SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
AMENDMENT NO. 1 TO 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) December 9, 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 Number) 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)
<PAGE>
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
99.2 Reducing Revolving Loan Agreement, dated as of December
21, 1994, among the Joint Venture, each Bank party
thereto, 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 Agent (without Schedules or
Exhibits).
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<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)
Dated: January 23, 1995 By: BRUCE A. LEVIN
__________________________________
BRUCE A. LEVIN
Vice President and General Counsel
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_______________________________________________________________
_______________________________________________________________
REDUCING REVOLVING LOAN AGREEMENT
Dated as of December 21, 1994
among
VICTORIA PARTNERS
as Borrower,
THE BANKS HEREIN NAMED
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Administrative Agent
_______________________________________________________________
_______________________________________________________________
EXHIBIT 99.2
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
_________________
Page
____
<S> <C> <C> <C>
Article 1
DEFINITIONS AND ACCOUNTING TERMS ............ 1
1.1 Defined Terms..................................... 1
1.2 Use of Defined Terms.............................. 32
1.3 Accounting Terms................................ 32
1.4 Rounding.......................................... 33
1.5 Exhibits and Schedules............................ 33
1.6 References to "Borrower and its Subsidiaries"..... 33
1.7 Miscellaneous Terms............................... 33
Article 2
LOANS
2.1 Loans-General..................................... 34
2.2 Alternate Base Rate Loans......................... 35
2.3 Eurodollar Rate Loans............................. 36
2.4 Voluntary Reduction of Commitment................. 36
2.5 Scheduled Mandatory Reductions of Commitment...... 36
2.6 Other Mandatory Reductions of Commitment.......... 37
2.7 Optional Termination of Commitment................ 37
2.8 Administrative Agent's Right to Assume Funds
Available for Advances............................ 37
2.9 Swing Line........................................ 38
Article 3
PAYMENTS AND FEES.................... 40
3.1 Principal and Interest............................ 40
3.2 Arrangement Fee................................... 41
3.3 Upfront Fees...................................... 42
3.4 Commitment Fees................................... 42
3.5 Agency Fees....................................... 42
3.6 Construction Services Fees........................ 42
3.7 Increased Commitment Costs........................ 42
3.8 Eurodollar Costs and Related Matters.............. 43
3.9 Late Payments..................................... 47
3.10 Computation of Interest and Fees.................. 48
3.11 Non-Banking Days.................................. 48
3.12 Manner and Treatment of Payments.................. 48
3.13 Funding Sources................................... 50
3.14 Failure to Charge Not Subsequent Waiver........... 50
3.15 Administrative Agent's Right to Assume Payments
Will be Made by Borrower.......................... 50
3.16 Fee Determination Detail.......................... 50
3.17 Survivability..................................... 51
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Article 4
REPRESENTATIONS AND WARRANTIES ............. 52
4.1 Existence and Qualification; Power; Compliance
With Laws......................................... 52
4.2 Authority; Compliance With Other Agreements and
Instruments and Government Regulations............ 52
4.3 No Governmental Approvals Required................ 53
4.4 Subsidiaries...................................... 53
4.5 Financial Statements.............................. 53
4.6 No Material Adverse Changes....................... 54
4.7 Title to Property................................ 54
4.8 Intangible Assets................................ 54
4.9 Public Utility Holding Company Act................ 54
4.10 Litigation........................................ 54
4.11 Binding Obligations............................... 54
4.12 No Default........................................ 55
4.13 ERISA............................................. 55
4.14 Regulations G, T, U and X; Investment Company
Act............................................... 55
4.15 Disclosure........................................ 56
4.16 Tax Liability..................................... 56
4.17 Projections....................................... 56
4.18 Hazardous Materials............................... 56
4.19 Gaming Laws....................................... 57
4.20 Security Interests................................ 57
Article 5
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)................. 58
5.1 Payment of Taxes and Other Potential Liens........ 58
5.2 Preservation of Existence......................... 58
5.3 Maintenance of Properties......................... 58
5.4 Maintenance of Insurance.......................... 59
5.5 Compliance With Laws.............................. 59
5.6 Inspection Rights................................ 59
5.7 Keeping of Records and Books of Account........... 60
5.8 Compliance With Agreements........................ 60
5.9 Use of Proceeds................................... 60
5.10 Hazardous Materials Laws.......................... 60
5.11 Construction of the Project....................... 61
5.12 Future Collateral and Guarantees.................. 61
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</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Article 6
NEGATIVE COVENANTS ................... 63
6.1 Prepayment of Indebtedness........................ 63
6.2 Payment of Subordinated Obligations............... 63
6.3 Disposition of Property........................... 63
6.4 Mergers........................................... 64
6.5 Distributions..................................... 65
6.6 ERISA............................................. 65
6.7 Change in Nature of Business...................... 66
6.8 Liens, Negative Pledges and Rights of Others...... 66
6.9 Indebtedness and Guaranty Obligations............. 66
6.10 Transactions with Affiliates...................... 67
6.11 Interest Coverage................................ 67
6.12 Maximum Annualized Funded Debt Ratio.............. 67
6.13 Capital Expenditures.............................. 68
6.14 Acquisitions and Investments...................... 68
6.15 Changes to the Plans or the Approved Budget....... 69
6.16 Changes to the Partner Subordinated Notes......... 69
Article 7
INFORMATION AND REPORTING REQUIREMENTS ......... 70
7.1 Financial and Business Information................ 70
7.2 Compliance Certificates........................... 74
Article 8
CONDITIONS ....................... 75
8.1 Conditions to the Closing Date.................... 75
8.2 Initial Advances.................................. 77
8.3 Any Increasing Advance, Etc....................... 81
8.4 Any Advance....................................... 81
Article 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT.. 83
9.1 Events of Default................................ 83
9.2 Remedies Upon Event of Default.................... 86
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Article 10
THE ADMINISTRATIVE AGENT ................ 90
10.1 Appointment and Authorization..................... 90
10.2 Administrative Agent and Affiliates............... 90
10.3 Proportionate Interest in any Collateral.......... 90
10.4 Banks' Credit Decisions........................... 91
10.5 Action by Administrative Agent.................... 91
10.6 Liability of Administrative Agent................. 92
10.7 Indemnification................................... 93
10.8 Successor Administrative Agent.................... 94
10.9 Foreclosure on Collateral......................... 95
10.10 No Obligations of Borrower........................ 95
Article 11
MISCELLANEOUS...................... 96
11.1 Cumulative Remedies; No Waiver.................... 96
11.2 Amendments; Consents.............................. 96
11.3 Costs, Expenses and Taxes......................... 97
11.4 Nature of Banks' Obligations...................... 98
11.5 Survival of Representations and Warranties........ 99
11.6 Notices........................................... 99
11.7 Execution of Loan Documents.......................100
11.8 Binding Effect; Assignment........................100
11.9 Right of Setoff...................................103
11.10 Sharing of Setoffs................................103
11.11 Idemnity by Borrower..............................104
11.12 Nonliability of the Banks.........................105
11.13 No Third Parties Benefited........................106
11.14 Confidentiality...................................106
11.15 Further Assurances................................107
11.16 Integration.......................................107
11.17 G
11.18 Severability of Provisions........................108
11.19 Headings..........................................108
11.20 Time of the Essence...............................108
11.21 Foreign Banks and Participants....................108
11.22 Hazardous Material Indemnity......................109
11.23 Gaming Boards.....................................110
11.24 Substitution of Certain Collateral................110
11.25 Waiver of Right to Trial by Jury..................111
11.26 Purported Oral Amendments.........................112
</TABLE>
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<PAGE>
Exhibits
________
A - Commitment Assignment and Acceptance
B - Completion Guaranty
C - Compliance Certificate
D - Construction Progress Report
E - Deed of Trust
F - Note
G - Opinion of Counsel
H - Partner Subordinated Notes
I - Related Party Agreement
J - Request for Loan
K - Security Agreement
L - Short Term Guaranty
Schedules
_________
1.1A Bank Commitments
1.1B Project Site
4.3 Governmental Approvals
4.18 Environmental Matters
6.8 Permitted Title Exceptions
6.9 Existing Indebtedness
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<PAGE>
REDUCING REVOLVING LOAN AGREEMENT
Dated as of December 21, 1994
This Reducing Revolving Loan Agreement ("Agreement")
is entered into by and among Victoria Partners, a Nevada
general partnership ("Borrower"), 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"), 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 Agent.
In consideration of the mutual covenants and agree-
ments 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:
"Acquisition" means any transaction, or any series of
related transactions, by which Borrower directly or
indirectly (i) acquires any going business or all or
substantially all of the assets of any firm, partnership,
joint venture, corpora tion or division thereof, whether
through purchase of assets, merger or otherwise, or
(ii) acquires (in one transaction or as the most recent
transaction in a series of transactions) control of at
least a majority in ordinary voting power of the securi-
ties of a corporation which have ordinary voting power for
the election of directors, or (iii) acquires control of a
50% or more ownership interest in any partnership or joint
venture.
"Administrative Agent" means Bank of America, when
acting in its capacity as the Administrative Agent under
any of the Loan Documents, or any successor Administrative
Agent.
"Administrative Agent's Office" means the
Administrative Agent's address as set forth on the
signature pages of this Agreement, or such other address
as the Administrative Agent hereafter may designate by
written notice to Borrower and the Banks.
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<PAGE>
"Advance" means any advance made or to be made by any
Bank to Borrower as provided in Article 2, and includes
each Alternate Base Rate Advance and each Eurodollar Rate
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.
"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.
"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 an Advance made
hereunder and specified to be an Alternate Base Rate
Advance in accordance with Article 2.
"Alternate Base Rate Loan" means a Loan made
hereunder and specified to be an Alternate Base Rate Loan
in accordance with Article 2.
"Annualized EBITDA" means, as of the last day of each
Post-Construction Fiscal Quarter:
(a) in the case of the initial Post-Construction
Fiscal Quarter, EBITDA for the fiscal period con-
sisting of that Post-Construction Fiscal Quarter,
multiplied by four;
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<PAGE>
(b) in the case of the second Post-Construction
Fiscal Quarter, EBITDA for the first two Post-
Construction Fiscal Quarters multiplied by two;
(c) in the case of the third Post-Construction Fiscal
Quarter, EBITDA for the first three Post-Construction
Fiscal Quarters, multiplied by four thirds (4/3); and
(d) for each subsequent Post-Construction Fiscal
Quarter, EBITDA for the four then most recently ended
Post-Construction Fiscal Quarters.
"Annualized Funded Debt Ratio" means, as of the last
day of each Post-Construction Fiscal Quarter, the ratio of
(a) Average Quarterly Funded Debt to (b) Annualized
EBITDA, as such ratio is set forth in the most recent
Compliance Certificate delivered by Borrower 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 Post-
Construction Fiscal Quarter, the Administrative Agent may
determine such ratio based on such information as may be
available to the Administrative Agent.
"Applicable Alternate Base Rate Margin" means (a) at
all times through and including the Construction
Termination Date, 112.50 basis points, and (b) at all
times following the Construction Termination Date, for
each Pricing Period, the interest rate margin set forth
below (expressed in basis points) opposite the Applicable
Pricing Level for that Pricing Period:
<TABLE>
<CAPTION>
Applicable
Pricing Level Margin
_____________ ______
<S> <C>
I 0
II 25.00
III 50.00
IV 75.00
</TABLE>
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<PAGE>
"Applicable Commitment Fee Rate" means (a) at all
times through and including the Construction Termination
Date, 50.00 basis points, and (b) at all times following
the Construction Termination Date, for each Pricing
Period, the rate set forth below (expressed in basis
points) opposite the Applicable Pricing Level for that
Pricing Period:
<TABLE>
<CAPTION>
Applicable
Pricing Level Commitment Fee
_____________ ______________
<S> <C>
I 37.50
II 37.50
III 43.75
IV 50.00
V 50.00
</TABLE>
"Applicable Eurodollar Rate Margin" means (a) at all
times through and including the Construction Termination
Date, 212.50 basis points, and (b) at all times following
the Construction Termination Date, for each Pricing
Period, the interest rate margin set forth below
(expressed in basis points) opposite the Applicable
Pricing Level for that Pricing Period:
<TABLE>
<CAPTION>
Applicable
Pricing Level Margin
_____________ ______
<S> <C>
I 75.00
II 125.00
III 150.00
IV 175.00
V 200.00
</TABLE>
"Applicable Pricing Level" means, for each Pricing
Period after the Construction Termination Date, the
pricing level set forth below opposite the pricing
criteria achieved by Borrower as of the first day of that
Pricing Period:
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<PAGE>
<TABLE>
<CAPTION>
Annualized Funded
Pricing Level Debt Ratio
_____________ _________________
<S> <C>
I Less than 1.25 to
1.00
II Equal to or
greater than 1.25
to 1.00 but less
than 1.75 to 1.00
III Equal to or
greater than 1.75
to 1.00 but less
than 2.00 to 1.00
IV Equal to or
greater than 2.00
to 1.00 but less
than 2.25 to 1.00
V Equal to or
greater than 2.25
to 1.00
</TABLE>
"Approved Budget" means the budget for design,
development and construction of the Project submitted to
the Administrative Agent and the Banks in accordance with
Section 8.2, as supplemented or amended from time to time
in accordance with Section 6.15.
"Arranger" means BA Securities, Inc. The Arranger
shall have no obligations or liabilities under this
Agreement or the Loan Documents, but shall be entitled to
the benefits of Sections 3.2, 11.3 and 11.11.
"Attributed Land Value" means (a) as of the Closing
Date, $30,000,000, and (b) as of each subsequent date of
determination, an amount not greater than $40,000,000
which is equal to the total permanent cash equity
Investment of GSP and MRI in Borrower.
"Available Cash Flow" means, for each Fiscal Quarter,
EBITDA for that Fiscal Quarter minus the sum of (a)
Interest Expense for that Fiscal Quarter, (b) Capital
Expenditures made during that Fiscal Quarter, (c)
Permitted Tax Distributions made during that Fiscal
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<PAGE>
Quarter, (d) reductions to the Commitment scheduled to be
made during that Fiscal Quarter pursuant to Section 2.5
and (e) principal payments made during that Fiscal Quarter
with respect to Indebtedness permitted under Section
6.9(c).
"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 Borrower and its
Subsidiaries on the last day of each of the calendar
months comprising such Fiscal Quarter.
"Bank of America" means Bank of America National
Trust and Savings Association, its successors and assigns.
"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.
"Borrower" means, Victoria Partners, a Nevada general
partnership, its successors and permitted assigns.
"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 Borrower or any of its Subsidiaries 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 Borrower or
any of its Subsidiaries.
"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 Gene-
rally Accepted Accounting Principles, consistently
applied.
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<PAGE>
"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 Investment 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;
(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 or 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; p
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;
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<PAGE>
(f) readily marketable commercial paper of cor-
porations 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. or 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
(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.
"Certificate of a Responsible Official" means a
certificate signed by a Responsible Official of the Person
providing the certificate.
"Change in Control" means (a) MRI, Gold Strike and
GSP fail to collectively, directly or indirectly, own 100%
of the outstanding partnership equity units of Borrower,
(b) MRI fails to directly or indirectly own 50% or more of
the outstanding partnership equity units of Borrower, (c)
the failure for any reason of Michael Ensign, Glenn
Schaeffer or William Richardson or an executive appointed
by MRI to be the chief executive officer of Borrower, (d)
the failure for any reason of Michael Ensign, Glenn
Schaeffer or William Richardson to be a Senior Officer of
Gold Strike with significant responsibility for gaming
operations, including the Project, or (e) any event or
circumstance constituting a "change in control" or other
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<PAGE>
similar occurrence under documentation evidencing or
governing any Indebtedness of Borrower of $1,000,000 or
more which results in an obligation of Borrower to prepay,
purchase, offer to purchase, redeem or defease such
Indebtedness.
"Closing Date" means the time and Banking Day on
which the conditions set forth in Section 8.1 are
satisfied or waived. The Administrative Agent shall
notify Borrower and the Banks of the date that is the
Closing Date.
"Co-Agents" means, collectively, The Long-Term Credit
Bank of Japan, Ltd., Los Angeles Agency and Societe
Generale. The Co-Agents, in their capacity as such, shall
have no obligations or liabilities under this Agreement or
the other Loan Documents.
"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 Deed of Trust, any Completion
Guaranty, and any other security agreement, pledge
agreement, deed of trust, mortgage or other collateral
security agreement hereafter executed and delivered by the
Completion Guarantor, Borrower or its Subsidiaries to
secure the Obligations.
"Commitment" means (a) at all times prior to the
Construction Termination Date, $175,000,000 and (b) at all
times after the Construction Termination Date, the sum,
not to exceed $175,000,000, of (i) the outstanding
principal Indebtedness evidenced by the Notes on the
Construction Termination Date, plus (ii) $2,000,000, plus
the amount of Construction Costs accrued with respect to
the Project which then remain unpaid, in each case minus
the amount of any reductions thereto made pursuant to
Sections 2.4, 2.5 and 2.6. The respective Pro Rata Shares
of the Banks with respect to the Commitment are set forth
in Schedule 1.1A.
"Commitment Assignment and Acceptance" means a
commitment assignment and acceptance substantially in the
form of Exhibit A.
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<PAGE>
"Completion Guarantor" means (a) initially, Gold
Strike, or (b) in the event of any election by MRI to
execute and deliver a Completion Guaranty to replace that
issued by Gold Strike, MRI. The parties acknowledge that
during the period from the Contribution Date through and
including the Construction Termination Date, a Completion
Guaranty must be in full force and effect at all times,
and MRI may issue or not issue a Completion Guaranty in
the exercise of its sole discretion.
"Completion Guaranty" means a Completion Guaranty
issued by the Completion Guarantor substantially in the
form of Exhibit B.
"Compliance Certificate" means a certificate in the
form of Exhibit C, properly completed and signed by a
Senior Officer of Borrower.
"Construction Costs" means, as of any date of
determination, the sum of all costs, expenses and
disbursements of any sort made pursuant to the Approved
Budget in connection with the design, development,
construction, completion or opening of the Project, as
determined by Borrower and confirmed by the Administrative
Agent through its designated representatives from time to
time.
"Construction Progress Report" means a report
prepared by the Bank of America Construction Services
Group or its designated representative, substantially in
the form of Exhibit D.
"Construction Termination Date" means the earlier of
December 31, 1996 and the date upon which the Termination
of Construction occurs.
"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.
"Contribution Date" means the time and Banking Day on
which the conditions set forth in Section 8.2 are
satisfied or waived by all of the Banks.
"Cut-Off Date" means the first date upon which the
Commitment has been reduced to an amount which is not
greater than $100,000,000.
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<PAGE>
"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 Borrower, in the form of Exhibit
E, 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
"Default Rate" means the interest rate prescribed in
Section 3.9.
"Designated Deposit Account" means a deposit account
to be maintained by Borrower with Bank of America, as from
time to time designated by Borrower by written
notification to the Administrative 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 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 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 Agent with the
approval of Borrower and the Requisite Banks.
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"Disposition" means the voluntary sale, transfer or
other disposition of any asset of Borrower or any of its
Subsidiaries other than (a) Cash, Cash Equivalents,
inventory or other assets sold, leased or otherwise
disposed of in the ordinary course of business of Borrower
or its Subsidiaries, (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 Borrower or its
Subsidiaries, or where Borrower or that Subsidiary
determines in good faith that the failure to replace such
equipment will not be detrimental to the business of
Borrower or that Subsidiary, (c) leases of retail space on
the Project Site in the ordinary course of the business of
Borrower and in a manner consistent with other similar
hotel-casinos and (d) a disposition to Borrower or any of
its Subsidiaries.
"Distribution" means, with respect to any partnership
equity interest, 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, redemp-
tion, 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.
"EBITDA" 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 extra-
ordinary 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 of Borrower and its Subsidiaries for that period
(whether or not payable during that period), plus
(f) depreciation, amortization and all other non-cash
expenses for that period, in each case 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.
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"Eligible Assignee" means, with respect to any Bank
(a) another Bank, (b) 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 Eurodollar
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 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
Borrower and the Administrative Agent as its Eurodollar
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.
"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.
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"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
Borrower 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
Borrower 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
any Quarterly Payment Date unless the aggregate
principal amount of all Eurodollar Rate Loans with a
Eurodollar Period ending on or after that Quarterly
Payment Date is no more than the Commitment which
will be in effect on that Quarterly Payment Date
(after giving effect to any reductions thereto
scheduled for that Quarterly Payment Date); and
(d) No Eurodollar Period shall extend beyond
the Maturity Date.
"Eurodollar Rate" means, with respect to any
Eurodollar Rate Loan, an interest rate per annum (rounded
determined pursuant to the following formula:
Eurodollar Eurodollar Base Rate
Rate = 1.00 - Eurodollar Reserve Percentage
"Eurodollar Rate Advance" means an Advance made
hereunder and specified to be a Eurodollar Rate Advance in
accordance with Article 2.
"Eurodollar Rate Loan" means a Loan made hereunder
and specified to be a Eurodollar Rate Loan in accordance
with Article 2.
"Eurodollar Reference Bank" means Bank of America.
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<PAGE>
"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 require-
ment (including any emergency, supplemental or other
marginal reserve requirement) with respect to eurocurrency
funding (currently referred to as "eurocurrency liabili-
ties") having a term comparable to the Interest Period for
such Eurodollar Rate Loan. The determination by the
Administrative Agent of any applicable Eurodollar Reserve
Percentage shall be conclusive in the absence of manifest
error.
"Event of Default" shall have the meaning provided in
Section 9.1.
"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
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 succes-
sor 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 Admin-
istrative 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 Borrower
consisting of a three-month fiscal period ending on each
March 31, June 30, September 30 and December 31.
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<PAGE>
"Fiscal Year" means the fiscal year of Borrower
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 Borrower and its Subsidiaries for borrowed
money (including debt securities issued by Borrower or any
of its Subsidiaries) on that date, plus (b) the aggregate
amount of all Capital Lease Obligations of Borrower and
its Subsidiaries on that date.
"Funded Debt to Project Costs Ratio" means, as of any
date of determination, the ratio of Funded Debt as of that
date to Project Costs as of 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 Borrower and its
Subsidiaries within its jurisdiction.
"Gaming Laws" means all Laws pursuant to which any
Gaming Board possesses regulatory, licensing or permit
authority over gambling, gaming or casino activities
conducted by Borrower and its 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.
"Gold Strike" means Goldstrike Finance Company, Inc.,
a Nevada corporation, its successors and assigns.
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<PAGE>
"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, or
(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.
"GSP" means Gold Strike L.V., a Nevada general
partnership, a majority of the equity interests of which
are, directly or indirectly, owned by Michael Ensign,
Glenn Schaeffer, William Richardson, David Belding and
Peter Simon.
"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 determin-
able, the maximum reasonably anticipated liability in
respect thereof as determined by the Person in good faith.
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"Hazardous Materials" means substances defined as
hazardous substances pursu
Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. S 9601 et seq., or as hazardous, toxic or
pollutant pursuant to the Hazardous Materials
Transportation Act, 49 U.S.C. S 1801, et seq., the
Resource Conservation and Recovery Act, 42 U.S.C. S 6901,
et seq., or any other Law relating to environmental
contaminants or environmental hygiene, 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, transfer, generation, storage or other
treatment of Hazardous Materials applicable to any of the
Real Property.
"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) indebt-
edness 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 Coverage" means, as of the last day of each
Post-Construction Fiscal Quarter (including the last day
of a Post-Construction Fiscal Quarter which is also the
last day of a Fiscal Year), the ratio of (a) Annualized
EBITDA for that Post-Construction Fiscal Quarter minus any
Permitted Tax Distributions made during that Post-
Construction Fiscal Quarter and the three immediately
preceding Fiscal Quarters, to (b) Interest Expense of
Borrower and its Subsidiaries for that Post-Construction
Fiscal Quarter and the three immediately preceding Fiscal
Quarters plus payments made by Borrower and its
Subsidiaries in Cash with respect to Capital Lease
Obligations during that Post-Construction Fiscal Quarter
and the three immediately preceding Fiscal Quarters.
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"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.
"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.
"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.
"Joint Venture Agreement" means the Joint Venture
Agreement dated as of December 9, 1994, between GSP and
MRGS with respect to Borrower (as to which MRI is a
limited party for the purposes of certain sections
thereof), as in effect on the Closing Date.
"Laws" means, collectively, all international,
foreign, federal, state and local statutes, treaties,
rules, regulations, ordinances, codes and binding
administrative or judicial precedents.
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"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 Borrower
and its Subsidiaries.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment for security, security interest,
encumbrance, lien or charge of any kind, whether volun-
tarily incurred or arising by operation of Law or other-
wise, 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 Short Term Guaranty, the Swing Line
Documents, the Collateral Documents, any Secured Swap
Agreement, the Related Party Agreement, each Request for
Loan, each Compliance Certificate, each Construction
Progress Report and any other agreements of any type or
nature hereafter executed and delivered by MRI, Gold
Strike, Borrower or any of its Subsidiaries or Affiliates
to the Administrative 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.
"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 Borrower and its
Subsidiaries, taken as a whole, or (c) materially impairs
or could reasonably be expected to materially impair the
ability of Borrower and its Subsidiaries, taken as a
whole, to perform the Obligations.
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"Maturity Date" means the date that is five (5) years
after the Construction Termination Date, but not
than September 30, 2001.
"MRGS" means MRGS Corp., a Nevada corporation which
is an indirect wholly-owned subsidiary of MRI.
"MRI" means Mirage Resorts, Incorporated, a Nevada
corporation, and its successors and permitted assigns.
"Multiemployer Plan" means any employee benefit plan
of the type described in Section 4001(a)(3) of ERISA.
"Negative Pledge" means a Contractual Obligation that
contains a covenant binding on Borrower or any of its
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 6.8 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 Borrower and its
Subsidiaries for that period, determined in accordance
with Generally Accepted Accounting Principles, consis-
tently applied.
"Net Proceeds" means, with respect to any Disposi-
tion, the gross sales proceeds received by Borrower and
its Subsidiaries from such Disposition (including Cash,
Property and the assumption by the purchaser of any lia-
bility of Borrower or its Subsidiaries) net of brokerage
commissions, legal expenses and other transactional costs
payable by Borrower and its Subsidiaries with respect to
such Disposition and net of an amount determined in good
faith by Borrower to be the estimated amount of income
taxes payable by Borrower attributable to such
Disposition.
"Note" means any of the promissory notes made by
Borrower to a Bank evidencing Advances under that Bank's
Pro Rata Share of the Commitment, substantially in the
form of Exhibit F, either as originally executed or as the
same may from time to time be supplemented, modified,
amended, renewed, extended or supplanted.
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"Obligations" means all present and future
obligations of every kind or nature of Borrower or any
Party at any time and from time to time owed to the
Administrative 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 Borrower or any Subsidiary or Affiliate of
Borrower.
"Opinion of Counsel" means the favorable written
legal opinion of Schreck, Jones, Bernhard, Woloson &
Godfrey, Chartered, special counsel to Borrower and its
Subsidiaries, issued on the Contribution Date sub-
stantially in the form of Exhibit G, together with copies
of all factual certificates and legal opinions upon which
such counsel has relied.
"Partner Subordinated Notes" means those two certain
unsecured Revolving Subordinated Promissory Notes made by
Borrower in favor of MRGS and GSP, each substantially in
the form of Exhibit H, and in the principal amount of
$10,000,000 each, as originally issued.
"Party" means any Person other than the Administra-
tive Agent and the Banks, which now or hereafter is a
party to any of the Loan Documents.
"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 Borrower or any of
its Subsidiaries or to which Borrower or any of its
Subsidiaries contributes or has an obligation to
contribute.
"Permitted Distributions" means, for each fiscal
period, the amount of the Permitted Profit Distributions
made during that fiscal period plus the amount of
Permitted Tax Distributions made during that fiscal
period.
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"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 obligations 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;
(e) easements, exceptions, reservations, or
other agreements for the purpose of facilitating the
joint or common use of Property in or adjacent to or
affecting the 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;
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<PAGE>
(g) rights reserved to or vested in any Govern-
mental 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
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;
(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 Borrower or a Subsidiary of
Borrower 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 evidenc-
ing an extension of credit to the depositor) in the
ordinary course of business;
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(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 Borrower or any
Subsidiary of Borrower 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 Borrower or any
Subsidiary of Borrower is a party in the ordinary
course of its business;
(r) Liens created by or resulting from any
litigation or legal proceeding involving Borrower or
a Subsidiary of Borrower 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
Borrower and the Subsidiaries of Borrower, taken as a
whole.
"Permitted Profit Distributions" means Distributions
made by Borrower to the partners of Borrower in the
amounts, and on the dates, permitted by Section 6.5(c).
"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 Property
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.
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"Permitted Tax Distributions" means Distributions
made by Borrower to the partners of Borrower in an
aggregate amount not exceeding the combined federal and
state income tax then payable (including estimated income
taxes then payable) under then applicable Laws with
respect to the taxable income of Borrower attributable to
the ultimate tax-paying Persons directly or indirectly
owning Borrower (including their distributive shares of
any components or tax attributes thereof), assuming:
(i) that the tax rate payable by each such Person
with respect thereto is the highest statutory
individual or corporate tax rate (whichever is
higher) then in effect with respect to any such
Person;
(ii) that such Persons have no other taxable income,
loss, deductions or other tax attributes; and
(iii) that any net operating loss carryforward
attributable to Borrower if it were a tax-paying
entity would be available in such Fiscal Year to such
Persons;
all as set forth in calculations in reasonable detail
attached to a letter from Arthur Andersen LLP (or other
independent public accountants of recognized standing
selected by Borrower and satisfactory to the Requisite
Banks) furnished to the Administrative Agent not later
than five (5) days prior to any such Distribution.
"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.
"Plans" means all drawings, plans and specifications
prepared by or for Borrower, Gold Strike, GSP, MRGS or
MRI, as the same may be amended or supplemented from time
to time, and, if required, submitted to and approved by
the Clark County Building Department, all of which plans
and specifications describe and show the construction of
the Project and the labor and materials necessary for the
construction thereof together with the construction budget
therefor.
"Post-Construction Fiscal Quarter" means each Fiscal
Quarter which begins on or after the Construction
Termination Date.
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"Pricing Occurrence" means with respect to any change
in the Annualized Funded Debt Ratio after the Construction
Termination Date which results in a change in the
Applicable Pricing Level, the earlier of (i) the date upon
which Borrower delivers the Compliance Certificate to the
Administrative Agent reflecting such changed Annualized
Funded Debt Ratio or (ii) the date upon which Borrower is
required by Section 7.2 to deliver such Compliance
Certificate.
"Pricing Period" means (a) the period commencing on
the Construction Termination Date and ending on the date
of the first Pricing Occurrence to occur thereafter and
(b) each subsequent period commencing on the date
immediately following the date of a Pricing Occurrence and
ending on the date of the next Pricing Occurrence to
occur.
"Project" means the proposed 2,500 to 3,000 room
hotel and approximately 82,000 square foot casino to be
constructed on the Project Site (and, if acquired by
Borrower, on any of the approximately 6 acres now
comprising the premises of the La Quinta, Rodeway and
Desert Rose Motels immediately adjacent to the Project
Site) in accordance with the Plans.
"Project Costs" means, as of each date of
determination, the cumulative Construction Costs paid or
incurred by Borrower with respect to the Project as of
that date plus the Attributed Land Value as of that date.
"Project Site" means the approximately 43 acre site
on the Las Vegas Strip which is the proposed location for
the Project, which real property is further described on
Schedule 1.1B, provided that the Project Site shall also
be deemed to include any of the approximately 6 acres now
comprising the premises of the La Quinta, Rodeway and
Desert Rose Motels immediately adjacent to the Project
Site upon the taking of the actions specified in Section
5.12.
"Projections" means the financial projections
contained in the Confidential Information Memorandum
distributed by or on behalf of Borrower to th
about August 26, 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 1.1A.
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"Quarterly Payment Date" means each March 31,
June 30, September 30, and December 31.
"Real Property" means, as of any date of determina-
tion, all real Property then or theretofore owned, leased
or occupied by Borrower or any of its Subsidiaries,
including the Project Site.
"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.
"Related Party Agreement" means the Related Party
Agreement to be executed and delivered by MRI, MRGS, Gold
Strike and GSP in the form of Exhibit I, either as
originally executed or as it may from time to time be
supplemented, modified, amended, extended or supplanted.
"Request for Loan" means a written request for a Loan
substantially in the form of Exhibit J, signed by a
Responsible Official of Borrower 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.
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"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, 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.
"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.
"Secured Swap Agreement" means a Swap Agreement
between Borrower and a Bank.
"Security Agreement" means the security agreement to
be executed and delivered by Borrower, substantially in
the form of Exhibit K, either as originally executed or as
it may from time to time be supplemented, modified,
amended, extended or supplanted.
"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 the Person
designated and, in case of Borrower, the officers of
Borrower's managing partner fulfilling those functions.
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<PAGE>
"Short Term Guaranty" means the Short Term Guaranty
to be executed and delivered by Gold Strike substantially
in the form of Exhibit L, pursuant to which Gold Strike
shall guarantee the payment of commitment fees and
expenses accruing or payable by Borrower to the
Administrative Agent and the Banks hereunder prior to the
Contribution Date, either as originally executed or as it
may from time to time be supplemented, modified, amended,
extended or supplanted. The Short Term Guaranty shall
provide, inter alia, for the release thereof upon the
recordation of the Deed of Trust and the satisfaction of
the other conditions precedent set forth in Section 8.2.
"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.
"Subordinated Obligations" means any Indebtedness of
Borrower which is subordinated in right of payment to the
Obligations, the terms of which are acceptable to the
Requisite Banks in their sole discretion.
"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 part-
nership or other ownership interests are at the time
beneficially owned by such Person and/or one or more of
its Subsidiaries.
"Swap Agreement" means a written agreement between
Borrower and one or more financial institutions providing
for "swap", "cap", "collar" or other
protection with respect to any Indebtedness.
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<PAGE>
"Swing Line" means the revolving line of credit
established by the Swing Line Bank in favor of Borrower
pursuant to Section 2.9.
"Swing Line Bank" means Bank of America Nevada.
"Swing Line Documents" means the promissory note and
any other documents executed by Borrower 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 Borrower pursuant to Section 2.9.
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal Indebtedness of
Borrower on all Swing Line Loans then outstanding.
"Termination of Construction" means that (a) a
temporary certificate of occupancy has been issued for the
Project by the Clark County Building Department; (b) a
Notice of Completion for the Project has been duly
recorded; (c) all materialmen's claims, mechanics liens or
other Liens or claims for Liens directly related to the
Project (other than those created pursuant to the Loan
Documents) have been paid or satisfactory provisions have
been made for such payment; (d) certificates have been
delivered by the Project architect and Project manager and
by a Responsible Official of Borrower to the
Administrative Agent and the Banks certifying that the
Project has been substantially completed in accordance
with the Plans and all applicable building laws,
ordinances and regulations; (e) the Project is in a
condition (including installation of fixtures, furnishings
and equipment) to receive customers and engage in its
operations in the ordinary course of business, and (f)
Borrower has been awarded all necessary licenses, permits
and consents (including all licenses required under
applicable Gaming Laws) to operate the Project and the
gaming operations intended to be conducted thereon.
"Title Company" means United Title of Nevada or such
other title insurance company as is reasonably acceptable
to the Administrative Agent.
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<PAGE>
"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).
"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.
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.
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 6.11 through 6.13 would
then be calculated in a different manner or with different
components, (a) Borrower and the Banks agree to amend this
Agreement in such respects as are necessary to conform those
covenants as criteria for evaluating Borrower's financial
condition to substantially the same criteria as were effective
prior to such change in Generally Accepted Accounting
Principles and (b) Borrower shall be deemed to be in compliance
with the covenants contained in the aforesaid Sections during
the 120-day period following any such change in Generally
Accepted Accounting Principles if and to the extent that Bor-
rower would have been in compliance therewith under Generally
Accepted Accounting Principles as in effect immediately prior
to such change.
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1.4 Rounding. Any financial ratios required to be
maintained by Borrower 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 "Borrower and its Subsidiaries".
Any reference herein to "Borrower and its Subsidiaries" or the
like shall refer solely to Borrower during such times as
Borrower shall have no Subsidiaries. No use of the term
"Subsidiary" or any derivative thereof in the Loan Documents
shall imply a right in Borrower to make any Investments in or
Acquisitions of any Person.
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 Loans-General.
_____________
(a) Subject to the terms and conditions set
forth in this Agreement, 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 revolving Advances to
Borrower under the Commitment in such amounts as Borrower
may request that do not result in the sum of (i) the
aggregate principal amount outstanding under the Notes
plus (ii) the Swing Line Outstandings exceeding the then
applicable Commitment. Subject to the limitations set
forth herein, Borrower may borrow, repay and reborrow
under the Commitment without premium or penalty.
(b) Subject to the next sentence, each 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 Agent has notified, in its sole
and absolute discretion, Borrower to the contrary, a Loan
may be requested by telephone by a Responsible Official of
Borrower, in which case Borrower shall confirm such
request by promptly delivering a Request for Loan in
person or by telecopier conforming to the preceding
sentence to the Administrative Agent. Neither the
Administrative Agent nor any Bank shall incur any
liability whatsoever hereunder in acting upon any
telephonic request for Loan purportedly made by a
Responsible Official of Borrower, which hereby agrees to
indemnify the Administrative Agent and the Banks from any
loss, cost, expense or liability as a result of so acting.
(c) Promptly following receipt of a Request for
Loan
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 Agent at the
Administrative 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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<PAGE>
(d) Unless the Requisite Banks otherwise
consent, each Loan shall be not less than $1,000,000.
(e) The Advances made by each Bank shall be
evidenced by that Bank's Note.
(f) A Request for Loan shall be irrevocable
upon the Administrative 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 Notes, then Borrower shall be deemed to have
requested, as of the date upon which the related then
outstanding Loan is due pursuant to Section 3.1(e)(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, Borrower or the
Banks, as the case may be, shall at the request of the
Administrative Agent make available to the Administrative
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
Borrower 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 appli-
cable) received by the Administrative Agent, at the
Administrative 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 Loans shall
constitute Alternate Base Rate Loans unless properly designated
as a Eurodollar Rate Loan pursuant to Section 2.3.
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2.3 Eurodollar Rate Loans.
(a) Each request by Borrower 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 Agent, at the Administrative Agent's
Office, not later than 10:00 a.m., San Francisco time, at
least three (3) Eurodollar Banking Days before the first
day of the applicable Eurodollar Period.
(b) On the date which is two (2) Eurodollar
Banking Days before the first day of the applicable
Eurodollar Period, the Administrative 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 Borrower and the Banks by telephone or telecopier (and
if by telephone, promptly confirmed by telecopier).
(c) Unless the Administrative 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 Voluntary Reduction of Commitment. Borrower
shall have the right, at any time and from time to time, with-
out penalty or charge, upon at least three (3) Banking Days'
prior written notice by a Responsible Official of Borrower to
the Administrative 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 Agent shall
promptly notify the Banks of any reduction or termination of
the Commitment under this Section.
2.5 Scheduled Mandatory Reductions of Commitment.
The Commitment shall automatically and permanently reduce (a)
on the last day of the fourth Post-Construction Fiscal Quarter,
to an amount which is not greater than $150,000,000, (b) on the
last day of the fifth Post-Construction Fiscal Quarter and each
of the next seven Post-Construction Fiscal Quarters, by
$6,250,000, and (c) on the last day of each subsequent Post-
Construction Fiscal Quarter, by $12,500,000.
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2.6 Other Mandatory Reductions of Commitment. The
Commitment shall automatically and permanently reduce (a) on
the first Banking Day of the calendar month which is one
calendar month following the last day of each of the first four
Post-Construction Fiscal Quarters, by the amount of Available
Cash Flow during each such Post-Construction Fiscal Quarter,
and (b) until the Cut-Off Date, concurrently with the making of
each Permitted Profit Distribution, in the amount of such
Permitted Profit Distribution.
2.7 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
Borrower's written notice to the Administrative Agent of such
occurrence or (ii) if no such notice has been received by the
Administrative Agent, the date upon which the Administrative
Agent has actual knowledge thereof, to terminate the
Commitment, in which case the Commitment shall be terminated,
and Borrower shall thereupon be obligated to immediately repay
the outstanding Obligations, effective on the date which is
thirty (30) days subsequent to written notice from the
Administrative Agent to Borrower thereof.
2.8 Administrative Agent's Right to Assume Funds
Available for Advances. Unless the Administrative Agent shall
have been notified by any Bank no later than the Banking Day
prior to the funding by the Administrative Agent of any Loan
that such Bank does not intend to make available to the
Administrative Agent such Bank's portion of the total amount of
such Loan, the Administrative Agent may assume that such Bank
has made such amount available to the Administrative Agent on
the date of the Loan and the Administrative Agent may, in reli-
ance upon such assumption, make available to Borrower a
corresponding amount. If the Administrative Agent has made
funds available to Borrower based on such assumption and such
corresponding amount is not in fact made available to the
Administrative Agent by such Bank, the Administrative 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
demand therefor, the Administrative Agent promptly shall notify
Borrower and Borrower shall pay such corresponding amount to
the Administrative Agent. The Administrative Agent also shall
be entitled to recover from such Bank interest on such corre-
sponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative
Agent to Borrower to the date such corresponding amount is
recovered by the Administrative 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 Agent or Borrower may have against any Bank as a
result of any default by such Bank hereunder.
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2.9 Swing Line. The Swing Line Bank shall from time
to time through the day prior to the Maturity Date make
Swing Line Loans to Borrower in such amounts as Borrower may
request, provided that (i) giving effect to such Swing Line
Loan, the Swing Line Outstandings do not exceed $5,000,000,
(ii) giving effect to such Swing Line Loan, the aggregate prin-
cipal amount outstanding under the Notes plus the Swing Line
Outstandings do not exceed the then applicable Commitment,
(iii) without the consent of all of the Banks, no Swing Line
Loan may be made during the continuation of a Default or an
Event of Default and (iv) the Swing Line Bank has not given at
least twenty-four (24) hours prior notice to Borrower that
availability under the Swing Line is suspended or terminated.
Borrower 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 Borrower 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 with a copy
submitted by telecopier to the Administrative Agent). Promptly
after receipt of such a request for borrowing, the Swing Line
Bank shall obtain telephonic verification from the
Administrative 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 Borrower
instructs 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 Agent of the Swing Line 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 Borrower for
such interest. The interest payable on Swing Line Loans shall
be solely for the account of the Swing Line Bank, except to the
extent that any Bank has funded the participation purchased by
that Bank in accordance with this Section.
The Swing Line Loans shall be payable on demand made
by the Swing Line Bank and in any event on the Maturity Date.
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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 through the
Administrative Agent, each Bank shall, according to its Pro
Rata Share of the Commitment, promptly provide to the
Administrative Agent for the account of 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 with respect to any Swing
Line Loan made in accordance with the terms hereof shall be
absolute and unconditional and shall not be affected by the
occurrence of an Event of Default or any other occurrence or
event.
In the event that there are Swing Line Outstandings
on three (3) consecutive Banking Days, then on the next Banking
Day (unless Borrower has made other arrangements acceptable to
the Swing Line Bank to repay the Swing Line Outstandings in
full), Borrower shall request a Loan pursuant to Section 2.1(a)
in an amount complying with Section 2.1(d) and sufficient to
repay the Swing Line Outstandings in full. The Administrative
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 Loan in
immediately available funds to the Designated Deposit Account.
In the event that Borrower fails to request a Loan within the
time specified by Section 2.2 on any such date, the
Administrative Agent may, but is not required to, without
notice to or the consent of Borrower, cause Advances to be made
by the Banks under the Commitment in the amount necessary to
comply with Section 2.1(d) and sufficient to repay all Swing
Line Outstandings 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 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 prepayment 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(d)
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) 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
shall be effective upon notice to Borrower from the
Requisite Banks (or from the Administrative Agent on
behalf of the Requisite Banks) and shall continue so long
as such Default or Event of Default continues to exist.
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(e) If not sooner paid, the principal Indebted-
ness 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 amount, if any, by which the
principal outstanding Indebtedness evidenced by the
Notes plus the Swing Line Outstandings at any
time exceeds the Commitment shall be payable
immediately and shall be applied to the Notes; and
(iii) the principal Indebtedness
evidenced by the Notes and the Swing Line Documents
shall in any event be payable on the Maturity Date.
(f) The 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 $1,000,000,
(ii) the Administrative 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 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 pay-
ment or prepayment of all or any part of any Eurodollar
Rate Loan on a day other than the last day of the applic-
able Interest Period shall be subject to Section 3.8(d).
3.2 Arrangement Fee. On the Closing Date, Borrower
shall pay to the Arranger an arrangement fee in the amount
heretofore agreed upon by letter agreement between Borrower 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.
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3.3 Upfront Fees. On the Closing Date, Borrower
shall pay to the Administrative Agent, for the respective
accounts of the Co-Agents, upfront fees in the respective
amounts heretofore agreed upon by letter agreement between
Borrower and each Co-Agent. On the Closing Date, Borrower
shall further pay to the Administrative 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 as of the Closing Date. The
upfront fees paid to each Bank are solely for its own account
and are nonrefundable.
3.4 Commitment Fees. From November 1, 1994, Borrower
shall pay to the Administrative 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 aggregate principal Indebtedness
outstanding under the Notes. The commitment fee shall be pay-
able quarterly in arrears on each Quarterly Payment Date and on
the Maturity Date.
3.5 Agency Fees. Borrower shall pay to the
Administrative Agent an agency fee in such amounts and at such
times as heretofore agreed upon by letter agreement between
Borrower and the Administrative Agent. The agency fee is for
the services to be performed by the Administrative Agent in
acting as Administrative Agent and is fully earned on the date
paid. The agency fee paid to the Administrative Agent is
solely for its own account and is nonrefundable.
3.6 Construction Services Fees. Borrower shall pay
to Bank of America a construction services fee in such amounts
and at such times as heretofore agreed upon by letter agreement
between Borrower and Bank of America. The construction
services fee is for the services to be performed by Bank of
America's Construction Services Group and is fully earned on
the date paid. The construction services fees are solely for
the account of Bank of America and are nonrefundable.
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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 consideration 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, Borrower 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.
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 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
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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
(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 Borrower 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
(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
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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 Designated Eurodollar
Market), then, within five (5) Banking Days after demand
by such Bank (with a copy to the Administrative Agent),
Borrower 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). Borrower hereby indemnifies each Bank against,
and agrees 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 Borrower 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, Borrower may
at any time, upon at least four (4) Eurodollar Banking
Days' prior notice to the Administrative 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.
(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
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such Bank shall so notify the Administrative 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 Agent forthwith shall
give notice thereof to the other Banks and Borrower. 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
Eurodollar Rate Advances if such Bank may lawfully
continue to maintain and fund such Eurodollar Rate
Advances to such day(s) or (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 Borrower of any
event of which it has actual knowledge, occurring after
the Closing Date, which will cause that Bank to notify the
Administrative 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 judgment 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 Agent and Borrower of the cessation of the
Special Eurodollar Circumstance which gave rise to such
suspension.
(c) If, with respect to any proposed Eurodollar
Rate Loan:
(1) the Administrative 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
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(2) the Requisite Banks advise the
Administrative Agent that the Eurodollar Rate as
determined by the Administrative 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
applicable Eurodollar Rate Advances;
then the Administrative Agent forthwith shall give notice
thereof to Borrower and the Banks, whereupon until the
Administrative Agent notifies Borrower 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
Borrower (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, Borrower 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:
(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
prepayment or failure to borrow, as applicable, and
the last day in the applicable Eurodollar Period,
divided by 360, times the applicable Interest
Differential (provided 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,
prepayment 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.
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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 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. Borrower acknowledges 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
Borrower 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.
3.12 Manner and Treatment of Payments.
(a) Each payment hereunder (except payments
pursuant to Sections 3.7, 3.8, 11.3, 11.11 and 11.22) or
on the Notes, on the Swing Line Documents or under any
other Loan Document shall be made to the Administrative
Agent, at the Administrative Agent's Office, for the
account of each of the Banks or the Administrative 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 Agent for the account of
each Bank shall be immediately paid by the Administrative
Agent to the applicable Bank in immediately available
funds and, if such payment was received by the
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Administrative 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 Agent shall
reimburse that Bank for the cost to such Bank of funding
the amount of such payment 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 Loan (other than Swing Line Loans) shall be applied
pro rata according to the outstanding Advances made by
each Bank comprising such Loan.
(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 Borrower,
be presumptive evidence of the amounts owing. Notwith-
standing 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
Borrower 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 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 jurisdictio n (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 Borrower 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
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Borrower is obligated by applicable Laws to make any
deduction or withholding on account of Taxes from any
amount payable to any Bank under this Agreement, Borrower
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
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
payment or credit to that Bank on account of such Taxes,
that Bank shall promptly refund such excess to Borrower.
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 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 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.
3.15 Administrative Agent's Right to Assume Payments
Will be Made by Borrower. Unless the Administrative Agent
shall have been notified by Borrower prior to the date on which
any payment to be made by Borrower hereunder is due that
Borrower does not intend to remit such payment, the
Administrative Agent may, in its discretion, assume that
Borrower has remitted such payment when so due and the
Administrative Agent may, in its discretion and in reliance
upon such assumption, make available to each Bank on such
payment date an amount equal to such Bank's share of such
assumed payment. If Borrower has not in fact remitted such
payment to the Administrative Agent, each Bank shall forthwith
on demand repay to the Administrative 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 Agent
to such Bank to the date such amount is repaid to the
Administrative Agent at the Federal Funds Rate.
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3.16 Fee Determination Detail. The Administrative
Agent, and any Bank, shall provide reasonable detail to
Borrower regarding the manner in which the amount of any
payment to the Administrative Agent and the Banks, or that
Bank, under Article 3 has been determined, concurrently with
demand for such payment.
3.17 Survivability. All of Borrower's obligations
under Sections 3.7, 3.8 and 11.22 shall survive for ninety (90)
days following the date on which the Commitment is terminated,
and all Loans hereunder are fully paid.
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Article 4
REPRESENTATIONS AND WARRANTIES
______________________________
Borrower represents and warrants to the Banks that:
4.1 Existence and Qualification; Power; Compliance
With Laws. Borrower is a general partnership of MRGS and GSP
which is duly formed, validly existing and in good standing
under the Laws of Nevada. Borrower 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. Borrower has all requi-
site partnership 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 partnership interests of Borrower
are duly authorized and validly issued and no holder thereof
has any enforceable right of rescission under any applicable
state or federal securities Laws. Borrower 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 Borrower and the Completion
Guarantor of the Loan Documents to which they are a Party have
been duly authorized by all necessary partnership or corporate
action, and do not and will not:
(a) Require any consent or approval not hereto-
fore obtained of any partner, director, stockholder,
security holder or creditor of such Party;
(b) Violate or conflict with any provision of
such Party's partnership agreement, charter, articles of
incorporation or bylaws, as applicable;
(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;
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(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 neither Borrower nor the Completion Guarantor 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 Borrower and the Completion Guarantor 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 Contribution Date
or such other date as is specified in Schedule 4.3.
4.4 Subsidiaries. Borrower does not have any
Subsidiaries and Borrower does not own any capital stock,
equity interest or debt security which is convertible, or
exchangeable, for capital stock or equity interests in any
Person.
4.5 Financial Statements. Borrower has furnished (a)
the unaudited consolidated financial statements of Gold Strike
as of September 30, 1994, and (b) the audited financial
statements of Lakeview Company, Railroad Pass Investment Group,
Pioneer Investment Group, Jean Development Company and Jean
Development West (the "Partnerships") as of December 31, 1993,
to the Administrative Agent and the Banks, which financial
statements fairly present in all material respects the finan-
cial condition, results of operations and changes in financial
position of Gold Strike and the Partnerships as of such dates
and for such periods in conformity with Generally Accepted
Accounting Principles, consistently applied. As of the Closing
Date, Borrower has no liabilities in excess of $100,000, other
than those evidenced by the Loan Documents, and for pre-
construction related expenses with respect to the Project Site
in an amount not in excess of $250,000.
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4.6 No Materia
Date, no circumstance or event has occurred that constitutes a
Material Adverse Effect since June 30, 1994, or, as of any date
subsequent to the Closing Date, since the Closing Date.
4.7 Title to Property. On the Contribution Date and
on each subsequent date, Borrower has valid title in fee simple
to the Real Property and all improvements (if any) located
thereon, free and clear of all Liens and Rights of Others,
other than Liens or Rights of Others permitted by Section 6.8.
4.8 Intangible Assets. Borrower and its Subsidiaries
own, or possess the right to use to the extent necessary in
their respective businesses, all material trademarks, trade
names, copyrights, patents, patent rights, computer software,
licenses and other Intangible Assets that are necessary to
complete and operate the Project or which are used or
contemplated to be used in the conduct of their businesses as
now operated and as contemplated to be operated, and no such
Intangible Asset, to the best knowledge of Borrower, 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 MRI,
Gold Strike, MRGS, GSP, Borrower nor any of its Subsidiaries is
a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
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 Borrower
or any of its Subsidiaries of less than $1,000,000, and
(c) matters of an administrative nature not involving a claim
or charge against Borrower or any of its Subsidiaries, there
are no actions, suits, proceedings or investigations pending as
to which Borrower or any of its Subsidiaries have been served
or have received notice or, to the best knowledge of Borrower,
threatened against or affecting Borrower or any of its
Subsidiaries or any Property of any of them (including the Real
Property) before any Governmental Agency.
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4.11 Binding Obligations. Each of the Loan Documents
to which Gold Strike, the Completion Guarantor, Borrower or any
of its 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) neither Borrower nor any of
its 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) Neither Borrower nor any of its
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.
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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 Borrower nor
any of its Subsidiaries is or is required to be registered as
an "investment company" under the Investment Company Act of
1940.
4.15 Disclosure. No written statement made by a
Senior Officer of MRI, Gold Strike, GSP or MRGS to the
Administrative 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. Borrower and its Subsidiaries
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
Borrower or any of its Subsidiaries, except (a) such taxes, if
any, as are being contested in good faith by appropriate pro-
ceedings and as to which adequate reserves have been estab-
lished and maintained and (b) immaterial taxes so long as no
material item or portion of Property of Borrower or any of its
Subsidiaries is in jeopardy of being seized, levied upon or
forfeited.
4.17 Projections. As of the Closing Date, to the
best knowledge of Borrower, the assumptions set forth in the
Projections are reasonable and consistent with each other and
with all facts known to Borrower, and the Projections are
reasonably based on such assumptions. Nothing in this
Section shall be construed as a representation or covenant that
the Projections in fact will be achieved.
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4.18 Hazardous Materials. Except as described in
Schedule 4.18, (a) none of MRI, MRGS, Borrower nor any of its
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 Borrower, 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 MRI, MRGS, Borrower or any
of its 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 Borrower or any of
its Subsidiaries on any Real Property, or transported to or
from such Real Property by Borrower or any of its Subsidiaries,
such use, generation, storage and transportation are in
compliance in all material respects with all Hazardous
Materials Laws.
4.19 Gaming Laws. Borrower and its Subsidiaries are
in compliance in all material respects with all Gaming Laws
that are applicable to them.
4.20 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
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
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 Agent pursuant to Section 8.1 with the
appropriate Governmental Agency have 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, 5.10 and 11.22 (subject only to Permitted
Encumbrances and Permitted Rights of Others), and all action
necessary to perfect the Lien so created, other than recorda-
tion 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, Borrower shall, and shall cause
each of its Subsidiaries to, unless the Administrative 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 Borrower and
its 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 Borrower or any of its 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 for-
mation 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
Subsidiary or such authorizations would not constitute a
Material Adverse Effect; and qualify and remain qualified to
transact business in each jurisdiction in which such qual-
ification 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
respective 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 Borrower and its 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 Borrower and its Subsid-
iaries operate and, in any event, such insurance as may be
required under the 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 con-
stitutes a Material Adverse Effect, except that Borrower and
its 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 (but not so as to materially interfere with the
business of Borrower or any of its Subsidiaries or the
performance by any officer of his or her responsibilities),
permit the Administrative 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 Properties of,
Borrower and its Subsidiaries and to discuss the affairs,
finances and accounts of Borrower and its Subsidiaries with any
of their officers, key employees or accountants and, upon
request, furnish promptly to the Administrative Agent or any
Bank true copies of all financial information made available to
both partners of Borrower. Without limitation on the
foregoing, Borrower shall:
(a) provide Bank of America's Construction
Services Group any and all access to the Project and the
Project Site;
(b) provide any and all information, which is
reasonably required for the preparation of a monthly
Construction Progress Report;
(c) cooperate in the preparation of each
Construction Progress Report and, if requested by the
Administrative Agent, cause the Project architect and
general contractor to certify that the improvements
constructed as of the date of any Construction Progress
Report conform to the Plans in all material respects;
(d) maintain a full set of working drawings at
the Project Site for review by Bank of America's
Construction Services Group; and
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(e) within 15 days following any request by the
Administrative Agent, deliver (i) then current
construction plans for the Project certified as true and
correct by the Project architect and the project engineer,
(ii) a then current list of the names, addresses and
telephone numbers of each contractor, subcontractor and
material supplier with respect to the Project and the
dollar value and amounts paid with respect to the related
contracts, and (iii) then current versions of the
construction schedule for all uncompleted work on the
Project and all executed contracts and subcontracts for
such work.
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 Borrower or any of its
Subsidiaries.
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 agree-
ments, 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 the Loans
for design, development and construction of the Project in
accordance with the Plans and, after the completion of the
Project, for working capital and general partnership purposes
of Borrower.
5.10 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 Agent in writing
(attaching a copy of any pertinent written material) of (a) any
and all material enforce
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
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Borrower relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from any Hazardous
Materials and (c) discovery by any Senior Officer of Borrower
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.
5.11 Construction of the Project. Construct the
Project on the Project Site in a workmanlike manner which is in
material conformity to the Plans and the Approved Budget.
5.12 Future Collateral and Guarantees.
(a) Cause each Person acquired pursuant to an
Acquisition permitted under Section 6.14(f), concurrently
with the consummation of such Acquisition, and at
Borrower's sole expense:
(i) to issue a guaranty of the Obligations
and to secure such guaranty with (i) a deed of trust
encumbering the real property and improvements
thereon owned by such Person substantially in the
form of the Deed of Trust and in any event acceptable
in form and substance to the Administrative Agent and
(ii) a security agreement covering all of the
personal property of such Person substantially in the
form of the Security Agreement and in any event
acceptable in form and substance to the
Administrative Agent; and
(ii) to do all acts and things, and to
execute all instruments, documents and agreements,
reasonably requested by the Administrative Agent to
assure the priority and perfection of the Liens
granted by such deed of trust and security agreement,
including without limitation the execution and
delivery of financing statements, legal opinions,
title insurance policies and the like; and
(b) In the event that Borrower acquires the real
property comprising the premises of the La Quinta, Rodeway
or Desert Rose Motel immediately adjacent to the Project
Site, or the improvements located thereon, by means of an
asset acquisition, concurrently amend the Deed of Trust to
encumber such real property and improvements and take the
actions specified by clause (a)(ii) of this Section with
respect to the Liens granted pursuant to such amendment.
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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, Borrower shall not, and shall not
permit any of its Subsidiaries to, unless the Administrative
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 Borrower or any of its Subsid-
iaries 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 Borrower or any of its
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) Borrower has notified the Administrative 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
principal (including sinking fund payments) or any other amount
with respect to any Subordinated Obligation, or purchase or
redeem any Subordinated Obligation except payments of principal
and interest with respect to the Partner Subordinated Notes
made when no Default or Event of Default exists or would result
from the making of such payment; 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) Borrower has notified the Administrative 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.
6.3 Disposition of Property. Make any Disposition of
its Property, whether now owned or hereafter acquired (other
than dispositions of Investments permitted by Sections 6.14(a)
and 6.14(d), 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) Borrower has notified the Administrative Agent in writing
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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 and (iii) the Net Cash Proceeds from
such Disposition are paid to the Administrative Agent promptly
after receipt and applied to reduce the principal outstanding
under the 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 Agent shall execute such releases of such Lien
in connection with any such Disposition as may be requested by
Borrower.
6.4 Mergers. Merge or consolidate with or into any
Person, except:
(a) mergers and consolidations of a Subsidiary
of Borrower into Borrower or another Subsidiary of
Borrower (in the case of any such merger or consolidation
to which Borrower is a party, with Borrower as the
surviving entity), provided that Borrower and each of such
Subsidiaries have executed such amendments to the Loan
Documents as the Administrative Agent may reasonably
determine are appropriate as a result of such merger; and
(b) a merger or consolidation of Borrower or
any of its Subsidiaries with any other Person, provided
that (i) either (A) Borrower or such 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 instrument, the Obligations of
Borrower or such 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.
6.5 Distributions. Make any Distribution, whether
from capital, income or otherwise, and whether in Cash or other
Property, except:
(a) Distributions by any Subsidiary of Borrower to
Borrower or another Subsidiary of Borrower; and
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(b) when no Default or Event of Default
Permitted Tax Distributions; and
(c) when no Default or Event of Default exists,
Permitted Profit Distributions made during the fifth Post-
Construction Fiscal Quarter and any subsequent Post-
Construction Fiscal Quarter, provided that:
(i) prior to the Cut-Off Date, the aggregate
amount of Permitted Profit Distributions (A) shall
not, as of the date of any payment thereof, exceed
50% of Available Cash Flow for the fiscal period
beginning on the first day of the fifth Post-
Construction Fiscal Quarter and ending on that date,
and (B) shall not be made until any repayment of the
Notes required by reason of a reduction of the
Commitment under Section 2.6(b) has been made; and
(ii) on or after the Cut-Off Date, the aggregate
amount of Permitted Profit Distributions shall not,
as of the date of any payment thereof, exceed (A)
100% of Available Cash Flow for the fiscal period
beginning on the Cut-Off Date and ending on the date
of such payment, plus (B) the amount of Permitted
Profit Distributions which could have been made prior
to the Cut-Off Date in accordance with clause (i) of
this Section but which were not actually made;
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) Borrower has notified the Administrative 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.
6.6 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.
6.7 Change in Nature of Business. Make any material
change in the nature of the business of Borrower and the its
Subsidiaries, taken as a whole.
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6.8 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) To the extent that the same constitute
Liens, the exceptions to title to the Project Site
reflected on Schedule 6.8;
(d) purchase money Liens securing Indebtedness
permitted by Section 6.9(c) on and limited to the capital
assets acquired, constructed or financed with the proceeds
of such Indebtedness; and
(e) any Lien, Negative Pledge or Right of
Others created by an agreement or instrument entered into
by Borrower or any of its Subsidiaries in the ordinary
course of its business which consists of a restriction on
the assignability, transfer or hypothecation of such
agreement or instrument;
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) Borrower has notified the Administrative 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.
6.9 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 6.9, and renewals, extensions or amendments that
do not increase the amount thereof;
(b) Indebtedness and Guaranty Obligations under
the Loan Documents;
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(c) Indebtedness incurred at such times as no
Default or Event of Default exists which is used to
finance the design, development and construction of the
Project, or to refinance any such Indebtedness, provided
that (a) the aggregate principal amount of such
Indebtedness outstanding at any time does not exceed
$25,000,000, and (b) concurrently with the incurrence of
such Indebtedness Borrower delivers to the Administrative
Agent a Certificate of a Responsible Official signed by a
Senior Officer of Borrower that giving effect to the
incurrence of such Indebtedness the Funded Debt to Project
Costs Ratio is not greater than .70 to 1.00;
(d) 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 $100,000,000; and
(e) Indebtedness incurred pursuant to the
Partner Subordinated Notes at such times as no Default or
Event of Default exists in an aggregate outstanding
principal amount not to exceed $10,000,000 at any time.
6.10 Transactions with Affiliates. Enter into any
transaction of any kind with any Affiliate of Borrower other
than (a) salary, bonus and other compensation arrangements with
directors, officers, partners or employees in the ordinary
course of business, (b) transactions between or among Borrower
and its Subsidiaries, and (c) transactions on overall terms at
least as favorable to Borrower or its Subsidiaries as would be
the case in an arm's-length transaction between unrelated
parties of equal bargaining power.
6.11 Interest Coverage. Permit Interest Coverage, as
of the last day of any Post-Construction Fiscal Quarter, to be
less than 3.00 to 1.00.
6.12 Maximum Annualized Funded Debt Ratio. Permit
the Annualized Funded Debt Ratio, as of the last day of any
Post-Construction Fiscal Quarter, to be greater than the ratio
set forth opposite that Post-Construction Fiscal Quarter:
<TABLE>
<CAPTION>
Post-Construction Fiscal Quarter Ratio
________________________________ _____
<S> <C>
First through Third 3.00 to 1.00
Fourth through Seventh 2.75 to 1.00
Eighth through Eleventh 2.25 to 1.00
Twelfth and thereafter 1.75 to 1.00.
</TABLE>
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6.13 Capital Expenditures. Make, or become legally
obligated to make, any Capital Expenditure:
(a) which improves Property other than the Real
Property or the Project at any time;
(b) during the fiscal period beginning on the
Construction Termination Date and ending on the last day
of the third Post-Construction Fiscal Quarter, if to do so
would result in the aggregate Capital Expenditures made in
that fiscal period (or portion thereof) exceeding
$10,000,000; or
(c) during any subsequent fiscal period
consisting of four consecutive Post-Construction Fiscal
Quarters, if to do so would result in the aggregate
Capital Expenditures made in that fiscal period (or
portion thereof) exceeding $10,000,000, provided that such
amount may be increased by any amount, not to exceed
$2,500,000, not expended during the prior four consecutive
Post-Construction Fiscal Quarters.
6.14 Acquisitions and Investments. Make or suffer to
exist any Investment, other than:
(a) Investments consistin
Equivalents;
(b) Investments consisting of advances to
officers, directors, partners and employees of Borrower
and its Subsidiaries for travel, entertainment, relocation
and analogous ordinary business purposes;
(c) Investments consisting of or evidencing the
extension of credit to customers or suppliers of Borrower
in the ordinary course of business and any Investments
received in satisfaction or partial satisfaction thereof;
(d) Investments received in connection with the
settlement of a bona fide dispute with another Person;
(e) Investments representing all or a portion
of the sales price of Property sold or services provided
to another Person; and
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(f) Acquisitions of Persons the sole assets of
which consist of one or more of the "La Quinta Motel", the
"Rodeway Motel" and the "Desert Rose Motel" located on the
parcels located immediately adjacent to the Project Site
and fronting on the Las Vegas Strip, and associated
improvements and personal property, provided that (i) in
conjunction with any such Acquisition, Borrower provides
to the Banks any environmental assessments and appraisals
of the related real property reasonably requested by the
Banks, and (ii) each such Acquisition is directly financed
with the proceeds of contributions made to the permanent
equity capital of Borrower.
6.15 Changes to the Plans or the Approved Budget.
Make any change to the Plans which results in any increase in
the Approved Budget in an amount which is in excess of
$30,000,000 or which changes the scope of the Project so that
(a) the number of hotel rooms is fewer than 2,500 or greater
than 3,000 rooms, (b) the square footage of the casino area is
less than 70,000 or more than 100,000 square feet, or (c) any
other substantial change is made to the Project or its proposed
facilities.
6.16 Changes to the Partner Subordinated Notes.
Make any change to the terms of the Partner Subordinated Notes
which is materially adverse to the interests of the
Administrative Agent or the Banks.
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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, Borrower shall, unless the Administrative Agent (with
the written approval of the Requisite Banks) otherwise
consents, at Borrower's sole expense, deliver to the
Administrative 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) From and after the Termination of
Construction, 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 the Project, in a form reasonably acceptable to the
Administrative Agent;
(b) As soon as practicable, and in any event
within 30 days after the end of each calendar month,
(i) the consolidated balance sheet of Borrower and its
Subsidiaries as at the end of such calendar month and the
consolidated statement of operations for such calendar
month, and its statement of cash flows for the portion of
the Fiscal Year ended with such calendar month and
(ii) the consolidating balance sheets and statements of
operations as at and for the portion of the Fiscal Year
ended with such calendar month, all in reasonable detail.
Such financial statements shall be certified by the Chief
Financial Officer or Treasurer of Borrower as fairly
presenting the financial condition, results of operations
and cash flows of Borrower 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 each Post-Construction
Fiscal Quarter which is also the fourth Fiscal Quarter of
a 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 Borrower 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 Borrower and its
Subsidiaries as at the end of such Fiscal Year and the
consolidated statements of operations, partners' equity
and cash flows, in each case of Borrower and its
Subsidiaries for such Fiscal Year and (ii) consolidating
balance sheets and statements of operations, in each case
as at the end of and for the Fiscal Year, all in reason-
able 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 Borrower 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 Borrower's financial calculations as at the end
of such Fiscal Year (which shall accompany such certifi-
cate) under Sections 6.9(c), 6.11, 6.12 and 6.13, 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 Borrower in the manner prescribed
by this Agreement;
(e) As soon as practicable, and in any event
within 45 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 Borrower and its Subsidiaries, all in
reasonable detail;
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(f) Promptly after the same are available,
copies of each material change to the Plans. Without
limitation on the foregoing, Borrower shall promptly
provide Bank of America's Construction Services Group with
(i) copies of all change orders with respect to the Plans
including plans and specifications indicating the proposed
change, a written description of the proposed change and
related work drawings and a written estimate of the cost
of the proposed change and the time necessary to complete
it, and (ii) any and all other information and documents
America's Construction Services Group;
(g) Promptly after request by the
Administrative Agent or any Bank, copies of any detailed
audit reports, management letters or recommendations
submitted to the partners of Borrower by independent
accountants in connection with the accounts or books of
Borrower or any of its Subsidiaries, or any audit of any
of them;
(h) Promptly after the same are available,
copies of each annual report, proxy or financial statement
or other report or communication sent to the equity owners
of Borrower, and copies of all annual, regular, periodic
and special reports and registration statements which
Borrower 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
Borrower or any of its Subsidiaries from any Gaming Board
advising it of a violation of or non-compliance with any
Gaming Law by Borrower or any of its Subsidiaries;
(j) Promptly after request by the
Administrative Agent or any Bank, copies of any other
report or other document that was filed by Borrower or any
of its 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
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thereof, and, no more than five (5) Banking Days after
such telephonic notice, written notice again specifying
the nature thereof and specifying what action Borrower or
any of its Subsidiaries is taking or proposes to take with
respect thereto, and, when known, any action taken by the
Internal Revenue Service with respect thereto;
(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 Borrower is taking or
proposes 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 Borrower or any of its
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 agree-
ment or material lease has asserted a default thereunder
on the part of Borrower or any of its Subsidiaries,
(iii) any Person has commenced a legal proceeding with
respect to a claim against Borrower or any of its Subsid-
iaries 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 Borrower of its
intent to strike Borrower or any of its Subsidiaries on a
date certain and such strike would involve more than
100 employees of Borrower and its 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 Borrower or any of its
Subsidiaries, a written notice describing the pertinent
facts relating thereto and what action Borrower or its
Subsidiaries are taking or propose to take with respect
thereto;
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(n) Promptly after the same are available,
copies of each material change to the Plans or Approved
Budget;
(o) Not later than the fifteenth Banking Day of
each calendar month until the Construction Termination
Date, a Construction Progress Report; and
(p) Such other data and information as from
time to time may be reasonably requested by the
Administrative Agent, any Bank (through the Administrative
Agent) or the Requisite Banks.
7.2 Compliance Certificates. From and after the
Termination of Construction, and for so long as any Advance
remains unpaid, or any other Obligation remains unpaid or
unperformed, or any portion of the Commitment remains outstand-
ing, Borrower shall deliver to the Administrative Agent for
distribution by it to the Banks concurrently with the financial
statements required pursuant to Sections 7.1(b) and 7.1(d), an
original Compliance Certificate signed by a Senior Officer.
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Article 8
CONDITIONS
8.1 Conditions to the Closing Date. On the Closing
Date, the following conditions precedent shall be satisfied
(unless all of the Banks, in their sole and absolute
discretion, shall agree otherwise, in which case the Banks
shall not be deemed to have waived any such condition precedent
and Borrower shall satisfy the same as soon as practicable and
in any event prior to the funding of the initial Loans
hereunder):
(a) The Administrative 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 Agent and its
legal counsel (unless otherwise specified or, in the case
of the date of any of the following, unless the
Administrative Agent otherwise agrees or directs):
(1) executed counterparts of this Agreement,
sufficient in number for distribution to the Banks
and Borrower;
(2) Notes executed by Borrower in favor of each
Bank, each in a principal amount equal to that Bank's
Pro Rata Share of the Commitment;
(3) the Swing Line Documents executed by
Borrower in favor of the Swing Line Bank;
(4) the Security Agreement executed by
Borrower;
(5) such financing statements on Form UCC-1
executed by Borrower with respect to the Security
Agreement as the Administrative Agent may request;
(6) the Short Term Guaranty, executed by Gold
Strike;
(7) the Related Party Agreement executed by
MRI, MRGS, Gold Strike and GSP;
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(8) with respect to Borrower, Gold Strike, GSP,
MRI and MRGS, such documentation as the
Administrative Agent may require to establish the due
organization, valid existence and good standing of
such Person, its qualification to engage in business
in each material jurisdiction 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 partnership agreements, articles
of incorporation and amendments thereto, bylaws and
amendments thereto, certificates of good standing
and/or qualification to
clearance certificates, certificates of corporate
resolutions, incumbency certificates, Certificates of
Responsible Officials, and the like;
(9) the ALTA survey of the Project Site and the
adjacent real property owned by an Affiliate of MRI
certified as of March 20, 1993 prepared by licensed
surveyors, together with a Certificate of a Senior
Officer of Borrower to the effect that no event or
circumstance has occurred since March 20, 1993 which
would cause such survey to be inaccurate in any
respect that is materially adverse to the interests
of the Banks;
(10) the parcel map recorded by an Affiliate of
MRI with respect to the Project Site and the adjacent
real property owned by an Affiliate of MRI;
(11) the "Phase I/II" environmental report dated
October 30, 1992 with respect to the Project Site and
the adjacent real property owned by an Affiliate of
MRI prepared by Western Technologies, Inc., together
with a Certificate of a Senior Officer of Borrower to
the effect that no event or circumstance has occurred
since October 30, 1992 with respect to the Project
Site that would cause such report to be inaccurate in
any respect that is materially adverse to the
interests of the Banks;
(12) a Certificate of a Responsible Official of
Borrower, MRI, MRGS and GSP certifying that the
attached copies of the Joint Venture Agreement and
the Partner Subordinated Notes are true copies;
(13) such assurances as the Administrative 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;
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(14) a Certificate of a Responsible Official
signed by a Senior Officer of Borrower certifying
that the conditions specified in Sections 8.1(e) and
8.1(f) have been satisfied; and
(15) such other assurances, certificates, docu-
ments, consents or opinions as the Administrative
Agent reasonably may require.
(b) Evidence that the security interests of the
Administrative Agent in the personal property of Borrower
are of first priority, except as otherwise contemplated by
the Loan Documents.
(c) The Closing Date shall have occurred not
later than December 31, 1994.
(d) The reasonable costs and expenses of the
Administrative Agent in connection with the preparation of
the Loan Documents payable pursuant to Section 11.3, and
invoiced to Borrower prior to the Closing Date, shall have
been paid.
(e) The representations and warranties of
Borrower contained in Article 4 shall be true and correct.
(f) Borrower and any other Parties shall be in
compliance with all the terms and provisions of the Loan
Documents, and no Default or Event of Default shall have
occurred and be continuing.
(g) Borrower shall have paid the upfront fees
payable under Section 3.3.
(h) All legal matters relating to the Loan
Documents shall be satisfactory to Sheppard, Mullin,
Richter & Hampton, special counsel to the Administrative
Agent.
8.2 Initial Advances. The obligation of each Bank to
make the initial Advance to be made by it, and the obligation
of the Swing Line Bank to make the initial Swing Line Loan, are
each subject to the following conditions precedent, each of
which shall be satisfied prior to the making of the initial
Advances or Swing Line Loan (unless all of the Banks, in their
sole and absolute discretion, shall agree otherwise):
(a) the Contribution Date shall have occurred
not later than April 30, 1995.
(b) Borrower 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 no
Default or Event of Default shall have occurred and be
continuing.
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(c) The Administrative 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
and in form and substance satisfactory to the
Administrative Agent and its legal counsel (unless
otherwise specified or, in the case of the date of any of
the following, unless the Administrative Agent otherwise
agrees or directs) and shall have had not less than five
Banking Days to review the same:
(1) the Deed of Trust executed and acknowledged
by Borrower;
(2) a fixture filing on form UCC-1 with respect
to the Project Site;
(3) the Completion Guaranty executed by Gold
Strike and attaching a Construction Schedule thereto
as Exhibit A which is reasonably acceptable to the
Administrative Agent or the Requisite Banks, together
with the letter of credit referred to therein issued
by a financial institution reasonably acceptable to
the Administrative Agent;
(4) a Certificate of a Responsible Official
signed by a Senior Officer of Borrower attaching
true, correct and complete copies of the Plans and
the Approved Budget;
(5) a certificate of insurance issued by
Borrower's insurance carrier or agent with respect to
the insurance required to be maintained pursuant to
the Deed of Trust, including without limitation a
policy or policies of bailer's "all risk" insurance
in non-reporting form and in an amount not less than
the full insurable completed value of the Project on
a replacement cost basis, together with lenders' loss
payable endorsements thereof on Form 438BFU or other
form acceptable to the Administrative Agent;
(6) written appraisals by a qualified
independent appraiser acceptable to the
Administrative Agent and complying in all respects
with FIRREA of the Project Site that reflects (i) the
fair market value of the Property as raw land, (ii) a
projected value of the Project Site and related
improvements upon completion of the Project of not
less than $250,000,000, and (iii) a projected value
of the Project Site with operating improvements of
not less than $275,000,000;
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(7) the written commitment of the Title Company
to issue, upon the contribution of the Project Site
to Borrower and the execution, delivery and
recordation of the Deed of Trust, its ALTA lenders
policy, with an LP-10 pricing package, insuring that
Borrower is the owner of the Project Site in fee
simple absolute (with the exception of a non-
exclusive easement as to a portion of Parcel 1 shown
on the parcel map for purposes of an access and
service road) and insuring the Lien of the Deed of
Trust in an amount not less than $175,000,000,
subject only to the exceptions to title described on
Schedule 6.8 and with endorsements to coverage as are
reasonably acceptable to the Administrative Agent or
as are requested by the Requisite Banks (including
any endorsements providing coverage as to exceptions
to title described on Schedule 6.8 as may be
requested by the Administrative Agent or by the
Requisite Banks with respect thereto), with such
assurances as the Administrative Agent may reasonably
require from title re-insurers acceptable to the
Administrative Agent;
(8) the
(9) a Certificate of a Responsible Official of
Borrower stating that (i) Borrower has received
contributions to its permanent equity capital of not
less than $30,000,000 in cash from GSP and of the
Project Site from MRGS, (ii) as of the date of such
Certificate, no Default or Event of Default exists,
and (iii) each of the representations and warranties
of Borrower set forth in Article 4 (other than those
contained in Sections 4.5 (first sentence), 4.10 and
4.17) are true and correct as of the date of such
Certificate;
(10) a Certificate of a Responsible Official of
Borrower stating that attached thereto and
incorporated therein by reference are true, correct
and complete copies of the primary construction
contract, engineering contract, architect contract
and soils contract for the Project;
(11) The initial construction schedule shall
have been approved by the Administrative Agent and
the Banks;
(12) a soils report by a qualified licensed
soils engineer satisfactory to the Banks and
certified as applicable to the improvements of the
Project Site contemplated by the Project;
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(13) evidence satisfactory to the Requisite
Banks of such zoning (including variances and use
permits) and other land use entitlements as may be
necessary to permit any intended use of the Project
Site and the Project;
(14) an Architect's Consent issued by the
primary architect for the Project in a form
acceptable to Bank of America's Construction Services
Group providing in any event that upon any Event of
Default at the option of the Requisite Banks (i) such
architect shall perform the services for which it has
contracted with Borrower with respect to the Project
for the benefit of and at the request of the
Administrative Agent and the Banks, and (ii) that the
Administrative Agent and the Banks shall be entitled
to the use of the Plans in the completion of the
Project; and
(15) a Contractor's Consent issued by the
general contractor for the Project in a form
acceptable to Bank of America's Construction Services
Group providing in any event that upon any Event of
Default at the option of the Requisite Banks the
general contractor shall perform the services for
which they have contracted with respect to the
Project for the benefit of and at the request of the
Administrative Agent and the Banks and at the same
price for which they have contracted with Borrower.
(d) The fees payable pursuant to Section 3.2
and Sections 3.4 through 3.6 shall have been paid.
(e) Gold Strike shall have (i) contributed not
less than $30,000,000 to Borrower as a permanent cash
equity contribution in accordance with the Joint Venture
Agreement, and (ii) provided the Administrative Agent with
a $25,000,000 cash deposit or a $25,000,000 letter of
credit acceptable to the Administrative Agent as
collateral security for its obligations under the
Completion Guaranty.
(f) The Administrative Agent shall have
received evidence satisfactory to it that the
Administrative Agent has been named as additional insured
and loss payee with respect to insurance which is in
conformity with Section 5.4.
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8.3 Any Increasing Advance, Etc. The obligation of
each Bank to make any Advance which would increase the prin-
cipal amount outstanding under the Notes is subject to the
following conditions precedent:
(a) giving effect to the making of the requested
Advances, the Funded Debt to Project Costs Ratio,
determined from the data set forth on the most recent
Construction Progress Report submitted to the
Administrative Agent, shall not exceed .70 to 1.00;
(b) 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 Borrower and approved in writing by the Requisite
Banks, the representations and warranties contained in
Article 4 (other than Sections 4.5 (first sentence), 4.10
and 4.17) shall be true and correct on and as of the date
of the Advance as though made on that date;
(c) There shall not be then pending or
threatened any action, suit, proceeding or investigation
against or affecting Borrower or any of its Subsidiaries
or any Property of any of them before any Governmental
Agency that constitutes a Material Adverse Effect;
(d) the Administrative 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) in
compliance with Article 2; and
(e) the Administrative Agent shall have
received, in form and substance satisfactory to the
Administrative Agent, such other assurances, certificates,
documents or consents related to the foregoing as the
Administrative Agent or Requisite Banks reasonably may
require.
8.4 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, 4.11, 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
Borrower and approved in writing by the Requisite Banks;
and
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(b) except as provided for in Section 2.1(g),
the Administrative 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) Borrower fails to pay any principal on any
of the Notes, or any portion thereof, on the date when
due; or
(b) Borrower fails 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 fails 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) Borrower fails to comply with any of the
covenants contained in Article 6; or
(d) Borrower fails to comply with
Section 7.1(l) in any respect that is materially adverse
to the interests of the Banks; or
(e) Borrower 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 Agent on behalf of the
Requisite Banks of such Default; or
or any other Party made in any Loan Document, or in any
certificate or other writing delivered by Borrower
pursuant to any Loan Document, proves to have been
incorrect when made or reaffirmed in any re spect that is
materially adverse to the interests of the Banks; or
(g) The Completion Guarantor fails at any time
prior to the Termination of Construction and the
termination of the Completion Guaranty in accordance with
the terms thereof to maintain, or within five Banking Days
after demand therefor to replenish or reinstate, the
$25,000,000 cash deposit with the Administrative Agent or
the $25,000,000 letter of credit in favor of the
Administrative Agent required by the Completion Guaranty;
or
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(h) Borrower or any of its Subsidiaries
(i) fails to pay the principal, or any principal
installment, of any present or future indebtedness for
borrowed money of $1,000,000 or more, or any guaranty of
present or future indebtedness for borrowed money of
$1,000,000 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, any "put" exercised by the holder of such
indebtedness or otherwise or (ii) fails to per form 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 $1,000,000 or more, or
of any guaranty of present or future indebtedness for
borrowed money of $1,000,000 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
(i) 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 to require the
issuer thereof to redeem or purchase, or offer to redeem
or purchase, all or any portion of any Subordinated
Obligation; or
(j) 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
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(k) A final judgment against Borrower or any of
its 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
(l) Borrower or any of its 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 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 continues
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
(m) 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
(n) 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
(o) Any Pension Plan maintained by Borrower or
any of its Subsidiaries is determined to have a material
"accumulated funding deficiency" as that term is defined
in Section 302 of ERISA and the result is a Material
Adverse Effect; or
(p) Any amendment, alteration or other change
to the terms of the Joint Venture Agreement which is, in
the sole determination of the Requisite Banks, materially
adverse to the interests of the Administrative Agent or
the Banks is made by the parties thereto without the
consent of the Requisite Banks; or
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(q) Any party to the Joint Venture Agreement
fails to enforce its rights and remedies thereunder, or
waives such rights, in a manner which is, in the sole
determination of the Requisite Banks, materially adverse
to the interests of the Banks; or
(r) Any material default by any party thereto
of its obligations under the Joint Venture Agreement
(unless such default is cured on a timely basis in
accordance with the provisions of the Joint Venture
Agreement) or the failure of any party to the Joint
Venture Agreement to make any Investment in Borrower
required by the Joint Venture Agreement (unless the other
parties thereto elect pursuant to the Joint Venture
Agreement to make such Investment on their behalf); or
(s) The occurrence of any License Revocation
that continues for three (3) consecutive calendar days
with respect to any material gaming operations at the
Project; or
(t) Any of the events or circumstances
described in clause (h), (k) or (l) of this Section occurs
with respect to Gold Strike during such time as it is the
Completion Guarantor, unless within five Banking Days
after notice by the Administrative Agent to MRI of the
same, MRI executes and delivers to the Administrative
Agent and the Banks a replacement Completion Guaranty and
provides a replacement $25,000,000 letter of credit in the
form specified in the Completion Guaranty; or
(u) Any amendment is made to the terms of the
Partner Subordinated Notes without the consent of the
Requisite Banks, any payment is made in violation of the
terms of the Partner Subordinated Notes, or any holder of
a Partner Subordinated Note asserts in writing that the
obligations evidenced thereby are not subordinated in
accordance with their terms to the Obligations.
9.2 Remedies Upon Event of Default. Without limiting
any other rights or remedies of the Administrative 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(l):
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(1) the Commitment to make Advanc
other obligations of the Administrative Agent or the
Banks and all rights of Borrower and any other
Parties under the Loan Documents shall be suspended
without notice to or demand upon Borrower, which are
expressly waived by Borrower, 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; and
(2) the Requisite Banks may request the
Administrative Agent to, and the Administrative 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 Borrower.
(b) Upon the occurrence of any Event of Default
described in Section 9.1(l):
(1) the Commitment to make Advances and all
other obligations of the Administrative Agent or the
Banks and all rights of Borrower and any other
Parties under the Loan Documents shall terminate
without notice to or demand upon Borrower, which are
expressly waived by Borrower, 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 deter-
mination shall apply equally to, and shall be binding
upon, all the Banks; and
(2) 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, present-
ment, notice of dishonor, demand or further notice of
any kind, all of which are expressly waived by
Borrower.
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(c) Upon the occurrence of any Event of
Default, the Banks and the Administrative Agent, or any of
them, without notice to (except as expressly provided for
in any Loan Document) or demand upon Borrower, which are
expressly waived by Borrower (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 Borrower and any other
Party and such other rights and remedies as are provided
by Law or equity. Without limitation upon the foregoing,
if any Event of Default occurs before the Construction
Termination Date and remains continuing, the
Administrative Agent shall have the right in the sole
discretion of the Requisite Banks to enter and take
possession of the Project, whether in person, by agent or
by court-appointed receiver, and to take any and all
actions which the Administrative Agent in its sole
discretion after consultation with the Banks may consider
necessary to complete construction of the Project,
including making changes in the Plans, work or materials
and entering into, modifying or terminating any
contractual arrangements, all subject to the
Administrative Agent's and the Banks' right at any time to
discontinue any work without liability. If the
Administrative Agent and the Requisite Banks choose to
complete the Project, neither the Administrative Agent nor
the Banks shall assume any liability to Borrower or any
other Person for completing the Project, or for the manner
or quality of construction of the Project, and Borrower
expressly waives any such liability. If the
Administrative Agent exercises any of the rights or
remedies provided in this paragraph on behalf of the
Banks, that exercise shall not make the Administrative
Agent or the Banks, or cause the Administrative Agent or
the Banks to be deemed to be, a partner or joint venturer
of Borrower. The Administrative Agent in its sole
discretion may choose to complete construction in its own
name. All sums which are expended by the Administrative
Agent and/or the Banks in completing construction shall be
considered to have been disbursed to Borrower and shall be
secured by the Collateral; any sums of principal shall be
considered to be additional Loans to Borrower bearing
interest at the interest rate provided for in Section 3.9,
and shall be secured by the Collateral. For these
purposes the Administrative Agent, in its sole discretion,
may reallocate any line item or cost category of the
Approved Budget.
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(d) The order and manner in which the Banks'
rights and remedies are to be exercised shall be deter-
mined by the Requisite Banks in their sole discretion, and
all payments received by the Administrative 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 Agent or by any
Bank) of the Administrative 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.
Regardless of how each Bank may treat payments for the
purpose of its own accounting, for the purpose of
computing Borrower's Obligations hereunder and under the
Notes, payments shall be applied first, to the costs and
expenses of the Administrative 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 duplica-
tion, 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 Agent or the 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 AGENT
10.1 Appointment and Authorization. Subject to
Section 10.8, each Bank hereby irrevocably appoints and
authorizes the Administrative Agent to take such action as
administrative agent on its behalf and to exercise such powers
under the Loan Documents as are delegated to the Administrative
Agent by the terms thereof or are reasonably incidental, as
determined by the Administrative Agent, thereto. This
appointment and authorization is intended solely for the
purpose of facilitating the servicing of the Loans and does not
constitute appointment of the Administrative Agent as a trustee
or agent 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 Agent shall take
such action and exercise such powers only in an administrative
and ministerial capacity.
10.2 Administrative Agent and Affiliates. Bank of
Am
rights and powers under the Loan Documents as any other Bank
and may exercise the same as though it were not the
Administrative Agent, and the term "Bank" or "Banks" includes
Bank of America in its individual capacity. Bank of America
(and each successor Administrative Agent) and its Affiliates
may accept deposits from, lend money to and generally engage in
any kind of banking, trust or other business with Borrower, any
Subsidiary thereof, or any Affiliate of Borrower or any
Subsidiary thereof, as if it were not the Administrative Agent
and without any duty to account therefor to the Banks. Bank of
America (and each successor Administrative Agent) need not
account to any other Bank for any monies received by it for
reimbursement of its costs and expenses as Administrative Agent
hereunder, or for any monies received by it in its capacity as
a Bank hereunder. The Administrative Agent shall not be deemed
to hold a fiduciary relationship or any other special
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 Agent.
10.3 Proportionate Interest in any Collateral. The
Administrative 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
Agent. Subject to the Administrative Agent's and the Banks'
rights to reimbursement for their costs and expenses hereunder
(including reasonable attorneys' fees and disbursements and
other professional services and the reasonably allocated costs
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of attorneys employed by the Administrative 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 Agent, any other Bank or the directors,
officers, agents, employees or attorneys of the Administrative
Agent or of any other Bank, and instead in reliance upon
information supplied to it by or on behalf of Borrower and upon
such other information as it has deemed appropriate, made its
own independent credit analysis and decision to enter into this
Agreement. Each Bank also agrees that it shall, independently
and without reliance upon the Administrative Agent, any other
Bank or the directors, officers, agents, employees or attorneys
of the Administrative Agent or of any other Bank, continue to
make its own independent credit analyses and decisions in
acting or not acting under the Loan Documents.
10.5 Action by Administrative Agent.
(a) Absent actual knowledge of the
Administrative Agent of the existence of a Default, the
Administrative Agent may assume that no Default has
occurred and is continuing, unless the Administrative
Agent has received notice from Borrower 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 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 Agent may assume that no Event of Default
has occurred and is continuing, the Administrative Agent
may, but shall not be required to, exercise its discretion
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to act or not act, except that the Administrative Agent
shall be required to act or 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 Agent and all the Banks,
provided that the Administrative 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 Agent, in
substantial risk of liability to the Administrative Agent.
(d) If the Administrative Agent has received a
notice specified in clause (a), the Administrative 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 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 Agent, in substantial risk
of liability to the Administrative Agent, and except that
if the Requisite Banks (or all the Banks, if required
under Section 11.2) fails, for five (5) Banking Days after
the receipt of notice from the Administrative Agent, to
instruct the Administrative Agent, then the Administrative
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 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 Agent. Neither the
Administrative 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 Agent and its directors, officers, agents,
employees and attorneys:
(a) May treat the payee of any Note as the
holder thereof until the Administrative Agent receives
notice of the assignment or transfer thereof, in form
satisfactory to the Administrative 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 Agent receives notice
of the assignment or transfer thereof, in form satisfac-
tory to the Administrative 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 profes-
sionals or experts for Borrower and/or its 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 pro-
fessionals 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 Borrower 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 Borrower or its
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
Col
(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 Borrower 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 Agent, the Banks
and (to the extent applicable) Borrower and/or its Subsid-
iaries 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 Agent and its directors, officers,
agents, employees and attorneys harmless against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, 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 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 Borrower to pay the
Indebtedness represented by the Notes) or any action taken or
not taken by it as Administrative 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 Agent upon demand for that Bank's Pro Rata
Share of any out-of-pocket cost or expense incurred by the
Administrative Agent in connection with the negotiation,
preparation, execution, delivery, amendment, waiver, restruc-
turing, reorganization (including a bankruptcy reorganization),
enforcement or attempted enforcement of the Loan Documents, to
the extent that Borrower 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 Agent to recover any amount from the Banks if
and to the extent that such amount has theretofore been
recovered from Borrower or any of its Subsidiaries. To the
extent that the Administrative Agent is later reimbursed such
cost or expense by Borrower 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 Agent. The Administrative
Agent may, and at the request of the Requisite Banks shall,
resign as Administrative Agent upon thirty (30) days' notice to
the Banks and Borrower. If the Administrative Agent shall
resign as Administrative Agent under this Agreement, the
Requisite Banks shall appoint from among the Banks a successor
administrative agent for the Banks, which successor
administrative agent shall be approved by Borrower (and such
approval shall not be unreasonably withheld or delayed or, if
any Event of Default exists, required). If no successor
administrative agent is appointed prior to the effective date
of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the
Banks and Borrower, a successor administrative agent from among
the Banks. Upon the acceptance of its appointment as successor
administrative agent hereunder, such successor administrative
agent shall succeed to all the rights, powers and duties of the
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retiring Administrative Agent and the term "Administrative
Agent" shall mean such successor administrative agent and the
retiring Administrative Agent's appointment, powers and duties
as Administrative Agent shall be terminated. After any
retiring Administrative Agent's resignation hereunder as
Administrative 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 Agent under this Agreement. If (a) the
Administrative Agent has not been paid its agency fees under
Section 3.5 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 agent has accepted appointment as Administrative
Agent by the date which is thirty (30) days following a
retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Banks shall perform all of
the duties of the Administrative Agent hereunder until such
time, if any, as the Requisite Banks appoint a successor
administrative 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 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 Agent in comparable syndicated credit
facilities.
10.10 No Obligations of Borrower. Nothing contained
in this Article 10 shall be deemed to impose upon Borrower any
obligation in respect of the due and punctual performance by
the Administrative Agent of its obligations to the Banks under
any provision of this Agreement, and Borrower shall have no
liability to the Administrative Agent or any of the Banks in
respect of any failure by the Administrative Agent or any Bank
to perform any of its obligations to the Administrative 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
under the Loan Documents provides that such payments shall be
made by Borrower to the Administrative Agent for the account of
the Banks, Borrower's obligations to the Banks in respect of
such payments shall be deemed to be satisfied upon the making
of such payments to the Administrative 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 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 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
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 without prejudicing the Administrative 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, modifi-
cation, 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 Borrower 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 Borrower is a Party, signed by
Borrower and, in the case of any amendment, modification or
supplement to Article 10, signed by the Administrative 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 (except in
connection with any assignments made in accordance with
Section 11.8 with the consent of all necessary parties) 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 Borrower 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 Completion Guaranty or any
collateral for the Completion Guaranty (except as
otherwise provided in any Loan Document);
(c) to release any material portion of the
Collateral (except as provided in Section 11.24 or as
otherwise expressly provided in any Loan Document);
(d) To amend the provisions of the definition
of "Requisite Banks", Articles 8 or 9 or this
Section 11.2; 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
Agent.
11.3 Costs, Expenses and Taxes. Borrower shall pay
within five (5) Banking Days after demand, accompanied by an
invoice therefor:
(a) the reasonable costs and expenses of the
Administrative Agent and the Arranger in connection with
the negotiation, preparation, syndication, execution and
delivery of the Loan Documents (provided that the amount
thereof shall not be in excess of limits agreed to by the
Administrative Agent and the Arranger in a letter
agreement with Borrower);
(b) the reasonable costs and expenses of the
Administrative Agent in connection with any amendment to
the Loan Documents or any waiver of the terms thereof; and
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(c) the reasonable costs and expenses of the
Administrative 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 Agent or any Bank), independent public
accountants and other outside experts retained by the
Administrative Agent or any Bank, whether or not such costs and
expenses are incurred or suffered by the Administrative Agent
or any Bank in connection with or during the course of any
bankruptcy or insolvency proceedings of Borrower 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 Borrower, the administrative costs of the
Administrative Agent reasonably attributable thereto. Borrower
shall pay any and all documentary and other taxes, excluding,
in the case of each Bank, the Administrative Agent, each 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 Borrower 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
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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 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 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 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
Borrower or any Affiliate of Borrower. 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 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 Borrower, to replace
such a Bank in default. Nothing contained in this Section
shall limit the right of Borrower to proceed against any Bank
which fails to comply with its obligations under the Loan
Documents. Each prevailing party in any such proceeding shall
be entitled to the recovery of its reasonable attorneys' fees
and costs.
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 Agent and each Bank, not-
withstanding any investigation made by the Administ
or any Bank or on their behalf.
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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 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.
11.8 Binding Effect; Assignment.
(a) This Agreement and the other Loan Documents to
which Borrower is a Party will be binding upon and inure
to the benefit of Borrower, the Administrative Agent, each
of the Banks, and their respective successors and assigns,
except that Borrower may not assign its 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
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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 Agent and Borrower
(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 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 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. Borrower agrees
that it shall execute and deliver (against delivery by the
assigning Bank to Borrower 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 there-
under 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 Borrower or the performance by Borrower 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 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 Agent to take
such action and to exercise such powers under this
Agreement as are delegated to the Administrative Agent by
this Agreement; and (vi) it will perform in accordance
with their terms all of the obligations which by the terms
of this Agreement are required to be performed by it as a
Bank.
(d) The Administrative Agent shall maintain at
the Administrative 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 Agent shall,
promptly following the effective date thereof, provide to
Borrower and the Banks a revised Schedule 1.1A 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; provoded, 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 perfor-
mance of such obligations, (iii) the participating banks
or other financial institutions shall not be a Bank
hereunder for any p
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 Borrower does not exceed the cost
which Borrower would have incurred in respect of such Bank
absent the participation, (iv) Borrower, the
Administrative 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 participation
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 (including the approval of
the identity of any proposed assignee or participant), 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 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 maintained with it by Borrower and/or any Property of
Borrower 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 Borrower, or otherwise,
receives payment of the Obligations held by it that is ratably
more than any other Bank, through any means, receives in pay-
ment 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 pay-
ment shall purchase, and shall be deemed to have simultaneously
purchased, from the other Bank a participation in the Obliga-
tions held by the other Bank and shall pay to the other Bank a
purchase price in an amount so that the share of the Obliga-
tions 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 immedi-
ately 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 otherwise is the reafter
recovered from the purchasing Bank by Borrower or any Person
claiming through or succeeding to the rights of Borrower, 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. Bor rower
expressly consents to the foregoing arrangements and agrees
that any Bank holding a participation in an Obligation so pur-
chased 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.
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11.11 Indemnity by Borrower. Borrower agrees to
idemnify, save and hold harmless the Administrative Agent, the
Arranger, the Co-Agents 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 Borrower, its
Affiliates or any of their partners, officers, directors or
stockholders relating to the Commitment, the use or contem-
plated use of proceeds of any Loan, or the relationship of
Borrower and the Banks under this Agreement; (b) any adminis-
trative 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 Borrower, but
the failure to so promptly notify Borrower shall not affect
Borrower's obligations under this Section unless such failure
materially prejudices Borrower's 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 Borrower in writing) contest the validity,
applicability and amount of such claim, demand, action or cause
of action and shall permit Borrower to participate in such
contest. Any Indemnitee that proposes to settle or compromise
any claim or proceeding for which Borrower may be liable for
payment of indemnity hereunder shall give Borrower 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 Borrower's 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
Indemnitees shall be represented by the same legal counsel
(which may be a law firm engaged by the Indemnitees or attor-
neys employed by an Indemnitee or a combination of the forego-
ing) selected by the Indemnitees and reasonably acceptable to
Borrower; provided, that if such legal counsel determines in
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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 Indem nitee 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 Borrower, with all such legal co
reasonable efforts to avoid unnecessary duplication of effort
by counsel for all Indemnitees; and further provided that the
Administrative Agent and the Arranger (as Indemnitees) shall at
all times be entitled to representation by separate legal
counsel (which may be a law firm or attorneys employed by the
Administrative Agent or the Arranger or a combination of the
foregoing). Any obligation or liabili ty of Borrower to any
Indemnitee under this Section 11.11 shall survive the expira-
tion or termination of this Agreement and the repayment of all
Loans and the payment and performance of all other Obligations
owed to the Banks.
11.12 Nonliability of the Banks. Borrower acknow-
ledges and agrees that:
(a) Any inspections of any Property of Borrower
made by or through the Administrative Agent or the Banks
are for purposes of administration of the Loan only and
Borrower is not entitled to rely upon the same (whether or
not such inspections are at the expense of Borrower);
(b) By accepting or approving anything required
to be observed, performed, fulfilled or given to the
Administrative Agent or the Banks pursuant to the Loan
Documents, neither the Administrative 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 Agent or the Banks;
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(c) The relationship between Borrower and the
Administrative Agent and the Banks is, and shall at all
times remain, solely that of borrower and lenders; neither
the Administrative Agent nor the Banks shall under any
circumstance be construed to be partners or joint
venturers of Borrower or its Affiliates; neither the
Administrative Agent nor the Banks shall under any
circumstance be deemed to be in a relationship of confi-
dence or trust or a fiduciary or other special rela-
tionship with Borrower or its Affiliates, or to owe any
fiduciary duty or other special duty to Borrower or its
Affiliates; neither the Administrative Agent nor the Banks
undertake or assume any responsibility or duty to Borrower
or its Affiliates to select, review, inspect, supervise,
pass judgment upon or inform Borrower or its Affiliates of
any matter in connection with their Property or the
operations of Borrower or its Affiliates; Borrower and its
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 Agent or the
Banks in connection with such matters is solely for the
protection of the Administrative Agent and the Banks and
neither Borrower nor any other Person is entitled to rely
thereon; and
(d) The Administrative 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 Borrower and/or its
Affiliates and Borrower hereby indemnifies and holds the
Administrative 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 Borrower, the Administrative
Agent and the Banks in connection with the Loans, and is made
for the sole benefit of Borrower, the Administrative Agent and
the Banks, and the Administrative 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.
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11.14 Confidentiality. Each Bank agrees to hold any
confidential information that it may receive from Borrower
pursuant to this Agreement in confidence, except for disclo-
sure: (a) to other Banks; (b) to legal counsel and accountants
for Borrower or any Bank; (c) to other professional advisors to
Borrower or any Bank, provided that the recipient has accepted
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 Borrower or its
Subsidiaries, provided that each Bank agrees to use its best
efforts to notify Borrower 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 Borrower are adverse parties; and (g) to another
financial institution in connection with a disposition or
proposed disposition to that financial institution of all or
part of that 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 Borrower or its Subsidiaries reasonably
considered by Borrower 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 Borrower to any Person not associated
with Borrower without a confidentiality agreement or obligation
substantially similar to this Section 11.14. Nothing in this
Section shall be construed to create or give rise to any
fiduciary duty or other special duty on the part of the
Administrative Agent or the Banks to Borrower.
11.15 Further Assurances. Borrower and its Subsid-
iaries shall, at their expense and without expense to the Banks
or the Administrative Agent, do, execute and deliver such
further acts and documents as any Bank or the Administrative
Agent from time to time reasonably requires for the assuring
and confirming unto the Banks or the Administrative 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.
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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, 3.6 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 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 con-
venience o
or the other Loan Documents for any other purpose.
11.20 Time of the Essence. Time is of the essence of
the Loan Documents.
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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
Borrower (with a copy to the Administrative 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 Borrower pursuant to this Agreement) or Form 4224
(relating to all payments to be made to such Person by Borrower
pursuant to this Agreement) of the United States Internal
Revenue Service or such other evidence (including, if
reasonably necessary, Form W-9) satisfactory to Borrower and
the Administrative 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 Borrower (with a copy to the
Administrative 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 Borrower and the Administrative Agent of
any available exemption from, United States withholding taxes
in respect of all payments to be made to such Person by
Borrower 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 Borrower make any deduction or withholding for taxes
from amounts payable to such Person.
11.22 Hazardous Material Indemnity. Borrower hereby
agrees to indemnify, hold harmless and defend (by counsel
reasonably satisfactory to the Administrative Agent) the
Administrative Agent, the Co-Agents 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
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the reasonably allocated costs of attorneys employed by the
Administrative Agent, the Co-Agents or any Bank, and expenses
to the extent that the defense of any such action has not been
assumed by Borrower), 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 Borrower or any of its predecessors in title,
whether prior to or during the term of this Agreement, and
whether by Borrower or any predecessor in title or any
employees, agents, contractors or subcontractors of Borrower
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 Agent, the Co-Agents or the Banks. Borrower
hereby acknowledges and agrees that, notwithstanding any other
provision of this Agreement or any of the other Loan Documents
to the contrary, the obligations of Borrower under this Section
(and under Sections 4.18 and 5.10) shall be unlimited
partnership obligations of Borrower and shall not be secured by
any deed of trust on any Real Property.
11.23 Gaming Boards. The Administrative Agent and
each of the Banks agree to cooperate with all Gaming Boards in
connection with the administration of their regulatory
jurisdiction over Borrower and its Subsidiaries, including the
provision of such documents or other information as may be
requested by any such Gaming Board relating to Borrower or any
of its Subsidiaries or to the Loan Documents.
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<PAGE>
11.24 Substitution of Certain Collateral. The
Administrative Agent shall be entitled, at any time and from
time to time and without the consent or concurrence of the
Banks, to release its Liens upon portions of the Project Site
(each a "Released Lot") upon the satisfaction of the following
conditions:
(a) The Released Lots shall not abut to the
"Las Vegas Strip" and shall contain not more than 15 acres
of land, in the aggregate;
(b) Borrower shall have delivered a Certificate
of a Responsible Official signed by a Senior Officer of
Borrower stating that, as of the date of such release, and
giving effect thereto, no Default or Event of Default
exists or would result from such release;
(c) Concurrently with such release, Borrower
shall execute and deliver a deed of trust substantially in
the form of the Deed of Trust securing the Obligations and
in any event in form and substance acceptable to the
Administrative Agent providing for a first Lien on a
replacement parcel of real property adjacent to the
remaining portion of the Project Site having a value and
acreage not less than the Released Lot (as established by
surveys provided at Borrower's expense and reasonably
acceptable to the Administrative Agent);
(d) Through the Administrative Agent, Borrower
shall have provided the Banks with not less than 30 days
prior written notice of the proposed release, and the
Requisite Banks shall not have objected to such release in
writing; and
(e) Borrower shall have provided to the
Administrative Agent any and all title insurance policies
and endorsements thereto, legal opinions, and other
instruments, documents and agreements as are reasonably
requested by the Administrative Agent or any Bank in
connection therewith.
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Upon the request of the Administrative Agent, each
Bank shall promptly confirm in writing the authority of the
Administrative Agent to make any proposed release under this
Section.
11.25 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.
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<PAGE>
11.26 Purported Oral Amend
ACKNOWLEDGES THAT THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
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. BORROWER AGREES THAT IT WILL
NOT RELY ON ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR
ORAL OR WRITTEN STATEMENTS BY ANY REPRESENTATIVE OF THE
ADMINISTRATIVE 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.
VICTORIA PARTNERS, a Nevada general
partnership
By: Gold Strike L.V., managing
general partner
By: GLENN SCHAEFFER
______________________________
Title: Partner
______________________________
By: MRGS Corp., a Nevada
corporation, general partner
By: DANIEL R. LEE
______________________________
Daniel R. Lee, Chief Financial
Officer and Treasurer
Address for notices:
P.O. Box 19278
Jean, Nevada 89109
Attention: Robert C. Fry
Telephone: (702) 477-5000
Telecopier: (702) 874-1056
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With copies to:
Gold Strike Inn
Boulder City, Nevada 89005
Attention: Dave Belding, Partner
Telephone: (702) 293-5000
Telecopier: (702) 293-5608
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
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
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Administrative
Agent
By: PEGGY A. FUJIMOTO
______________________________
Title: Vice President
______________________________
Address:
Bank of America National Trust and
Savings Association
Agency Services Department #5596
1455 Market Street, 13th Floor
San Francisco, California 94103
Attn: Peggy Fujimoto
Telecopier: (415) 622-4894
Telephone: (415) 622-4835
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<PAGE>
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
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
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<PAGE>
BANK OF AMERICA NEVADA, as a Bank and
as Swing Line Bank
By: VALERIE ANDERSON
______________________________
for Alan F. Gordon
Vice President
Address:
Bank of America Nevada
Corporate Banking Department
300 South Fourth Street, Suite 200
Las Vegas, Nevada 89101
Attn: Alan Gordon
Vice President
Telecopier: (702) 654-7144
Telephone: (702) 654-7158
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
______________________________
[Printed Name & Title]
Address:
The Long-Term Credit Bank of Japan,
Ltd., Los Angeles Agency
444 South Flower Street, Suite 3700
Los Angeles, California 90071
Attn: Dirk Price
Vice President
Telecopier: (213) 622-6908
Telephone: (213) 689-6324
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<PAGE>
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
FIRST SECURITY BANK OF IDAHO, N.A. as
a Bank
By: VICTOR GILLETT
______________________________
Victor W. Gillett
Vice President
Address:
First Security Bank of Idaho, N.A.
119 North Ninth Street
Boise, Idaho 83702
Telecopier: (208) 393-2472
Telephone: (208) 393-2166
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<PAGE>
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 Sout
Salt Lake City, Utah 84111
Attn: David P. Williams,
Vice President
Telecopier: (801) 246-5532
Telephone: (801) 246-5540
BANK OF SCOTLAND, as a Bank
By: CATHERINE M. ONIFFREY
______________________________
Catherine M. Oniffrey
Vice President
Address:
Bank of Scotland
565 Fifth Avenue
New York, New York 10017
Attn: Catherine M. Oniffrey
Telecopier: (212) 557-9460
Telephone: (212) 450-0872
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<PAGE>
MIDLANTIC BANK, N.A. as a Bank
By: DENISE D. KILLEN
_______________________________
Denise D. Killen
Vice President
Address:
Midlantic Bank, N.A.
6000 Midlantic Drive
Mt. Laurel, N.J. 08054-6000
Attn: Denise D. Killen
Vice President
Telecopier: (609) 778-2673
Telephone: (609) 778-2683
U.S. BANK OF NEVADA
By: AMY ETHRIDGE
_______________________________
Amy Ethridge
Vice President
Address:
U.S. BANK OF NEVADA
2300 West Sahara, Suite 120
Las Vegas, Nevada 89102
Telecopier: (702) 386-3916
Telephone: (702) 386-3653
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