materials on, under
or from any Real Property and (ii) any activity carried on or
undertaken on or off any Real Property by Borrowers or any of
its predecessors in title, whether prior to or during the term
of this Agreement, and whether by Borrowers or any predecessor
in title or any employees, agents, contractors or subcon-
tractors of Borrowers or any predecessor in title, or any third
persons at any time occupying or present on any Real Property,
in connection with the handling, treatment, removal, storage,
decontamination, clean-up, transport or disposal of any
Hazardous Materials at any time located or present on, in,
under or about any Real Property. The foregoing indemnity
shall further apply to any residual contamination on, in, under
or about any Real Property, or affecting any natural resources,
and to any contamination of any Property or natural resources
arising in connection with the generation, use, handling,
storage, transport or disposal of any such Hazardous Materials,
and irrespective of whether any of such activities were or will
be undertaken in accordance with applicable Laws, but the
foregoing indemnity shall not apply to Hazardous Materials on
any Real Property, the presence of which is caused by the
Administrative Co-Agent or the Banks. Borrowers hereby
acknowledge and agree that, notwithstanding any other provision
of this Agreement or any of the other Loan Documents to the
contrary, the obligations of Borrowers under this Section (and
under Sections 4.18 and 5.13) shall be unlimited corporate
obligations of Borrowers and shall not be secured by any deed
of trust on any Real Property.
11.23 Gaming Boards. The Administrative Co-Agent and each of
the Banks agree to cooperate with all Gaming Boards in connec-
tion with the administration of their regulatory jurisdiction
over Borrowers and its Subsidiaries, including the provision of
such documents or other information as may be requested by any
such Gaming Board relating to Parent or any of its Subsidiaries
or to the Loan Documents.
11.24 Joint and Several. Each of Borrowers shall be obligated
for all of the Obligations on a joint and several basis,
notwithstanding which of Borrowers may have directly received
the proceeds of any particular Loan or the benefit of a
particular Letter of Credit. Each of Borrowers acknowledges
and agrees that, for purposes of the Loan Documents, Borrowers
constitute a single integrated financial enterprise and that
each receives a benefit from the availability of credit under
this Agreement to all of Borrowers. Each of Borrowers waive
all defenses arising under the Laws of suretyship, to the
extent such Laws are applicable, in connection with its joint
and several obligations under this Agreement. Without limiting
the foregoing, each of Borrowers agrees to the Joint Borrower
Provisions set forth in Exhibit O, incorporated by this
reference.
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<PAGE>
11.25 Removal of a Bank. Borrowers shall have the right to
remove a Bank as a party to this Agreement if such Bank objects
(pursuant to Section 6.5(b)(i)) to the use of Committed Loans
in connection with the acquisition by Borrowers of certain
voting interests in a corporation or business entity under the
circumstances described in Section 6.5. Upon notice from
Borrowers, such Bank shall execute and deliver a Commitment
Assignment and Acceptance covering that Bank's Pro Rata Share
of the Commitment in favor of such Eligible Assignee as
Borrowers may designate, subject to (a) payment in full by such
Eligible Assignee of all principal, interest and fees owing to
such Bank through the date of assignment and (b) delivery by
such Eligible Assignee of such appropriate assurances and
indemnities (which may include letters of credit) as such Bank
may reasonably require with respect to its participation
interest in any Letters of Credit then outstanding or any Swing
Line Outstandings. Alternatively, Borrowers may reduce the
Commitment pursuant to Section 2.6 (and, for this purpose, the
numerical requirements of such Section shall not apply) by an
amount equal to that Bank's Pro Rata Share of the Commitment,
pay and provide to such Bank the amounts, assurances and
indemnities described in (a) and (b) above and release such
Bank from its Pro Rata Share of the Commitment.
11.26 Waiver of Right to Trial by Jury. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF
ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY
LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTY HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE;
AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
11.27 Purported Oral Amendments. BORROWERS EXPRESSLY
ACKNOWLEDGE THAT THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
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MAY ONLY BE AMENDED OR MODIFIED, OR THE PROVISIONS HEREOF OR
THEREOF WAIVED OR SUPPLEMENTED, BY AN INSTRUMENT IN WRITING
THAT COMPLIES WITH SECTION 11.2. BORROWERS AGREE THAT THEY
WILL NOT RELY ON ANY COURSE OF DEALING, COURSE OF PERFORMANCE,
OR ORAL OR WRITTEN STATEMENTS BY ANY REPRESENTATIVE OF THE
ADMINISTRATIVE CO-AGENT OR ANY BANK THAT DOES NOT COMPLY WITH
SECTION 11.2 TO EFFECT AN AMENDMENT, MODIFICATION, WAIVER OR
SUPPLEMENT TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the date first above
written.
MIRAGE RESORTS, INCORPORATED
By: DANIEL R. LEE
___________________________________
Daniel R. Lee
Chief Financial Officer
THE MIRAGE CASINO-HOTEL
By: DANIEL R. LEE
____________________________________
Daniel R. Lee
Assistant Treasurer
TREASURE ISLAND CORP.
By: DANIEL R. LEE
____________________________________
Daniel R. Lee
Treasurer
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MR REALTY
By: HENRY M. APPLEGATE III
___________________________________
Henry M. Applegate III
Assistant Treasurer
MH, INC.
By: DANIEL R. LEE
____________________________________
Daniel R. Lee
Treasurer
Address for all the foregoing:
Mirage Resorts, Incorporated
3400 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attn: Daniel R. Lee
Chief Financial Officer and
Treasurer
Telecopier: (702) 792-7628
Telephone: (702) 791-7126
with a copy to:
Mirage Resorts, Incorporated
3400 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attn: Bruce A. Levin, Esq.
General Counsel
Telecopier: (702) 791-5787
Telephone: (702) 791-7129
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Administrative
Co-Agent
By: L. CHENEVERT, JR.
____________________________________
L. Chenevert, Jr.
Vice President
Address:
Bank of America National Trust and
Savings Association
Global Agency #5596
1455 Market Street, 13th Floor
San Francisco, California 94103
Attn: Peggy A. Fujimoto
Telecopier: (415) 622-4894
Telephone: (415) 622-4835
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By: JON VARNELL
________________________________
Jon Varnell
Vice President
Address:
Bank of America National Trust and
Savings Association
555 South Flower Street, #3283
Los Angeles, California 90071
Attn: Jon Varnell
Vice President
Telecopier: (213) 228-2641
Telephone: (213) 228-6181
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With a copy to:
Bank of America National Trust and
Savings Association
555 South Flower Street (LA-5777)
Los Angeles, California 90071
Attn: William Newby
Vice President
Telecopier: (213) 228-3145
Telephone: (213) 228-2438
BANKERS TRUST COMPANY, as Co-Agent and
a Bank
By: MARY KAY COYLE
________________________________
Mary Kay Coyle
Vice President
Address:
Bankers Trust Company
130 Liberty Street
New York, New York 10006
Attn: Mary Kay Coyle
Vice President
Telecopier: (212) 250-7218
Telephone: (212) 250-9094
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THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., LOS ANGELES AGENCY, as
Co-Agent and a Bank
By: MOTOKAZU UEMATSU
________________________________
Motokazu Uematsu
Deputy General Manager
Address:
The Long-Term Credit Bank of Japan,
Ltd., Los Angeles Agency
444 South Flower Street, Suite 3700
Los Angeles, California 90071
Attn: Michael Yurkas
Assistant Vice President
Telecopier: (213) 622-6908
Telephone: (213) 689-6321
SOCIETE GENERALE, as Co-Agent
and a Bank
By: DONALD L. SCHUBERT
________________________________
Donald L. Schubert
Vice President
Address:
Societe Generale
2029 Century Park East, Suite 2900
Los Angeles, California 90067
Attn: Donald L. Schubert
Jane van Brussel
Telecopier: (310) 551-1537
Telephone: (310) 788-7104
(310) 788-7106
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BANK OF SCOTLAND, as a Bank
By: CATHERINE M. ONIFFREY
_______________________________
Catherine M. Oniffrey
Vice President
Address:
Bank of Scotland
380 Madison Avenue
New York, New York 10017
Attn: Catherine M. Oniffrey
Telecopier: (212) 557-9460
Telephone: (212) 490-8030
CREDIT LYONNAIS LOS ANGELES
BRANCH, as a Bank
By: THIERRY F. VINCENT
_______________________________
Thierry F. Vincent
Vice President
Address:
Domestic Lending Office
_______________________
Credit Lyonnais Los Angeles Branch
515 S. Flower Street, 22nd Floor
Los Angeles, California 90071
Attn: David L. Miller
Vice President
Telecopier: (213) 623-3437
Telephone: (213) 362-5956
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CREDIT LYONNAIS CAYMAN ISLAND
BRANCH, as a Bank
By: THIERRY F. VINCENT
_____________________________
Thierry F. Vincent
Authorized Signatory
Address:
Eurodollar Lending Office
_________________________
Credit Lyonnais Cayman Island Branch
c/o Credit Lyonnais Los Angeles Branch
515 S. Flower Street, 22nd Floor
Los Angeles, California 90071
Attn: David L. Miller
Vice President
Telecopier: (213) 623-3437
Telephone: (213) 362-5956
FIRST INTERSTATE BANK OF NEVADA,
N.A., as a Bank
By: BRAD PETERSON
______________________________
Brad Peterson
Vice President
Address:
First Interstate Bank of Nevada, N.A.
3800 Howard Hughes Parkway
Las Vegas, Nevada 89109
Attn: Brad Peterson
Vice President
Telecopier: (702) 791-6248
Telephone: (702) 791-6328
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BANK OF AMERICA NEVADA, as a Bank
By: HERB STEEGE
____________________________
Herb Steege
Vice President
Address:
Bank of America Nevada
Corporate Banking Department
300 South Fourth Street, Suite 200
Las Vegas, Nevada 89101
Attn: Herb Steege
Vice President
Telecopier: (702) 654-7158
Telephone: (702) 654-7142
THE FIRST NATIONAL BANK OF BOSTON, as
a Bank
By: STEPHEN A. DESALVO
____________________________
Stephen A. DeSalvo
Vice President
Address:
The First National Bank of Boston
100 Federal Street (01-08-08)
Boston, Massachusetts 02110
Attn: Stephen A. DeSalvo
Vice President
Telecopier: (617) 434-3401
Telephone: (617) 434-2187
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FIRST SECURITY BANK OF UTAH,
N.A., as a Bank
By: DAVID P. WILLIAMS
____________________________
David P. Williams
Vice President
Address:
First Security Bank of Utah, N.A.
15 East 100 South, 2nd Floor
Salt Lake City, Utah 84111
Attn: David P. Williams
Vice President
Telecopier: (801) 246-5532
Telephone: (801) 246-5540
UNITED STATES NATIONAL BANK OF
OREGON, as a Bank
By: SCOTT J. BELL
_____________________________
Scott J. Bell
Vice President
Address:
United States National Bank of Oregon
National Corporate Banking Division
111 S.W. Fifth (T-29)
Portland, Oregon 97204
Attn: Scott J. Bell
Vice President
Telecopier: (503) 275-5428
Telephone: (503) 275-6738
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THE INDUSTRIAL BANK OF JAPAN, LIMITED,
LOS ANGELES AGENCY, as a Bank
By: TOSHINARI IYODA
_____________________________
Toshinari Iyoda
Senior Vice President
Address:
The Industrial Bank of Japan, Limited,
Los Angeles Agency
350 South Grand Avenue, Suite 1500
Los Angeles, California 90071
Attn: Lori Roth Schnadig
Assistant Vice President
Telecopier: (213) 488-9840
Telephone: (213) 628-7241
MIDLANTIC NATIONAL BANK, as a Bank
By: DENISE D. KILLEN
_____________________________
Denise D. Killen
Vice President
Address:
Midlantic National Bank
6000 Midlantic Drive
Mt. Laurel, N.J. 08054-6000
Attn: Denise D. Killen
Vice President
Telecopier: (609) 778-2673
Telephone: (609) 778-2683
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THE NIPPON CREDIT BANK, LTD.,
LOS ANGELES AGENCY, as a Bank
By: BERNARDO E. CORREA-HENSCHKE
_____________________________
Bernardo E. Correa-Henschke
Vice President & Manager
Address:
The Nippon Credit Bank, Ltd.,
Los Angeles Agency
550 South Hope Street, Suite 2500
Los Angeles, California 90071
Attn: Jay Schwartz
Vice President
Telecopier: (213) 892-0111
Telephone: (213) 243-5722
THE SANWA BANK, LIMITED, LOS
ANGELES BRANCH, as a Bank
By: GILL S. REALON
______________________________
Gill S. Realon
Vice President
Address:
The Sanwa Bank, Limited
Los Angeles Branch
601 South Figueroa Street
Los Angeles, California 90017
Attn: Gill S. Realon
Vice President
Telecopier: (213) 896-7475
Telephone: (213) 896-7494
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WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK AND CAYMAN ISLANDS BRANCHES,
as a Bank
By: J.G. HILSGEN
______________________________
J.G. Hilsgen
Vice President
By: R. CECHURA
______________________________
R. Cechura
Associate
Address:
Westdeutsche Landesbank Girozentrale
New York Branch
1211 Avenue of the Americas
New York, New York 10036
Attn: Loan Administration
Telecopier: (212) 852-6300
Telephone: (212) 852-6000
with a copy to:
Westdeutsche Landesbank Girozentrale,
Los Angeles
Representative Office
633 West Fifth Street, Suite 6750
Los Angeles, California 90071
Attn: R.J. Cruz
Telecopier: (213) 623-4706
Telephone: (213) 623-1613
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CONTINENTAL BANK, as a Bank
By: WYATT R. RITCHIE
_____________________________
Wyatt R. Ritchie
Vice President
Address:
Continental Bank
231 S. LaSalle Street
Chicago, Illinois 60697
Attn: Wyatt R. Ritchie
Vice President
Telecopier: (312) 765-2080
Telephone: (312) 828-3617
GIROCREDIT BANK, as a Bank
By: JOHN REDDING
______________________________
John Redding
Vice President
By: DHUANE STEPHENS
______________________________
Dhuane Stephens
Vice President
Address:
Girocredit Bank
65 East 55th Street
New York, New York 10022
Attn: John Redding
Vice President
Telecopier: (212) 644-0644
Telephone: (212) 909-0624
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