SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-Q
[x] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended April 30, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission file number 1-8570
CIRCUS CIRCUS ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
Nevada 88-0121916
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
2880 Las Vegas Boulevard South, Las Vegas, Nevada 89109-1120
(Address of principal executive offices)
(702) 734-0410
(Registrant's telephone number, including area code)
N/A
(Former name, former address and former fiscal year, if changed since
last report)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
Yes X No
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
Class Outstanding at May 31, 1997
Common Stock, $.01-2/3 par value 95,051,783 shares
CIRCUS CIRCUS ENTERPRISES, INC. AND SUBSIDIARIES
Form 10-Q
INDEX
Page No.
Part I. FINANCIAL INFORMATION
Item 1. Financial Statements:
Condensed Consolidated Balance Sheets at
April 30, 1997 (Unaudited) and January 31,
1997.......................................... 3-4
Condensed Consolidated Statements of Income
(Unaudited) for the Three Months Ended April 30,
1997 and 1996................................. 5
Condensed Consolidated Statements of Cash
Flows (Unaudited) for the Three Months Ended
April 30, 1997 and 1996....................... 6-7
Notes to Condensed Consolidated Financial
Statements (Unaudited)........................ 8-18
Item 2. Management's Discussion and Analysis of Fi-
nancial Condition and Results of Operations... 19-26
Part II. OTHER INFORMATION 27
Part I. FINANCIAL INFORMATION
Item 1. Financial Statements
CIRCUS CIRCUS ENTERPRISES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands)
ASSETS
April 30, January 31,
1997 1997
(Unaudited)
CURRENT ASSETS:
Cash and cash equivalents................ $ 66,051 $ 69,516
Receivables.............................. 21,736 34,434
Inventories.............................. 18,875 19,371
Prepaid expenses and other............... 27,147 28,528
Total current assets................ 133,809 151,849
PROPERTY, EQUIPMENT AND LEASEHOLD INTERESTS,
at cost, less accumulated depreciation
and amortization of $553,587 and $526,902
respectively............................. 2,016,945 1,920,032
EXCESS OF PURCHASE PRICE OVER FAIR MARKET
value of net assets acquired, net........ 383,031 385,583
NOTES RECEIVABLE............................ 36,362 36,443
INVESTMENTS IN UNCONSOLIDATED AFFILIATES.... 227,057 214,123
OTHER ASSETS................................ 20,795 21,081
Total Assets......................... $2,817,999 $2,729,111
The accompanying notes are an integral part of these
condensed consolidated financial statements.
CIRCUS CIRCUS ENTERPRISES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands, except share data)
LIABILITIES AND STOCKHOLDERS' EQUITY
April 30, January 31,
1997 1997
(Unaudited)
CURRENT LIABILITIES:
Current portion of long-term debt................ $ 2,965 $ 379
Accounts payable - trade ........................ 23,632 22,658
Accounts payable - construction.................. 19,833 21,144
Accrued liabilities ............................. 114,292 85,587
Total current liabilities ................ 160,722 129,768
LONG-TERM DEBT ...................................... 1,423,216 1,405,897
DEFERRED INCOME TAX ................................. 155,772 152,635
OTHER LONG-TERM LIABILITIES ......................... 5,533 6,439
Total liabilities ........................ 1,745,243 1,694,739
REDEEMABLE PREFERRED STOCK........................... - 17,631
TEMPORARY EQUITY .................................... 58,750 44,950
STOCKHOLDERS' EQUITY:
Common stock, $.01-2/3 par value
Authorized - 450,000,000 shares
Issued - 113,571,508 and 112,808,337 shares ... 1,893 1,880
Preferred stock, $.01 par value
Authorized - 75,000,000 shares ................ - -
Additional paid-in capital ...................... 503,948 498,893
Retained earnings ............................... 1,021,852 984,363
Treasury stock (18,709,475 and 18,749,209 shares),
at cost........................................ (513,687) (513,345)
Total stockholders' equity ............... 1,014,006 971,791
Total Liabilities and
Stockholders' Equity .................. $2,817,999 $2,729,111
The accompanying notes are an integral part of these
condensed consolidated financial statements.
CIRCUS CIRCUS ENTERPRISES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(In thousands, except share data)
(Unaudited)
Three Months
Ended April 30,
REVENUES: 1997 1996
Casino ....................................... $160,595 $175,178
Rooms ........................................ 86,323 77,690
Food and beverage ............................ 53,965 54,966
Other ........................................ 33,673 39,462
Earnings of unconsolidated affiliates ........ 25,256 19,815
359,812 367,111
Less-complimentary allowances ................ (15,714) (14,226)
344,098 352,885
COSTS AND EXPENSES:
Casino ....................................... 72,478 74,347
Rooms ........................................ 30,153 29,077
Food and beverage ............................ 48,019 50,662
Other operating expenses ..................... 20,015 23,432
General and administrative ................... 54,652 53,845
Depreciation and amortization ................ 28,344 24,496
Abandonment loss.............................. - 8,206
253,661 264,065
OPERATING PROFIT BEFORE CORPORATE
EXPENSE ...................................... 90,437 88,820
CORPORATE EXPENSE .............................. 7,799 7,523
INCOME FROM OPERATIONS ......................... 82,638 81,297
OTHER INCOME (EXPENSE):
Interest, dividend and
other income ............................... 896 1,167
Interest income and guarantee
fees from unconsolidated affiliate ......... 1,726 1,598
Interest expense ............................. (21,667) (12,134)
Interest expense from unconsolidated
affiliates ................................. (4,226) (2,543)
(23,271) (11,912)
INCOME BEFORE PROVISION FOR
INCOME TAX.................................... 59,367 69,385
Provision for income tax ..................... 21,878 25,913
NET INCOME ..................................... $ 37,489 $ 43,472
EARNINGS PER SHARE.............................. $ .40 $ .42
Average shares outstanding ................... 94,596,540 103,116,564
The accompanying notes are an integral part of these
condensed consolidated financial statements.
CIRCUS CIRCUS ENTERPRISES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
(Unaudited)
Three Months
Ended April 30,
1997 1996
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 37,489 $ 43,472
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization 31,162 26,245
(Gain) loss on disposition of fixed assets (171) 7,831
(Increase) decrease in other current assets 6,839 (2,632)
(Increase) decrease in other noncurrent assets 320 (2,310)
Increase in interest payable 16,206 10,857
Increase in other current liabilities 21,208 23,390
Increase in deferred income tax 3,137 5,740
Decrease in other noncurrent liabilities (16) (16)
Unconsolidated affiliates' earnings in
excess of distributions (10,952) (2,011)
Total adjustments 67,733 67,094
Net cash provided by operating activities 105,222 110,566
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (124,696) (51,618)
Decrease in construction payable (1,311) -
Increase in investments in unconsolidated
affiliates (2,085) (8,054)
(Increase) decrease in notes receivable 81 (6,269)
Proceeds from sale of equipment and other assets 217 388
Other - (1,273)
Net cash used in investing activities (127,794) (66,826)
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuance of senior notes - 199,562
Net effect on cash of issuances and payments
of debt with original maturities of
three months or less 171,628 (225,212)
Issuances of debt with original maturities
in excess of three months 11,337 -
Principal payments of debt with original
maturities in excess of three months (163,094) (16,699)
Exercise of stock options and warrants 1,735 6,684
Purchases of treasury stock (1,300) -
Other (1,199) (145)
Net cash provided by (used in)
financing activities 19,107 (35,810)
Net increase (decrease) in cash and cash equivalents (3,465) 7,930
Cash and cash equivalents at beginning of period 69,516 62,704
Cash and cash equivalents at end of period $ 66,051 $ 70,634
CIRCUS CIRCUS ENTERPRISES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (continued)
(In thousands)
(Unaudited)
Three Months
Ended April 30,
1997 1996
SUPPLEMENTAL CASH FLOW DISCLOSURES
Cash paid during the period for:
Interest (net of amount capitalized) $ 4,808 $ 0
Income tax $ 70 $ 40
The accompanying notes are an integral part of these
condensed consolidated financial statements.
CIRCUS CIRCUS ENTERPRISES, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(All information for the three months ended April 30, 1997 and 1996
is unaudited.)
(1) Principles of consolidation and basis of presentation -
Circus Circus Enterprises, Inc. (the "Company") was
incorporated February 27, 1974. The Company owns and operates
hotel and casino facilities in Las Vegas, Reno, Laughlin, Jean
and Henderson, Nevada and a dockside casino in Tunica County,
Mississippi. It is also an investor in several unconsolidated
affiliates, with operations that include a riverboat casino in
Elgin, Illinois, a hotel/casino in Reno, Nevada and a
hotel/casino on the Las Vegas Strip.
The condensed consolidated financial statements include the
accounts of the Company and its wholly owned subsidiaries.
Material intercompany accounts and transactions have been
eliminated.
The condensed consolidated financial statements included
herein have been prepared by the Company, without audit, pursuant
to the rules and regulations of the Securities and Exchange
Commission. Certain information and footnote disclosures
normally included in financial statements prepared in accordance
with generally accepted accounting principles have been condensed
or omitted pursuant to such rules and regulations, although the
Company believes that the disclosures are adequate to make the
information presented not misleading. In the opinion of
management, all adjustments (which include normal recurring
adjustments) necessary for a fair statement of results for the
interim periods have been made. The results for the three-month
period are not necessarily indicative of results to be expected
for the full fiscal year.
Certain reclassifications have been made to the financial
statements for the three months ended April 30, 1996 to conform
to the financial statement presentation for the three months
ended April 30, 1997. These reclassifications have no effect on
net income.
These financial statements should be read in conjunction
with the financial statements and notes thereto included in the
Company's annual report on Form 10-K for the year ended January
31, 1997.
(2) Long-term debt -
Long-term debt consists of the following (in thousands):
April 30, January 31,
1997 1997
(Unaudited)
Amounts due under corporate
debt program at floating
interest rates, weighted
average of 5.8% and 5.6% $512,993 $501,191
6.45% Senior Notes due 2006
(net of unamortized discount
of $385 and $396) 199,615 199,604
7-5/8% Senior Subordinated
Debentures due 2013 150,000 150,000
6-3/4% Senior Subordinated Notes
due 2003 (net of unamortized
discount of $99 and $103) 149,901 149,897
7.0% Debentures due 2036
(net of unamortized
discount of $156 and $160) 149,844 149,840
6.70% Debentures due 2096
(net of unamortized discount
of $315 and $327) 149,685 149,673
10-5/8% Senior Subordinated Notes
due 1997 (net of unamortized
discount of $2 and $7) 99,998 99,993
Other notes 14,145 6,078
1,426,181 1,406,276
Less - current portion (2,965) (379)
$1,423,216 $1,405,897
The Company has established a corporate debt program whereby
it can issue commercial paper or similar forms of short-term
debt. Although the debt instruments issued under this program are
short-term in tenor, they are classified as long-term debt
because (i) they are backed by a long-term debt facility (see
below) and (ii) it is management's intention to continue to
replace such borrowings on a rolling basis as various instruments
come due and to have such borrowings outstanding for longer than
<PAGE>
(2) Long-term debt (continued) -
one year. To the extent that the Company incurs debt under this
program, it must maintain an equivalent amount of credit
available under its bank credit facility discussed more fully
below.
In May 1997, the Company renegotiated its $1.5 billion
unsecured credit facility, dated January 29, 1996. This
agreement was replaced by a new $2.0 billion unsecured credit
facility which matures on July 31, 2002 (the "Facility"). The
maturity date may be extended for an unlimited number of one-year
periods with the consent of the bank group. The Facility
contains financial covenants regarding total debt and new venture
capital expenditures and investments. The Facility is for
general corporate purposes. The Company incurs commitment fees
of 12.50 basis points on the unused portion of the Facility. As
of April 30, 1997, the Company had no borrowings under the
previous facility. At such date, the Company had $513.0 million
of indebtedness outstanding under the corporate debt program thus
reducing, by that amount, the credit available under its credit
facility for purposes other than repayment of such indebtedness.
The fair value of the debt issued under the corporate debt
program approximates the carrying amount of the debt due to the
short-term maturities of the individual components of the debt.
In November 1996, the Company issued $150 million principal
amount of 7.0% Debentures due November 2036 (the "7.0%
Debentures"). The 7.0% Debentures may be redeemed at the option
of the holder in November 2008. Also, in November 1996, the
Company issued $150 million principal amount of 6.70% Debentures
due November 2096 (the "6.70% Debentures"). The 6.70% Debentures
may be redeemed at the option of the holder in November 2003.
Both the 7.0% Debentures, which were discounted to $149.8
million, and the 6.70% Debentures, which were discounted to
$149.7 million, have interest payable each May and November, are
not redeemable by the Company prior to maturity and are not
subject to any sinking fund requirements. The net proceeds from
these offerings were used primarily to repay borrowings under the
Company's corporate debt program.
In February 1996, the Company issued $200 million principal
amount of 6.45% Senior Notes due February 1, 2006 (the "6.45%
Notes"), with interest payable each February and August. The
(2) Long-term debt (continued) -
6.45% Notes, which were discounted to $199.6 million, are not
redeemable prior to maturity and are not subject to any sinking
fund requirements. The net proceeds from this offering were used
primarily to repay borrowings under the Company's corporate debt
program.
In July 1993, the Company issued $150 million principal
amount of 6-3/4% Senior Subordinated Notes (the "6-3/4% Notes")
due July 2003 and $150 million principal amount of 7-5/8% Senior
Subordinated Debentures (the "7-5/8% Debentures") due July 2013,
with interest payable each July and January. The 6-3/4% Notes,
which were discounted to $149.8 million, and the 7-5/8%
Debentures are not redeemable prior to maturity and are not
subject to any sinking fund requirements. The net proceeds from
these offerings were used primarily to repay borrowings under the
Company's corporate debt program.
In June 1990, the Company issued $100 million principal
amount of 10-5/8% Senior Subordinated Notes (the "10-5/8% Notes")
due June 1997, with interest payable each June and December. The
10-5/8% Notes, which were discounted to $99.9 million, are not
redeemable prior to maturity and are not subject to any sinking
fund requirements. Holders of the 10-5/8% Notes may require the
Company to repurchase all or any portion of their notes at par
upon the occurrence of both a Designated Event (as defined in the
indenture) and a Rating Decline (as defined in the indenture).
Although the 10-5/8% Notes are due June 1997, they have been
classified as long-term debt because it is the Company's
intention to replace the 10-5/8% Notes when they become due with
borrowings under its corporate debt program.
The Company has a policy aimed at managing interest rate
risk associated with its current and anticipated future
borrowings. This policy enables the Company to use any
combination of interest rate swaps, futures, options, caps and
similar arrangements. The Company has entered into various
interest rate swaps, principally with its bank group, to manage
interest expense, which is subject to fluctuation due to the
variable-rate nature of the debt under the Company's corporate
debt program. The Company has interest rate swap agreements
under which it pays a fixed interest rate (weighted average of
approximately 8.6%) and receives a variable interest rate
(2) Long-term debt (continued) -
(weighted average of approximately 5.5% at April 30, 1997) on $80
million notional amount of "initial" swaps, and pays a variable
interest rate of approximately 5.5% at April 30, 1997, and
receives a fixed interest rate of approximately 8.2% on $30
million notional amount of a "reversing" swap. The net effect of
all such swaps resulted in additional interest expense, due to an
interest rate differential which, at April 30, 1997, was
approximately 1.5% on the total notional amount of the swaps.
One of the initial swaps provides for quarterly reductions in the
notional amount of up to $1 million. This swap has a current
notional amount of $25.5 million, but declines to $22.5 million
by its termination date in fiscal 1999. Excluding this swap, the
initial swaps have the following termination dates: $29.5
million in fiscal 1999 and $25 million in fiscal 2000. The
reversing swap expires in fiscal 2002.
Assuming the Company's most restrictive loan covenants
pursuant to the new credit facility had been in effect as of
April 30, 1997, the Company would have been restricted as to the
purchase of its own capital stock in excess of $500 million and
would have been restricted from issuing additional debt in excess
of approximately $918 million.
(3) Stock options -
The Company has various stock option plans for executive,
managerial and supervisory personnel as well as the Company's
outside directors and consultants. The plans permit grants of
options, performance shares and restricted stock relating to the
Company's common stock. The stock options are generally
exercisable in one or more installments beginning not less than
six months after the grant date.
<PAGE>
(3) Stock options (continued) -
Summarized information for stock option plans is as follows:
Three Months Ended
April 30, 1997
Weighted
Average
Exercise
Options Price
Outstanding at beginning of period.. 7,150,060 $25.38
Granted............................. 100,000 25.50
Exercised........................... (90,155) 20.59
Cancelled........................... (55,700) 35.56
Outstanding at end of period........ 7,104,205 $25.36
Options exercisable at end of period 3,979,817 $23.21
Options available for grant at end
of period......................... 2,317,050
(4) Stock rights -
On July 14, 1994, the Company declared a dividend of one
Common Stock Purchase Right (the "Rights") for each share of
common stock outstanding at the close of business on August 15,
1994. Each Right entitles the holder to purchase from the
Company one share of common stock at an exercise price of $125,
subject to certain antidilution adjustments. The Rights
generally become exercisable ten days after the earlier of an
announcement that an individual or group has acquired 15% or more
of the Company's outstanding common stock or the announcement of
commencement of a tender offer for 15% or more of the Company's
common stock. Effective April 16, 1996, the Rights Agreement was
amended to raise the trigger level from 10% to 15%.
In the event the Rights become exercisable, each Right
(except the Rights beneficially owned by the acquiring individual
or group, which become void) would entitle the holder to
purchase, for the exercise price, a number of shares of the
Company's common stock having an aggregate current market value
equal to two times the exercise price. The Rights expire August
15, 2004, and may be redeemed by the Company at a price of $.01
(4) Stock rights (continued) -
per Right any time prior to their expiration or the acquisition
of 15% or more of the Company's common stock. The Rights should
not interfere with any merger or other business combination
approved by the Company's Board of Directors and are intended to
cause substantial dilution to a person or group that attempts to
acquire control of the Company on terms not approved by the Board
of Directors.
(5) Share repurchases -
During the three months ended April 30, 1997, the Company
repurchased 38,486 shares of its common stock at a cost of $1.3
million. The Company has outstanding put options on 2.0 million
shares of its common stock, exercisable on specific dates in
fiscal 1998, giving another party the right to sell shares of the
Company's common stock at contractually specified prices. The
balance in the temporary equity account includes the amount the
Company would be obligated to pay if all the put options were
exercised. The proceeds from the sale of the put options were
accounted for as additional paid-in capital.
The Company also has outstanding call options on 600,000
shares of its common stock, exercisable on a specific date in
fiscal 1998, giving the Company the right to purchase shares of
its common stock at a contractually specified price. The cost of
the call option was accounted for as an offset to additional
paid-in capital.
(6) Redeemable preferred stock -
In connection with the acquisition of Gold Strike Resorts,
New Way, Inc., a wholly owned subsidiary of the Company, issued
1,069,926 shares of $10.00 Cumulative Preferred Stock. Of the
preferred shares issued, 866,640 were issued to another wholly
owned subsidiary of the Company. During the year ended January
31, 1997, the Company purchased 9,864 shares of the preferred
stock for $1.3 million. The price paid by the Company was based
on the trading price of the Company's common stock prior to the
transaction. On February 26, 1997, New Way, Inc. merged into
another subsidiary of the Company and the remaining preferred
stock was converted into 754,666 shares of common stock.
(7) Preferred stock -
The Company is authorized to issue up to 75 million shares
of $.01 par value preferred stock in one or more series having
such respective terms, rights and preferences as are designated
by the Board of Directors. No such preferred stock has yet been
issued.
(8) Earnings per share -
Earnings per share is computed by dividing net income by the
weighted average number of common shares outstanding during the
period. Outstanding stock options and exchangeable preferred
stock are not included in earnings per share computations since
their assumed exercise or conversion would not have a material
dilutive effect.
In February 1997, the Financial Accounting Standards Board
issued Statement of Financial Accounting Standards No. 128 -
Earning Per Share ("SFAS 128"). SFAS 128 is effective for
periods ending after December 15, 1997 and replaces currently
reported earnings per share with "basic", or undiluted, earnings
per share and "diluted" earnings per share. Basic earnings per
share is computed as detailed above, while diluted earnings per
share reflects the additional dilution for all potentially
dilutive securities, such as stock options.
The Company will adopt the provisions of SFAS 128 in its
fiscal 1998 annual financial statements, and all previously
reported earnings per share amounts will be restated. The
following table discloses the Company's pro forma earnings per
share for the three-month periods ended April 30, 1997 and 1996
as determined in accordance with SFAS 128.
Three Months Ended April 30,
Earnings per share 1997 1996
As reported $.40 $.42
Basic $.40 $.42
Diluted $.39 $.41
(9) Investments in unconsolidated affiliates -
The Company has investments in unconsolidated affiliates
that are accounted for under the equity method. Using the equity
method, original investments are recorded at cost and adjusted by
the Company's share of earnings or losses of these entities. The
investment balance also includes interest capitalized during
construction. Investments in unconsolidated affiliates consist
of the following (in thousands):
April 30, January 31,
1997 1997
(Unaudited)
Circus and Eldorado Joint Venture (50%)
(Silver Legacy, Reno, Nevada) $ 55,689 $ 54,269
Elgin Riverboat Resort (50%)
(The Grand Victoria, Elgin, Illinois) 52,646 51,174
Victoria Partners (50%)
(Monte Carlo, Las Vegas, Nevada) 118,722 108,680
$227,057 $214,123
The Company's investments in unconsolidated affiliates
operate with fiscal years ending on December 31. Summarized
results of operations of the unconsolidated affiliates are as
follows (unaudited, in thousands):
Three Months Ended April 30,
1997 1996
Revenues $159,495 $101,844
Expenses 113,995 62,755
Operating income 45,500 39,089
Net income 36,717 31,045
The results for the three months ended April 30, 1996
include the operations of Windsor Casino Limited. In January
1997, the Company transferred its one-third interest in Windsor
Casino Limited to the two remaining shareholders.
Included in the above are revenues of The Grand Victoria of
$62,218 and $60,679 for the three months ending April 30, 1997
and 1996. The property's operating margin during those periods
was 35% and 47%, respectively.
(10) Abandonment losses -
During the quarter ended April 30, 1996, the Company wrote
off $8.2 million of costs associated with the demolition of a
people mover at Circus Circus-Las Vegas and the removal of the
Nile River at Luxor. These write-offs were related to the
construction of new hotel towers and related remodeling at both
properties.
(11) Commitments and contingent liabilities -
In July 1995, Silver Legacy, a 50/50 joint venture with the
Eldorado Hotel/Casino, opened in downtown Reno, Nevada. As a
condition to the joint venture's $220 million bank credit
agreement (which amended and restated the joint venture's
previous $230 million credit agreement), Circus is obligated
under a make-well agreement to make additional contributions to
the joint venture as may be necessary to maintain a minimum
coverage ratio (as defined). As of April 30, 1997, the Company
had an outstanding loan to the joint venture in the principal
amount of $35.1 million at an interest rate of 10%.
In Tunica County, Mississippi, the Company has commenced
construction of a 1,200-room tower addition to its casino which
includes remodeling and retheming the property into a more
elegant resort under the name Gold Strike Casino Resort. The
estimated cost of this expansion is $125 million, with a
projected completion date in December 1997. Through April 30,
1997, the Company had incurred $18.4 million for this project.
The Company has commenced construction on an entertainment
megastore of approximately 3,800 rooms on the former site of the
Hacienda Hotel and Casino. The new resort, whose working title
is Project Paradise, is slated to open late 1998 or early 1999.
Project Paradise will feature, as its centerpiece, a 10-acre
tropical environment that will contain, among other attractions,
a surfing beach with six-foot waves. Inside, Project Paradise
will offer waterfalls, terraced gardens, mythical statuary and
open-air restaurants set amid beautifully crafted environments,
including a swan island. The cost of Project Paradise is
currently estimated at approximately $700-$800 million (excluding
land) and as of April 30, 1997, $22.0 million had been incurred
for this project.
(11) Commitments and contingent liabilities (continued) -
As part of its development of its Masterplan Mile, the
Company will build a 400-room Four Seasons Hotel adjacent to the
Paradise complex, providing Las Vegas visitors with a luxury
"five-star" hospitality experience. This hotel, which will be
owned by Circus and managed by Four Seasons Regent Hotels and
Resorts, represents the first step pursuant to the Company's
cooperative effort with Four Seasons to identify strategic
opportunities for development of hotel and casino properties
worldwide.
The Company has funded the above projects from internal cash
flows, project specific financing or its credit facility, and
anticipates that future funding for such projects will be from
these sources, including the $2.0 billion credit facility, of
which approximately $513.0 million was drawn as of April 30,
1997.
The Company is a defendant in various pending litigation. In
management's opinion, the ultimate outcome of such litigation
will not have a material effect on the results of operations or
the financial position of the Company.
CIRCUS CIRCUS ENTERPRISES, INC. AND SUBSIDIARIES
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations (Unaudited)
RESULTS OF OPERATIONS
Earnings per Share
For the quarter ended April 30, 1997, the Company reported net
income of $37.5 million, or $.40 per share, versus $43.5 million,
or $.42 per share, in the prior year quarter. Prior year results
reflect asset write-offs of $8.2 million related to the
demolition of a people mover at Circus Circus-Las Vegas and the
removal of the Nile River at Luxor. Excluding these write-offs,
earnings in the prior year were $.47 per share, an all-time
quarterly record.
Revenues
Revenues for the Company decreased $8.8 million, or 2%, versus
the prior year. The decrease in revenues was attributable mostly
to the discontinuance of the Hacienda Hotel and Casino, which
posted total revenues of $15.5 million in last year's first
quarter. That property was demolished December 31, 1996 to make
way for Project Paradise, a planned megaresort adjacent to Luxor.
In addition, Excalibur's revenues were down $5.2 million, or 7%,
as it faced significant additional competition from the openings
of New York-New York and Monte Carlo (50% owned by Circus).
Excalibur was also comparing against a record quarter in the
prior year. Circus Circus-Tunica decreased $4.0 million, or 28%,
as it also faced a more competitive market and experienced
construction disruption as part of its $125 million expansion.
See Financial Position and Capital Resources for more detail
regarding Project Paradise and the Tunica expansion.
The decreases noted above were partially offset by Monte Carlo,
which contributed $9.5 million to revenues as Circus' 50% share
of its operating income. (For accounting purposes, the Company's
share of the operating income of joint ventures is reflected as
revenue in Earnings of Unconsolidated Affiliates.) Also, Luxor
recorded a sizeable increase of $9.7 million, or 15%, in its
revenues by virtue of its 1,950 additional rooms, and Circus
Circus-Las Vegas saw its revenues rise $3.9 million, or 7%, due
to its 1,000 new rooms.
Operating Income (excluding asset write-offs)
For the quarter ended April 30, 1997, income from operations
declined $6.9 million, or 8%, from the prior year. The Company's
composite operating margin was 24.0% versus 25.4% in the prior
year quarter. A discussion of operating results by market
follows.
Las Vegas
The Company's Las Vegas properties posted an overall increase in
operating income of $2.9 million, or 5%. The increase was
attributable primarily to Monte Carlo (a 50% owned joint venture
with Mirage which opened June 21, 1996), which generated $9.0
million in operating income for the Company. Additionally, Luxor
saw its results improve, as operating income increased $2.8
million, or 19%, on the strength of 1,950 new rooms which were
placed in service late last year. This property has undergone
substantial remodeling, most of which was completed in the prior
year. However, construction in some public areas continues, as
additional restaurants and retail space will open this summer; a
1,200-seat showroom, plus a microbrewery and night club will open
in the fall; and a remodeled attractions level will be completed
by fiscal year-end. The Company anticipates that this continued
construction may have a somewhat disruptive effect on operations,
though not on the scale experienced in the prior year.
Furthermore, the Company believes that due to the continued
phase-in of the remodeling, improvements in operating results at
this property are likely to occur gradually.
Meanwhile, operating income at Circus Circus-Las Vegas declined
$.8 million, or 7%, from the prior year's first quarter. While
1,000 new rooms were in operation during the quarter at 100%
occupancy, the Company believes that its customers are spending
additional time visiting the newer megaresorts on the south end
of the Las Vegas Strip. Furthermore, the Company believes that a
number of the guests staying in the new hotel rooms represent
former "walk-in" customers who were already established as gaming
customers.
Operating income at Excalibur fell $4.3 million, or 16%, from the
prior year's all-time record quarter. Excalibur was affected by
new competition, not only from the nearby New York-New York
(opened January 3, 1997) and Monte Carlo, but also from the
adjacent Luxor, which has been significantly expanded and
remodeled.
Reno
In Reno, the Company's combined operating income rose $2.0
million, or 37% versus the year ago quarter, with both Circus
Circus-Reno and Silver Legacy (50% owned by the Company) posting
strong increases. This market benefited from the presence of the
women's national bowling tournament.
Laughlin
The Company's two properties in Laughlin, the Colorado Belle and
the Edgewater, posted a combined decrease in operating income of
$2.7 million, or 24%. This market continues to suffer from
difficult competitive challenges, foremost of which are the
unregulated Native American casinos in Laughlin's prime central
Arizona and southern California feeder markets. Competition from
new resorts in Las Vegas and Primm, Nevada (formerly Stateline,
Nevada) has also contributed to the erosion of Laughlin's
customer base.
Riverboat Markets
In Tunica County, Mississippi, operating income at Circus Circus
declined significantly, from $3.5 million in last year's first
quarter to $1.2 million in the current year. This decrease is
due to increased competition, as well as disruption from the
ongoing $125 million expansion project. Construction is well
underway on this project, which includes a 1,200-room hotel tower
(the property currently has no rooms). Circus is also retheming
the property into a more elegant resort, which will be called
Gold Strike Casino Resort. The new tower and remodeling are
expected to be completed in December 1997.
Results at The Grand Victoria (a 50% owned riverboat casino in
Elgin, Illinois) reflected a $3.1 million decrease in the
Company's share of operating income. This decrease is
commensurate with a 20% profit sharing arrangement with public
entities in the city and county which began last June.
Interest Expense
For the three months ended April 30, 1997, interest expense
(excluding joint venture interest expense) increased $9.5 million
versus the prior year. The increase was due principally to
higher average borrowings (approximately $1.4 billion in the
current quarter against approximately $703 million last year)
related to various construction projects (primarily the new rooms
and improvements at Luxor and Circus Circus-Las Vegas) and the
repurchase of $341.8 million of Circus' common stock last year.
Capitalized interest was $3.6 million for the quarter ended April
30, 1997 versus $2.9 million in the year-ago quarter. Long-term
debt at April 30, 1997 stood at $1.4 billion compared to $673
million at April 30, 1996.
The Company also recorded interest expense related to joint
venture projects of $4.2 million in the quarter ended April 30,
1997 compared to $2.5 million in the previous year. This
reflects the Company's 50% share of the interest expense of
Silver Legacy and Monte Carlo (which opened June 21, 1996).
Income Tax
For the three months ended April 30, 1997, the Company's
effective tax rate was 36.9% compared with 37.3% for the three
months ended April 30, 1996. These rates reflect the corporate
statutory rate of 35% plus the effect of various nondeductible
expenses, including the amortization of goodwill associated with
the acquisition of Gold Strike Resorts.
Financial Position and Capital Resources
The Company had cash and cash equivalents of $66.1 million at
April 30, 1997, reflecting normal daily operating requirements.
The Company's pretax cash flow from operations, before asset
write-offs, was $113.9 million for the three months ended April
30, 1997 versus $115.7 million in the prior year, a decrease of
2%. On the same basis of operations (excluding the effect of the
Hacienda Hotel and Casino which ceased operations on December 1,
1996), cash flow rose slightly over last year. In this context,
pretax cash flow from operations is defined as the Company's
income from operations plus noncash operating expenses (primarily
depreciation and amortization). The Company used its cash flow
primarily to fund the construction of Project Paradise, the
construction of the new hotel tower in Tunica County, Mississippi
and miscellaneous other construction projects.
Capital Spending
Capital expenditures for the quarter ended April 30, 1997 were
$124.7 million, of which $14.7 million related to the
construction of Project Paradise, $12.0 million related to the
construction and remodeling at Circus Circus-Tunica, and $45.3
million related to the remaining elements of the Luxor expansion.
Credit Facility
On May 23, 1997, the Company amended its unsecured credit
facility with its bank group, increasing the size of the facility
from $1.5 billion to $2.0 billion at more favorable terms and
pricing (see Note 2 of Notes to Condensed Consolidated Financial
Statements). As of April 30, 1997, Circus had drawn $513 million
under the facility.
Joint Ventures
The Company holds a 50% interest in and manages a joint venture
(with Mirage Resorts) which developed and operates Monte Carlo, a
major destination resort that opened June 21, 1996 on the Las
Vegas Strip. Monte Carlo features 3,002 rooms and a 90,000-
square-foot casino, with a palatial style reminiscent of the
Belle Epoque, the French architecture of the late 19th century.
This project had a total cost of approximately $350 million,
including land and capitalized interest. The Company's equity
contribution was $87.9 million, all of which had been funded as
of April 30, 1997.
In July 1995, Silver Legacy, a 50/50 joint venture with the
Eldorado Hotel/Casino, opened in downtown Reno, Nevada. As a
condition to the joint venture's $220 million bank credit
agreement (which amended and restated the joint venture's
previous $230 million credit agreement), Circus is obligated
under a make-well agreement to make additional contributions to
the joint venture as may be necessary to maintain a minimum
coverage ratio (as defined). As of April 30, 1997, the Company
also had outstanding loans to the joint venture in the principal
amount of $35.1 million.
New Projects
The Company has commenced construction on an entertainment
megastore of approximately 3,800 rooms on the former site of the
Hacienda Hotel and Casino. The new resort, whose working title
is Project Paradise, is slated to open in late 1998 or early
1999. Project Paradise will feature, as its centerpiece, a 10-
acre tropical environment that will contain, among other
attractions, a surfing beach with six-foot waves. Inside,
Project Paradise will offer waterfalls, terraced gardens,
mythical statuary and open-air restaurants set amid beautifully
crafted environments, including a swan island. The cost of
Project Paradise is currently estimated at approximately $700-
$800 million (excluding land) and as of April 30, 1997, $22.0
million had been incurred for this project.
As part of its development of its Masterplan Mile, the Company
will build a 400-room Four Seasons Hotel adjacent to the Paradise
complex, providing Las Vegas visitors with a luxury "five-star"
hospitality experience. This hotel, which will be owned by
Circus and managed by Four Seasons Regent Hotels and Resorts,
represents the first step pursuant to the Company's cooperative
effort with Four Seasons to identify strategic opportunities for
development of hotel and casino properties worldwide.
At Luxor, the Company completed construction of two new hotel
towers, designed in ziggurat shapes, which added 1,950 rooms to
the property, bringing the total rooms base to approximately
4,400. This project also involved substantial remodeling of the
property's interior spaces, especially the casino and hotel
lobby. The original scope of the remodeling and expansion of
Luxor was broadened to include new convention space, a redesigned
attractions level, a microbrewery , a luxury health spa, a new
1,200-seat showroom, and additional restaurants and retail areas.
The restaurants and retail areas will open this summer, while the
showroom, the microbrewery and a night club will open in the
fall. The remodeled attractions level will be completed by
fiscal year-end. The estimated cost for the total expansion is
approximately $400 million, of which $372.6 million had been
incurred as of April 30, 1997.
In December 1996, the Company completed construction of a 1,000-
room tower addition at Circus Circus-Las Vegas, which brought the
total number of rooms at Circus Circus-Las Vegas to approximately
3,800. The total cost of the project, which also included a new
porte cochere, new lobby space, a retail concourse and two new
restaurants, plus the refurbishment of all 1,188 rooms in the
Skyrise Tower, was approximately $129 million. The Company plans
to refurbish the balance of the tower rooms at this property, in
phases, over the coming year. This refurbishment is budgeted at
approximately $20 million, of which $4.8 million had been
incurred as of April 30, 1997.
In Tunica County, Mississippi, the Company has commenced
construction of a 1,200-room tower addition to its casino which
includes remodeling and retheming the property into a more
elegant resort under the name Gold Strike Casino Resort. The
estimated cost of this expansion is $125 million, with a
projected completion in December 1997. Through April 30, 1997,
the Company had incurred $18.4 million for this project.
Also in Mississippi, the Company has announced that it plans to
develop a hotel/casino resort on the Mississippi Gulf Coast at
the north end of the Bay of St. Louis, near the DeLisle exit on
Interstate 10. The planned resort will feature 1,500 rooms and
has an estimated cost of $225 million. The Company anticipates
construction to begin after receipt of all customary approvals.
As presently contemplated, Circus will own 90% of the project,
with a partner contributing land (up to 500 acres) in exchange
for the remaining 10%.
The Company is also underway with several other improvement
projects. At Circus Circus-Reno, the Company has begun
remodeling the casino. This project has a budget of
approximately $20 million and through April 30, 1997, the Company
had incurred $9.5 million for this project, which is expected to
be completed by late summer. At the Colorado Belle, work is
nearing completion on a microbrewery which should be in service
by July. The cost of this project is budgeted at $8.7 million,
with total costs of $5.2 million incurred through April 30, 1997.
The Company has agreed to form a joint venture with the Detroit-
based Atwater Casino Group to pursue a license to own and operate
a casino in Detroit, Michigan. The Atwater Casino Group is
comprised of over 70 Detroit area business, education, civic and
community leaders and was instrumental in the passage of
"Proposal E", which allows for three casinos in urban Detroit.
Details of the proposed project, including cost, design,
amenities and location will be announced at a later date. Circus
would own a 45% equity interest in the proposed project and
receive a management fee. The formation of the joint venture is
contingent upon negotiation of definitive documents, and the
joint venture's ability to proceed with the project is contingent
upon the receipt of all necessary gaming approvals and other
customary conditions. Furthermore, there is no assurance as to
when or if the joint venture will ultimately be awarded one of
the three licenses.
The Company has entered into an agreement with Mirage Resorts,
Incorporated to participate in the development of a 150-acre site
located in the Marina District of Atlantic City. The agreement
provides for the Company to obtain sufficient land for the
development of a destination resort and casino of at least 2,000
rooms, including dramatic public spaces, in an architectural
format that conforms to a "masterplan". While Mirage will act as
master-developer for the new Marina District, Circus will own its
land and its resort project, which will connect to Mirage's
resort as well as to a joint venture resort to be developed by
Boyd Gaming Corporation and Mirage. Mirage's development of the
site is subject to the satisfaction of a number of conditions.
Accordingly, there can be no assurances as to whether or when
Mirage will proceed with its development of the site. The
Company's participation, among other conditions, is subject to
Mirage's determination to proceed with development of the site.
The Company's ability to proceed is also subject to its obtaining
the requisite gaming and other approvals and licenses in New
Jersey, as well as the approval of the gaming authorities in
various other jurisdictions. While neither the exact extent of a
potential development nor a starting date for construction can be
determined at this time, the Company is currently contemplating
an investment of approximately $600-$700 million to construct
this hotel/casino megaresort.
The Company believes that it has ample capital resources, through
its existing bank arrangements and its operating cash flows, to
meet all of its existing cash obligations, fund its commitments
on the projects enumerated above and opportunistically repurchase
shares. The Company believes that additional funds could be
raised through debt or equity markets, if necessary.
Forward-Looking Statements
Certain information included in this report and other materials
filed or to be filed by the Company with the Securities and
Exchange Commission (as well as information included in oral
statements or written statements made or to be made by the
Company) contains statements that are forward-looking within the
meaning of Section 27A of the Securities Act of 1933, as amended,
and Section 21E of the Securities Exchange Act of 1934, as
amended. Such statements include information relating to current
expansion projects, plans for future expansion projects and other
business development activities as well as other capital
spending, financing sources and the effects of regulation
(including gaming and tax regulation) and competition. Such
forward-looking information involves important risks and
uncertainties that could significantly affect anticipated results
in the future and, accordingly, such results may differ from
those expressed in any forward-looking statements made by or on
behalf of the Company. These risks and uncertainties include,
but are not limited to, those relating to development and
construction activities, dependence on existing management,
leverage and debt service (including sensitivity to fluctuations
in interest rates), domestic or global economic conditions,
changes in federal or state tax laws or the administration of
such laws, changes in gaming laws or regulations (including the
legalization of gaming in certain jurisdictions) and applications
for licenses and approvals under applicable laws and regulations
(including gaming laws and regulations).
PART II. OTHER INFORMATION
Item 2. Changes in Securities.
On February 26, 1997, the Company issued an aggregate of
754,666 shares of its Common Stock, $.01-2/3 par value (the
"Restricted Shares") to Glenn W. Schaeffer, Antonio C. Alamo and
Gregg H. Solomon, each an officer of the Company, and William
Ensign, the son of Michael S. Ensign,, the Vice Chairman of the
Company's Board of Directors (collectively, the "Preferred
Shareholders"), upon the conversion of an aggregate of 193,422
shares of the Exchangeable Preferred Stock (the "Preferred
Shares") of New Way, Inc., an indirect wholly owned subsidiary of
the Company ("New Way"). The Preferred Shares had been acquired
by the Preferred Shareholders in 1995 in connection with the
Company's acquisition of a group of affiliated entities which
owned the Gold Strike Hotel & Gambling Hall and Nevada Landing
Hotel & Casino in Jean, Nevada, the Railroad Pass Hotel & Casino
in Henderson, Nevada, a 50% interest in the joint venture which
owns The Grand Victoria, a riverboat casino and land-based
entertainment complex in Elgin, Illinois, and a 50% interest in
the joint venture which owns (and was then developing) Monte
Carlo, a hotel and casino resort on the Las Vegas Strip. The
Restricted Shares were issued in accordance with the applicable
exchange rate specified by the terms of the Preferred Shares upon
the merger of New Way into another wholly owned subsidiary of the
Company. The Restricted Shares were issued by the Company in
reliance upon exemption from registration afforded by Section
4(2) of the Securities Act of 1993.
Item 6. Exhibits and Reports on Form 8-K.
(a) The exhibits filed as part of this report are listed on
the Index to Exhibits accompanying this report.
(b) Reports on Form 8-K. No report on Form 8-K was filed
during the period covered by this report.
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.
CIRCUS CIRCUS ENTERPRISES, INC.
(Registrant)
Date: June 16, 1997 By Clyde T. Turner
Clyde T. Turner
Chairman of the Board and
Chief Executive Officer
Date: June 16, 1997 By Glenn Schaeffer
Glenn Schaeffer
President, Chief Financial
Officer and Treasurer
INDEX TO EXHIBITS
Exhibit
No. Description
4(a). $2.0 Billion Loan Agreement, dated as of May 23, 1997,
by and among the Company, the Banks named therein and
Bank of America National Trust and Savings Association,
as administrative agent for the Banks, and the related
Subsidiary Guarantee dated May 23, 1997, of the
Company's subsidiaries named therein.
10(a). Letter agreement between the Company and Atwater Casino
Group, L.L.C., and related Executive Summary.*
27. Financial Data Schedule for the three months ended
April 30, 1997 as required under EDGAR.
* Portions of this exhibit have been omitted pursuant to a
request for confidential treatment.
EXHIBIT 4(a)
AMENDED AND RESTATED LOAN AGREEMENT
Dated as of May 23, 1997
among
CIRCUS ENTERPRISES, INC.
THE BANKS AND CO-AGENTS HEREIN NAMED
CANADIAN IMPERIAL BANK OF COMMERCE
CREDIT LYONNAIS LOS ANGELES BRANCH
SOCIETE GENERALE
THE LONG-TERM CREDIT BANK OF JAPAN, LTD., LOS
ANGELES AGENCY
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
PNC BANK, NATIONAL ASSOCIATION
WELLS FARGO BANK, N.A.
WESTDEUTSCHE LANDESBANK GIROZENTRALE
as Managing Agents
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION,
as Administrative Agent
TABLE OF CONTENTS
Page
Article 1 DEFINITIONS AND ACCOUNTING TERMS . . . . . . . . . .2
1.1 Defined Terms . . . . . . . . . . . . . . . . . . .2
1.2 Use of Defined Terms. . . . . . . . . . . . . . . 34
1.3 Accounting Terms. . . . . . . . . . . . . . . . . 34
1.4 Rounding. . . . . . . . . . . . . . . . . . . . . 34
1.5 Exhibits and Schedules. . . . . . . . . . . . . . 34
1.6 References to "Borrower and its Subsidiaries" . . 35
1.7 Miscellaneous Terms . . . . . . . . . . . . . . . 35
Article 2 LOANS. . . . . . . . . . . . . . . . . . . . . . . 36
2.1 Committed Loans-General . . . . . . . . . . . . . 36
2.2 Base Rate Loans . . . . . . . . . . . . . . . . . 37
2.3 Eurodollar Rate Loans . . . . . . . . . . . . . . 38
2.4 Letters of Credit . . . . . . . . . . . . . . . . 38
2.5 Competitive Advances. . . . . . . . . . . . . . . 42
2.6 Swing Line. . . . . . . . . . . . . . . . . . . . 46
2.7 Voluntary Reduction of Commitment . . . . . . . . 48
2.8 Optional Termination of Commitment. . . . . . . . 48
2.9 Administrative Agent's Right to Assume Funds Available
for Advances . . . . . . . . . . . . . . . . . 48
2.10 Extension of the Maturity Date . . . . . . . . . 49
Article 3 PAYMENTS AND FEES. . . . . . . . . . . . . . . . . 51
3.1 Principal and Interest. . . . . . . . . . . . . . 51
3.2 Arrangement Fee . . . . . . . . . . . . . . . . . 53
3.3 Upfront Fees. . . . . . . . . . . . . . . . . . . 53
3.4 Commitment Fees . . . . . . . . . . . . . . . . . 53
3.5 Letter of Credit Fees . . . . . . . . . . . . . . 53
3.6 Agency Fees . . . . . . . . . . . . . . . . . . . 54
3.7 Increased Commitment Costs. . . . . . . . . . . . 54
3.8 Eurodollar Costs and Related Matters. . . . . . . 54
3.9 Late Payments . . . . . . . . . . . . . . . . . . 58
3.10 Computation of Interest and Fees . . . . . . . . 58
3.11 Non-Banking Days . . . . . . . . . . . . . . . . 59
3.12 Manner and Treatment of Payments . . . . . . . . 59
3.13 Funding Sources. . . . . . . . . . . . . . . . . 60
3.14 Failure to Charge Not Subsequent Waiver. . . . . 60
3.15 Administrative Agent's Right to Assume Payments Will
be Made by Borrower . . . . . . . . . . . . . . 61
3.16 Fee Determination Detail . . . . . . . . . . . . 61
3.17 Survivability. . . . . . . . . . . . . . . . . . 61
Article 4 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . 62
4.1 Existence and Qualification; Power; Compliance With
Laws. . . . . . . . . . . . . . . . . . . . . . 62
4.2 Authority; Compliance With Other Agreements and
Instruments and Government Regulations. . . . . 62
4.3 No Governmental Approvals Required. . . . . . . . 63
4.4 Subsidiaries. . . . . . . . . . . . . . . . . . . 63
4.5 Financial Statements. . . . . . . . . . . . . . . 64
4.6 No Other Liabilities; No Material Adverse Effect. 65
4.7 Title to Property . . . . . . . . . . . . . . . . 65
4.8 Intangible Assets . . . . . . . . . . . . . . . . 65
4.9 Public Utility Holding Company Act. . . . . . . . 65
4.10 Litigation . . . . . . . . . . . . . . . . . . . 65
4.11 Binding Obligations. . . . . . . . . . . . . . . 66
4.12 No Default . . . . . . . . . . . . . . . . . . . 66
4.13 ERISA. . . . . . . . . . . . . . . . . . . . . . 66
4.14 Regulations G, T, U and X; Investment Company Act67
4.15 Disclosure . . . . . . . . . . . . . . . . . . . 67
4.16 Tax Liability. . . . . . . . . . . . . . . . . . 67
4.17 Projections. . . . . . . . . . . . . . . . . . . 67
4.18 Hazardous Materials. . . . . . . . . . . . . . . 67
4.19 Developed Properties . . . . . . . . . . . . . . 68
4.20 Gaming Laws. . . . . . . . . . . . . . . . . . . 68
Article 5 AFFIRMATIVE COVENANTS (OTHER THAN
INFORMATION AND REPORTING REQUIREMENTS). . . . . . . 69
5.1 Payment of Taxes and Other Potential Liens. . . . 69
5.2 Preservation of Existence . . . . . . . . . . . . 69
5.3 Maintenance of Properties . . . . . . . . . . . . 69
5.4 Maintenance of Insurance. . . . . . . . . . . . . 70
5.5 Compliance With Laws. . . . . . . . . . . . . . . 70
5.6 Inspection Rights . . . . . . . . . . . . . . . . 70
5.7 Keeping of Records and Books of Account . . . . . 70
5.8 Compliance With Agreements. . . . . . . . . . . . 71
5.9 Use of Proceeds . . . . . . . . . . . . . . . . . 71
5.10 New Significant Subsidiaries . . . . . . . . . . 71
5.11 Hazardous Materials Laws . . . . . . . . . . . . 71
Article 6 NEGATIVE COVENANTS . . . . . . . . . . . . . . . . 73
6.1 Payment of Subordinated Debt. . . . . . . . . . . 73
6.2 Disposition of Property . . . . . . . . . . . . . 73
6.3 Mergers . . . . . . . . . . . . . . . . . . . . . 74
6.4 Hostile Tender Offers . . . . . . . . . . . . . . 74
6.5 Distributions . . . . . . . . . . . . . . . . . . 74
6.6 ERISA . . . . . . . . . . . . . . . . . . . . . . 75
6.7 Change in Nature of Business. . . . . . . . . . . 75
6.8 Liens, Negative Pledges, Sale Leasebacks and Rights of
Others. . . . . . . . . . . . . . . . . . . . . 75
6.9 Indebtedness and Contingent Guaranties. . . . . . 78
6.10 Transactions with Affiliates . . . . . . . . . . 78
6.13 Significant Subsidiaries . . . . . . . . . . . . 79
Article 7 INFORMATION AND REPORTING REQUIREMENTS . . . . . . 80
7.1 Financial and Business Information. . . . . . . . 80
7.2 Compliance Certificates . . . . . . . . . . . . . 83
Article 8 CONDITIONS . . . . . . . . . . . . . . . . . . . . 84
8.1 Initial Advances, Etc.. . . . . . . . . . . . . . 84
8.2 Any Increasing Advance, Etc.. . . . . . . . . . . 86
8.3 Any Advance . . . . . . . . . . . . . . . . . . . 87
8.4 Effect of the Closing Date. . . . . . . . . . . . 87
Article 9 EVENTS OF DEFAULT AND REMEDIES UPON EVENT
OF DEFAULT . . . . . . . . . . . . . . . . . . . . . 88
9.1 Events of Default . . . . . . . . . . . . . . . . 88
9.2 Remedies Upon Event of Default. . . . . . . . . . 90
Article 10 THE ADMINISTRATIVE AGENT. . . . . . . . . . . . . 93
10.1 Appointment and Authorization. . . . . . . . . . 93
10.2 Administrative Agent and Affiliates. . . . . . . 93
10.3 Proportionate Interest in any Collateral . . . . 93
10.4 Banks' Credit Decisions. . . . . . . . . . . . . 94
10.5 Action by Administrative Agent . . . . . . . . . 94
10.6 Liability of Administrative Agent. . . . . . . . 95
10.7 Indemnification. . . . . . . . . . . . . . . . . 96
10.8 Successor Administrative Agent . . . . . . . . . 97
10.9 No Obligations of Borrower . . . . . . . . . . . 98
Article 11 MISCELLANEOUS . . . . . . . . . . . . . . . . . . 99
11.1 Cumulative Remedies; No Waiver . . . . . . . . . 99
11.2 Amendments; Consents . . . . . . . . . . . . . . 99
11.3 Costs, Expenses and Taxes. . . . . . . . . . . .100
11.4 Nature of Banks' Obligations . . . . . . . . . .101
11.5 Survival of Representations and Warranties . . .101
11.6 Notices. . . . . . . . . . . . . . . . . . . . .102
11.7 Execution of Loan Documents. . . . . . . . . . .102
11.8 Binding Effect; Assignment . . . . . . . . . . .102
11.9 Right of Setoff. . . . . . . . . . . . . . . . .105
11.10 Sharing of Setoffs. . . . . . . . . . . . . . .105
11.11 Indemnity by Borrower . . . . . . . . . . . . .106
11.12 Nonliability of the Banks . . . . . . . . . . .107
11.13 No Third Parties Benefited. . . . . . . . . . .108
11.14 Confidentiality . . . . . . . . . . . . . . . .108
11.15 Removal of a Bank . . . . . . . . . . . . . . .109
11.16 Further Assurances. . . . . . . . . . . . . . .110
11.17 Integration . . . . . . . . . . . . . . . . . .110
11.18 Governing Law . . . . . . . . . . . . . . . . .110
11.19 Severability of Provisions. . . . . . . . . . .110
11.20 Headings. . . . . . . . . . . . . . . . . . . .110
11.21 Time of the Essence . . . . . . . . . . . . . .110
11.22 Foreign Banks and Participants. . . . . . . . .111
11.23 Hazardous Material Indemnity. . . . . . . . . .111
11.24 Gaming Boards . . . . . . . . . . . . . . . . .112
11.25 The Existing Loan Agreement . . . . . . . . . .112
11.26 Waiver of Right to Trial by Jury. . . . . . . .112
11.27 Purported Oral Amendments . . . . . . . . . . .113
Exhibits
A - Assignment Agreement
B - Committed Advance Note
C - Competitive Advance Note
D - Competitive Bid
E - Competitive Bid Request
F - Compliance Certificate
G-1-Opinion of Counsel
G-2-Opinion of Counsel
H - Request for Letter of Credit
I - Request for Loan
J - Subsidiary Guaranty
Schedules
1.1 Pro Rata Shares
4.3 Governmental Approvals
4.4 Significant Subsidiaries
4.7 Existing Liens, Negative Pledges and Rights of Others
4.10 Litigation
4.19 Developed Properties
AMENDED AND RESTATED LOAN AGREEMENT
Dated as of May 23, 1997
This AMENDED AND RESTATED LOAN
AGREEMENT ("Agreement") is entered into among Circus Circus
Enterprises, Inc., a Nevada corporation ("Borrower"), Bank of
America National Trust and Savings Association and each lender
whose name is set forth on the signature pages of this Agreement and
each other lender which may hereafter become a party to this
Agreement pursuant to Section 11.8 (collectively, the "Banks" and
individually, a "Bank"), Canadian Imperial Bank of Commerce, Credit
Lyonnais, Los Angeles Branch, Societe Generale, The Long-Term
Credit Bank of Japan, Ltd., Los Angeles Agency, Morgan Guaranty
Trust Company of New York, PNC Bank, National Association,
Wells Fargo Bank, N.A., Westdeutsche Landesbank Girozentrale, as
Managing Agents, The Bank of New York and Commerzbank
Aktiengesellschaft, Los Angeles Branch, as Co-Agents, The Bank of
Nova Scotia, Fleet Bank, N.A., The Mitsubishi Trust and Banking
Corporation, Los Angeles Agency, Union Bank of California, N.A.
and United States National Bank of Oregon, as Lead Managers, and
Bank of America National Trust and Savings Association, as Issuing
Bank and Administrative Agent, with reference to the following facts:
RECITALS
A. Pursuant to a Loan Agreement dated as of January 29,
1996, among Borrower, the Banks and Co-Agents referred to therein
and Bank of America National Trust and Savings Association, as
Administrative Agent, such Banks have extended revolving credit
facilities to Borrower in the aggregate principal amount of
$1,500,000,000.
B. Concurrently with this Agreement, each of the banks
party to the Existing Loan Agreement which are not parties hereto (the
"Exiting Banks") have entered into the Exit Agreement (as defined
below) which terminates their status as lenders under the Existing
Loan Agreement.
C. The remaining parties to the Existing Loan Agreement
desire to amend and restate the Existing Loan Agreement in its
entirety as set forth herein and to increase the aggregate amount of the
credit facilities available hereunder to $2,000,000,000.
In consideration of the mutual covenants and agreements
herein contained, the parties hereto covenant and agree as follows:
Article 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the meanings set forth below:
"Absolute Rate Bid" means a Competitive Bid to provide
Competitive Advances on the basis of a fixed interest rate.
"Adjusted EBITDA" means, for any fiscal period,
EBITDA for that fiscal period, plus depreciation and
amortization expense attributable to Project Entities, minus
Interest Expense and scheduled amortization of Indebtedness of
Project Entities (exclusive of any such Interest Expense or
amortization payable to Borrower or its Subsidiaries), in each
case as determined in accordance with Generally Accepted
Accounting Principles.
"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.
"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, Eurodollar Rate Advance,
Committed Advance, Swing Line Advance and Competitive
Advance.
"Affiliate" means, as to any Person, any other Person
which directly or indirectly controls, or is under common
control with, or is controlled by, such Person. As used in this
definition, "control" (and the correlative terms, "controlled by"
and "under common control with") shall mean possession,
directly or indirectly, of power to direct or cause the direction
of management or policies (whether through ownership of
securities or partnership or other ownership interests, by
contract or otherwise); provided that, in any event, any Person
that owns, directly or indirectly, 10% or more of the securities
having ordinary voting power for the election of directors or
other governing body of a corporation that has more than 100
record holders of such securities, or 10% or more of the
partnership or other ownership interests of any other Person
that has more than 100 record holders of such interests, will be
deemed to control such corporation or other Person.
"Aggregate Effective Amount" means, as of any date of
determination and with respect to all Letters of Credit then
outstanding, the sum of (a) the aggregate undrawn face amounts
of all such Letters of Credit, plus (b) the aggregate amounts
paid by the Issuing Bank under any Letters of Credit for which
the Issuing Bank has not been reimbursed and which are not the
subject of Advances made pursuant to Section 2.4(e).
"Agreement" means this Amended and Restated Loan
Agreement, either as originally executed or as it may from time
to time be supplemented, modified, amended, restated or
extended.
"Arranger" means BancAmerica Securities, Inc. The
Arranger shall have no obligations under this Agreement or the
other Loan Documents.
"Assignment Agreement" means an Assignment
Agreement substantially in the form of Exhibit A.
"Atlantic City" means Borrower's proposed development
of a resort casino/hotel on the "H-Tract" in Atlantic City, New
Jersey, whether of the entire parcel or any portion thereof and
whether by itself, through a Subsidiary or through a New
Venture Entity.
"Average Daily Total Debt" means, as of the last day of
each Fiscal Quarter, the average daily principal amount of Total
Debt during the calendar month ending on such date.
"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.
"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 (calculated on the basis of a year of 365 or
366 days and the actual number of days elapsed) and (b) the
Federal Funds Rate in effect on such date (calculated on the
basis of a year of 360 days and the actual number of days
elapsed) plus 1/2 of 1% (50 basis points).
"Base Rate Advance" and "Base Rate Loan" mean,
respectively, a Committed Advance or a Committed Loan made
hereunder and specified to be a Base Rate Advance or Loan in
accordance with Article 2.
"Bay St. Louis" means Borrower's proposed
development of a resort casino/hotel on the north end of the
Bay of St. Louis in Mississippi, whether by itself, through a
Subsidiary or through a New Venture Entity.
"Borrower" means Circus Circus Enterprises, Inc., a
Nevada corporation, and its permitted successors and assigns.
"Capital Expenditure" means any expenditure that is
considered a capital expenditure under Generally Accepted
Accounting Principles, including any (a) amount which is
required to be treated as an asset subject to a Capital Lease
Obligation, and (b) (whether or not so considered) the amount
of any Investment resulting from the acquisition by Borrower or
any of its Restricted Subsidiaries of all or a portion of another
Person's ownership interest in a New Venture Entity or Project
Entity pursuant to an obligation or right of such Person to sell,
or an obligation or right of Borrower or any of its Restricted
Subsidiaries to purchase, such ownership interest.
"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
Person, all monetary and non-monetary items owned by that
Person that are treated as cash in accordance with Generally
Accepted Accounting Principles, consistently applied.
"Cash Equivalents" means, when used in connection with
any Person, that Person's Investments in:
(a) Government Securities due within one year
after the date of the making of the Investment;
(b) readily marketable direct obligations of any
State of the United States of America given on the date
of such Investment a credit rating of at least Aa by
Moody's Investors Service, Inc. or AA by S&P, 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
incorporated under the Laws of the United States of
America or any State thereof 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 Govern-
ment Securities executed by a broker or dealer registered
under Section 15(b) of the Securities Exchange Act of
1934 having on the date of the Investment capital of at
least $100,000,000, due within 30 days after the date of
the making of the Investment; provided that the maker of
the Investment receives written confirmation of the
transfer to it of record ownership of the Government
Securities on the books of a "primary dealer" in such
Government Securities on the books of such registered
broker or dealer, as soon as practicable after the making
of the Investment;
(f) readily marketable commercial paper of
corporations doing business in and incorporated under
the Laws of the United States of America or any State
thereof or of any corporation that is the holding company
for a bank described in clauses (c) or (d) above given on
the date of such Investment a credit rating of at least P-1
by Moody's or A-1 by S&P, 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 and AA by S&P, 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
clauses (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 any transaction or series of
related transactions (a) in which any Unrelated Person or two
or more Unrelated Persons acting in concert acquire beneficial
ownership (within the meaning of Rule 13d-3(a)(1) under the
Securities Exchange Act of 1934, as amended), directly or
indirectly, of 50% or more of the Common Stock, (b) in which
any such Unrelated Person or Unrelated Persons acting in
concert acquire beneficial ownership of 20% or more of the
Common Stock subsequent to the Closing Date and (i) at the
first election for the board of directors of Borrower subsequent
to such acquisition, individuals who prior to such election were
directors of Borrower cease for any reason (other than death,
incapacity or disqualification under any Gaming Law) to
constitute 50% or more of the board of directors of Borrower
or (ii) if the terms of all directors of Borrower do not expire at
the date of such first election, then at the second election for
the board of directors of Borrower subsequent to such
acquisition, individuals who prior to such first election were
directors of Borrower cease for any reason (other than death,
incapacity or disqualification under any Gaming Law) to
constitute 50% or more of the board of directors of Borrower
or (c) constituting a "change in control" or other similar
occurrence under documentation evidencing or governing any
Indebtedness of Borrower of $25,000,000 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 those Banks listed in the preamble of
this Agreement as such. No Co-Agent shall have any rights,
duties or obligations under this Agreement or the other Loan
Documents by reason of its being a Co-Agent.
"Code" means the Internal Revenue Code of 1986, as
amended or replaced and as in effect from time to time.
"Commercial Paper Debt" means unsecured Indebtedness
of Borrower (with respect to which Restricted Subsidiaries of
Borrower may be co-obligors or guarantors) evidenced by
commercial paper notes bearing fixed interest rates and having
maturities not in excess of 270 days from the date of their
issuance.
"Commitment" means, subject to Sections 2.7, 2.8 and
11.15, $2,000,000,000. As of the Closing Date, the respective
Pro Rata Shares of the Banks with respect to the Commitment
are set forth in Schedule 1.1.
"Commitment Fee Rate" means, for each Pricing Period,
the rate set forth below (expressed in basis points) opposite the
Pricing Level for that Pricing Period:
Pricing Level Commitment Fee Rate
I 8.00
II 10.00
III 12.50
IV 15.00
V 17.50
VI 25.00
"Committed Advance" means an Advance made to
Borrower by any Bank in accordance with its Pro Rata Share
pursuant to Section 2.1.
"Committed Advance Note" means the promissory note
made by Borrower to a Bank evidencing the Committed
Advances under that Bank's Pro Rata Share, substantially in the
form of Exhibit B, either as originally executed or as the same
may from time to time be supplemented, modified, amended,
renewed, extended or supplanted.
"Committed Loans" means Loans that are comprised of
Committed Advances.
"Common Stock" means the common stock of Borrower
or its successor by merger.
"Competitive Advance" means an Advance made to
Borrower by any Bank not determined by that Bank's Pro Rata
Share pursuant to Section 2.5.
"Competitive Advance Note" means the promissory note
made by Borrower in favor of a Bank to evidence the
Competitive Advances made by that Bank substantially in the
form of Exhibit C, either as originally executed or as the same
may from time to time be supplemented, modified, amended,
renewed or extended.
"Competitive Bid" means (a) a written bid to provide a
Competitive Advance substantially in the form of Exhibit D,
signed by a Responsible Official of a Bank and properly
completed to provide all information required to be included
therein or (b), at the election of any Bank, a telephonic bid by
that Bank to provide a Competitive Advance which, if so made,
shall be made by a Responsible Official of that Bank and
deemed to have been made incorporating the substance of
Exhibit D, and shall promptly be confirmed by a written
Competitive Bid.
"Competitive Bid Request" means (a) a written request
submitted by Borrower to the Administrative Agent to provide a
Competitive Bid, substantially in the form of Exhibit E, signed
by a Responsible Official of Borrower and properly completed
to provide all information required to be included therein or
(b), at the election of Borrower, a telephonic request by
Borrower to the Administrative Agent to provide a Competitive
Bid which, if so made, shall be made by a Responsible Official
of Borrower and deemed to have been made incorporating the
substance of Exhibit E, and shall promptly be confirmed by a
written Competitive Bid Request.
"Completion Guaranty" means a Contingent Guaranty
given by Borrower or a Restricted Subsidiary to a holder of
Indebtedness of, or an obligee of, a New Venture Entity which
obligates Borrower or the Restricted Subsidiary to cause the
completion of construction of improvements on Property owned
thereby and/or to provide funding for all or a portion of any
construction cost overruns with respect thereto.
"Compliance Certificate" means a certificate substantially
in the form of Exhibit F, properly completed and signed on
behalf of Borrower by a Senior Officer of Borrower.
"Confidential Information Memorandum" means the
Confidential Information Memorandum dated April 16, 1997
distributed to the Banks in connection with the credit facilities
provided herein.
"Contingent Guaranty" means, as to any Person, any
(a) guarantee by that Person of Indebtedness of, or other
obligation performable by, any other Person or (b) assurance
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", "make-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 Contingent Guaranty shall not include
endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Contingent
Guaranty shall be deemed to be an amount equal to the stated
or determinable amount of the related primary obligation
(unless the Contingent Guaranty is limited by its terms to a
lesser amount, in which case to the extent of such amount) or,
if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by
Borrower in good faith, provided that (y) the amount of any
Contingent Guaranty consisting of a Completion Guaranty shall
be deemed to be zero unless and until Borrower's independent
auditors have quantified the amount of the exposure thereunder
(and thereafter shall be deemed to be the amount so quantified
from time to time), and (z) the amount of any Contingent
Guaranty consisting of a "keep-well", "make well" or other
similar arrangement shall be deemed to be zero unless and until
Borrower or its Restricted Subsidiaries are required to make
payment with respect thereto (and shall thereafter be deemed to
be the amount required to be paid, but only during the period in
which such payment is required to be made).
"Contractual Obligation" means, as to any Person, any
provision of any outstanding security issued by that Person or
of any material agreement, instrument or undertaking to which
that Person is a party or by which it or any of its Property is
bound.
"Creditors" means, collectively, the Administrative
Agent, the Issuing Bank, the Swing Line Bank, each Bank and,
where the context requires, any one or more of them.
"Debt Rating" means, as of each date of determination,
the most creditworthy credit rating, actual or implicit, assigned
to (i) senior unsecured Indebtedness of Borrower by S&P,
(ii) senior unsecured Indebtedness of Borrower by Moody's or
(iii) in the event such a credit rating is issued, the bank debt
credit rating assigned to the Indebtedness evidenced by this
Agreement by Moody's or S&P, whichever is higher.
"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.
"Default" means any event that, with the giving of any
applicable notice or passage of time specified in Section 9.1, or
both, would be an Event of Default.
"Default Rate" means the interest rate prescribed in
Section 3.9.
"Designated Deposit Account" means a deposit account
to be maintained by 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,
or (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 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 that the Cayman Islands Euro-
dollar 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.
"Developed Property" means, as of any date of
determination, a casino, hotel, casino/hotel, resort,
casino/resort, riverboat/dockside casino, entertainment center or
similar facility owned by Borrower or any of its Restricted
Subsidiaries (or owned by a Person in which Borrower or any
of its Restricted Subsidiaries holds an Investment) and which is
at such date substantially complete and open for business.
"Disposition" means the sale, transfer or other dis-
position of any asset of Borrower or any of its Significant
Subsidiaries (including the sale, transfer or other disposition of
the stock of any Significant Subsidiary) other than any sale,
transfer or other disposition (i) of inventory or other assets sold
or otherwise disposed of in the ordinary course of business of
Borrower or a Restricted Subsidiary, (ii) of equipment or other
assets sold or otherwise disposed of where substantially similar
equipment or other similar assets in replacement thereof have
theretofore been acquired, or thereafter within 90 days is
acquired, in each case by Borrower or a Significant Subsidiary,
or (iii) to Borrower or a Restricted Subsidiary.
"Distribution" means, with respect to any shares of
capital stock or any warrant or option to purchase an equity
security or other equity security issued by a Person, (i) the
retirement, redemption, purchase, or other acquisition for Cash
or for Property by such Person of any such security, (ii) the
declaration or (without duplication) payment by such Person of
any dividend in Cash or in Property on or with respect to any
such security, (iii) any Investment by such Person in the holder
of 5% or more of any such security if a purpose of such
Investment is to avoid characterization of the transaction as a
Distribution and (iv) any other payment in cash or Property by
such Person constituting a distribution under applicable Laws
with respect to such security.
"Dollars" or "$" means United States dollars.
"EBITDA" means, for any fiscal period (a) Net Income,
plus (b) any extraordinary loss reflected in Net Income, minus
(c) any extraordinary gain reflected in Net Income, plus
(d) depreciation, amortization and all other non-cash expenses,
plus (e) Interest Expense, plus (f) the aggregate amount of
federal and state taxes on or measured by income (whether or
not payable during that period), plus (g) pre-opening expenses
during that period reasonably determined by Borrower in a
manner consistent with the past accounting practices of
Borrower, in each case for Borrower and its Subsidiaries during
that period and as determined in accordance with Generally
Accepted Accounting Principles and, in the case of items (d),
(e), (f),and (g) only to the extent deducted in the determination
of Net Income for that period.
"Eligible Assignee" means (a) another Bank, (b) with
respect to any Bank, any Affiliate of that Bank and (c) any
commercial bank having a combined capital and surplus of
$100,000,000 or more that is (i) organized under the Laws of
the United States of America or any State thereof 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 11.22 at
the time of any assignment pursuant to Section 11.8.
"ERISA" means the Employee Retirement Income Secu-
rity 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 Euro-
dollar Rate Loan, the average of the interest rates per annum
(rounded upward, if necessary, to the next 1/16 of 1%) at
which deposits in Dollars are offered by the Eurodollar
Reference Banks 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 Advances
made by the Eurodollar Reference Banks 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 Margin" means, for each Pricing Period, the
interest rate margin set forth below (expressed in basis points)
opposite the Pricing Level for that Pricing Period:
Pricing Level Eurodollar Margin
I 24.00
II 25.00
III 35.00
IV 40.00
V 60.00
VI 75.00
"Eurodollar Margin Bid" means a Competitive Bid to
provide a Competitive Advance on the basis of a margin over
the Eurodollar Base Rate.
"Eurodollar Market" means a regular established market
located outside the United States of America by and among
banks for the solicitation, offer and acceptance of Dollar
deposits in such banks.
"Eurodollar Obligations" means eurocurrency liabilities,
as defined in Regulation D.
"Eurodollar Period" means, as to each Eurodollar Rate
Loan, the period commencing on the date specified by
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; and
(c) No Eurodollar Period shall extend beyond
the Maturity Date.
"Eurodollar Rate" means, with respect to any Eurodollar
Rate Loan and any Competitive Advance based on a margin
over the Eurodollar Rate, an interest rate per annum (rounded
upward, if necessary, to the nearest 1/16 of one percent)
determined pursuant to the following formula:
Eurodollar Eurodollar Base Rate
Rate = 1.00 - Eurodollar
Reserve
Percentage
"Eurodollar Rate Advance" and "Eurodollar Rate Loan"
mean, respectively, a Committed Advance made hereunder and
specified to be a Eurodollar Rate Advance or Loan in
accordance with Article 2.
"Eurodollar Reference Banks" means, collectively, Bank
of America and Canadian Imperial Bank of Commerce.
"Eurodollar Reserve Percentage" means, with respect to
any Eurodollar Rate Loan, the maximum reserve percentage
(expressed as a decimal, rounded upward to the nearest 1/100th
of 1%) in effect on the date the Eurodollar Base Rate for that
Eurodollar Rate Loan is determined (whether or not applicable
to any Bank) under regulations issued from time to time by the
Federal Reserve Board for determining the maximum reserve
requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to eurocurrency
funding (currently referred to as "eurocurrency liabilities")
having a term comparable to the Eurodollar 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.
"Existing Subordinated Debt" means, collectively,
Borrower's (a) 10 5/8% Senior Subordinated Notes due 1997,
(b) 6 3/4% Senior Subordinated Notes due 2003 and (c) 7 5/8%
Senior Subordinated Debentures due 2013.
"Existing Loan Agreement" means the Loan Agreement
dated as of January 29, 1996 among Borrower, the lenders
therein named, and Bank of America, as Administrative Agent,
as amended.
"Exit Agreement" means the agreement among each
Exiting Bank, the Administrative Agent and the Borrower under
the Existing Loan Agreement regarding the termination of each
Exiting Bank's Pro Rata Share of the Commitment under the
Existing Loan Agreement, the repayment of any outstanding
Loans thereunder to that Exiting Bank and the termination of
the lending relationship between that Exiting Bank and
Borrower.
"Exiting Bank" means each lender under the Existing
Loan Agreement which is not, as of the Closing Date, a Bank
under this Agreement.
"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 publication,
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 relevant date such rate
is not yet published in H.15(519), the rate for such date will be
the rate set forth in the daily statistical release designated as the
Composite 3:30 p.m. Quotations for U.S. Government
Securities, or any successor publication, published by the
Federal Reserve Bank of New York (including any such
successor, the "Composite 3:30 p.m. Quotation") for such date
under the caption "Federal Funds Effective Rate". If on any
relevant date the appropriate rate for such date is not yet
published in either H.15(519) or the Composite 3:30 p.m.
Quotations, the rate for such date will be the arithmetic mean of
the rates for the last transaction in overnight Federal funds
arranged prior to 9:00 a.m. (New York City time) on that date
by each of three leading brokers of Federal funds transactions
in New York City selected by the Administrative Agent. For
purposes of this Agreement, any change in the 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.
"Fiscal Quarter" means the fiscal quarter of Borrower
consisting of a three month fiscal period ending on each
April 30, July 31, October 31 and January 31.
"Fiscal Year" means the fiscal year of Borrower
consisting of a twelve month fiscal period ending on each
January 31.
"Gaming Board" means any Governmental Agency that
holds regulatory, licensing or permit authority over gambling,
gaming or casino activities conducted by Borrower and its
Subsidiaries within its jurisdiction, or before which an
application for licensing to conduct such activities is pending.
"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 to those applied at prior dates
or for prior periods.
"Government Securities" means readily marketable
(a) direct full faith and credit obligations of the United States of
America or obligations guaranteed by the full faith and credit of
the United States of America and (b) obligations of an agency
or instrumentality of, or corporation owned, controlled or
sponsored by, the United States of America that are generally
considered in the securities industry to be implicit obligations of
the United States of America.
"Governmental Agency" means (a) any international,
foreign, federal, state, county or municipal government, or
political subdivision thereof, (b) any governmental or
quasi-governmental agency, authority, board, bureau,
commission, department, instrumentality or public body, or
(c) any court or administrative tribunal.
"Hazardous Materials" means substances defined as
hazardous substances pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. 9601 et seq., or as hazardous, toxic or
pollutant pursuant to the Hazardous Materials Transportation
Act, 49 U.S.C. 1801, et seq., the Resource Conservation and
Recovery Act, 42 U.S.C. 6901, et seq., the Hazardous Waste
Control Law, California Health & Safety Code 25100,
et seq., or in any other applicable Hazardous Materials Law, in
each case as such Laws are amended from time to time.
"Hazardous Materials Laws" means all federal, state or
local laws, ordinances, rules or regulations governing the
disposal of Hazardous Materials applicable to any of the Real
Property.
"Incremental Margin" means, during any Pricing Period,
(a) 0%, if, as of the last day of the Fiscal Quarter most recently
ended prior to such Pricing Period, the Total Debt Ratio was
equal to or less than 3.50 to 1.00, (b) 1/10th of 1% (10 basis
points) if, as of the last day of the Fiscal Quarter most recently
ended prior to such Pricing Period, the Total Debt Ratio was
greater than 3.50 to 1.00, and (c) 2/10th's of 1% (20 basis
points) if, as of the last day of the Fiscal Quarter most recently
ended prior to such Pricing Period, the Total Debt Ratio was
greater than 4.00 to 1.00.
"Indebtedness" means, as to any Person (without duplica-
tion), (a) indebtedness of such Person for borrowed money or
for the deferred purchase price of Property or services (exclud-
ing trade and other accounts payable and deferred payments
under employment agreements in the ordinary course of
business in accordance with customary trade terms), including
any Contingent Guaranty for any such indebtedness, (b) indebt-
edness 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 lesser of the amount
of such indebtedness or the value of such assets, (c) Capital
Lease Obligations of such Person, (d) indebtedness of such
Person arising under 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) to the
extent of the net defined credit committed with respect thereto,
any obligations of such Person under a Swap Agreement,
marked to market on a quarterly basis provided that
Indebtedness shall exclude the obligations of Borrower's
Subsidiaries to the Mississippi Business Finance Corporation to
the extent that the Mississippi Business Finance Corporation is
itself an obligor to Borrower.
"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 Differential" means, with respect to any prepay-
ment of a Eurodollar Rate Loan on a day prior to the last day
of the applicable Eurodollar 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 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 commencing on such date
and ending on the last day of the Eurodollar 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.
"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.
"Issuing Bank" means, subject to Section 10.8, Bank of
America, when acting in its capacity as Issuing Bank under any
of the Loan Documents, or any successor Issuing Bank.
"Laws" means, collectively, all international, foreign,
federal, state and local statutes, treaties, rules, regulations,
ordinances, codes and administrative or judicial precedents.
"Letter of Credit" means any letter of credit issued by
the Issuing Bank pursuant to Section 2.4, either as originally
issued or as the same may from time to time be supplemented,
modified, amended, renewed or extended in accordance with
the terms hereof.
"Letter of Credit Fee" means, for each Pricing Period
the per annum rate set forth as the interest rate margin in the
definition of "Eurodollar Margin" opposite the Pricing Level
for that Pricing Period.
"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
Restricted Subsidiaries.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment for security, security interest,
encumbrance, lien or charge of any kind, whether voluntarily
incurred or arising by operation of Law or otherwise, affecting
any Property, including any agreement to grant any of the
foregoing, any conditional sale or other title retention
agreement, any lease in the nature of a security interest, and/or
the filing of or agreement to give any financing statement (other
than a precautionary financing statement with respect to a lease
or other agreement that is not in the nature of a security
interest) under the Uniform Commercial Code or comparable
Law of any jurisdiction with respect to any Property.
"Loan" means the aggregate of the Advances made at
any one time by the Banks pursuant to Article 2.
"Loan Documents" means, collectively, this Agreement,
the Notes, the Subsidiary Guaranty, the Swing Line
Documents, any Request for Loan, any Competitive Bid
Request, any Compliance Certificate and any other instruments,
documents or agreements of any type or nature hereafter
executed and delivered by Borrower or any of its Subsidiaries
or Affiliates to the Administrative Agent or any other Creditor
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.
"Maintenance Capital Expenditure" means a Capital
Expenditure for the maintenance, repair, restoration or
refurbishment of any Developed Property of Borrower or any
of its Restricted Subsidiaries, but excluding any Capital
Expenditure which adds to or further improves such Developed
Property.
"Managing Agents" means the Banks identified as such
in the preamble to this Agreement. No Managing Agent shall
have any rights, duties or obligations under this Agreement or
the other Loan Documents by reason of its being a Managing
Agent.
"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), assets or business operations
of Borrower and its Restricted Subsidiaries, taken as a whole,
or (c) materially impairs or could reasonably be expected to
materially impair the ability of Borrower and its Restricted
Subsidiaries, taken as a whole, to perform the Obligations.
"Maturity Date" means July 31, 2002, or such later
anniversary thereof as may be established pursuant to Section
2.10.
"Maximum Competitive Advance" means, with respect
to any Competitive Bid made by a Bank, the amount set forth
therein as the maximum Competitive Advance which that Bank
is willing to make in response to the related Competitive Bid
Request.
"Monthly Payment Date" means the last day of each
calendar month.
"Moody's" means Moody's Investor Service, Inc., its
successors and 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
Restricted Subsidiaries that prohibits Liens on any of its or their
Property, other than (a) any such covenant contained in a
Contractual Obligation granting a Lien permitted under Section
6.8 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 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, consistently applied.
"New Capital Amount" means, as of any date of
determination, an amount equal to the aggregate net cash
proceeds received by Borrower from the issuance and sale of
capital stock of Borrower (including upon any conversion or
exchange of debt securities of Borrower issued after the Closing
Date into or for such capital stock) after the Closing Date and
through such date.
"New Venture" means a casino, hotel, casino/hotel,
resort, casino/resort, riverboat/dockside casino, entertainment
center or similar facility (or any site or proposed site for any of
the foregoing) owned or to be owned by Borrower or any of its
Restricted Subsidiaries (or owned or to be owned by a Person
in which Borrower, any of its Restricted Subsidiaries or a New
Venture Entity owned directly or indirectly by Borrower or any
of its Restricted Subsidiaries holds an Investment) and which is
not at the Closing Date a Developed Property. Atlantic City,
Bay St. Louis and Project Paradise are each New Ventures.
"New Venture Entity" means the Person or Persons that
directly own a New Venture, if such Person or Persons are
neither Borrower nor a Restricted Subsidiary.
"Notes" means, collectively, the Committed Advance
Notes and the Competitive Advance Notes.
"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 Creditors 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.
"Opinions of Counsel" means the favorable written legal
opinions of (a) Wolf, Block, Schorr and Solis-Cohen, and
(b) Jones, Jones, Close & Brown, special Nevada counsel to
Borrower and its Restricted Subsidiaries, substantially in the
form of Exhibits G-1 and G-2, respectively, together with
copies of all factual certificates and legal opinions upon which
such counsel has relied.
"Outstanding Obligations" means, as of each date of
determination, and giving effect to the making of any such
credit accommodations requested on that date, the sum of (i)
the aggregate principal amount of the outstanding Committed
Loans, plus (ii) the aggregate principal amount of the
outstanding Competitive Advances, plus (iii) the Swing Line
Outstandings, plus (iv) the Aggregate Effective Amount of all
Letters of Credit.
"Party" means any Person other than Creditors 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 Encumbrances" means:
(a) Inchoate Liens incident to construction or
maintenance of Real Property; or Liens incident to
construction 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 and
similar charges with respect to 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 judg-
ment, provided that, by reason of nonpayment of the
obligations secured by such Liens, no material Real
Property is subject to a material risk of loss or forfeiture;
(c) 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, driveways,
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 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 Govern-
mental Agency to control or regulate, or obligations or
duties to any Governmental Agency with respect to, the
use of any Real Property;
(g) rights reserved to or vested in any 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, building
codes and ordinances, zoning restrictions, or other laws
and ordinances restricting the occupancy, use, or
enjoyment of Real Property;
(i) statutory Liens, other than those described
in clauses (a) or (b) above, arising in the ordinary course
of business with respect to obligations which are not
delinquent or are being contested in good faith, provided
that, if delinquent, adequate reserves have been set aside
with respect thereto and, by reason of nonpayment, no
property is subject to a material risk of loss or forfeiture;
(j) covenants, conditions, and restrictions
affecting the use of Real Property which in the aggregate
do not materially impair the fair market value or use of
the Real Property for the purposes for which it is or may
reasonably be expected to be held;
(k) rights of tenants under leases and rental
agreements covering Real Property entered into in the
ordinary course of business of the Person owning such
Real Property;
(l) Liens consisting of pledges or deposits to
secure obligations under workers' compensation laws or
similar legislation, including Liens of judgments there-
under 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 is a party as lessee,
provided the aggregate value of all such pledges and
deposits in connection with any such lease does not at
any time exceed 20% of the annual fixed rentals payable
under such lease;
(n) Liens consisting of deposits of property to
secure bids made with respect to, or performance of,
contracts (other than contracts creating or evidencing an
extension of credit to the depositor) in the ordinary
course of business;
(o) Liens consisting of any right of offset, or
statutory bankers' lien, on bank deposit accounts
maintained in the ordinary course of business so long as
such bank deposit accounts are not established or
maintained for the purpose of providing such right of
offset or bankers' lien;
(p) Liens consisting of deposits of property to
secure statutory obligations of Borrower or a 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 a Subsidiary of Bor-
rower 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 its
Subsidiaries, taken as a whole.
"Permitted Right of Others" means a Right of Others
consisting of (i) 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, (ii) an option or right to
acquire a Lien that would be a Permitted Encumbrance, (iii) the
subordination of a lease or sublease in favor of a financing
entity and (iv) a license, or similar right, of or to Intangible
Assets granted in the ordinary course of business.
"Person" means any entity, whether an individual,
trustee, corporation, general partnership, limited partnership,
joint stock company, trust, estate, unincorporated organization,
business association, firm, joint venture, Governmental Agency,
or otherwise.
"Pricing Level" means, for each Pricing Period, the
pricing level set forth below opposite the pricing criteria
achieved by Borrower as of the first day of that Pricing Period
(and, if the Total Debt Ratio and the Debt Rating are at
different pricing levels, then the pricing level which yields the
lowest Eurodollar Margin and Commitment Fee Rate to
Borrower):
Pricing Level Pricing Criteria
Total Debt
Debt Ratio Rating
I Less than 0.75 to 1.00 At least A
or A2
II Equal to or greater than
0.75 to 1.00 but less
than 1.50 to 1.00 A- or A3
III Equal to or greater
than 1.50 to 1.00 but
less than 2.25 to 1.00 BBB+ or
Baa1
IV Equal to or greater than
2.25 to 1.00 but less
than 3.00 to 1.00 BBB or
Baa2
V Equal to or greater than
3.00 to 1.00 but less
than 3.75 to 1.00 BBB- or
Baa3
VI Equal to or greater than
3.75 to 1.00 BB+ or Ba1 or below
provided that in the event that the then prevailing Debt Ratings
are "split ratings" and to the extent that the applicable Pricing
Level is then based upon the Debt Ratings, Borrower will
receive the benefit of the higher Debt Rating, unless the split is
a "double split rating" (in which case the intermediate Pricing
Level will apply) or a "triple split rating" (in which case the
Pricing Level below that applicable to the higher Debt Rating
will apply).
"Pricing Occurrence" means (a) with respect to any
change in the Total Debt Ratio which results in a change in the
Pricing Level or results in an Incremental Margin, the earlier of
(i) the date upon which Borrower delivers the Compliance
Certificate to the Administrative Agent reflecting such changed
Total Debt Ratio and (ii) the date upon which Borrower is
required by Section 7.2 to deliver such Compliance Certificate
and (b) with respect to any change in the Debt Rating which
results in a change in the Pricing Level, the date which is
five (5) Banking Days after the Administrative Agent has
received evidence reasonably satisfactory to it of such change.
"Pricing Period" means (a) the period commencing on
the Closing Date and ending on the first Pricing Occurrence to
occur thereafter and (b) each subsequent period commencing on
the date of a Pricing Occurrence and ending on the next Pricing
Occurrence to occur.
"Project Entity" means, collectively, Galleon, Inc.,
Borrower's Subsidiaries which are pure holding companies for
its interests in Victoria Partners, Elgin Riverboat Resort and
each other Person, hereafter formed or acquired by Borrower
or its Subsidiaries for the purpose of the development,
construction or operation of New Ventures.
"Project Paradise" means the approximately 3800 room
hotel and casino project proposed to be constructed by
Borrower on land located immediately to the south of the Luxor
Hotel and Casino in Las Vegas, Nevada.
"Project Paradise Completion Date" means the date upon
which Project Paradise (exclusive of the related Four Seasons
Hotel described in the Confidential Information Memorandum)
is officially open for business to the general public.
"Projections" means the financial projections contained
in the Confidential Information Memorandum.
"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 held by that Bank. The Pro
Rata Share of each Bank as of the Closing Date is set forth
opposite the name of that Bank on Schedule 1.1.
"Quarterly Payment Date" means each October 31,
January 31, April 30 and July 31.
"Real Property" means, as of any date of determination,
all real property then or theretofore owned, leased or occupied
by Borrower or any of its Restricted Subsidiaries.
"Reference Rate" means the rate of interest publicly
announced from time to time by Bank of America in
San Francisco, California, as its "reference rate" or the similar
prime rate or reference rate announced by any successor
Administrative Agent. Bank of America's reference rate is a
rate set by Bank of America based upon various factors
including Bank of America'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 Bank of America or any
successor Administrative Agent 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.
"Request for Letter of Credit" means a written request
for a Letter of Credit substantially in the form of Exhibit H,
together with any forms of application for letter of credit
required by the Issuing Bank, in each case signed by a
Responsible Official of Borrower on behalf of Borrower and
properly completed to provide all information required to be
included therein.
"Request for Loan" means a written request for a Loan
substantially in the form of Exhibit I, signed by a Responsible
Official of Borrower, on behalf 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.
"Requisite Banks" means (a) as of any date of
determination if the Commitment is then in effect, Banks
having in the aggregate 66-2/3% or more of the Commitment
then in effect and (b) as of any date of determination if the
Commitment has then been terminated, Banks holding 66-2/3%
of the Outstanding Obligations.
"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.
"Restricted Expenditures" means (a) Distributions (other
than Distributions on the Common Stock consisting of Common
Stock) to Persons other than to Borrower or the Restricted
Subsidiaries, (b) Capital Expenditures (other than (i) Capital
Expenditures for the completion of Project Paradise, the related
Four Seasons Hotel, Bay St. Louis and Tunica in substantial
accordance with the construction plans in existence on the
Closing Date and (ii) Maintenance Capital Expenditures),
(c) the purchase price paid in Cash for Acquisitions net of any
Indebtedness incurred to finance such Acquisitions that is
non-recourse to the credit or assets of Borrower or any
Significant Subsidiary or their respective Properties, and
(d) direct or indirect Investments in Cash or Cash Equivalents
in New Venture Entities, in each case made by Borrower or
any of the Restricted Subsidiaries.
"Restricted Expenditure Basket" means, as of any date of
determination, the sum of (a) $500,000,000 plus (b) an amount
equal to 50% of cumulative Net Income for the period
commencing May 1, 1997 and ending on the last day of the
most recently-ended Fiscal Quarter (taken as a single fiscal
period), plus (c) the New Capital Amount as of that date.
"Restricted Subsidiary" means, as of any date of
determination, any Subsidiary of Borrower (a) at least 80% of
the capital stock or other ownership interests of which are
owned on such date, directly or indirectly, by Borrower and
(b) with respect to which neither Borrower nor any of its
Restricted Subsidiaries has entered any shareholders'
agreement, management agreement or other agreement which
has the effect of delegating management control over such
Subsidiary to a Person other than Borrower or a Restricted
Subsidiary.
"Right of Others" means, as to any Property in which a
Person has an interest, any legal or equitable ownership 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, (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, and (c)
any residual rights held by a lessor or vendor of Property, shall
not be deemed to constitute a Right of Others.
"S&P" means Standard & Poor's Ratings Group, a
division of McGraw Hill, Inc., its successors and assigns.
"Sale and Leaseback" means, with respect to any Person,
the sale of Property owned by that Person (the "Seller") to
another Person (the "Buyer"), together with the substantially
concurrent leasing of such Property by the Buyer to the Seller.
"Sale and Leaseback Obligation" means, with respect to
any Sale and Leaseback and as of any date of determination,
the present value of the aggregate monetary obligations of the
lessee under the lease of the Property which is the subject of
such Sale and Leaseback (discounted at the interest rate implicit
in such lease, compounded semiannually) for the then
remaining term of such lease (treating all extension options
exercisable by the lessor as having been exercised, but deeming
the lease terminated as of the earliest date upon which the
lessee has the option to do so); provided that such monetary
obligations shall exclude amounts payable in respect of
maintenance, repairs, insurance, taxes, assessments, utilities
and similar charges.
"Senior Officer" means Borrower's (a) chief executive
officer, (b) president, (c) chief financial officer, or
(d) treasurer.
"Significant Subsidiary" means, as of any date of
determination, each Restricted Subsidiary that had on the last
day of the Fiscal Quarter then most recently ended total assets
(determined in accordance with Generally Accepted Accounting
Principles) of $10,000,000 or more.
"Special Eurodollar Circumstance" means the application
or adoption after the date hereof of any Law or interpretation,
or any change therein or thereof, or any change in the interpre-
tation or administration thereof by any Governmental Agency,
central bank or comparable authority charged with the inter-
pretation 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.
"Standby Letter of Credit" means each Letter of Credit
other than any Letter of Credit which is a commercial Letter of
Credit. The determination by the Issuing Bank of which
Letters of Credit are Standby Letters of Credit shall be
conclusive in the absence of manifest error.
"Subordinated Debt" means (a) the Existing Subordinated
Debt and (b) any other Indebtedness of Borrower which is
subordinated in right of payment to the Obligations pursuant to
subordination provisions which are either (a) substantively no
less favorable to the Banks than the subordination provisions of
any Existing Subordinated Debt selected by Borrower, or (b)
otherwise are acceptable to the Requisite Banks in the exercise
of their sole discretion.
"Subsidiary" means, as of any date of determination and
with respect to any Person, any corporation 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, of which a majority
of the securities having ordinary voting power for the election
of directors or other governing body (other than securities
having such power only by reason of the happening of a
contingency) are at the time beneficially owned by such Person
and/or one or more Subsidiaries of such Person, or (b) in the
case of a partnership, of which a majority of the partnership or
other ownership interests are at the time beneficially owned by
such Person and/or one or more of its Subsidiaries.
"Subsidiary Guaranty" means the continuing guaranty of
the Obligations to be executed and delivered by the Significant
Subsidiaries, in the form of Exhibit J, either as originally
executed or as it may from time to time be supplemented,
modified, amended, extended or supplanted. The Subsidiary
Guaranty provides that any Significant Subsidiary which is sold,
transferred or otherwise disposed of after the Closing Date in a
transaction which does not violate this Agreement, that the
Administrative Agent shall, promptly following request therefor
by Borrower, release such Significant Subsidiary from the
Subsidiary Guaranty.
"Swap Agreement" means a written agreement between
Borrower and one or more financial institutions providing for
the "swap" of interest rate payment obligations with respect to
any Indebtedness.
"Swing Line" means the revolving line of credit
established by the Swing Line Bank in favor of Borrower
pursuant to Section 2.6.
"Swing Line Advances" means Advances made by the
Swing Line Bank to Borrower pursuant to Section 2.6.
"Swing Line Bank" means, when acting in such capacity,
Bank of America (through its Nevada Corporate Banking
Division), its successors and assigns.
"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 Outstandings" means, as of any date of
determination, the aggregate principal Indebtedness of Borrower
on all Swing Line Advances then outstanding.
"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 circumstances would have done) should have been
known by the Person (or, in the case of a Person other than a
natural Person, should have been known by a Responsible
Official of that Person).
"Total Debt" means, as of any date of determination, the
sum (without duplication) of (a) the outstanding principal
Indebtedness of Borrower and its Restricted Subsidiaries for
borrowed money (including debt securities issued by Borrower
or any of its Restricted Subsidiaries) on that date, plus (b) the
aggregate amount of all Capital Lease Obligations of Borrower
and its Restricted Subsidiaries on that date, plus (c) obligations
in respect of letters of credit or other similar instruments for
which Borrower or any of its Restricted Subsidiaries are
account parties or are otherwise obligated (other than trade
letters of credit and letters of credit in support of gaming tax
and other similar regulatory obligations), and in any event
including any such Letters of Credit or instruments which
support Indebtedness of the type described in clause (a) or
Capital Lease Obligations, to the extent of the amount drawable
under such letters of credit or similar instruments, plus (d) the
aggregate amount of all Contingent Guarantees and other
similar contingent obligations of Borrower and its Restricted
Subsidiaries with respect to any of the foregoing to the extent
classified as a liability on their respective balance sheets under
Generally Accepted Accounting Principles.
"Total Debt Ratio" means, as of the last day of any
Fiscal Quarter, the ratio of (a) Average Daily Total Debt on
that date, to (b) the greater of (i) Adjusted EBITDA for the
four Fiscal Quarter period ending on that date, or (ii) four
times Adjusted EBITDA for the Fiscal Quarter ending on that
date.
"Tunica" means the approximately 1500 room hotel
casino owned by Borrower and its Subsidiaries in Tunica,
Mississippi, together with the proposed casino renovations,
retail and entertainment facilities associated therewith,
completed substantially in accordance with the construction
plans therefor in existence on the Closing Date.
"type", when used with respect to any Loan or Advance,
means the designation of whether such Loan or Advance is a
Base Rate Loan or Advance, or a Eurodollar Rate Loan or
Advance.
"Unrelated Person" means any Person other than (a) a
Subsidiary of Borrower or (b) an employee stock ownership
plan or other employee benefit plan covering the employees of
Borrower and its Subsidiaries.
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 and 6.12 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 90 day period following any such change in Generally
Accepted Accounting Principles if and to the extent that Borrower
would have been in compliance therewith under Generally Accepted
Accounting Principles as in effect immediately prior to such change.
1.4 Rounding. Any financial ratios required to be main-
tained by 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, if any, as Borrower shall
have no Subsidiaries.
1.7 Miscellaneous Terms. The term "or" is disjunctive;
the term "and" is conjunctive. The term "shall" is mandatory; the
term "may" is permissive. Masculine terms also apply to females;
feminine terms also apply to males. The term "including" is by way
of example and not limitation.
Article 2
LOANS
2.1 Committed Loans-General.
(a) Subject to the terms and conditions set forth in
this Agreement, at any time and from time to time from the Closing
Date through and including the Maturity Date, each Bank shall, pro
rata according to that Bank's Pro Rata Share of the then applicable
Commitment, make Committed Advances in Dollars to Borrower in
such amounts as Borrower may request provided that, giving effect to
such Advances, the Outstanding Obligations shall not exceed the
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 Committed
Loan shall be made pursuant to a Request for Loan which shall spe-
cify 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
Eurodollar 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. The Administrative Agent shall incur no 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 from any loss, cost, expense or
liability as a result of so acting.
(c) Promptly following receipt of a Request for Loan,
the Administrative Agent shall notify each Bank by telephone or
telecopier (and if by telephone, promptly confirmed by telecopier) of
the date and type of the Loan, the applicable Eurodollar Period, and
that Bank's Pro Rata Share of the Loan. Not later than 11:00 a.m.,
California local time, on the date specified for any Loan (which must
be a Banking Day), each Bank shall make its Pro Rata Share of the
Committed 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 Committed Advances shall be credited on that date in
immediately available funds to the Designated Deposit Account.
(d) Unless the Requisite Banks otherwise consent,
each Committed Loan shall be an integral multiple of $1,000,000 and
shall be not less than $10,000,000.
(e) The Committed Advances made by each Bank
shall be evidenced by that Bank's Committed Advance Note.
(f) A Request for Loan shall be irrevocable upon the
Administrative 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
Sections 2.2 or 2.3 in connection with a Loan which, if made and
giving effect to the application of the proceeds thereof, would not
increase the outstanding principal Indebtedness evidenced by the
Committed Advance Notes, then 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(f)(i), a Base Rate Loan in an amount
equal to the amount necessary to cause the outstanding principal
Indebtedness evidenced by the Committed Advance 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 Committed Loan is to be made on the same
date that another Committed Loan is due and payable, Borrower or
the Banks, as the case may be, shall make available to the
Administrative Agent the net amount of funds giving effect to both
such Committed 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 Committed Loan.
2.2 Base Rate Loans. Each request by Borrower for a
Base Rate Loan shall be made pursuant to a Request for Loan (or
telephonic or other request for loan referred to in the second sentence
of Section 2.1(b), if applicable) received by the Administrative Agent,
at the Administrative Agent's Office, not later than 9:00 a.m.
California local time, on the date (which must be a Banking Day) of
the requested Base Rate Loan. All Committed Loans shall constitute
Base Rate Loans unless properly designated as a Eurodollar Rate Loan
pursuant to Section 2.3.
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 9:00 a.m., California
local 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 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 Letters of Credit.
(a) Subject to the terms and conditions hereof, at any
time and from time to time from the Closing Date through the day
prior to the Maturity Date, the Issuing Bank shall issue such Letters of
Credit under the Commitment as Borrower may request by a Request
for Letter of Credit; provided that giving effect to all such Letters of
Credit, (i) the Outstanding Obligations shall not exceed the
Commitment, and (ii) the Aggregate Effective Amount under all
outstanding Letters of Credit shall not exceed $100,000,000. Each
Letter of Credit shall be in a form reasonably acceptable to the Issuing
Bank. Unless all the Banks otherwise consent in a writing delivered
to the Administrative Agent, no Letter of Credit shall have a term
which exceeds one year or which extends beyond the Maturity Date.
(b) Each Request for Letter of Credit shall be
submitted to the Issuing Bank, with a copy to the Administrative
Agent, at least five (5) Banking Days prior to the date upon which the
related Letter of Credit is proposed to be issued. The Administrative
Agent shall promptly notify the Issuing Bank whether such Request
for Letter of Credit, and the issuance of a Letter of Credit pursuant
thereto, conforms to the requirements of this Agreement. Upon
issuance of a Letter of Credit, the Issuing Bank shall promptly notify
the Administrative Agent, and the Administrative Agent shall promptly
notify the Banks, of the amount and terms thereof.
(c) Upon the issuance of a Letter of Credit, each
Bank shall be deemed to have purchased a pro rata participation in
such Letter of Credit from the Issuing Bank in an amount equal to that
Bank's Pro Rata Share. Without limiting the scope and nature of each
Bank's participation in any Letter of Credit, to the extent that the
Issuing Bank has not been reimbursed by Borrower for any payment
required to be made by the Issuing Bank under any Letter of Credit,
each Bank shall, pro rata according to its Pro Rata Share, reimburse
the Issuing Bank promptly upon demand for the amount of such
payment. The obligation of each Bank to so reimburse the Issuing
Bank shall be absolute and unconditional and shall not be affected by
the occurrence of an Event of Default or any other occurrence or
event. Any such reimbursement shall not relieve or otherwise impair
the obligation of Borrower to reimburse the Issuing Bank for the
amount of any payment made by the Issuing Bank under any Letter of
Credit together with interest as hereinafter provided.
(d) Borrower agrees to pay to the Issuing Bank an
amount equal to any payment made by the Issuing Bank with respect
to each Letter of Credit within one (1) Banking Day after demand
made by the Issuing Bank therefor (which demand the Issuing Bank
shall make promptly and in any event shall make upon the request of
the Requisite Banks), together with interest on such amount from the
date of any payment made by the Issuing Bank at the rate applicable to
Base Rate Loans for three Banking Days and thereafter at the Default
Rate. The principal amount of any such payment shall be used to
reimburse the Issuing Bank for the payment made by it under the
Letter of Credit and, to the extent that the Banks have not reimbursed
the Issuing Bank pursuant to Section 2.4(c), the interest amount of any
such payment shall be for the account of the Issuing Bank. Each Bank
that has reimbursed the Issuing Bank pursuant to Section 2.4(c) for its
Pro Rata Share of any payment made by the Issuing Bank under a
Letter of Credit shall thereupon acquire a pro rata participation, to the
extent of such reimbursement, in the claim of the Issuing Bank against
Borrower for reimbursement of principal and interest under this
Section 2.4(d) and shall share, in accordance with that pro rata
participation, in any principal payment made by Borrower with respect
to such claim and in any interest payment made by Borrower (but only
with respect to periods subsequent to the date such Bank reimbursed
the Issuing Bank) with respect to such claim. The Issuing Bank shall
promptly make available to the Administrative Agent, which will
thereupon remit to the appropriate Banks, in immediately available
funds, any amounts due to the Banks under this Section.
(e) Borrower may, pursuant to a Request for Loan,
request that Advances be made pursuant to Section 2.1(a) to provide
funds for the payment required by Section 2.4(d) and, for this
purpose, the conditions precedent set forth in Article 8 shall not apply.
The proceeds of such Advances shall be paid directly to the Issuing
Bank to reimburse it for the payment made by it under the Letter of
Credit.
(f) If Borrower fails to make the payment required by
Section 2.4(d) within the time period therein set forth, in lieu of the
reimbursement to the Issuing Bank under Section 2.4(c) the Issuing
Bank 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 an aggregate amount equal to the amount paid by the
Issuing Bank with respect to that Letter of Credit and, for this
purpose, the conditions precedent set forth in Article 8 shall not apply.
The proceeds of such Advances shall be paid directly to the Issuing
Bank to reimburse it for the payment made by it under the Letter of
Credit.
(g) The issuance of any supplement, modification,
amendment, renewal, or extension to or of any Letter of Credit shall
be treated in all respects the same as the issuance of a new Letter of
Credit.
(h) The obligation of Borrower to pay to the Issuing
Bank the amount of any payment made by the Issuing Bank under any
Letter of Credit shall be absolute, unconditional, and irrevocable.
Without limiting the foregoing, Borrower's obligations shall not be
affected by any of the following circumstances:
(i) any lack of validity or enforceability of the
Letter of Credit, this Agreement, or any other agreement or
instrument relating thereto;
(ii) any amendment or waiver of or any consent
to departure from the Letter of Credit, this Agreement, or any other
agreement or instrument relating thereto;
(iii) the existence of any claim, setoff, defense,
or other rights which Borrower may have at any time against the
Issuing Bank or any other Creditor, any beneficiary of the Letter of
Credit (or any persons or entities for whom any such beneficiary may
be acting) or any other Person, whether in connection with the Letter
of Credit, this Agreement, or any other agreement or instrument
relating thereto, or any unrelated transactions;
(iv) any demand, statement, or any other
document presented under the Letter of Credit proving to be forged,
fraudulent, invalid, or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect whatsoever;
(v) payment by the Issuing Bank under the
Letter of Credit against presentation of a draft or any accompanying
document which does not strictly comply with the terms of the Letter
of Credit;
(vi) the existence, character, quality, quantity,
condition, packing, value or delivery of any Property purported to be
represented by documents presented in connection with any Letter of
Credit or any difference between any such Property and the character,
quality, quantity, condition, or value of such Property as described in
such documents;
(vii) the time, place, manner, order or contents
of shipments or deliveries of Property as described in documents
presented in connection with any Letter of Credit or the existence,
nature and extent of any insurance relative thereto;
(viii) the solvency or financial responsibility of
any party issuing any documents in connection with a Letter of Credit;
(ix) any failure or delay in notice of shipments
or arrival of any Property;
(x) any error in the transmission of any
message relating to a Letter of Credit not caused by the Issuing Bank,
or any delay or interruption in any such message;
(xi) any error, neglect or default of any
correspondent of the Issuing Bank in connection with a Letter of
Credit;
(xii) any consequence arising from acts of God,
war, insurrection, civil unrest, disturbances, labor disputes,
emergency conditions or other causes beyond the control of the
Issuing Bank;
(xiii) so long as the Issuing Bank in good faith
determines that the contract or document appears to comply with the
terms of the Letter of Credit (and no payment is made by the Issuing
Bank after the expiration date of the Letter of Credit or in amounts
greater than the amount thereof), the form, accuracy, genuineness or
legal effect of any contract or document referred to in any document
submitted to the Issuing Bank in connection with a Letter of Credit;
(xiv) so long as the Issuing Bank in good faith
determines that the contract or document appears to comply with the
terms of the Letter of Credit, the form, accuracy, genuineness or legal
effect of any contract or document referred to in any document
submitted to the Issuing Bank in connection with a Letter of Credit;
and
(xv) where the Issuing Bank has acted in good
faith and observed general banking usage, any other circumstances
whatsoever.
(i) The Issuing Bank shall be entitled to the pro-
tection accorded to the Administrative Agent pursuant to Section 10.6,
mutatis mutandis.
(j) Each Letter of Credit which is outstanding under
the Existing Loan Agreement as of the Closing Date shall be deemed
to have been issued under, and shall be outstanding under this
Agreement and shall constitute an Obligation.
2.5 Competitive Advances.
(a) Subject to the terms and conditions hereof, at any
time and from time to time from the Closing Date through and
including the Maturity Date, each Bank may in its sole and absolute
discretion make Competitive Advances to Borrower pursuant to
Competitive Bids accepted by Borrower in such principal amounts as
Borrower may request pursuant to a Competitive Bid Request that do
not result in the aggregate outstanding principal Indebtedness
evidenced by the Competitive Advance Notes being in excess of
$750,000,000, provided that giving effect to the making of each
Competitive Advance, the Outstanding Obligations shall not exceed
the Commitment. No Competitive Advance made by any Bank shall
relieve that Bank of its Pro Rata Share of the undrawn Commitment.
(b) Borrower shall request Competitive Advances by
submitting Competitive Bid Requests to the Administrative Agent,
which specify the relevant date, amount and maturity of the proposed
Competitive Advance, whether the Competitive Bid requested is an
Absolute Rate Bid or a Eurodollar Margin Bid. Any Competitive Bid
Request made by telephone shall promptly be confirmed by the
delivery to Administrative Agent in person or by telecopier of a
written Competitive Bid Request. The Administrative Agent shall
incur no liability whatsoever hereunder in acting upon any telephonic
Competitive Bid Request purportedly made by a Responsible Official
of Borrower, which hereby agrees to indemnify the Administrative
Agent from any loss, cost, expense or liability as a result of so acting.
The Competitive Bid Request must be received by the Administrative
Agent not later than 9:00 a.m., California local time, on a Banking
Day that is at least one (1) Banking Day prior to the date of the
proposed Competitive Advance if an Absolute Rate Bid is requested; if
a Eurodollar Margin Bid is requested, it must be received by the
Administrative Agent five (5) Banking Days prior to the date of the
proposed Competitive Advance.
(c) Unless the Administrative Agent otherwise agrees,
in its sole and absolute discretion, no Competitive Bid Request shall
be made by Borrower if Borrower has, within the immediately
preceding five (5) Banking Days, submitted another Competitive Bid
Request.
(d) Each Competitive Bid Request must be made for a
Competitive Advance of at least $10,000,000 and shall be in an
integral multiple of $1,000,000.
(e) No Competitive Bid Request shall be made for a
Competitive Advance with a maturity of less than 14 days or more
than 180 days, or with a maturity date subsequent to the Maturity
Date.
(f) The Administrative Agent shall, promptly after
receipt of a Competitive Bid Request, notify the Banks thereof by
telephone and provide the Banks a copy thereof by telecopier. Any
Bank may, by written notice to the Administrative Agent, advise the
Administrative Agent that it elects not to be so notified of Competitive
Bid Requests, in which case the Administrative Agent shall not notify
such Bank of the Competitive Bid Request.
(g) Each Bank receiving a Competitive Bid Request
may, in its sole and absolute discretion, make or not make a
Competitive Bid responsive to the Competitive Bid Request. Each
Competitive Bid shall be submitted to the Administrative Agent not
later than 7:30 a.m. (or, in the case of the Bank which is also the
Administrative Agent, not later than 7:15 a.m.) California local time,
in the case of a Eurodollar Margin Bid, on the date which is four
(4) Banking Days prior to the requested Competitive Advance and, in
the case of an Absolute Rate Bid, on the date of the requested
Competitive Advance. Any Competitive Bid received by the
Administrative Agent after 7:30 a.m. (or 7:15 a.m. in the case of the
Bank which is also the Administrative Agent) on such date shall be
disregarded for purposes of this Agreement. Any Competitive Bid
made by telephone shall promptly be confirmed by the delivery to the
Administrative Agent in person or by telecopier of a written
Competitive Bid. The Administrative Agent shall incur no liability
whatsoever hereunder in acting upon any telephonic Competitive Bid
purportedly made by a Responsible Official of a Bank, each of which
hereby agrees to indemnify the Administrative Agent from any loss,
cost, expense or liability as a result of so acting with respect to that
Bank.
(h) Each Competitive Bid shall specify the fixed
interest rate or the margin over the Eurodollar Base Rate, as
applicable, for the offered Maximum Competitive Advance set forth in
the Competitive Bid. The Maximum Competitive Advance offered by
a Bank in a Competitive Bid may be less than the Competitive
Advance requested by Borrower in the Competitive Bid Request, but,
if so, shall be an integral multiple of $1,000,000. Any Competitive
Bid which offers an interest rate other than a fixed interest rate or a
margin over the Eurodollar Base Rate, is in a form other than set
forth in Exhibit D or which otherwise contains any term, condition or
provision not contained in the Competitive Bid Request shall be
disregarded for purposes of this Agreement. A Competitive Bid once
submitted to the Administrative Agent shall be irrevocable until 8:30
a.m. California local time, in the case of a Eurodollar Margin Bid, on
the date which is three (3) Banking Days prior to the requested
Competitive Advance and, in the case of an Absolute Rate Bid, on the
date of the proposed Competitive Advance set forth in the related
Competitive Bid Request, and shall expire by its terms at such time
unless accepted by Borrower prior thereto.
(i) Promptly after 7:30 a.m. California local time, in
the case of a Eurodollar Margin Bid, on the date which is four
(4) Banking Days prior to the date of the proposed Competitive
Advance and, in the case of an Absolute Rate Bid, on the date of the
proposed Competitive Advance, the Administrative Agent shall notify
Borrower of the names of the Banks providing Competitive Bids to the
Administrative Agent at or before 7:30 a.m. on that date (or
7:15 a.m. in the case of the Bank which is also the Administrative
Agent) and the Maximum Competitive Advance and fixed interest rate
or margin over the Eurodollar Base Rate set forth by each such Bank
in its Competitive Bid. The Administrative Agent shall promptly
confirm such notification in writing delivered in person or by
telecopier to Borrower.
(j) Borrower may, in its sole and absolute discretion,
reject any or all of the Competitive Bids. If Borrower accepts any
Competitive Bid, the following shall apply: (a) Borrower must accept
all Absolute Rate Bids at all lower fixed interest rates before accepting
any portion of an Absolute Rate Bid at a higher fixed interest rate,
(b) Borrower must accept all Eurodollar Margin Bids at all lower
margins over the Eurodollar Base Rate before accepting any portion of
a Eurodollar Margin Bid at a higher margin over the Eurodollar Base
Rate, (c) if two or more Banks have submitted a Competitive Bid at
the same fixed interest rate or margin, then Borrower must accept
either all of such Competitive Bids or accept such Competitive Bids in
the same proportion as the Maximum Competitive Advance of each
Bank bears to the aggregate Maximum Competitive Advances of all
such Banks, and (d) Borrower may not accept Competitive Bids for an
aggregate amount in excess of the requested Competitive Advance set
forth in the Competitive Bid Request. Acceptance by Borrower of a
Eurodollar Margin Rate Bid must be made prior to 8:30 a.m. on the
date which is three (3) Banking Days prior to the requested
Competitive Advance and acceptance by Borrower of an Absolute
Rate Bid must be made prior to 8:30 a.m. on the date of the requested
Competitive Advance. Acceptance of a Competitive Bid by Borrower
shall be irrevocable upon communication thereof to the Administrative
Agent. The Administrative Agent shall promptly notify each of the
Banks whose Competitive Bid has been accepted by Borrower by
telephone, which notification shall promptly be confirmed in writing
delivered in person or by telecopier to such Banks. Any Competitive
Bid not accepted by Borrower by 8:30 a.m., in the case of a
Eurodollar Margin Bid, on the date which is three (3) Banking Days
prior to the proposed Competitive Advance or, in the case of an
Absolute Rate Bid, on the date of the proposed Competitive Bid, shall
be deemed rejected.
(k) In the case of Eurodollar Margin Bids, the
Administrative Agent shall determine the Eurodollar Base Rate (as the
case may be) on the date which is two (2) Eurodollar Banking Days
prior to the date of the proposed Competitive Advance, and shall
promptly thereafter notify Borrower and the Banks whose Competitive
Bids were accepted by Borrower of such Eurodollar Base Rate.
(l) A Bank whose Competitive Bid has been accepted
by Borrower shall make the Competitive Advance in accordance with
the Competitive Bid Request and with its Competitive Bid, subject to
the applicable conditions set forth in this Agreement by making funds
immediately available to the Administrative Agent at the
Administrative Agent's Office in the amount of such Competitive
Advance not later than 12:00 noon, California local time, on the date
set forth in the Competitive Bid Request. The Administrative Agent
shall then promptly credit the Competitive Advance in immediately
available funds to the Designated Deposit Account.
(m) The Administrative Agent shall notify Borrower
and the Banks promptly after any Competitive Advance is made of the
amounts and maturity of such Competitive Advances and the identity
of the Banks making such Competitive Advances.
(n) The Competitive Advances made by a Bank shall
be evidenced by that Bank's Competitive Advance Note.
2.6 Swing Line. (a) The Swing Line Bank shall from time to
time from the Closing Date through the day prior to the Maturity Date
make Swing Line Advances in Dollars to Borrower in such amounts
as Borrower may request, provided that (i) after giving effect to such
Swing Line Advance, the Swing Line Outstandings shall not exceed
$10,000,000, (ii) after giving effect to such Swing Line Advance, the
Outstanding Obligations shall not exceed the Commitment,
(iii) without the consent of all of the Banks, no Swing Line Advance
may be made during the continuation of any Default or 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 Administrative Agent not later than 1:00 p.m., California time,
on the Banking Day of the requested Swing Line Advance (which
telephonic request shall be promptly confirmed in writing by
telecopier). Promptly after receipt of such a request for a Swing Line
Advance, the Administrative Agent shall provide telephonic
verification to the Swing Line Bank that, after giving effect to such
request, the Outstanding Obligations shall not exceed the Commitment
(and such verification shall be promptly confirmed in writing by
telecopier). Unless the Swing Line Bank otherwise agrees, each
repayment of a Swing Line Advance 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 Advance, or
the Swing Line Bank otherwise receives repayment, after 3:00 p.m.,
California 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 Loan
Outstandings each time there is a change therein.
(b) Swing Line Advances shall bear interest at a
fluctuating rate per annum equal to the Base Rate. Interest shall be
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 submitting
invoices to Borrower for such interest. The interest payable on Swing
Line Advances shall be solely for the account of the Swing Line Bank
unless and until the Banks fund their participations therein pursuant to
clause (d) of this Section.
(c) The Swing Line Advances shall be payable on
demand made by the Swing Line Bank and in any event on the
Maturity Date.
(d) Upon the making of a Swing Line Advance, each
Bank shall be deemed to have purchased from the Swing Line Bank a
participation therein in an amount equal to that Bank's Pro Rata Share
times the amount of the Swing Line Advance. Upon demand made by
the Swing Line Bank, each Bank shall, according to its Pro Rata
Share, promptly provide to the Swing Line Bank its purchase price
therefor in an amount equal to its participation therein. The obligation
of each Bank to so provide its purchase price to the Swing Line Bank
shall be absolute and unconditional (except only demand made by the
Swing Line Bank) and shall not be affected by the occurrence of a
Default or Event of Default; provided that no Bank shall be obligated
to purchase its Pro Rata Share of (i) Swing Line Advances to the
extent that Swing Line Outstandings are in excess of $10,000,000 and
(ii) any Swing Line Advance made (absent the consent of all of the
Banks) when the Swing Line Bank has written notice that a Default or
Event of Default has occurred and such Default or Event of Default
remains continuing. Each Bank that has provided to the Swing Line
Bank the purchase price due for its participation in Swing Line
Advances shall thereupon acquire a pro rata participation, to the extent
of such payment, in the claim of the Swing Line Bank against
Borrower for principal and interest and shall share, in accordance with
that pro rata participation, in any principal payment made by
Borrower with respect to such claim and in any interest payment made
by Borrower (but only with respect to periods subsequent to the date
such Bank paid the Swing Line Bank its purchase price) with respect
to such claim.
(e) In the event that the Swing Line Outstandings are
in excess of $5,000,000 on three (3) consecutive Banking Days then,
on the next Banking Day (unless Borrower has made other arrange-
ments acceptable to the Swing Line Bank to reduce the Swing Line
Outstandings below $5,000,000), Borrower shall request a Committed
Loan in an amount sufficient to reduce the Swing Line Outstandings
below $5,000,000. In addition, upon any demand for payment of the
Swing Line Outstandings by the Swing Line Bank (unless Borrower
has made other arrangements acceptable to the Swing Line Bank to
reduce the Swing Line Outstandings to $0), Borrower shall request a
Committed Loan in an amount sufficient to repay all Swing Line
Outstandings (and, for this purpose, Section 2.1(d) shall not apply).
In each case, the Administrative Agent shall automatically provide the
responsive Advances made by each Bank to the Swing Line Bank
(which the Swing Line Bank shall then apply to the Swing Line Out-
standings). 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 shall not be required to, without notice to or the
consent of Borrower, cause Advances to be made by the Banks under
the Commitment in amounts which are sufficient to reduce the Swing
Line Outstandings as required above. The conditions precedent set
forth in Article 8 shall not apply to Advances to be made by the Banks
pursuant to the three preceding sentences. The proceeds of such
Advances shall be paid directly to the Swing Line Bank for application
to the Swing Line Outstandings.
2.7 Voluntary Reduction of Commitment. Borrower
shall have the right, at any time and from time to time, without
penalty or charge, upon at least three (3) Banking Days prior written
notice to the Administrative Agent, voluntarily to reduce or to
terminate, permanently and irrevocably, in aggregate principal
amounts in an integral multiple of $1,000,000 but not less than
$10,000,000, 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 of the Commitment under this Section.
2.8 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 sixty day period
immediately subsequent to the later of (a) such occurrence and (b) the
earlier of (i) receipt of Borrower's written notice to the Administrative
Agent of such occurrence and (ii) if no such notice has been received
by the Administrative Agent, the date upon which the Administrative
Agent and the Banks have actual knowledge thereof, to terminate the
Commitment. In any such case the Commitment shall be terminated
effective on the date which is sixty days subsequent to the date of
written notice from the Administrative Agent to Borrower thereof, and
(i) to the extent that there is then any Indebtedness evidenced by the
Notes, the same shall be immediately due and payable, and (ii) to the
extent that any Letters of Credit are then outstanding, Borrower shall
provide cash collateral for the same.
2.9 Optional Termination of Commitment. The
Commitment shall automatically terminate upon the occurrence of a
Disposition consisting of (a) all or substantially all of the assets of
Borrower, or (b) all or substantially all of the assets or capital stock of
any one or more Significant Subsidiaries having (at the time of their
Disposition), assets which are in excess of $150,000,000, in the
aggregate, during the term of this Agreement, and (i) to the extent that
there is then any Indebtedness evidenced by the Notes, the same shall
be immediately due and payable, and (ii) to the extent that any Letters
of Credit are then outstanding, Borrower shall provide cash collateral
for the same.
2.10 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 reliance 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 forth-
with upon the Administrative Agent's 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 corresponding 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.
2.11 Extension of the Maturity Date. The Maturity
Date may be extended for one year periods at the request of Borrower
and with the written consent of all of the Banks (which may be
withheld in the sole and absolute discretion of each Bank) pursuant to
this Section. Not earlier than June 1, 1998 nor later than August 1,
1998, or in the similar period in each subsequent year, and provided
that Borrower is then in compliance with Section 7.1, Borrower may
deliver to the Administrative Agent and the Banks a written request
for a one year extension of the Maturity Date together with a
Certificate of a Responsible Official signed by a Senior Officer on
behalf of Borrower stating that the representations and warranties
contained in Article 4 (other than (i) 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 not a violation of this
Agreement, (ii) as otherwise disclosed by Borrower and approved in
writing by the Requisite Banks and (iii) Sections 4.4(a), 4.6 (first
sentence), 4.17 and 4.19) shall be true and correct on and as of the
date of such Certificate. Each Bank shall, prior to August 20 of such
year, notify the Administrative Agent whether (in its sole and absolute
discretion) it consents to such request and the Administrative Agent
shall, after receiving the notifications from all of the Banks or the
expiration of such period, whichever is earlier, notify Borrower and
the Banks of the results thereof. If all of the Banks have consented,
then the Maturity Date shall be extended for one year.
If Banks holding at least 80% of the Commitment
consent to the request for extension, but one or more Banks (each a
"Non-Consenting Bank") notify the Administrative Agent that it will
not consent to the request for extension (or fail to notify the Managing
Agent in writing of its consent to the extension by August 20),
Borrower may (i) cause such Non-Consenting Bank to be removed as
a Bank under this Agreement pursuant to Section 11.15(a), (ii)
voluntarily terminate the Pro Rata Share of Non-Consenting Bank in
accordance with Section 11.15(b), or (iii) utilize a combination of the
procedures described in clauses (i) and (ii) of this Section. If such
removal is accomplished by assignment to an Eligible Assignee which
has consented to the requested extension, then the request for
extension shall be granted with the effect as set forth above. If such
removal is accomplished by a voluntary reduction of the Commitment,
then the Administrative Agent shall notify all of the Banks in writing
thereof.
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 to bear interest at the Default Rate to the
fullest extent permitted by applicable Laws.
(b) Interest accrued on each Base Rate Loan on each
Monthly Payment Date, and on the date of any prepayment of the
Committed Advance Notes pursuant to Section 3.1(g), shall be due
and payable on that day. Except as otherwise provided in Section 3.9,
the unpaid principal amount of any Base Rate Loan shall bear interest
at a fluctuating rate per annum equal to the Base Rate. Each change
in the interest rate under this Section 3.1(b) due to a change in the
Base Rate shall take effect simultaneously with the corresponding
change in the Base Rate.
(c) Interest accrued on each Eurodollar Rate Loan
having a Eurodollar Period 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 6 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 Euro-
dollar Margin, plus, during each relevant Pricing Period, any
applicable Incremental 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 converted to Base Rate
Loans. Such conversion 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.
(e) Interest accrued on each Competitive Advance
shall be due and payable on the maturity date of the Competitive
Advance. Except as otherwise provided in Section 3.9, the unpaid
principal amount of each Competitive Advance shall bear interest at
the fixed interest rate or the margin over the Eurodollar Base Rate
specified in the related Competitive Bid.
(f) If not sooner paid, the principal Indebtedness
evidenced by the Notes shall be payable as follows:
(i) the principal amount of each Eurodollar
Rate Loan shall be payable on the last day of the Eurodollar Period
for such Loan;
(ii) the principal amount of each Competitive
Advance shall be payable on the maturity date specified in the related
Competitive Bid;
(iii) the amount, if any, by which the
Outstanding Obligations at any time exceed the Commitment shall be
payable immediately, and shall be applied to the Committed Advance
Notes; and
(iv) the principal Indebtedness evidenced by the
Committed Advance Notes shall in any event be payable on the
Maturity Date.
(g) The Committed Advance Notes may, at any time
and from time to time, voluntarily be paid or prepaid in whole or in
part without premium or penalty, except that with respect to any
voluntary prepayment under this Section 3.1(g), (i) any partial
prepayment shall be in an integral multiple of $1,000,000 but not less
than $10,000,000, (ii) the Administrative Agent shall have received
written notice of any prepayment by 9:00 a.m., California local time
on a Banking Day on the date of prepayment in the case of a Base
Rate Loan, and three (3) Banking Days, in the case of a Eurodollar
Rate Loan, 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 payment or prepayment of all or any part of any
Eurodollar Rate Loan on a day other than the last day of the applic-
able Eurodollar Period shall be subject to Section 3.8(d).
(h) No Competitive Advance Note may be prepaid
without the prior written consent of the Bank making such
Competitive Advance.
3.2 Arrangement Fee. On the Closing Date, Borrower shall
pay to the Administrative Agent, for the sole account of 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 is earned as of the date hereof and is nonrefundable.
3.3 Upfront Fees. On the Closing Date, Borrower shall pay to
the Administrative Agent, for the respective accounts of the Banks,
upfront fees in the
respective amounts set forth in the Confidential Information
Memorandum. Such participation/extension fees are for the amended
and extended credit facility committed by each Bank under this
Agreement and are fully earned when paid. The
participation/extension fees paid to each Bank are solely for its own
account and are nonrefundable.
3.4 Commitment Fees. From the Closing Date, Borrower
shall pay to the Administrative Agent, for the respective accounts of
the Banks, pro rata according to their Pro Rata Share, a commitment
fee equal to (a) the Commitment Fee Rate per annum times (b) the
amount by which the Commitment exceeds the sum of the average
daily outstanding principal Indebtedness evidenced by the Committed
Advance Notes plus the average daily Aggregate Effective Amount of
all Standby Letters of Credit, in each case for the period from the
Closing Date or the most recent Quarterly Payment Date.
Commitment fees shall be payable quarterly in arrears on each
Quarterly Payment Date, on the date upon which all or any portion of
the Commitment is terminated pursuant to Sections 2.7 or 2.8 (with
respect to the amount so terminated) and on the Maturity Date.
3.5 Letter of Credit Fees. Concurrently with the issuance of
each Letter of Credit, Borrower shall pay a letter of credit issuance
fee to the Issuing Bank, for the sole account of the Issuing Bank, in an
amount set forth in a letter agreement between Borrower and the
Issuing Bank. Each letter of credit issuance fee is nonrefundable. On
each Quarterly Payment Date and on the Maturity Date, Borrower
shall also pay to the Administrative Agent in arrears, for the ratable
account of the Banks in accordance with their Pro Rata Share, standby
letter of credit fees in an amount equal to (a) the Letter of Credit Fee
per annum times the average daily Aggregate Effective Amount of all
Standby Letters of Credit for the period from the Closing Date or the
most recent Quarterly Payment Date, plus (b) for any Fiscal Quarter
immediately preceding such Quarterly Payment Date when an
Incremental Margin was in effect, incremental Letter of Credit Fees
equal to that Incremental Margin times the average daily Aggregate
Effective Amount of all Standby Letters of Credit outstanding during
such period. All standby letter of credit fees shall also be non-
refundable.
3.6 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.
3.7 Increased Commitment Costs. If any Bank shall determine
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, guidelines 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 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
five (5) Banking Days after demand of such Bank, Borrower shall pay
to such Bank, from time to time as specified 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 shall endeavor to assure that each
demand made of Borrower under this Section affords treatment to
Borrower which is substantially similar to that which such Bank
affords to its other similarly situated customers.
3.8 Eurodollar Costs and Related Matters.
(a) If, after the date hereof, the existence or
occurrence of any Special Eurodollar Circumstance shall:
(1) 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 of 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, with respect
to each Creditor, and any Affiliate or Eurodollar
Lending Office thereof, (i) taxes imposed on or
measured in whole or in part by its net income, gross
income or gross receipts or capital and franchise taxes
imposed on it, (ii) any withholding taxes or other taxes
based on gross income (other than withholding taxes and
taxes based on gross income resulting from or attribut-
able 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 for any period with respect to which it has failed
to provide Borrower with the appropriate form or forms
required by Section 11.22, to the extent such forms are
then required by applicable Laws;
(2) 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) impose on any Bank or its Eurodollar
Lending Office or the Designated Eurodollar Market any
other condition materially 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 materially affect
any of the same;
and the result of any of the foregoing, as determined by such Bank,
increases the cost to such Bank or its Eurodollar Lending Office of
making or maintaining any Eurodollar Rate Advance or in respect of
any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar
Rate Loans or its obligation to make Eurodollar Rate Advances or
reduces the amount of any sum received or receivable by such Bank
or its Eurodollar Lending Office with respect to any Eurodollar Rate
Advance, any of its Notes evidencing Eurodollar Rate Loans or its
obligation to make Eurodollar Rate Advances (assuming such Bank's
Eurodollar Lending Office had funded 100% of its Eurodollar Rate
Advance in the Designated Eurodollar Market), then, provided that
such Bank makes demand upon Borrower (with a copy to the
Administrative Agent) within 90 days following the date upon which it
becomes aware of any such event or circumstance, Borrower shall
within five Banking Days 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 Desig-
nated Eurodollar Market). Borrower hereby indemnifies each Bank
against, and agrees to hold each Bank harmless from and reimburse
such Bank within five (5) Banking Days after demand for (without
duplication) all costs, expenses, claims, penalties, liabilities, losses,
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 result of the
existence or occurrence of any Special Eurodollar Circumstance. A
statement of any Bank claiming compensation under this subsection
and setting forth 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 judgment of such Bank, otherwise
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 Base Rate Advances. To
the extent that any Bank which receives any payment from Borrower
under this Section later receives any funds which are identifiable as a
reimbursement or rebate of such amount from any other Person, such
Bank shall promptly refund such amount to Borrower.
(b) If the existence or occurrence of any Special
Eurodollar Circumstance shall, in the opinion of any Bank, make it
unlawful, impossible or impracticable for such Bank or its Eurodollar
Lending Office to make, maintain or fund its portion of any Euro-
dollar Rate Loan, or materially restrict the authority of such Bank to
purchase or sell, or to take deposits of, Dollars in the Designated
Eurodollar Market, or to determine or charge interest rates based upon
the Eurodollar Rate, and such Bank shall so notify the Administrative
Agent, then such Bank's obligation to make Eurodollar Rate Advances
shall be suspended for the duration of such illegality, impossibility or
impracticability 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 Base Rate Advances with Eurodollar 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 judgment of such Bank, otherwise be
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 a
Base Rate Advance for the same period of time, and such amount
shall be treated in all respects as a 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 deter-
mines that, by reason of circumstances affecting the Designated
Eurodollar Market generally that are beyond the reasonable
control of the Banks, deposits in Dollars (in the applicable
amounts) are not being offered to any Bank in the Designated
Eurodollar Market for the applicable Eurodollar Period; or
(2) the Requisite Banks advise the Administra-
tive 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 Euro-
dollar Market in the relevant amount for the applicable
Eurodollar Period, or (ii) will not adequately and fairly reflect
the cost to such Banks of making the applicable Eurodollar Rate
Advances;
then the Administrative 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 spe-
cify a 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(d) 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 five (5) 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 Desig-
nated Eurodollar Market) equal to the sum of:
(1) principal amount of the Eurodollar Rate
Advance prepaid or not borrowed, as the case may be, times
the quotient of (A) 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 (B) 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.
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 any Creditor 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 Base Rate 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 Base Rate Loans calculated with reference to the Reference
Rate 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 Base Rate Loans calculated by reference to the Federal
Funds Rate, and on Eurodollar Rate Loans, Competitive Advances 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 with
respect to Swing Line Obligations and payments pursuant to
Sections 3.7, 3.8, 11.3, 11.11 and 11.23) or on the Notes 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 immedi-
ately available funds not later than 11:00 a.m., California local time,
on the day of payment (which must be a Banking Day), other than
payments with respect to Swing Line Advances, which must be
received by 3:00 p.m., California time, on the day of payment (which
must be a Banking Day). All payments received after these deadlines
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 Administrative Agent by
11:00 a.m., California local 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
Committed Loan shall be applied pro rata according to the outstanding
Committed Advances made by each Bank comprising such Committed
Loan. Each payment or prepayment of a Competitive Advance shall
be applied to the Competitive Advance Note held by the Bank which
made such Competitive Advance.
(c) Each Bank shall use its best efforts to keep a
record of Advances made by it and payments received by it with
respect to each of its Notes and, subject to Section 10.6(g), such
record shall, as against Borrower, be presumptive evidence of the
amounts owing. Notwithstanding the foregoing sentence, no Bank
shall be liable to any Party for any failure to keep such a record.
(d) Each payment of any amount payable by 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 Creditor, and any Affiliate or Eurodollar Lending Office
thereof, (i) taxes imposed on or measured in whole or in part by its
net income, gross income or gross receipts or capital and franchise
taxes imposed on it, (ii) any withholding taxes or other taxes based on
gross income (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 for any period
with respect to which it has failed to provide Borrower with the
appropriate form or forms required by Section 11.22, 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 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 in that Bank's
receiving a net after-Tax amount equal to the amount to which that
Bank would have been entitled under this Agreement absent such
deduction or withholding. If and when receipt of such payment results
in an excess 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 Creditors 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 Creditor'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 Administra-
tive 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.
3.16 Fee Determination Detail. Each Creditor shall provide
reasonable detail to Borrower regarding the manner in which the
amount of any payment to that Creditor under Article 3 has been
determined, concurrently with demand for such payment.
3.17 Survivability. All of Borrower's obligations under
Sections 3.7 and 3.8 shall survive for ninety days following the date
on which the Commitment is terminated and all Loans hereunder are
fully paid.
Article 4
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to the Creditors, as of
the date hereof, as of the Closing Date, and to the extent set forth in
Sections 8.2 and 8.3, as of the date of the making of each Advance
and the Issuance of each Letter of Credit that:
4.1 Existence and Qualification; Power; Compliance With
Laws. Borrower is a corporation 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 requisite corporate power and authority to conduct its
business, to own and lease its Properties and to execute and deliver
each Loan Document to which it is a Party and to perform its
Obligations. All outstanding shares of capital stock of Borrower are
duly authorized, validly issued, fully paid, non-assessable 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 each Significant Subsidiary of the
Loan Documents to which it is a Party have been duly authorized by
all necessary corporate action, and do not and will not:
(a) Require any consent or approval not 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 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;
(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 by such Party of or
constitute a default by such Party 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 where such breach, default or
acceleration would (i) result in an obligation on behalf of
Borrower or any Significant Subsidiary to make payments in an
aggregate amount which exceeds $25,000,000 or (ii) otherwise
result in a Material Adverse Effect;
and none of Borrower or any Significant Subsidiary is in violation of,
or default under, any Requirement of Law or Contractual Obligation,
or any indenture, loan or credit agreement described in Section 4.2(e),
in any respect that constitutes a Material Adverse Effect.
4.3 No Governmental Approvals Required. Except as set forth
in Schedule 4.3 or previously obtained or made, no authorization,
consent, approval, order, license or permit from, or filing, registration
or qualification with, any Governmental Agency is or will be required
to authorize or permit under applicable Laws the execution, delivery
and performance by Borrower and the Significant Subsidiaries of the
Loan Documents to which any of them is a Party. All authorizations
from, or filings with, any Governmental Agency described in
Schedule 4.3 will be accomplished as of the Closing Date or such
other date as is specified in Schedule 4.3.
4.4 Subsidiaries.
(a) Schedule 4.4 hereto correctly sets forth the names,
form of legal entity, percentage of shares of each class of capital stock
issued and outstanding, percentage of shares owned by Borrower or a
Restricted Subsidiary (specifying such owner) and jurisdictions of
organization of all Restricted Subsidiaries and specifies which thereof,
as of the Closing Date, are Significant Subsidiaries. Except as
described in Schedule 4.4, 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. Unless otherwise
indicated in Schedule 4.4, as of the Closing Date all of the outstanding
shares of capital stock, or all of the units of equity interest, as the case
may be, of each Restricted Subsidiary are owned of record and
beneficially by Borrower, there are no outstanding options, warrants
or other rights to purchase capital stock of any such Subsidiary, and
all such shares or equity interests so owned are duly authorized,
validly issued, fully paid, non-assessable, and were issued in
compliance with all applicable state and federal securities and other
Laws, and are free and clear of all Liens and Rights of Others, except
for Permitted Encumbrances and Permitted Rights of Others.
(b) Each Restricted Subsidiary is a corporation or
partnership duly formed, validly existing and in good standing under
the Laws of its jurisdiction of organization, is duly qualified to do
business as a foreign organization and is in good standing as such in
each jurisdiction in which the conduct of its business or the ownership
or leasing of its properties makes such qualification necessary (except
where the failure to be so duly qualified and in good standing does not
constitute a Material Adverse Effect), and has all requisite power and
authority to conduct its business and to own and lease its Properties.
(c) Each Restricted Subsidiary is in compliance with
all Laws and other requirements applicable to its business and has
obtained all authorizations, consents, approvals, orders, licenses, and
permits from, and each such Subsidiary has accomplished all filings,
registrations, and 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 to be in
such compliance, obtain such authorizations, consents, approvals,
orders, licenses, and permits, accomplish such filings, registrations,
and qualifications, or obtain such exemptions, does not constitute a
Material Adverse Effect.
(d) As of the Closing Date Borrower has no Subsidiaries
(i) in which Borrower directly or indirectly owns at least 80% of the
capital stock or other ownership interests and (ii) with respect to
which Borrower or any of its Restricted Subsidiaries has entered any
shareholders' agreement, management agreement or other agreement
which has the effect of delegating management control over such
Subsidiary to a Person other than Borrower or a Restricted Subsidiary.
4.5 Financial Statements. Borrower has furnished to the Banks
the audited consolidated financial statements of Borrower and its
Subsidiaries for the Fiscal Year ended January 31, 1997. The
financial statements described above fairly present in all material
respects the financial condition, results of operations and changes in
financial position of Borrower and its Subsidiaries as of such dates and
for such periods, in conformity with Generally Accepted Accounting
Principles, consistently applied.
4.6 No Other Liabilities; No Material Adverse Effect. As of
the Closing Date, Borrower and its Subsidiaries do not have any
material liability or material contingent liability not reflected or
disclosed in the financial statements described in Section 4.5 or on
Schedule 4.10, other than liabilities and contingent liabilities arising in
the ordinary course of business since the date of such financial
statements. As of the Closing Date, no circumstance or event has
occurred that constitutes a Material Adverse Effect since January 31,
1997. As of each date subsequent to the Closing Date, no
circumstance or event has occurred that constitutes a Material Adverse
Effect since the Closing Date.
4.7 Title to Property. Borrower and its Subsidiaries have valid
title to the Property reflected in the financial statements described in
Section 4.5(b), other than immaterial items of Property and Property
subsequently sold or disposed of in the ordinary course of business,
free and clear of all Liens and Rights of Others, other than Liens or
Rights of Others securing Indebtedness in an aggregate amount not in
excess of $25,000,000, and Liens or Rights of Others described in
Schedule 4.7, or permitted by Section 6.8.
4.8 Intangible Assets. Borrower and its Restricted 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 used in the conduct of their businesses
as now 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 Borrower
nor any Restricted Subsidiary is a "holding company", or a "subsi-
diary 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 Restricted Subsidiaries of less than $5,000,000,
(c) matters of an administrative nature not involving a claim or charge
against Borrower or any of its Restricted Subsidiaries and (d) matters
set forth in Schedule 4.10, there are no actions, suits, proceedings or
investigations pending as to which Borrower or any of its Restricted
Subsidiaries have been served or have received notice or, to the best
knowledge of Borrower, threatened against or affecting Borrower or
any of its Restricted Subsidiaries or any Property of any of them
before any Governmental Agency.
4.11 Binding Obligations. Each of the Loan Documents to
which Borrower or any of its Significant Subsidiaries is a Party will,
when executed and delivered by such Party, constitute the legal, valid
and binding obligation of such Party, enforceable against such Party in
accordance with its terms, except as enforcement may be limited by
Debtor Relief Laws or 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 Restricted
Subsidiaries has incurred or expects to incur any withdrawal liability
to any Multiemployer Plan that could reasonably be expected to have
a Material Adverse Effect.
4.14 Regulations G, T, U and X; Investment Company Act.
No part of the proceeds of any Loan hereunder will be used to
purchase or carry, or to extend credit to others for the purpose of
purchasing or carrying, any Margin Stock in violation of Regu-
lations G, T, U or X. Neither Borrower nor any of its Restricted
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 to any Creditor in connection with this Agreement, or in
connection with any Loan, Advance or Letter of Credit 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 Restricted 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
Restricted Subsidiaries, except (a) such taxes, if any, as are being
contested in good faith by appropriate proceedings and as to which
adequate reserves have been established and maintained and
(b) immaterial taxes and tax returns so long as no material item or
portion of Property of Borrower or any of its Restricted Subsidiaries
is in jeopardy of being seized, levied upon or forfeited.
4.17 Projections. As of the Closing Date, to the best knowl-
edge 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 4.17 shall be construed as a
representation or covenant that the Projections in fact will be
achieved.
4.18 Hazardous Materials. Neither Borrower nor any of its
Restricted Subsidiaries at any time has disposed of, discharged,
released or threatened the release of any material amount of
Hazardous Materials on, from or under the Real Property in any
manner that violates any Hazardous Materials Law in any manner
which would result in a Material Adverse Effect. 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. No Real Property or any
portion thereof is or has been utilized by Borrower or any of its
Restricted Subsidiaries as a site for the manufacture of any Hazardous
Materials. To the extent that any Hazardous Materials are used,
generated or stored by Borrower or any of its Restricted Subsidiaries
on any Real Property, or transported to or from such Real Property by
Borrower or any of its Restricted Subsidiaries, such use, generation,
storage and transportation are in compliance in all material respects
with all Hazardous Materials Laws.
4.19 Developed Properties. As of the Closing Date, the
facilities described on Schedule 4.19 comprise all of the Developed
Property.
4.20 Gaming Laws. Borrower and each of its Restricted
Subsidiaries are in compliance in all material respects with all Gaming
Laws that are applicable to them and their businesses.
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 Restricted 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 respective Property or
any part thereof and upon their respective income or profits or any
part thereof, except that Borrower and its Restricted Subsidiaries shall
not be required to pay or cause to be paid (a) any tax, assessment,
charge or levy that is not yet past due, or is being contested in good
faith by appropriate proceedings so long as the relevant entity has
established and maintains adequate reserves for the payment of the
same or (b) any immaterial tax so long as no material item or portion
of Property of Borrower or any of its Restricted Subsidiaries is in
jeopardy of being seized, levied upon or forfeited.
5.2 Preservation of Existence. Preserve and maintain their
respective existences in the jurisdiction of their formation and all
material authorizations, rights, franchises, privileges, consents,
approvals, orders, licenses, permits, or registrations from any
Governmental Agency that are necessary for the transaction of their
respective business, except where the failure to so preserve and
maintain the existence of any Restricted Subsidiary and such
authorizations would not constitute a Material Adverse Effect and
except that a merger permitted by Section 6.3 shall not constitute a
violation of this covenant; and qualify and remain qualified to transact
business in each jurisdiction in which such qualification is necessary in
view of their respective business or the ownership or leasing of their
respective Properties except where the failure to so qualify or remain
qualified would not constitute a Material Adverse Effect.
5.3 Maintenance of Properties. Maintain, preserve and protect
all of their respective depreciable Properties in good order and condi-
tion, 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 Restricted Subsidiaries, taken
as a whole, shall not constitute a violation of this covenant.
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 Restricted Subsidiaries operate.
5.5 Compliance With Laws. Comply, within the time period,
if any, given for such compliance by the relevant Governmental
Agency or Agencies with enforcement authority, with all
Requirements of Law noncompliance with which constitutes a Material
Adverse Effect, except that Borrower and its Restricted Subsidiaries
need not comply with a Requirement of Law then being contested by
any of them in good faith by appropriate proceedings.
5.6 Inspection Rights. Upon reasonable notice, at any time
during regular business hours and as often as requested (a) (but not so
as to materially interfere with the business of Borrower or any of its
Restricted Subsidiaries), 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 Restricted Subsidiaries and to discuss the affairs,
finances and accounts of Borrower and its Restricted 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 the board of directors or
audit committee of the board of directors of Borrower and (b) (but not
so as to materially interfere with the business of any Project Entity),
permit the Administrative Agent, or any authorized employee, agent
or representative thereof, to visit and inspect the Properties of such
Project Entity and to discuss the affairs, finances and accounts of the
Project Entity with any of its officers, key employees or accountants.
5.7 Keeping of Records and Books of Account. Keep ade-
quate 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 Restricted 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 agreements, indentures, leases
or instruments are with a Bank or another Person, except for any such
Contractual Obligations (a) the performance of which would cause a
Default or (b) then being contested by any of them in good faith by
appropriate proceedings or if the failure to comply with such
agreements, indentures, leases or instruments does not constitute a
Material Adverse Effect.
5.9 Use of Proceeds. Use the proceeds of Loans (a) on the
Closing Date, for retirement of all outstanding obligations under the
Existing Syndicated Credit Facilities, and (b) thereafter for working
capital and general corporate purposes of Borrower and its Restricted
Subsidiaries including without limitation capital expenditures, share
repurchases, commercial paper backup and acquisitions of equity
securities or assets of other Persons, in each case to the extent not
prohibited by the Loan Documents.
5.10 New Significant Subsidiaries. Cause each of its
Restricted Subsidiaries which hereafter becomes a Significant Subsid-
iary to promptly execute and deliver to the Administrative Agent an
instrument of joinder to the Subsidiary Guaranty. Each Restricted
Subsidiary which becomes a Significant Subsidiary by means of any
Disposition to that Subsidiary or Investment made in that Subsidiary
by Borrower or any of its other Significant Subsidiaries shall execute a
joinder to the Subsidiary Guaranty substantially concurrently with the
effectiveness of such Disposition or Investment.
5.11 Hazardous Materials Laws. Keep and maintain all Real
Property then owned or leased by Borrower or its Restricted
Subsidiaries and each portion thereof (or cause such Real Property to
be kept and maintained) in compliance in all material respects with all
applicable Hazardous Materials Laws and promptly notify the
Administrative Agent in writing of (a) any and all material
enforcement, cleanup, removal or other governmental 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 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
material restrictions on the ownership, occupancy, transferability or
use of such Real Property under any applicable Hazardous Materials
Laws.
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 Restricted 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 Payment of Subordinated Debt. Pay any (a) principal
(including sinking fund payments) or any other amount (other than
scheduled interest payments) with respect to any Subordinated Debt,
or purchase or redeem any Subordinated Debt, if an Event of Default
then exists or would result therefrom, or (b) scheduled interest on any
Subordinated Debt, if an Event of Default described in Sections 9.1(a)
or 9.1(b) then exists or would result therefrom; provided, however,
that this Section shall not apply to prohibit any payment to the extent
necessary to prevent a License Revocation if (i) no Default or Event
of Default then exists which is not curable by such payment and
(ii) Borrower has notified the Administrative Agent in writing of the
necessity to invoke this proviso at least ten 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.
Borrower shall not amend or modify the subordination provisions of
any Subordinated Debt in any manner which is materially adverse to
the interests of the Creditors.
6.2 Disposition of Property. Make any Disposition of its
Property, whether now owned or hereafter acquired, except:
(a) Dispositions of the real property and
improvements described on Schedule 6.2 (or of any other real
property and related improvements acquired after the Closing
Date and which is not Developed Property) to New Venture
Entities pursuant to Investments not prohibited by Section 6.12;
and
(b) other Dispositions made during the term of this
Agreement in an aggregate amount not in excess of
$150,000,000,
in each case made when no Event of Default then exists or would
result therefrom; 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, and (ii) Borrower has notified the
Administrative Agent in writing of the necessity to invoke this proviso
at least ten 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 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.
6.3 Mergers. Merge or consolidate with or into any Person,
except:
(a) mergers and consolidations of a Subsidiary
of Borrower into Borrower or a Restricted Subsidiary (with
Borrower or the Restricted Subsidiary as the surviving entity)
or of Restricted Subsidiaries of Borrower with each other,
provided that Borrower and each of its Subsidiaries has
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 Restricted Subsidiary with any other Person, provided that
(i) either (A) Borrower or the Restricted Subsidiary is the
surviving entity, or (B) the surviving entity is a corporation
organized under the Laws of a State of the United States of
America and, as of the date of such merger or consolidation,
expressly assumes, by an instrument satisfactory in form and
substance to the Requisite Banks, the Obligations of Borrower
or the Restricted Subsidiary, as the case may be, (ii) giving
effect thereto on a pro-forma basis, no Default or Event of
Default exists or would result therefrom, and (iii) as a result
thereof, no Change in Control has occurred.
6.4 Hostile Tender Offers. Make any offer to purchase or
acquire, or consummate a purchase or acquisition of, 5% or more of
the capital stock of any corporation or other business entity if the
board of directors or management of such corporation or business
entity has notified Borrower that it opposes such offer or purchase and
such notice has not been withdrawn or superseded.
6.5 Distributions. Make any Distribution, whether from
capital, income or otherwise, and whether in Cash or other Property,
if an Event of Default then exists or would result therefrom except
(a) Distributions by any Restricted Subsidiary to Borrower or to
another Restricted Subsidiary, (b) payment of dividends which have
been declared if the same would have been permitted hereunder at the
date of declaration and (c) dividends payable solely in Common Stock;
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
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.
(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 its Restricted Sub-
sidiaries, taken as a whole; provided that the acquisition of an
ownership interest in one or more New Ventures shall not be
construed to violate this covenant.
6.8 Liens, Negative Pledges, Sale Leasebacks 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, whether now owned or hereafter acquired,
or enter into any Sale and Leaseback with respect to any such
Properties except:
(a) Permitted Encumbrances and Permitted
Rights of Others;
(b) Liens and Negative Pledges under the Loan
Documents;
(c) the Negative Pledges set forth in the
Existing Subordinated Debt (as in effect on the date of this
Agreement) and Negative Pledges relating to refinancings
thereof or to other Subordinated Debt which are not more
restrictive than the Negative Pledges set forth in the Existing
Subordinated Debt as in effect on the date of this Agreement;
(d) other existing Liens, Negative Pledges and
Rights of Others disclosed in Schedule 4.7 (or not required to
be disclosed therein under Section 4.7) and any renewals or
extensions thereof; provided that the obligations secured or
benefited thereby are not increased;
(e) Rights of Others consisting of holdings in
joint tenancy or other forms of ownership interests (and rights
associated therewith) in a New Venture Entity or consisting of
obligations of Borrower or its Restricted Subsidiaries to sell, or
rights of other Persons to purchase, the ownership interests of
Borrower and its Restricted Subsidiaries in a New Venture
Entity, which obligations or rights were created substantially
concurrently with the acquisition of such ownership interest in
the New Venture Entity or which are subsequently required by
any Gaming Board;
(f) any Lien, Negative Pledge or Right of
Others on shares of any equity security or any warrant or
option to purchase an equity security or any security which is
convertible into an equity security issued by any Subsidiary of
Borrower that holds, directly or indirectly through a holding
company or otherwise, a license under any Gaming Law, and
in the proceeds thereof; provided that this clause (e) shall apply
only so long as the Gaming Laws of the relevant jurisdiction
provide that the creation of any restriction on the disposition of
any of such securities shall not be effective and, if such Gaming
Laws at any time cease to so provide, then this clause (e) shall
be of no further effect; and provided further that if at any time
Borrower creates or suffers to exist a Lien or Negative Pledge
covering such securities in favor of the holder of any other
Indebtedness, it will (subject to any approval required under
such Gaming Laws) concurrently grant a pari-passu Lien or
Negative Pledge likewise covering such securities in favor of
the Administrative Agent for the benefit of the Banks;
(g) Liens on Property acquired or constructed
(whether before or after the Closing Date) by Borrower or any
of its Restricted Subsidiaries, and in the proceeds thereof, that
(i) were in existence at the time of the acquisition or
construction of such Property or were created at or within
180 days after such acquisition or construction, (ii) secure (in
the case of Liens not in existence at the time of acquisition of
the Property) only the unpaid portion of the acquisition or
construction price for such Property, or monies borrowed that
were used to pay such acquisition or construction price and
(iii) do not secure, in the aggregate, Indebtedness (including
Capital Lease Obligations) in excess of $50,000,000 outstanding
at any time;
(h) Liens securing Indebtedness (including
Capital Lease Obligations) that replaces or refinances
Indebtedness secured by Liens permitted under clause (g);
provided that (i) such Liens cover the same Property as the
Liens securing the Indebtedness replaced or refinanced and
(ii) the aggregate Indebtedness secured by all such Liens, when
added to the Indebtedness secured by Liens permitted under
clause (g), does not exceed $50,000,000 outstanding at any
time;
(i) Liens on Property having an aggregate
value not in excess of $100,000,000 securing Indebtedness
(including Capital Lease Obligations) in an aggregate principal
amount which is not in excess of $50,000,000 at any time, and
Negative Pledges relating to such Property for the benefit of the
holders of such Indebtedness provided that (i) no real property
shall be subject to any such Lien or Negative Pledge, and (ii)
the monetary limitations set forth in this clause (i) shall be
reduced by the amount of Sale Leaseback Obligations under,
and the value of the Property subject to, any Sales and
Leasebacks entered into pursuant to clause (j), below;
(j) Sales and Leasebacks of Property having an
aggregate value, and with Sale and Leaseback Obligations
which are in an amount, which would be permitted under clause
(i) above if the same were to be construed as financing
transactions;
(k) Liens, Negative Pledges and Rights of Others
held by joint venture partners and any assignees thereof, and
lenders thereto and any assignees thereof, with respect to the
interests of Borrower in that joint venture and the proceeds
thereof, provided that such Liens, Negative Pledges and Rights
of Others shall secure and relate only the obligations of such
joint venture; and
(l) Liens, Negative Pledges and Rights of Others
in favor of counterparties to agreements, and assignees thereof,
entered into by Borrower and its Restricted Subsidiaries in the
ordinary course of business on the interests of Borrower and its
Restricted Subsidiaries under such agreements and the proceeds
thereof, provided that such Liens, Negative Pledges and Rights
of Others shall secure and relate only restrictions on transfer of
the rights of Borrower and its Restricted Subsidiaries to the
holders thereof under the relevant agreement.
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 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 Contingent Guaranties. Create, incur,
assume or suffer to exist any Indebtedness or Contingent Guaranty
(other than Indebtedness of Restricted Subsidiaries to Borrower or
another Restricted Subsidiary) if a Default or Event of Default then
exists or would result therefrom.
6.10 Transactions with Affiliates. Enter into any material
transaction of any kind with any Affiliate of Borrower other than
(a) salary, bonus, employee stock option and other compensation
arrangements with directors or officers in the ordinary course of
business, (b) transactions that are fully disclosed to the board of
directors of Borrower and expressly authorized by a resolution of the
board of directors of Borrower which is approved by a majority of the
directors not having an interest in the transaction, (c) transactions
between or among Borrower and its Restricted Subsidiaries and
(d) transactions on overall terms, giving effect to all other business
arrangements of Borrowers and their Restricted Subsidiaries with that
Affiliate, at least as favorable to Borrower or its Restricted
Subsidiaries as would be the case in an arm's-length transaction
between unrelated parties of equal bargaining power.
6.11 Total Debt Ratio. Permit the Total Debt Ratio to
exceed (a) 5.00 to 1.00 as of the last day of each Fiscal Quarter
ending during the period from the Closing Date through the earlier of
(i) the end of the first full fiscal quarter following the Project Paradise
Completion Date, or (ii) July 31, 1999 and (b) 4.00 to 1.00 as of the
last day of each subsequent Fiscal Quarter.
6.12 Restricted Expenditures. Prior to the Project Paradise
Completion Date, make any Restricted Expenditure if to do so would
result in the aggregate Restricted Expenditures made on and after May
1, 1997 being in excess of the Restricted Expenditure Basket.
6.13 Significant Subsidiaries. Permit any Restricted
Subsidiary that is, as of the Closing Date, a Significant Subsidiary to
cease being a Restricted Subsidiary, except pursuant to a Disposition
permitted by Section 6.2 or a merger or consolidation permitted by
Section 6.3.
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, deliver to the
Administrative Agent and the Banks, at Borrower's sole expense:
(a) As soon as practicable, and in any event
within 60 days after the end of each Fiscal Quarter (other than
the fourth Fiscal Quarter in any Fiscal Year), (i) the
consolidated balance sheet of Borrower and its Subsidiaries as
at the end of such Fiscal Quarter and the consolidated statement
of operations for each Fiscal Quarter, and its statement of cash
flows for the portion of the Fiscal Year ended with such Fiscal
Quarter and (ii) the consolidating (in accordance with past
consolidating practices of Borrower) balance sheets and
statements of operations as at and for the portion of the Fiscal
Year ended with such Fiscal Quarter, all in reasonable detail.
Such financial statements shall be certified by a Senior Officer
of 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;
(b) As soon as practicable, and in any event
within 60 days after the end of the fourth Fiscal Quarter in a
Fiscal Year, a Certificate of a Responsible Official setting forth
the Total 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;
(c) As soon as practicable, and in any event
within 100 days after the end of each Fiscal Year, (i) the con-
solidated balance sheet of Borrower and its Subsidiaries as at
the end of such Fiscal Year and the consolidated statements of
operations, shareholders' equity and cash flows, in each case of
Borrower and its Subsidiaries for such Fiscal Year and
(ii) consolidating (in accordance with past consolidating
practices of Borrower) balance sheets and statements of
operations, in each case as at and for the Fiscal Year, all in
reasonable detail. Such financial statements shall be prepared
in accordance with Generally Accepted Accounting Principles,
consistently applied, and such consolidated balance sheet and
consolidated statements shall be accompanied by a report and
opinion of Arthur Andersen LLP or other independent public
accountants of recognized standing selected by Borrower and
reasonably satisfactory to the Requisite Banks, which report and
opinion 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
and opinion 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
certificate) under Section 6.11 and 6.12, 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;
(d) As soon as practicable, and in any event
within 100 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 quarterly
consolidated balance sheets, statement of operations and
statements of cash flow and, for the remaining four Fiscal
Years, projected annual consolidated condensed balance sheets
and statements of operations and cash flow, of Borrower and its
Subsidiaries, all in reasonable detail;
(e) Promptly after request by any Creditor,
copies of any detailed audit reports, management letters or
recommendations submitted to the board of directors (or the
audit committee of the board of directors) of 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;
(f) As soon as practicable, and in any event
(i) within 30 days after the end of the first three Fiscal Quarters
in each Fiscal Year, and (ii) 60 days after the end of the fourth
Fiscal Quarter in each Fiscal Year, a written report, in form
and detail mutually acceptable to Borrower and the
Administrative Agent, with a narrative report describing the
results of operations of Borrower and its Subsidiaries during
such Fiscal Quarter and detailing the status of development of
each New Venture Entity, including the amounts of Capital
Expenditures and Investments made, and reasonably anticipated
to be made, with respect thereto;
(g) Promptly after the same are available,
copies of each annual report, proxy or financial statement or
other report or communication sent to the shareholders 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 Sections 13 or 15(d) of the Securities
Exchange Act of 1934 and not otherwise required to be
delivered to the Banks pursuant to other provisions of this
Section;
(h) 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 Bor-
rower or any of its Restricted 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;
(i) Promptly after request by any Creditor,
copies of any other report or other document that was filed by
Borrower or any of its Restricted Subsidiaries with any
Governmental Agency;
(j) Promptly upon a Senior Officer becoming
aware, and in any event within five (5) Banking Days after
becoming aware, of the occurrence of any (i) "reportable event"
(as such term is defined in Section 4043 of ERISA) or
(ii) "prohibited transaction" (as such term is defined in
Section 406 of ERISA or Section 4975 of the Code) in
connection with any Pension Plan or any trust created
thereunder, telephonic notice specifying the nature thereof, and,
no more than five (5) Banking Days after such telephonic
notice, written notice again specifying the nature thereof and
specifying what action Borrower or any of its Restricted
Subsidiaries is taking or proposes to take with respect thereto,
and, when known, any action taken by the Internal Revenue
Service with respect thereto;
(k) As soon as practicable, and in any event
within two 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 Banking Days after
such telephonic notice, written notice again specifying the
nature and period of existence thereof and specifying what
action Borrower or any of its Restricted Subsidiaries are taking
or propose to take with respect thereto;
(l) Promptly upon a Senior Officer becoming
aware that (i) any Person commenced a legal proceeding with
respect to a claim against Borrower or any of its Restricted
Subsidiaries that is $10,000,000 or more in excess of the
amount thereof that is fully covered by insurance, (ii) any
creditor or lessor under a written credit agreement or material
lease has asserted a default thereunder on the part of Borrower
or any of its Restricted Subsidiaries, (iii) any Person
commenced a legal proceeding with respect to a claim against
Borrower or any of its Restricted Subsidiaries under a contract
that is not a credit agreement or material lease, which claim is
in excess of $10,000,000 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 Restricted Subsidiaries on a date certain and such
strike would involve more than 100 employees of Borrower and
its Restricted Subsidiaries, or (v) any Gaming Board has
indicated its intent to consider or act upon a License Revocation
or a fine or penalty of $1,000,000 or more with respect to
Borrower or any of its Restricted Subsidiaries, a written notice
describing the pertinent facts relating thereto and what action
Borrower or its Restricted Subsidiaries are taking or propose to
take with respect thereto; and
(m) Such other data and information as from
time to time may be reasonably requested by any Creditor
through the Administrative Agent.
7.2 Compliance Certificates. So long as any Advance remains
unpaid, or any other Obligation remains unpaid or unperformed, or
any portion of the Commitment remains outstanding, Borrower shall
deliver to the Administrative Agent and the Banks, at Borrower's sole
expense, concurrently with the financial statements required pursuant
to Sections 7.1(a) and 7.1(c), a Compliance Certificate signed on
Borrower's behalf by a Senior Officer.
Article 8
CONDITIONS
8.1 Initial Advances, Etc.. The obligation of each Bank to
make the initial Advance to be made by it, the obligation of the Swing
Line Bank to make Swing Line Advances and the obligation of the
Issuing Bank to issue the initial Letters of Credit, are each subject to
the following conditions precedent, each of which shall be satisfied
prior to the making of the initial Advances (unless all of the Banks, in
their sole and absolute discretion, shall agree otherwise):
(a) The Administrative 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) at least one (1) executed counterpart of this
Agreement, together with arrangements satisfactory to
the Administrative Agent for additional executed
counterparts, sufficient in number for distribution to the
Banks and Borrower;
(2) Committed Advance Notes executed by
Borrower in favor of each Bank, each in a principal
amount equal to that Bank's Pro Rata Share;
(3) Competitive Advance Notes executed by
Borrower in favor of each Bank;
(4) the Swing Line Documents;
(5) the Subsidiary Guaranty executed by each
Significant Subsidiary;
(6) with respect to Borrower and each
Significant Subsidiary, such documentation as the
Administrative Agent may require to establish the due
organization, valid existence and good standing of
Borrower and each such Subsidiary, 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 articles of incorporation and amendments thereto,
bylaws and amendments thereto, certificates of good
standing and/or qualification to engage in business, tax
clearance certificates, certificates of corporate
resolutions, incumbency certificates, Certificates of
Responsible Officials, and the like;
(7) the Opinions of Counsel;
(8) the executed Exit Agreement;
(9) a Certificate of a Responsible Official
certifying that the attached copies of the governing
indentures and agreements for the Existing Subordinated
Debt are true copies;
(10) 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;
(11) a Certificate of a Responsible Official
signed on Borrower's behalf by a Senior Officer setting
forth the Total Debt Ratio as of April 30, 1997 and the
Debt Rating as of the Closing Date;
(12) a Certificate of a Responsible Official
signed on Borrower's behalf by a Senior Officer
certifying that the conditions specified in Sections 8.1(d)
and 8.1(e) have been satisfied; and
(13) such other assurances, certificates, docu-
ments, consents or opinions as the Administrative Agent
reasonably may require.
(b) The arrangement fee, upfront fees and
agency fees payable pursuant to Sections 3.2, 3.3 and 3.6 shall
have been paid.
(c) 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.
(d) The representations and warranties of
Borrower contained in Article 4 shall be true and correct.
(e) Borrower and any other Parties shall be in
compliance with all the terms and provisions of the Loan
Documents, and after giving effect to the initial Advance no
Default or Event of Default shall have occurred and be
continuing.
8.2 Any Increasing Advance, Etc. Subject to Section 2.6(e),
the obligation of each Bank to make any Committed Advance which
would increase the aggregate principal amount of the outstanding
Committed Advances, the obligation of the Issuing Bank to issue each
Letter of Credit, the obligation of the Swing Line Bank to make Swing
Line Advances, and the obligation of each Bank to make any
Competitive Advance, is subject to the following conditions precedent:
(a) except (i) for representations and warranties
which expressly speak as of a particular date or are no longer
true and correct as a result of a change which is not a violation
of the Loan Documents and (ii) as disclosed by Borrower and
approved in writing by the Requisite Banks, the representations
and warranties contained in Article 4 (other than
Sections 4.4(a), 4.6 (first sentence), 4.10, 4.17 and, in the case
of any Committed Advance the proceeds of which shall be used
to directly refinance Commercial Paper Debt, the third sentence
of Section 4.6) shall be true and correct on and as of the date
of the Advance as though made on that date;
(b) there shall not be then pending or
threatened any action, suit, proceeding or investigation against
or affecting Borrower or any of its Restricted Subsidiaries or
any Property of any of them before any Governmental Agency
that constitutes a Material Adverse Effect;
(c) the Administrative Agent shall, in the case
of a Committed Advance, 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(c), if applicable) in compliance with Article 2 (or,
in the proper case, a Request for Letter of Credit); and
(d) 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.
8.3 Any Advance. Subject to Section 2.6(e), the obligation of
each Bank to make any Advance (other than a Base Rate Advance
with respect to a Base Rate Loan which, if made, would not increase
the outstanding principal Indebtedness evidenced by the Committed
Advance Notes), is subject to the conditions precedent that (a) the
representations and warranties contained in Sections 4.1, 4.2, 4.3,
4.4(b), 4.11, 4.12 (but only with respect to Events of Default) and
4.14 shall be true and correct in all material respects on the date of
such Advance as though made on that date except as disclosed by
Borrower and approved in writing by the Requisite Banks, and
(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(c), if applicable).
8.4 Effect of the Closing Date. The Exit Agreement shall be
deemed to be effective concurrently with the Closing Date, and upon
such effectiveness, each Exiting Bank shall no longer be deemed to be
a party to the Existing Loan Agreement and the other Loan
Documents thereunder for any purpose. Each Bank, the
Administrative Agent and Borrower shall, on the Closing Date, make
such payments through the Administrative Agent as are necessary
(giving effect to any Loan requested by Borrower on the Closing
Date) to result in each Bank having a Pro Rata Share of any
outstanding Indebtedness under this Agreement as is set forth on
Schedule 1.1 hereto. On the Closing Date, the Notes and the
Subsidiary Guaranty under the Existing Loan Agreement shall be
canceled and terminated, and each Bank shall promptly thereafter
return its Notes under the Existing Loan Agreement to Borrower
marked "canceled."
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 constitute an Event of
Default:
(a) Borrower (i) fails to pay any principal on
any Committed Advance Note or any Swing Line Advance, or
any portion thereof, on the date when due, (ii) fails to make
any payment with respect to any Letter of Credit when required
by Section 2.4(d), or (iii) fails to pay any principal on any
Competitive Advance Note, or any portion thereof, (A) if an
Event of Default otherwise then exists, on the date when due or
(B) if an Event of Default otherwise does not then exist, within
one (1) Banking Day after 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, immediately upon notice
from the Administrative Agent, to comply with any of the
covenants contained in Article 6 (other than the covenants
contained in Sections 6.2, 6.6, 6.7, 6.8, 6.10, or 6.13); or
(d) Borrower fails to comply with
Section 7.1(k) in any respect that is materially adverse to the
interests of the Banks; or
(e) Borrower, any of its Significant
Subsidiaries or any other Party fails to perform or observe any
other covenant or agreement (not specified in clauses (a), (b),
(c) or (d) above) contained in any Loan Document on its part to
be performed or observed within ten Banking Days after the
giving of notice by the Administrative Agent on behalf of the
Requisite Banks of such Default; or
(f) Any representation or warranty of
Borrower or any of its Significant Subsidiaries 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 respect that is
materially adverse to the interests of the Banks; or
(g) Borrower or any of its Significant
Subsidiaries (i) fails to pay the principal, or any principal
installment, of any present or future indebtedness for borrowed
money of $25,000,000 or more, or any guaranty of present or
future indebtedness for borrowed money of $25,000,000 or
more, on its part to be paid, when due (or within any stated
grace period), whether at the stated maturity, upon acceleration,
by reason of required prepayment or otherwise or (ii) fails to
perform or observe any other term, covenant or agreement on
its part to be performed or observed, or suffers any event to
occur, in connection with any present or future indebtedness for
borrowed money of $25,000,000 or more, or of any guaranty
of present or future indebtedness for borrowed money of
$25,000,000 or more, if as a result of such failure or sufferance
any holder or holders thereof (or an agent or trustee on its or
their behalf) has the right to declare such indebtedness due
before the date on which it otherwise would become due; or
(h) Any event occurs which gives the holder or
holders of any Subordinated Debt (or an agent or trustee on its
or their behalf) the right to declare such indebtedness 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 Debt; or
(i) Any Loan Document, at any time after its
execution and delivery and for any reason other than the agree-
ment 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 in writing to revoke,
terminate or rescind same; or
(j) A final judgment against Borrower or any
of its Significant Subsidiaries is entered for the payment of
money in excess of $5,000,000 and, absent procurement of a
stay of execution, such judgment remains unsatisfied for
thirty 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 calendar days
after its issue or levy; or
(k) Borrower or any of its Significant
Subsidiaries institutes or consents to the institution of any
proceeding under a Debtor Relief Law relating to it or to all or
any 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 part of its Property; or any receiver, trustee,
custodian, conservator, liquidator, rehabilitator or similar offi-
cer is appointed without the application or consent of that
Person and the appointment continues undischarged or unstayed
for 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 60 calendar days; or
(l) The occurrence of an Event of Default (as
such term is or may hereafter be specifically defined in any
other Loan Document) under any other Loan Document; or
(m) Any determination is made by a court of
competent jurisdiction that any Subordinated Debt is not
subordinated in accordance with its terms to the Obligations,
provided that for so long as such determination is effectively
stayed during any pending appeal the same shall not constitute
an Event of Default; or
(n) Any Pension Plan maintained by Borrower
or any of its Restricted 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
(o) The occurrence of a License Revocation
with respect to a license issued by any Governmental Agency of
the States of New Jersey or Nevada that continues for five (5)
calendar days.
9.2 Remedies Upon Event of Default. Without limiting any
other rights or remedies of the Creditors provided for elsewhere in
this Agreement, or the Loan Documents, or by applicable Law, or in
equity, or otherwise:
(a) Upon the occurrence, and during the
continuance, of any Event of Default other than an Event of
Default described in Section 9.1(k):
(1) the commitment to make Advances and all
other obligations of the Creditors 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, demand that
Borrower deposit cash collateral for all Letters of Credit
in the amount thereof with the Issuing Bank 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(k):
(1) the commitment to make Advances and all
other obligations of the Creditors 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
determination 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, presentment,
notice of dishonor, demand or further notice of any kind,
all of which are expressly waived by Borrower, and
Borrower shall be obligated to immediately deposit cash
collateral for all Letters of Credit with the Issuing Bank
in the amount thereof.
(c) Upon the occurrence of any Event of
Default, the Creditors, 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.
(d) The order and manner in which the Banks'
rights and remedies are to be exercised shall be determined by
the Requisite Banks in their sole discretion, and all payments
received by the Creditors, shall be applied first to the costs and
expenses (including attorneys' fees and disbursements and the
allocated costs of attorneys employed by the Administrative
Agent) of the Creditors, 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
Creditors, as set forth above, second, to the payment of accrued
and unpaid interest due under any Loan Documents to and
including the date of such application (ratably, and without
duplication, according to the accrued and unpaid interest due
under each of the Loan Documents), and third, to the payment
of all other amounts (including principal and fees) then owing
to the Creditors under the Loan Documents. 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.
Article 10
THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization. Each Creditor hereby
irrevocably appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers under
the Loan Documents as are delegated to the Administrative 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 trustee for any Bank or as representative of any Bank for any other
purpose and, except as specifically set forth in the Loan Documents to
the contrary, the Administrative Agent shall take such action and
exercise such powers only in an administrative and ministerial
capacity.
10.2 Administrative Agent and Affiliates. Bank of America
(and each successor Administrative Agent) has the same rights and
powers under the Loan Documents as any other Bank and may
exercise the same as though it was 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 was 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 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
attorneys' fees and disbursements and other professional services and
the allocated costs 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 any 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 Creditor agrees that it
has, independently and without reliance upon the Administrative
Agent, any other Creditor or the directors, officers, agents, employees
or attorneys of any other Creditor, 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 Creditor also agrees that it shall, independently and without
reliance upon any other Creditor or the directors, officers, agents,
employees or attorneys of any other Creditor, 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) The Administrative Agent, the Issuing Bank and
the Swing Line Bank may assume that no Default or Event of Default
has occurred and is continuing, unless they have received notice from
Borrower stating the nature of the Default or Event of Default or have
received notice from a Bank stating the nature of the Default or Event
of Default and that such Bank considers the Default or Event of
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 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) fail, 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 Creditors.
(e) The Administrative Agent shall have no liability to
any Creditor 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
satisfactory to the Administrative Agent, signed by that Bank.
(b) May consult with legal counsel (including
in-house legal counsel), accountants (including in-house
accountants) and other professionals or experts selected by it,
or with legal counsel, accountants or other professionals or
experts for 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 professionals or experts.
(c) Shall not be responsible to any Bank for
any statement, warranty or representation made in any of the
Loan Documents or in any notice, certificate, report, request or
other statement (written or oral) given or made in connection
with any of the Loan Documents.
(d) Except to the extent expressly set forth in
the Loan Documents, shall have no duty to ask or inquire as to
the performance or observance by 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 collateral.
(f) Will not incur any liability by acting or not
acting in reliance upon any Loan Document, notice, consent,
certificate, statement, request or other instrument or writing
believed by it to be genuine and signed or sent by the proper
party or parties.
(g) Will not incur any liability for any
arithmetical error in computing any amount paid or payable by
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 Creditors (and, to the extent applicable
Borrower and/or its Subsidiaries or Affiliates) shall make such
adjustments as are necessary to correct such error and to restore
the parties to the position that they would have occupied had
the error not occurred.
10.7 Indemnification. Each Bank shall, ratably in accordance
with its Pro Rata Share, indemnify and hold the Administrative Agent,
the Arranger and their respective directors, officers, agents,
employees and attorneys harmless against any and all liabilities, obli-
gations, 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 or
the Arranger) 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 and the
Arranger thereunder, except such as result from their own gross negli-
gence or willful misconduct. Without limitation on the foregoing,
each Bank shall reimburse the Administrative Agent and the Arranger
upon demand for that Bank's Pro Rata Share of any out-of-pocket cost
or expense incurred by the Administrative Agent or the Arranger in
connection with the negotiation, preparation, execution, delivery,
amendment, waiver, restructuring, reorganization (including a
bankruptcy reorganization), enforcement or attempted enforcement of
the Loan Documents, to the extent that 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 or the Arranger 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, and the
Administrative Agent shall promptly refund to the Banks any amount
for which it is indemnified for which it later receives duplicative
reimbursement.
10.8 Successor Administrative Agent. The Administrative
Agent may, and at the request of the Requisite Banks shall, resign as
Administrative Agent upon thirty 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). 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 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 (except for any
liabilities incurred prior to such termination). After any retiring
Administrative Agent's resignation hereunder as Administrative Agent,
the provisions of this Article 10, and Sections 11.3, 11.11 and 11.23,
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 3.6 or has not been reimbursed for any expense reimbursable
to it under Section 11.3, in either case for a period of at least one (1)
year and (b) no successor administrative agent has accepted
appointment as Administrative Agent by the date which is thirty 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 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 any Creditor in
respect of any failure by any Creditor to perform any of its obligations
to any other Creditor 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 any Creditor, 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.
Article 11
MISCELLANEOUS
11.1 Cumulative Remedies; No Waiver. The rights, powers,
privileges and remedies of the Creditors 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 any Creditor 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 Creditors; the same may be waived in whole or in part, with or
without terms or conditions, in respect of any Loan or Letter of Credit
without prejudicing the Creditors rights to assert them in whole or in
part in respect of any other Loan or Letter of Credit.
11.2 Amendments; Consents. No amendment, modification,
supplement, extension, termination or waiver of any provision of this
Agreement or any other Loan Document, no approval or consent
thereunder, and no consent to any departure by 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 or the amount
of any Letter of Credit Fee or commitment fee payable to any
Bank, or any other fee or amount payable to the Creditors
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 or letter of credit fee;
(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 letter of credit fee, or to extend the term of the Commitment
(except as set forth in Section 2.11);
(c) When any Default or Event of Default
exists, to release any Significant Subsidiary from its obligations
under the Subsidiary Guaranty, or to release the Subsidiary
Guaranty in its entirety.
(d) To amend the provisions of the definition of
"Requisite Banks", Articles 8 or 9 or this Section 11.2 or to
amend or waive Section 6.4; 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 of the Creditors.
11.3 Costs, Expenses and Taxes. Borrower shall pay within
five (5) Banking Days after demand, accompanied by an invoice
therefor, 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 and any amendment thereto or waiver thereof. Borrower
shall also pay on demand, accompanied by an invoice therefor, the
reasonable costs and expenses of the Creditors 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 allocated costs of legal counsel employed by any Creditor),
independent public accountants and other outside experts retained by
any of the Creditors, whether or not such costs and expenses are
incurred or suffered by the Creditors 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 and the Issuing Bank reasonably attributable thereto. Borrower
shall pay any and all documentary and other taxes, excluding, in the
case of each Creditor and any Affiliate or Eurodollar Lending Office
thereof, (i) taxes imposed on or measured in whole or in part by its
net income, gross income or gross receipts or capital and franchise
taxes imposed on it, (ii) any withholding taxes or other taxes based on
gross income (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 authority) or (iii) any
withholding taxes or other taxes based on gross income for any period
with respect to which it has failed to provide Borrower with the
appropriate form or forms required by Section 11.22, to the extent
such forms are then required by applicable Laws, and all costs,
expenses, fees and charges payable or determined to be payable in
connection with the filing or recording of this Agreement, any other
Loan Document or any other instrument or writing to be delivered
hereunder or thereunder, or in connection with any transaction pur-
suant hereto or thereto, and shall reimburse, hold harmless and
indemnify the Creditors from and against any and all loss, liability or
legal or other expense with respect to or resulting from any delay in
paying or failure 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
Creditors 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 Creditors or any of them pursuant hereto or
thereto may, or may be deemed to, make the Creditors 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 attributable to any other Bank. Any Bank
not in default may, if it desires, assume in such proportion as a
majority in interest of 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.
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
Creditors, notwithstanding any investigation made by the Creditors or
on their behalf.
11.6 Notices. Except as otherwise expressly provided in the
Loan Documents, all notices, requests, demands, directions and other
communications provided for hereunder or under any other Loan
Document must be in writing and must be mailed, telegraphed,
telecopied 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.
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; 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 Creditors, and their respective successors and
assigns, except that except as permitted in Section 6.3, 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 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 and its Notes; provided that (i) such
Eligible Assignee, if not then a Bank or an Affiliate of the assigning
Bank having a combined capital and surplus in excess of
$100,000,000, shall be approved by each of the Administrative Agent
(which approval shall not be unreasonably withheld) and Borrower
(which approval may be withheld in the sole discretion of Borrower
but will not be required if an Event of Default has occurred and
remains continuing), (ii) such assignment shall be evidenced by an
Assignment Agreement, a copy of which shall be furnished to the
Administrative Agent, (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 which is less than $10,000,000, and
(iv) the effective date of any such assignment shall be as specified in
the Assignment Agreement, but not earlier than the date which is
five (5) Banking Days after the date the Administrative Agent has
received the Assignment Agreement. Upon the effective date of such
Assignment Agreement, the Eligible Assignee named therein shall be a
Bank for all purposes of this Agreement, with the Pro Rata Share
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 and the other Loan Documents. 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, and to the assigning Bank, Notes
evidencing the remaining balance Pro Rata Share retained by the
assigning Bank.
(c) By executing and delivering an Assignment
Agreement, the Eligible Assignee thereunder acknowledges and agrees
that: (i) other than the representation and warranty that it is the legal
and beneficial owner of the Pro Rata Share 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 its Subsidiaries or the
performance by Borrower or its Subsidiaries of the Obligations; (iii) it
has received a copy of this Agreement and the other Loan Documents,
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 Assignment Agreement; (iv) it will, independently
and without reliance upon any other Creditor 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 and the Loan Documents 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 a copy of
each Assignment Agreement delivered to it. After receipt of a com-
pleted Assignment Agreement 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 1.1 giving effect thereto.
(e) Each Bank may from time to time grant
participations in a portion of its Pro Rata Share (with the consent of
Borrower which consent shall not be unreasonably withheld) or in any
Competitive Advance (without the requirement of such consent), in
each case to one or more banks or other financial institutions
(including another Bank); provided, however, that (i) such Bank's
obligations under the Loan Documents shall remain unchanged,
(ii) such Bank shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) the participating
banks or other financial institutions shall not be a Bank hereunder for
any purpose except, if the participation agreement so provides, for the
purposes of Sections 3.7, 3.8, 11.11 and 11.25 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 and the other Creditors shall continue
to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement, (v) the partici-
pation interest shall not restrict an increase in the Commitment, or in
the granting Bank's Pro Rata Share, 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 or (D) change the definition of
"Requisite Banks."
(f) Notwithstanding anything in this Section to the
contrary, the rights of the Banks to make assignment of, and grant
participations in, their Pro Rata Share of the Commitment shall be
subject to the approval of any Gaming Board, to the extent required
by applicable Gaming Laws.
(g) Notwithstanding anything to the contrary
contained herein, any Bank (a "Granting Bank") may grant to a
special purpose funding vehicle (an "SPC") of such Granting Bank,
identified as such in writing from time to time by the Granting Bank
to the Administrative Agent and the Borrower, the option to provide
to the Borrower all or any part of any Loan that such Granting Bank
would otherwise be obligated to make to the Borrower pursuant to
Sections 2.1, 2.2, 2.3 or 2.5, provided that (i) nothing herein shall
constitute a commitment to make any Loan by any SPC and (ii) if an
SPC elects not to exercise such option or otherwise fails to provide all
or any part of such Loan, the Granting Bank shall be obligated to
make such Loan pursuant to the terms hereof. The making of a Loan
by an SPC hereunder shall utilize the Commitment of the Granting
Bank (and, if such Loan is a Competitive Advance, shall be deemed to
utilize the Commitments of all the Banks) to the same extent, and as
if, such Loan were made by the Granting Bank. Each party hereto
hereby agrees that no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for which shall
remain with the related Granting Bank). In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall
survive the termination of this Agreement) that, prior to the date that
is one year and one day after the payment in full of all outstanding
senior indebtedness of any SPC, it will not institute against, or join
any other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or
similar proceedings under the laws of the United States or any State
thereof, provided that the Granting Bank for each SPC hereby agrees
to indemnify, save, and hold harmless each other party hereto for any
loss, cost, damage and expense arising out of their inability to
institute any such proceeding against its SPC. In addition,
notwithstanding anything to the contrary contained in this
Section 11.8, any SPC may (i) with notice to, but without the prior
written consent of, the Borrower or the Administrative Agent and
without paying any processing fee therefor, assign all or a portion of
its interests in any Loans to its Granting Bank or to any financial
institutions providing liquidity and/or credit facilities to or for the
account of such SPC to fund the Loans made by such SPC or to
support the securities (if any) issued by such SPC to fund such Loans
(but nothing contained herein shall be construed in derogation of the
obligation of the Granting Bank to make Loans hereunder), provided
that neither the consent of the SPC or of any such assignee shall be
required for amendments or waivers of provisions of the Loan
Documents except for those amendments or waivers for which the
consent of participants is required under Section 11.8(e)(vi), and
(ii) disclose on a confidential basis (in the same manner described in
Section 11.14) any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of a surety,
guarantee or credit or liquidity enhancement to such SPC.
11.9 Right of Setoff. If an Event of Default has occurred and
is continuing, each of the Creditors (but 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 any Property of Borrower
in its possession against the Obligations.
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 payment of the Obligations held by
that Bank, then, subject to applicable Laws: (a) The Bank exercising
the right of setoff, banker's lien or counterclaim or otherwise
receiving such payment shall purchase, and shall be deemed to have
simultaneously purchased, from the other Bank a participation in the
Obligations held by the other Bank and shall pay to the other Bank a
purchase price in an amount so that the share of the Obligations held
by each Bank after the exercise of the right of setoff, banker's lien or
counterclaim or receipt of payment shall be in the same proportion
that existed prior to the exercise of the right of setoff, banker's lien or
counterclaim or receipt of payment; and (b) Such other adjustments
and purchases of participations shall be made from time to time as
shall be equitable to ensure that all of the Banks share any payment
obtained in respect of the Obligations ratably in accordance with each
Bank's share of the Obligations immediately prior to, and without
taking into account, the payment; provided that, if all or any portion
of a disproportionate payment obtained as a result of the exercise of
the right of setoff, banker's lien, counterclaim or otherwise is
thereafter 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 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. Borrower
expressly consents to the foregoing arrangements and agrees that any
Bank holding a participation in an Obligation so purchased may
exercise any and all rights of setoff, banker's lien or counterclaim
with respect to the participation as fully as if the Bank were the
original owner of the Obligation purchased.
11.11 Indemnity by Borrower. Borrower agrees to indemnify,
save and hold harmless each of the Creditors and the Arranger and
their Affiliates, 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 its officers, directors
or shareholders relating to the Commitment, the use or contemplated
use of proceeds of any Loan or Letter of Credit, or the relationship of
Borrower and the Creditors 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 attorneys' fees and the 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, provided that unless the Indemnitee
reasonably determines that allowing Borrower to control the defense
thereof would unreasonably expose such Indemnitee to a liability
which Borrower is not capable of repaying, Borrower shall have the
right to control the defense thereof using counsel for Borrower
reasonably acceptable to the Indemnitee, provided that Borrower shall
promptly provide copies of all pleadings to the Indemnitees and shall
diligently prosecute the defense of all indemnified claims in good
faith. 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).
In connection with any claim, demand, action or cause of action
covered by this Section 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 attorneys employed
by an Indemnitee or a combination of the foregoing) selected by the
Indemnitees and reasonably acceptable to Borrower; provided, that if
such legal counsel determines in good faith that representing all such
Indemnitees would or could result in a conflict of interest under Laws
or ethical principles applicable to such legal counsel or that a defense
or counterclaim is available to an Indemnitee that is not available to
all such Indemnitees, then to the extent reasonably 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 counsel using
reasonable efforts to avoid unnecessary duplication of effort by
counsel for all Indemnitees; and further provided that the
Administrative Agent (as an Indemnitee) shall at all times be entitled
to representation by separate legal counsel (which may be a law firm
or attorneys employed by the Administrative Agent or a combination
of the foregoing). Any obligation or liability of Borrower to any
Indemnitee under this Section shall survive the expiration or
termination of this Agreement and the repayment of all Loans and the
payment and performance of all other Obligations owed to the Banks.
11.12 Nonliability of the Banks. Borrower acknowledges and
agrees that:
(a) Any inspections of any Property of
Borrower made by or through the Creditors are solely for
purposes of administration of this Agreement and Borrower is
not entitled to rely upon the same (whether or not such
inspections are at the expense of Borrower);
(b) By accepting, furnishing or approving
anything required to be observed, performed, fulfilled or given
to the Creditors pursuant to the Loan Documents, none of the
Creditors 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, furnishing or approval thereof shall not constitute a
warranty or representation to anyone with respect thereto by the
Creditors;
(c) The relationship between Borrower and the
Creditors is, and shall at all times remain, solely that of a
borrower and lenders; none of the Creditors shall under any
circumstance be construed to be partners or joint venturers of
Borrower or its Affiliates; none of the Creditors shall under any
circumstance be deemed to be in a relationship of confidence or
trust or a fiduciary relationship with Borrower or its Affiliates,
or to owe any fiduciary duty to Borrower or its Affiliates; none
of the Creditors undertakes or assumes 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 Creditors in connection with such
matters is solely for the protection of the Creditors and neither
Borrower nor any other Person is entitled to rely thereon; and
(d) The Creditors 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 Creditors 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 and the Creditors in connection with the
Loans, Letters of Credit and Swing Line Advances, and is made for
the sole benefit of Borrower, the Creditors, and the Creditors'
successors and assigns, and, subject to Section 6.3 successors to
Borrower by permitted merger. Except as provided in Sections 11.8
and 11.11, no other Person shall have any rights of any nature
hereunder or by reason hereof.
11.14 Confidentiality. Each Creditor agrees to hold any
confidential information that it may receive from Borrower pursuant to
this Agreement in confidence, except for disclosure: (a) To Affiliates
of that Creditor and to other Creditors; (b) To legal counsel and
accountants for Borrower or any Creditor; (c) To other professional
advisors to Borrower or any Creditor, provided that the recipient has
accepted such information subject to a confidentiality agreement
substantially similar to this Section 11.14 or has notified such
professional advisors of the confidentiality of such information; (d) To
regulatory officials having jurisdiction over that Creditor; (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 (provided that the
relevant Creditor shall endeavor, to the extent it may do so under
applicable Law, to give Borrower reasonable prior notice thereof to
allow Borrower to seek a protective order) or in connection with any
legal proceeding to which that Creditor 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 Creditor's interests hereunder or a participation interest in
its Notes, provided that the recipient has accepted such information
subject to a confidentiality agreement substantially similar to this
Section. 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 substantially similar to this Section. Nothing in this Section
shall be construed to create or give rise to any fiduciary duty on the
part of any Creditor to Borrower.
11.15 Removal of a Bank. Borrower shall have the right to
remove a Bank as a party to this Agreement pursuant to this Section in
the event that such Bank (a) refuses to consent to an extension of the
Maturity Date requested by Borrower in accordance with Section 2.10
which has been consented to by Banks holding Pro Rata Share equal
to or greater than 80% of the Commitment, or (b) requests
compensation under Section 3.7 or Section 3.8 which has not been
requested by all other Banks, by written notice to the Administrative
Agent and such Bank within 60 days following any such refusal or
request, provided that no Default or Event of Default then exists. If
Borrower is entitled to remove a Bank pursuant to this Section either:
(a) The Bank being removed shall within five
Banking Days after such notice execute and deliver an
Assignment Agreement covering that Bank's Pro Rata Share in
favor of one or more Eligible Assignees designated by
Borrower and reasonably acceptable to the Administrative
Agent, subject to payment of a purchase price by such Eligible
Assignee equal to all principal and accrued interest, fees and
other amounts payable to such Bank under this Agreement
through the date of the Assignment Agreement; or
(b) Borrower may reduce the Commitment
pursuant to Section 2.7 (and, for this purpose, the numerical
requirements of such Section shall not apply) by an amount
equal to that Bank's Pro Rata Share, pay and provide to such
Bank the amount required by clause (a) above and release such
Bank from its Pro Rata Share (subject, however, to the
requirement that all conditions set forth in Section 8.2 are met
as of the date of such reduction and the payment to the other
Banks of appropriate fees for the assumption of that Bank's
participation in all Letters of Credit and Swing Line Advances
then outstanding), in which case the percentage Pro Rata Shares
of the remaining Banks shall be ratably increased (but without
any increase in the Dollar amount of the Pro Rata Shares of
such Banks).
11.16 Further Assurances. Borrower and its Subsidiaries
shall, at their expense and without expense to the Creditors, do,
execute and deliver such further acts and documents as any Creditor
from time to time reasonably requires for the assuring and confirming
unto the Creditors of the rights hereby created or intended now or
hereafter so to be, or for carrying out the intention or facilitating the
performance of the terms of any Loan Document.
11.17 Integration. This Agreement, together with the other
Loan Documents, 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 Creditors 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.
11.18 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.
11.19 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.
11.20 Headings. Article and Section headings in this
Agreement and the other Loan Documents are included for
convenience of reference only and are not part of this Agreement or
the other Loan Documents for any other purpose.
11.21 Time of the Essence. Time is of the essence of the
Loan Documents.
11.22 Foreign Banks and Participants. Each Bank, and each
holder of a participation interest herein, that is incorporated under the
Laws of a jurisdiction other than the United States of America or any
state thereof shall deliver to Borrower (with a copy to the
Administrative Agent), within twenty days after the Closing Date (or
after accepting an Assignment Agreement 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.
11.23 Hazardous Material Indemnity. Borrower hereby agrees
to indemnify, hold harmless and defend (by counsel reasonably
satisfactory to the Administrative Agent) the Creditors and their
respective directors, officers, employees, agents, successors and
assigns from and against any and all claims, losses, damages,
liabilities, fines, penalties, charges, administrative and judicial
proceedings and orders, judgments, remedial action requirements,
enforcement actions of any kind, and all costs and expenses incurred
in connection therewith (including but not limited to reasonable
attorneys' fees and the allocated costs of attorneys employed by any of
the Creditors, and expenses to the extent that the defense of any such
action has not been assumed by Borrower), arising directly or
indirectly, in whole or in part, out of (i) the presence on or under 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 or under any
Real Property. The foregoing indemnity shall further apply to any
residual contamination on or under 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 Creditors.
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 shall be
unlimited corporate obligations of Borrower and shall not be secured
by any deed of trust on any Real Property. No claim giving rise for
indemnification under this Section shall be settled without Borrower's
prior written consent, which consent shall not be unreasonably
withheld or delayed.
11.24 Gaming Boards. The Creditors 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.
11.25 The Existing Loan Agreement. The parties hereto agree
that the Existing Loan Agreement is amended and restated in its
entirety by this Agreement. Borrower shall have no further right to
request loans, letters of credit or other credit accommodations under
the Existing Loan Agreement, but rather shall be entitled to the credit
accommodations described herein, subject to the terms and conditions
of this Agreement and the other Loan Documents. Each party to this
Agreement hereby consents to the execution, delivery and
performance of the Exit Agreement.
11.26 Waiver of Right to Trial by Jury. EACH SIGNATORY
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
SIGNATORIES 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
SIGNATORY 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 SIGNATORY TO THIS AGREEMENT MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF THE SIGNATORIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
11.27 Purported Oral Amendments. BORROWER
EXPRESSLY 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 ANY
OF THE CREDITORS THAT DOES NOT COMPLY WITH
SECTION 11.2 TO EFFECT AN<PAGE>
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.
CIRCUS CIRCUS ENTERPRISES, INC.
By: Glenn Schaeffer
Glenn Schaeffer, President and
Chief Financial Officer
Address:
Circus Circus Enterprises, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attn: Glenn Schaeffer, President and Chief Financial Officer
Telecopier: (702) 691-5840
Telephone: (702) 691-5912
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Administrative Agent
By: Janice Hammond
Jani ce Hammond, Vice President
Address:
Bank of America National Trust and Savings Association
555 South Flower Street
11th Floor
Los Angeles, California 90071
Attn: Janice Hammond
Telecopier: (213) 228-2299
Telephone: (213) 228-9861
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as a Bank
By: Jon Varnell
Jon Varnell, Managing Director
Address:
Bank of America National Trust and Savings Association
555 South Flower Street, #3283
Los Angeles, California 90071
Attn: Jon Varnell, Managing Director
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,
Managing Director
Telecopier: (213) 228-3145
Telephone: (213) 228-2438
CANADIAN IMPERIAL BANK OF COMMERCE, as a Managing
Agent and a Bank
By: Paul J. Chakmak
Paul J. Chakmak
Director
Address:
Canadian Imperial Bank of Commerce
350 South Grand Avenue, 26th Floor
Los Angeles, California 90071
Attention: Paul J. Chakmak
Telecopier: (213) 346-0157
Telephone: (213) 617-6226
CREDIT LYONNAIS LOS ANGELES BRANCH, as a Managing
Agent and a Bank
By: Dianne M. Scott
Title: Vice President and Branch Manager
Address:
Credit Lyonnais Los Angeles Branch
515 South Flower Street, 22nd Floor
Los Angeles, California 90071
Attention: F. Glenn Harvey
Telecopier: (213) 623-3437
Telephone: (213) 362-5900
SOCIETE GENERALE, as a Managing Agent and a Bank
By: Donald Schubert
Donald Schubert
Vice President
Address:
Societe Generale
2029 Century Park East, Suite 2900
Los Angeles, California 90067
Attention: Donald Schubert / Jane van Brussel
Telecopier: (310) 551-1537
Telephone: (310) 788-7104
THE LONG-TERM CREDIT BANK OF JAPAN, LTD., LOS
ANGELES AGENCY, as a Managing Agent and a Bank
By: Paul B. Clifford
Paul B. Clifford
Deputy General Manager
Address:
The Long-Term Credit Bank of Japan, Ltd., Los Angeles Agency
350 S. Grand Avenue, Suite 3000
Los Angeles, California 90071
Attention: Kimberly Gonsalves
Telecopier: (213) 626-1026
Telephone: (213) 689-6331
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as a
Managing Agent and a Bank
By: Diana M. Imhof
Diana M. Imhof
Vice President
Address:
Morgan Guaranty Trust Company of New York
60 Wall Street
New York, New York 10260-0060
Attention: S. Juyoung Shin
Telecopier: (212) 648-5018
Telephone: (212) 648-4960
PNC BANK, NATIONAL ASSOCIATION, as a Managing Agent and
a Bank
By: Cynthia G. Osofsky
Cynthia G. Osofsky
Senior Vice President
Address:
PNC Bank, National Association
Two Tower Center Boulevard, 16th Floor
East Brunswick, New Jersey 08816
Attention: Denise D. Killen
Telecopier: (908) 220-3270
Telephone: (908) 220-3262
WELLS FARGO BANK, N.A., as a Managing Agent and a Bank
By: Kathleen Stone
Kathleen Stone
Vice President
Address:
Wells Fargo Bank
Gaming Industry Division
3800 Howard Hughes Parkway, 4th Flr.
Las Vegas, Nevada 89109
Attention: Kathleen Stone
Telecopier: (702) 791-6248
Telephone: (702) 791-6351
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK
BRANCH, as a Managing Agent and a Bank
By: Karen E. Hoplock
Title: Vice President
By:
Title:
Address for Notices:
Westdeutsche Landesbank Girozentrale, New York Branch
1211 Avenue of the Americas
New York, NewYork 10036
Attention: Elizabeth Wilds
Telecopier: (212) 852-6148
Telephone: (212) 852-6322
THE BANK OF NEW YORK, as a Co-Agent and a Bank
By: Craig J. Rethmeyer
Craig J. Rethmeyer
Vice President
Address:
The Bank of New York
10990 Wilshire Boulevard, Suite 1700
Los Angeles, California 90024
Attention: Craig J. Rethmeyer
Telecopier: (310) 996-8667
Telephone: (310) 996-8657
COMMERZBANK AKTIENGESELLSCHAFT, LOS ANGELES
BRANCH, as a Co-Agent and a Bank
By: Christian Jagenberg
Title: SVP and Manager
By: Werner Schmidbauer
Title: Vice President
Address for Notices:
Commerzbank Aktiengesellschaft, Los Angeles Branch
633 West Fifth Street, Suite 6600
Los Angeles, California 90071
Attention: Werner Schmidbauer
Telecopier: (213) 623-0039
Telephone: (213) 623-8223
THE BANK OF NOVA SCOTIA, as a Co-Lead Manager and a Bank
By: Alan Pendergast
Alan Pendergast
Relationship Manager
Address:
The Bank of Nova Scotia
580 California Street, Suite 2100
San Francisco, California 94104
Attention: Alan Pendergast
Telecopier: (415) 397-0791
Telephone: (415) 986-1100
FLEET BANK N.A., as a Co-Lead Manager and a Bank
By: John F. Cullinan
John F. Cullinan
Senior Vice President
Address:
Fleet Bank N.A.
P.O. Box 30
Route 9 South
Freehold, New Jersey 07728
Attention: John F. Cullinan
Telecopier: (908) 780-0154
Telephone: (908) 294-4306
THE MITSUBISHI TRUST AND BANKING CORPORATION, LOS
ANGELES AGENCY, as a Co-Lead Manager and a Bank
By: Yasushi Satomi
Yasushi Satomi
Sr. Vice President and Chief Manager
Address:
The Mitsubishi Trust and Banking Corporation, Los Angeles Agency
801 South Figueroa Street, Suite 500
Los Angeles, California 90017
Attention: Rex Olson
Telecopier: (213) 687-4631
Telephone: (213) 896-4658
UNION BANK OF CALIFORNIA, N.A., as a Co-Lead Manager and
a Bank
By: B. Adam Trout
B. Adam Trout
Assistant Vice President
Address:
Union Bank of California, N.A.
445 South Figueroa Street, G15-075
Los Angeles, California 90071
Attention: B. Adam Trout
Telecopier: (213) 236-5747
Telephone: (213) 236-7881
UNITED STATES NATIONAL BANK OF OREGON, as a Co-Lead
Manager and a Bank
By: Dale Parshall
Dale Parshall
Vice President
Address:
United States National Bank of Oregon
555 SW Oak Street, PL-4
Portland, Oregon 97204
Attention: Dale Parshall
Telecopier: (503) 275-5428
Telephone: (503) 275-3476
FIRST SECURITY BANK, N.A., as a Bank
By: David P. Williams
David P. Williams
Vice President
Address:
First Security Bank, N.A.
15 East 100 South
Corporate Banking Division - 2nd Floor
Salt Lake City, Utah 84111
Attention: David P. Williams
Telecopier: (801) 246-5532
Telephone: (801) 246-5540
ABN AMRO BANK N.V., SAN FRANCISCO INTERNATIONAL
BRANCH, as a Bank
By: ABN AMRO North America, Inc., as agent
By: Jeffrey A. French
Jeffrey A. French
Vice President
By: Joseph M. Vitale
Title: Portfolio Officer
Address:
ABN AMRO Bank N.V., San Francisco International Branch
101 California Street, Suite 4550
San Francisco, California 94111
Attention: Jeffrey French, Vice President
Telecopier: (415) 362-3524
Telephone: (415) 984-3703
BANKERS TRUST COMPANY, as a Bank
By: Patricia Hogan
Title: Vice President
Address:
Bankers Trust Company
130 Liberty Street
New York, New York 10006
Attention: Lori Marrone
Telecopier: (212) 250-7351
Telephone: (212) 250-7466
BANQUE NATIONALE DE PARIS, as a Bank
By: Clive Bettles
Clive Bettles
Sr. Vice President and Manager
By: Janice Ho
Janice Ho
Vice President
Address:
Banque Nationale de Paris
725 South Figueroa Street, Suite 2090
Los Angeles, California 90017
Attention: Janice Ho
Telecopier: (213) 488-9602
Telephone: (213) 488-9120
THE DAI-ICHI KANGYO BANK, LTD., LOS ANGELES
AGENCY, as a Bank
By: Teruhisa Yamaguchi
Teruhisa Yamaguchi
Sr. Vice President and Joint General Manager
Address:
The Dai-Ichi Kangyo Bank, Ltd., Los Angeles Agency
555 West Fifth Street, 5th Floor
Los Angeles, California 90013
Attention: Israel Carmeli
Telecopier: (213) 624-5258
Telephone: (213) 243-4740
THE FUJI BANK, LIMITED, as a Bank
By: Nobuhiro Umemura
Title: Joint General Manager
Address:
The Fuji Bank, Limited
333 South Hope Street, 39th Floor
Los Angeles, California 90071
Attention: James Ritter
Telecopier: (213) 253-4198
Telephone: (213) 253-4131
THE INDUSTRIAL BANK OF JAPAN, LIMITED, LOS ANGELES
AGENCY, as a Bank
By: Vicente L. Timiraos
Title: Sr. Vice President & Senior Manager
Address:
The Industrial Bank of Japan, Limited, Los Angeles Agency
350 South Grand Avenue, Suite 1500
Los Angeles, California 90071
Attention: Steven M. Bradley
Telecopier: (213) 688-7486
Telephone: (213) 893-6443
<PAGE>
KEYBANK NATIONAL ASSOCIATION, as a Bank
By: Mark K. Sunderland
Title: Vice President
Address:
KeyBank National Association
600 South Cherry Street, Suite 1000
Denver, Colorado 80222
Attention: Mark K. Sunderland
Telecopier: (303) 355-5671
Telephone: (303) 320-5031
THE MITSUI TRUST AND BANKING COMPANY, LIMITED,
NEW YORK BRANCH, as a Bank
By: Margaret Holloway
Title: Vice President & Manager
Address:
The Mitsui Trust and Banking Company, Limited
1251 Avenue of The Americas, 39th Floor
New York, New York 10281
Attention: Maureen F. Lehocky
Telecopier: (212) 790-5435
Telephone: (212) 790-5491
THE SANWA BANK, LIMITED, LOS ANGELES BRANCH, as a
Bank
By: Gill S. Realon
Gill S. Realon
Vice President
Address:
The Sanwa Bank, Limited
Los Angeles Branch
601 South Figueroa Street, W5-4
Los Angeles, California 90017
Attention: Gill Realon
Telecopier: (213) 623-4912
Telephone: (213) 896-7494
THE SUMITOMO BANK, LIMITED, LOS ANGELES BRANCH, as
a Bank
By: Goro Hirai
Title: Joint General Manager
Address:
The Sumitomo Bank, Limited, Los Angeles Branch
777 South Figueroa Street, Suite 2600
Los Angeles, California 90017
Attention: Andrew Lee
Telecopier: (213) 623-6832
Telephone: (213) 955-3915
THE SUMITOMO TRUST & BANKING CO., LTD., LOS
ANGELES AGENCY, as a Bank
By: Eleanor Chan
Title: Manager & Vice President
Address:
The Sumitomo Trust & Banking Co., Ltd., Los Angeles Agency
333 South Grand Avenue, Suite 5300
Los Angeles, California 90071
Attention: Loan Administration Department
Telecopier: (213) 628-2719
Telephone: (213) 629-3191
With copy to:
Karen Ryan
Telecopier: (213) 613-1083
Telephone: (213) 229-2125
THE TOKAI BANK, LIMITED, LOS ANGELES AGENCY, as a
Bank
By: Masahiko Saito
Title: Assistant General Manager
Address:
The Tokai Bank, Limited, Los Angeles Agency
300 South Grand Avenue, 7th Floor
Los Angeles, California 90071
Attention: Poebus Hon
Telecopier: (213) 689-3200
Telephone: (213) 972-8445
BANK OF HAWAII, as a Bank
By: Joseph T. Donalson
Joseph T. Donalson
Vice President
Address:
Bank of Hawaii
1850 North Central Avenue, Suite 400
Phoeniz, Arizona 85004
Attention: Joseph Donalson
Telecopier: (602) 257-2235
Telephone: (602) 257-2432
THE YASUDA TRUST & BANKING CO., LTD., NEW YORK
BRANCH, as a Bank
By: Makoto Tagawa
Title: Deputy General Manager
Address:
The Yasuda Trust & Banking Co., Ltd., New York Branch
666 Fifth Avenue, Suite 801
New York, New York 10103
Copies to:
The Yasuda Trust & Banking Co., Ltd., New York Branch
725 South Figueroa Street, Suite 3990
Los Angeles, California 90017
Attention: Kevin Thang
Telecopier: (213) 488-1695
Telephone: (213) 688-4206
FIRST HAWAIIAN BANK, as a Bank
By: Robert M. Wheeler, III
Robert M. Wheeler, III
Vice President
Address:
First Hawaiian Bank
999 Bishop Street, 11th Floor
Honolulu, Hawaii 96813
Attention: Robert M. Wheeler, III
Telecopier: (808) 525-6372
Telephone: (808) 525-6367
MICHIGAN NATIONAL BANK, as a Bank
By: Jeffrey W. Billig
Title: Commercial Relationship Manager
Address:
Michigan National Bank
27777 Inkster Road, 10-36
Farmington Hills, Michigan 48334
Attention: Jeffrey W. Billig
Telecopier: (810) 473-4345
Telephone: (810) 473-4374<PAGE>
SCHEDULE 1.1
CIRCUS CIRCUS ENTERPRISES, INC.
SENIOR REVOLVING CREDIT FACILITY
Bank Amount Pro
Rata Share
Bank of America National Trust and Savings Association $
215,000,000 10.75%
Bank of America, Nevada Corporate Banking Division $
35,000,000 1.75%
Canadian Imperial Bank of Commerce $
125,000,000 6.25%
Credit Lyonnais Los Angeles Branch $
125,000,000 6.25%
Societe Generale $
125,000,000 6.25%
The Long-Term Credit Bank of Japan, Ltd., Los Angeles Agency $
114,000,000 5.70%
Morgan Guaranty Trust Company of New York $
114,000,000 5.70%
PNC Bank, National Association $
114,000,000 5.70%
Wells Fargo Bank, N.A. $
114,000,000 5.70%
Westdeutsche Landesbank Girozentrale $
114,000,000 5.70%
The Bank of New York $
75,000,000 3.75%
Commerzbank Aktiengesellschaft, Los Angeles Branch $
75,000,000 3.75%
The Bank of Nova Scotia $
50,000,000 2.50%
Fleet Bank N.A. $
50,000,000 2.50%
The Mitsubishi Trust and Banking Corporation, Los Angeles Agency $
50,000,000 2.50%
Union Bank of California, N.A. $
50,000,000 2.50%
United States National Bank of Oregon $
50,000,000 2.50%
First Security Bank, N.A. $
35,000,000 1.75%
ABN-AMRO Bank N.V., San Francisco International Branch $
25,000,000 1.25%
Bankers Trust Company $
25,000,000 1.25%
Banque Nationale de Paris $
25,000,000 1.25%
The Dai-Ichi Kangyo Bank, Ltd., Los Angeles Agency $
25,000,000 1.25%
The Fuji Bank, Limited $
25,000,000 1.25%
The Industrial Bank of Japan, Limited, Los Angeles Agency $
25,000,000 1.25%
KeyBank National Association $
25,000,000 1.25%
The Mitsui Trust and Banking Company, Limited, New York Branch $
25,000,000 1.25%
The Sanwa Bank, Limited, Los Angeles Branch $
25,000,000 1.25%
The Sumitomo Bank, Limited, Los Angeles Branch $
25,000,000 1.25%
The Sumitomo Trust & Banking Co., Ltd., Los Angeles Agency $
25,000,000 1.25%
The Tokai Bank, Limited, Los Angeles Agency $
25,000,000 1.25%
Bank of Hawaii $
20,000,000 1.00%
The Yasuda Trust & Banking Co., Ltd., New York Branch $
20,000,000 1.00%
First Hawaiian Bank $
15,000,000 0.75%
Michigan National Bank $
15,000,000 0.75%
Total
$2,000,000,000 100.00%
SUBSIDIARY GUARANTY
This SUBSIDIARY GUARANTY ("Subsidiary
Guaranty") dated as of May 23, 1997, is made by each
of the corporations and partnerships listed on the
signature pages hereto, together with each other
Person who may become a party hereto pursuant to
Section 18 of this Subsidiary Guaranty (each a
"Guarantor" and collectively "Guarantors"), jointly
and severally in favor of Bank of America National
Trust and Savings Association, as Administrative
Agent, and the Banks that are party to the Amended
and Restated Loan Agreement referred to below
(referred to herein collectively and individually,
with their successors and assigns, as "Lender"), with
reference to the following facts:
RECITALS
A. Pursuant to that certain Amended and
Restated Loan Agreement of even date herewith entered
into among Circus Circus Enterprises, Inc., a Nevada
corporation ("Borrower"), the Banks therein named,
Canadian Imperial Bank of Commerce, Credit Lyonnais
Los Angeles Branch, Societe Generale, The Long-Term
Credit Bank of Japan, Ltd., Los Angeles Agency,
Morgan Guaranty Trust Company of New York, PNC Bank,
National Association, Wells Fargo Bank, N.A. and
Westdeutsche Landesbank Girozentrale, as Managing
Agents, The Bank of New York and Commerzbank
Aktiengesellschaft, Los Angeles Branch, as Co-Agents,
The Bank of Nova Scotia, Fleet Bank N.A., The
Mitsubishi Trust and Banking Corporation, Los Angeles
Agency, Union Bank of California, N.A. and United
States National Bank of Oregon, as Lead Managers, and
Bank of America National Trust and Savings
Association, as Administrative Agent (said Loan
Agreement, as it may hereafter be amended, extended,
renewed, supplemented, or otherwise modified from
time to time, being the "Loan Agreement"), the Banks
are making certain credit facilities available to
Borrower.
B. As a condition to the availability of
such credit facilities, Guarantors are required to
enter into this Subsidiary Guaranty and to guaranty
the Guarantied Obligations as hereinafter provided.
C. Guarantors expect to realize direct
and indirect benefits as the result of the
availability of the aforementioned credit facilities
to Borrower, as the result of financial or business
support which will be provided to the Guarantors by
Borrower.
AGREEMENT
NOW, THEREFORE, in order to induce Lender
to extend the aforementioned credit facilities, and
for other good and valuable consideration, the
receipt and adequacy of which hereby are
acknowledged, Guarantors hereby represent, warrant,
covenant, agree and guaranty as follows:
1. Definitions. This Subsidiary Guaranty
is the Subsidiary Guaranty referred to in the Loan
Agreement and is one of the Loan Documents. Terms
defined in the Loan Agreement and not otherwise
defined in this Subsidiary Guaranty shall have the
meanings given those terms in the Loan Agreement when
used herein and such definitions are incorporated
herein as though set forth in full. In addition, as
used herein, the following terms shall have the
meanings respectively set forth after each:
"Guarantied Obligations" means all
Obligations of Borrower or any Party
at any time and from time to time owed
to Lender under one or more of the
Loan Documents (but not including
Obligations owed to Lender under this
Subsidiary Guaranty), 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 bankruptcy or
insolvency proceeding by or against
Borrower, any Guarantor or any other
Person.
"Guarantors" means the Significant
Subsidiaries of Borrower that are
parties hereto as indicated on the
signature pages hereof, or that become
parties hereto as provided in Section
18 hereof, and each of them, and any
one or more of them, jointly and
severally.
"Lender" means the Administrative
Agent (acting as the Administrative
Agent and/or on behalf of the Banks),
and the Banks, and each of them, and
any one or more of them, together with
their successors and assigns. Subject
to the terms of the Loan Agreement,
any right, remedy, privilege or power
of Lender may be exercised by the
Administrative Agent, or by the
Requisite Banks, or by any Bank acting
with the consent of the Requisite
Banks.
"Subsidiary Guaranty" means this
Subsidiary Guaranty, and any
extensions, modifications, renewals,
restatements, reaffirmations, supple-
ments or amendments hereof, including,
without limitation, any documents or
agreements by which additional
Guarantors become party hereto.
2. Guaranty of Guarantied Obligations.
Guarantors hereby, jointly and severally,
irrevocably, unconditionally guaranty and promise to
pay and perform on demand the Guarantied Obligations
and each and every one of them, including all
amendments, modifications, supplements, renewals or
extensions of any of them, whether such amendments,
modifications, supplements, renewals or extensions
are evidenced by new or additional instruments,
documents or agreements or change the rate of
interest on any Guarantied Obligation or the security
therefor, or otherwise.
3. Nature of Guaranty. This Subsidiary
Guaranty is irrevocable and continuing in nature and
relates to any Guarantied Obligations now existing or
hereafter arising. This Subsidiary Guaranty is a
guaranty of prompt and punctual payment and
performance and is not merely a guaranty of
collection.
4. Relationship to Other Agreements.
Nothing herein shall in any way modify or limit the
effect of terms or conditions set forth in any other
document, instrument or agreement executed by any
Guarantor or in connection with the Guarantied
Obligations, but each and every term and condition
hereof shall be in addition thereto. All provisions
contained in the Loan Agreement or any other Loan
Document that apply to Loan Documents generally are
fully applicable to this Subsidiary Guaranty and are
incorporated herein by this reference.
5. Subordination of Indebtedness of
Borrower to Guarantors to the Guarantied Obligations.
To the fullest extent it is permitted to do so under
the indentures governing the Existing Subordinated
Debt as in effect on the Closing Date and under
Gaming Laws, each Guarantor agrees that:
(a) Any indebtedness of Borrower now
or hereafter owed to any Guarantor hereby is
subordinated to the Guarantied Obligations.
(b) If Lender so requests, upon the
occurrence and during the continuance of any
Event of Default, any such indebtedness of
Borrower now or hereafter owed to any Guarantor
shall be collected, enforced and received by
such Guarantor as trustee for Lender and shall
be paid over to Lender in kind on account of the
Guarantied Obligations, but without reducing or
affecting in any manner the obligations of such
Guarantor under the other provisions of this
Subsidiary Guaranty.
(c) Should such Guarantor fail to
collect or enforce any such indebtedness of
Borrower now or hereafter owed to such Guarantor
and pay the proceeds thereof to Lender in
accordance with Section 5(b) hereof, Lender as
such Guarantor's attorney-in-fact may do such
acts and sign such documents in such Guarantor's
name as Lender considers necessary or desirable
to effect such collection, enforcement and/or
payment.
6. Statutes of Limitations and Other
Laws. Until the Guarantied Obligations shall have
been paid and performed in full, all the rights,
privileges, powers and remedies granted to Lender
hereunder shall continue to exist and may be
exercised by Lender at any time and from time to time
irrespective of the fact that any of the Guarantied
Obligations may have become barred by any statute of
limitations. Each Guarantor expressly waives the
benefit of any and all statutes of limitation, and
any and all Laws providing for exemption of property
from execution or for evaluation and appraisal upon
foreclosure, to the maximum extent permitted by
applicable Laws.
7. Waivers and Consents. Each Guarantor
acknowledges that the obligations undertaken herein
involve the guaranty of obligations of Persons other
than such Guarantor and, in full recognition of that
fact, consents and agrees that Lender may, at any
time and from time to time, without notice or demand,
and without affecting the enforceability or continu-
ing effectiveness hereof: (a) supplement, modify,
amend, extend, renew or otherwise change the time for
payment or the terms of the Guarantied Obligations or
any part thereof, including any increase or decrease
of the rate(s) of interest thereon; (b) supplement,
modify, amend or waive, or enter into or give any
agreement, approval or consent with respect to, the
Guarantied Obligations or any part thereof, or any of
the Loan Documents to which such Guarantor is not a
party or any additional security or guaranties, or
any condition, covenant, default, remedy, right,
representation or term thereof or thereunder;
(c) accept new or additional instruments, documents
or agreements in exchange for or relative to any of
the Loan Documents or the Guarantied Obligations or
any part thereof; (d) accept partial payments on the
Guarantied Obligations; (e) receive and hold
additional security or guaranties for the Guarantied
Obligations or any part thereof; (f) release,
reconvey, terminate, waive, abandon, fail to perfect,
subordinate, exchange, substitute, transfer and/or
enforce any security or guaranties, and apply any
security and direct the order or manner of sale
thereof as Lender in its sole and absolute discretion
may determine; (g) release any Person from any
personal liability with respect to the Guarantied
Obligations or any part thereof; (h) settle, release
on terms satisfactory to Lender or by operation of
applicable Laws or otherwise liquidate or enforce any
Guarantied Obligations and any security or guaranty
therefor in any manner, consent to the transfer of
any security and bid and purchase at any sale; and/or
(i) consent to the merger, change or any other
restructuring or termination of the corporate
existence of Borrower, any Guarantor or any other
Person, and correspondingly restructure the
Guarantied Obligations, and any such merger, change,
restructuring or termination shall not affect the
liability of any Guarantor or the continuing effec-
tiveness hereof, or the enforceability hereof with
respect to all or any part of the Guarantied
Obligations.
Upon the occurrence and during the
continuance of any Event of Default, Lender may
enforce this Subsidiary Guaranty independently as to
each Guarantor and independently of any other remedy
or security Lender at any time may have or hold in
connection with the Guarantied Obligations. Each
Guarantor expressly waives any right to require
Lender to marshal assets in favor of Borrower, and
agrees that Lender may proceed against Borrower, or
upon or against any security or remedy, before
proceeding to enforce this Subsidiary Guaranty, in
such order as it shall determine in its sole and
absolute discretion. Lender may file a separate
action or actions against Borrower and/or any
Guarantor without respect to whether action is
brought or prosecuted with respect to any security or
against any other Person, or whether any other Person
is joined in any such action or actions. Guarantors
agree that Lender and Borrower and any Affiliates of
Borrower may deal with each other in connection with
the Guarantied Obligations or otherwise, or alter any
contracts or agreements now or hereafter existing
between any of them, in any manner whatsoever, all
without in any way altering or affecting the security
of this Subsidiary Guaranty. Lender's rights
hereunder shall be reinstated and revived, and the
enforceability of this Subsidiary Guaranty shall
continue, with respect to any amount at any time paid
on account of the Guarantied Obligations which
thereafter shall be required to be restored or
returned by Lender upon the bankruptcy, insolvency or
reorganization of Borrower or any other Person, or
otherwise, all as though such amount had not been
paid. The rights of Lender created or granted herein
and the enforceability of this Subsidiary Guaranty
with respect to Guarantors at all times shall remain
effective to guaranty the full amount of all the
Guarantied Obligations even though the Guarantied
Obligations, or any part thereof, or any security or
guaranty therefor, may be or hereafter may become
invalid or otherwise unenforceable as against
Borrower or any other guarantor or surety and whether
or not Borrower shall have any personal liability
with respect thereto. Each Guarantor expressly
waives any and all defenses now or hereafter arising
or asserted by reason of (a) any disability or other
defense of Borrower with respect to the Guarantied
Obligations, (b) the unenforceability or invalidity
of any security or guaranty for the Guarantied
Obligations or the lack of perfection or continuing
perfection or failure of priority of any security for
the Guarantied Obligations, (c) the cessation for any
cause whatsoever of the liability of Borrower (other
than by reason of the full payment and performance of
all Guarantied Obligations), (d) any failure of
Lender to marshal assets in favor of Borrower or any
other Person, (e) except as otherwise required by Law
or as provided in this Subsidiary Guaranty, any
failure of Lender to give notice of sale or other
disposition of collateral to such Guarantor or any
other Person or any defect in any notice that may be
given in connection with any sale or disposition of
collateral, (f) except as otherwise required by Law
or as provided in this Subsidiary Guaranty, any
failure of Lender to comply with applicable Laws in
connection with the sale or other disposition of any
collateral or other security for any Guarantied
Obligation, including without limitation, any failure
of Lender to conduct a commercially reasonable sale
or other disposition of any collateral or other
security for any Guarantied Obligation, (g) any act
or omission of Lender or others that directly or
indirectly results in or aids the discharge or
release of Borrower or the Guarantied Obligations or
any security or guaranty therefor by operation of law
or otherwise, (h) any Law which provides that the
obligation of a surety or guarantor must neither be
larger in amount nor in other respects more
burdensome than that of the principal or which
reduces a surety's or guarantor's obligation in
proportion to the principal obligation, (i) any
failure of Lender to file or enforce a claim in any
bankruptcy or other proceeding with respect to any
Person, (j) the election by Lender, in any bankruptcy
proceeding of any Person, of the application or
non-application of Section 1111(b)(2) of the United
States Bankruptcy Code, (k) any extension of credit
or the grant of any Lien under Section 364 of the
United States Bankruptcy Code, (l) any use of cash
collateral under Section 363 of the United States
Bankruptcy Code, (m) any agreement or stipulation
with respect to the provision of adequate protection
in any bankruptcy proceeding of any Person, (n) the
avoidance of any Lien in favor of Lender for any
reason, (o) any bankruptcy, insolvency,
reorganization, arrangement, readjustment of debt,
liquidation or dissolution proceeding commenced by or
against any Person, including any discharge of, or
bar or stay against collecting, all or any of the
Guarantied Obligations (or any interest thereon) in
or as a result of any such proceeding, (p) to the
extent permitted in paragraph 40.495(4) of the Nevada
Revised Statutes ("NRS"), the benefits of the one-
action rule under NRS Section 40.430, or (q) any
action taken by Lender that is authorized by this
Section or any other provision of any Loan Document.
Each Guarantor expressly waives all setoffs and
counterclaims and all presentments, demands for
payment or performance, notices of nonpayment or
nonperformance, protests, notices of protest, notices
of dishonor and all other notices or demands of any
kind or nature whatsoever with respect to the
Guarantied Obligations (except as otherwise provided
in the Loan Documents), and all notices of acceptance
of this Subsidiary Guaranty or of the existence,
creation or incurrence of new or additional
Guarantied Obligations.
8. Condition of Borrower and its
Subsidiaries. Each Guarantor represents and warrants
to Lender that each Guarantor has established
adequate means of obtaining from Borrower and its
Subsidiaries, on a continuing basis, financial and
other information pertaining to the businesses,
operations and condition (financial and otherwise) of
Borrower and its Subsidiaries and their Properties,
and each Guarantor now is and hereafter will be
completely familiar with the businesses, operations
and condition (financial and otherwise) of Borrower
and its Subsidiaries and their Properties. Each
Guarantor hereby expressly waives and relinquishes
any duty on the part of Lender (should any such duty
exist) to disclose to any Guarantor any matter, fact
or thing related to the businesses, operations or
condition (financial or otherwise) of Borrower or its
Subsidiaries or their Properties, whether now known
or hereafter known by Lender during the life of this
Subsidiary Guaranty. With respect to any of the
Guarantied Obligations, Lender need not inquire into
the powers of Borrower or any Subsidiaries thereof or
the officers or employees acting or purporting to act
on their behalf, and all Guarantied Obligations made
or created in good faith reliance upon the professed
exercise of such powers shall be secured hereby.
9. Liens on Real Property. In the event
that all or any part of the Guarantied Obligations at
any time are secured by any one or more deeds of
trust or mortgages or other instruments creating or
granting Liens on any interests in real Property,
each Guarantor authorizes Lender, upon the occurrence
of and during the continuance of any Event of
Default, at its sole option, without notice or demand
and without affecting any Guarantied Obligations of
any Guarantor, the enforceability of this Subsidiary
Guaranty, or the validity or enforceability of any
Liens of Lender on any collateral, to foreclose any
or all of such deeds of trust or mortgages or other
instruments by judicial or nonjudicial sale. Each
Guarantor expressly waives all rights and defenses to
the enforcement of this Subsidiary Guaranty or any
rights of Lender created or granted hereby or to the
recovery by Lender against Borrower, any Guarantor or
any other Person liable therefor of any deficiency
after a judicial or nonjudicial foreclosure or sale
because all or any part of the Guaranteed Obligations
is secured by real Property. This means, among other
things: (1) The Lender may collect from any Guarantor
without first foreclosing on any real or personal
Property collateral pledged by the Borrower. (2) If
the Lender forecloses on any real Property collateral
pledged by the Borrower: (A) The amount of the
Guaranteed Obligations may be reduced only by the
price for which that collateral is sold at the
foreclosure sale, even if the collateral is worth
more than the sale price. (B) The Lender may collect
from any Guarantor even if the Lender, by foreclosing
on the real Property collateral, has destroyed any
right any Guarantor may have to collect from the
Borrower. This is an unconditional and irrevocable
waiver of any rights and defenses any Guarantor may
have because all or any part of the Guaranteed
Obligations is secured by real Property. Each
Guarantor expressly waives any defenses or benefits
that may be derived from California Code of Civil
Procedure 580a, 580b, 580d or 726, or comparable
provisions of the Laws of any other jurisdiction,
including, without limitation, NRS Section 40.430 and
judicial decisions relating thereto, and NRS
Sections 40.451, 40.455, 40.457 and 40.459, and all
other suretyship defenses it otherwise might or would
have under California Law or other applicable Law.
Each Guarantor expressly waives any right to receive
notice of any judicial or nonjudicial foreclosure or
sale of any real Property or interest therein subject
to any such deeds of trust or mortgages or other
instruments and any Guarantor's or any other Person's
failure to receive any such notice shall not impair
or affect Guarantors' Obligations or the
enforceability of this Subsidiary Guaranty or any
rights of Lender created or granted hereby.
10. Waiver of Rights of Subrogation.
Notwithstanding anything to the contrary elsewhere
contained herein or in any other Loan Document to
which any Guarantor is a Party, Guarantors hereby
expressly waive with respect to Borrower and its
successors and assigns (including any surety) and any
other Person which is directly or indirectly a
creditor of Borrower or any surety for Borrower, any
and all rights at Law or in equity to subrogation,
reimbursement, to exoneration, to contribution
(except as specifically provided in Section 11
below), to setoff or to any other rights that could
accrue to a surety against a principal, to a
guarantor against a maker or obligor, to an
accommodation party against the party accommodated,
or to a holder or transferee against a maker, and
which Guarantors may have or hereafter acquire
against Borrower or any other such Person in
connection with or as a result of Guarantors'
execution, delivery and/or performance of this
Subsidiary Guaranty or any other Loan Document to
which any Guarantor is a party. Guarantors agree
that they shall not have or assert any such rights
against Borrower or their successors and assigns or
any other Person (including any surety) which is
directly or indirectly a creditor of Borrower or any
surety for Borrower, either directly or as an
attempted setoff to any action commenced against
Guarantors by Borrower (as borrower or in any other
capacity), Lender or any other such Person.
Guarantors hereby acknowledge and agree that this
waiver is intended to benefit Borrower and Lender and
shall not limit or otherwise affect Guarantors'
liability hereunder, under any other Loan Document to
which any Guarantor is a party, or the enforceability
hereof or thereof.
11. Right of Contribution. Each Guarantor
hereby agrees that to the extent that a Guarantor
shall have paid more than its proportionate share of
all payments made hereunder, provided that the
Guarantied Obligations are then satisfied, such
Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor
hereunder who has not paid its proportionate share of
all such payments. The provisions of this Section 11
shall in no respect limit the obligations and
liabilities of any Guarantor to Lender, and, subject
to the provisions of Section 17 below, each Guarantor
shall remain liable to Lender for the full amount
guaranteed by such Guarantor hereunder. The "propor-
tionate share" of any Guarantor shall be a fraction
(which shall in no event exceed 1.00) the numerator
of which is the excess, if any, of the fair value of
the assets of such Guarantor over a fair estimate of
the liabilities of Guarantor and the denominator of
which is the excess (but not less than $1.00) of the
fair value of the aggregate assets (without
duplication) of all Guarantors over a fair estimate
of the aggregate liabilities (without duplication) of
all Guarantors. All relevant calculations shall be
made as of the date such Guarantor became a
Guarantor.
12. Waiver of Discharge. Without limiting
the generality of the foregoing and to the extent
otherwise applicable, each Guarantor hereby waives
discharge under NRS Section 104.3605 by waiving all
defenses based on suretyship or impairment of
collateral.
13. Understandings With Respect to Waivers
and Consents. Each Guarantor warrants and agrees
that each of the waivers and consents set forth
herein are made with full knowledge of their
significance and consequences, with the understanding
that events giving rise to any defense or right
waived may diminish, destroy or otherwise adversely
affect rights which Guarantor otherwise may have
against Borrower, Lender or others, or against any
collateral, and that, under the circumstances, the
waivers and consents herein given are reasonable and
not contrary to public policy or Law. Each Guarantor
acknowledges that it has either consulted with legal
counsel regarding the effect of this Subsidiary
Guaranty and the waivers and consents set forth
herein, or has made an informed decision not to do
so. If this Subsidiary Guaranty or any of the wai-
vers or consents herein are determined to be
unenforceable under or in violation of applicable
Law, this Subsidiary Guaranty and such waivers and
consents shall be effective to the maximum extent
permitted by Law.
14. Representations and Warranties. Each
Guarantor hereby makes each and every representation
and warranty applicable to such Guarantor set forth
in Article 4 of the Loan Agreement as if set forth in
full herein.
15. Costs and Expenses. Each Guarantor
agrees to pay to Lender all costs and expenses
(including, without limitation, reasonable attorneys'
fees and disbursements) incurred by Lender in the
enforcement or attempted enforcement of this
Subsidiary Guaranty, whether or not an action is
filed in connection therewith, and in connection with
any waiver or amendment of any term or provision
hereof. All advances, charges, costs and expenses,
including reasonable attorneys' fees and disburse-
ments (including the reasonably allocated cost of
legal counsel employed by Lender), incurred or paid
by Lender in exercising any right, privilege, power
or remedy conferred by this Subsidiary Guaranty, or
in the enforcement or attempted enforcement thereof,
shall be subject hereto and shall become a part of
the Guarantied Obligations and shall be paid to
Lender by each Guarantor, immediately upon demand,
together with interest thereon at the rate(s)
provided for under the Loan Agreement.
16. Construction of this Guaranty. This
Subsidiary Guaranty is intended to give rise to
absolute and unconditional obligations on the part of
each Guarantor; hence, in any construction hereof,
this Subsidiary Guaranty shall be construed strictly
in favor of Lender in order to accomplish its stated
purpose.
17. Liability. Notwithstanding anything
to the contrary elsewhere contained herein or in any
Loan Document to which any Guarantor is a Party, the
aggregate liability of all Guarantors hereunder for
payment and performance of the Guarantied Obligations
shall not exceed an amount which, in the aggregate,
is $1.00 less than that amount which if so paid or
performed would constitute or result in a "fraudulent
transfer", "fraudulent conveyance", or terms of
similar import, under applicable state or federal
Law, including without limitation, Section 548 of the
United States Bankruptcy Code. The liability of each
Guarantor hereunder is independent of any other
guaranties at any time in effect with respect to all
or any part of the Guarantied Obligations, and each
Guarantor's liability hereunder may be enforced
regardless of the existence of any such guaranties.
Any termination by or release of any guarantor in
whole or in part (whether it be another Guarantor
under this instrument or not) shall not affect the
continuing liability of any Guarantor hereunder, and
no notice of any such termination or release shall be
required. The execution hereof by each Guarantor is
not founded upon an expectation or understanding that
there will be any other guarantor of the Guarantied
Obligations.
18. Joinder. Any other Person may become
a Guarantor under and become bound by the terms and
conditions of this Subsidiary Guaranty by executing
and delivering to Lender an Instrument of Joinder
substantially in the form attached hereto as
Exhibit A, accompanied by such documentation as
Lender 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 required to be so
qualified, its authority to execute, deliver and
perform this Subsidiary Guaranty, and the identity,
authority and capacity of each Responsible Official
thereof authorized to act on its behalf.
19. Release of Guarantors. If any
Guarantor is sold, transferred or otherwise disposed
of after the Closing Date in a transaction which does
not violate the Loan Agreement, the Administrative
Agent shall, promptly following request therefor by
Borrower, release such Guarantor from this Guaranty
and shall endorse, execute, deliver, record and file
all instruments and documents, and do all other acts
and things, reasonably required to evidence or
document the release of Lender's rights arising under
this Subsidiary Guaranty with respect to such
Guarantor at the sole expense of such Guarantor.
This Subsidiary Guaranty and all Obligations of
Guarantors hereunder shall also be released when all
Obligations of each Party to any Loan Document have
been paid in full in Cash or otherwise performed in
full and when no portion of the Commitment remains
outstanding. Upon such release of any or all such
Guarantors' Obligations hereunder, Administrative
Agent shall endorse, execute, deliver, record and
file all instruments and documents, and do all other
acts and things, reasonably required to evidence or
document the release of Lender's rights arising under
this Subsidiary Guaranty, all as reasonably requested
by, and at the sole expense of, Guarantors.
20. WAIVER OF JURY TRIAL. EACH GUARANTOR
AND LENDER EXPRESSLY WAIVE THEIR RESPECTIVE RIGHTS TO
A TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE
OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO
THIS SUBSIDIARY GUARANTY, THE LOAN AGREEMENT, THE
OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY IN ANY ACTION, PROCEEDING OR OTHER
LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES
AGAINST ANY OTHER PARTY OR PARTIES, WHETHER NOW
EXISTING OR HEREAFTER ARISING AND WHETHER WITH
RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR
OTHERWISE. EACH GUARANTOR AND LENDER AGREE THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL
BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT
LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE
THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS
WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN
WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS SUBSIDIARY GUARANTY, THE LOAN
AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY
PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY
TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS SUBSIDIARY GUARANTY, THE
LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS. ANY
PARTY HERETO 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.
21. THIS SUBSIDIARY GUARANTY SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LOCAL LAWS OF THE STATE OF
NEVADA.
IN WITNESS WHEREOF, each Guarantor has
executed this Subsidiary Guaranty by its duly
authorized officer as of the date first written
above.
"Guarantors"
CIRCUS CIRCUS CASINOS, INC., a Nevada corporation
CIRCUS CIRCUS MISSISSIPPI, INC., a Mississippi
corporation
COLORADO BELLE CORP., a Nevada corporation
EDGEWATER HOTEL CORPORATION, a Nevada
corporation
GALLEON, INC., a Nevada corporation
NEW CASTLE CORP., a Nevada corporation
RAMPARTS, INC., a Nevada corporation
SLOTS-A-FUN, INC., a Nevada corporation
By: CLYDE T. TURNER
Clyde T. Turner
as President of the foregoing
CIRCUS CIRCUS DEVELOPMENT CORP., a Nevada
corporation
LAST CHANCE INVESTMENTS, INCORPORATED, a Nevada
corporation
By: WILLIAM A. RICHARDSON
William A. Richardson
as President of the foregoing
DIAMOND GOLD, INC., a Nevada corporation
OASIS DEVELOPMENT COMPANY, INC., a Nevada
corporation
By: PETER A. SIMON
Peter A. Simon
as President of the foregoing
GOLD STRIKE INVESTMENTS, INCORPORATED, a Nevada
corporation
By: DAVID R. BELDING
David R. Belding
as President
<PAGE>
M.S.E. INVESTMENTS, INCORPORATED, a Nevada
corporation
By: MICHAEL S. ENSIGN
Michael S. Ensign
as President
PINKLESS, INC., a Nevada corporation
By: YVETTE E. LANDAU
Yvette E. Landau
as Secretary
RAILROAD PASS INVESTMENT GROUP, a Nevada partnership
JEAN DEVELOPMENT COMPANY, a Nevada partnership
JEAN DEVELOPMENT WEST, a Nevada partnership
NEVADA LANDING PARTNERSHIP, an Illinois partnership
GOLD STRIKE L.V., a Nevada partnership
JEAN DEVELOPMENT NORTH, a Nevada partnership
LAKEVIEW GAMING PARTNERSHIPS JOINT VENTURE, a Nevada
partnership
By: Railroad Pass Investment Group general partner
of each of the foregoing
By: M.S.E. Investments, Incorporated
Its: general partner
By: MICHAEL S. ENSIGN
Michael S. Ensign, President
Address for Guarantors:
2880 Las Vegas Boulevard South
Las Vegas, Nevada
Telecopier: (702) 791-0310
Telephone: (702) 794-3806
EXHIBIT A
TO
SUBSIDIARY GUARANTY
INSTRUMENT OF JOINDER
THIS INSTRUMENT OF JOINDER ("Joinder") is
executed as of _________________, 19___, by
______________________________, a
___________________________ ("Joining Party"), and
delivered to Bank of America National Trust and
Savings Association, as Administrative Agent,
pursuant to the Subsidiary Guaranty dated as of
______________, 1997 made by Circus Circus Casinos,
Inc., Slots-A-Fun, Inc., Edgewater Hotel Corporation,
Colorado Belle Corp., New Castle Corp., Ramparts,
Inc., Circus Circus Mississippi, Inc., Pinkless,
Inc., New Way, Inc., Circus Circus Development Corp.,
Galleon, Inc., M.S.E. Investments, Incorporated, Last
Chance Investments, Incorporated, Goldstrike
Investments, Incorporated, Diamond Gold, Inc., Oasis
Development Company, Inc., Goldstrike Finance
Company, Inc., Railroad Pass Investment Group, Jean
Development Company, Jean Development West, Nevada
Landing Partnership, Gold Strike L.V., Jean
Development North, Lakeview Gaming Partnerships Joint
Venture, (each a "Guarantor" collectively
"Guarantors") in favor of the Administrative Agent
and the Banks (the "Guaranty"). Terms used but not
defined in this Joinder shall have the meanings
defined for those terms in the Guaranty.
RECITALS
(a) The Guaranty was made by the
Guarantors in favor of the Administrative Agent for
the benefit of the Banks that are parties to that
certain Amended and Restated Loan Agreement dated as
of ______________, 1997, by and among Circus Circus
Enterprises, Inc., a Nevada corporation,
("Borrower"), the Banks which are parties thereto,
[Names of Managing Agents and Co-Agents] and Bank of
America National Trust and Savings Association, as
the Administrative Agent for the Banks.
(b) Joining Party has become a Significant
Subsidiary of Borrower, and as such is required
pursuant to Section 5.10 of the Loan Agreement to
become a Guarantor.
(c) Joining Party expects to realize
direct and indirect benefits as a result of the
availability to Borrower of the credit facilities
under the Loan Agreement.
NOW THEREFORE, Joining Party agrees as follows:
AGREEMENT
(1) By this Joinder, Joining Party becomes
a "Guarantor" under and pursuant to Section 18 of the
Guaranty. Joining Party agrees that, upon its
execution hereof, it will become a Guarantor under
the Guaranty with respect to all Guaranteed
Obligations of Borrower as defined in the Guaranty
heretofore and hereafter incurred under the Loan
Documents, and will be bound by all terms,
conditions, and duties applicable to a Guarantor
under the Guaranty.
(2) The effective date of this Joinder is
_________. 199___.
"Joining Party"
_________________________________
a _________________________
By:_____________________________
Title:___________________________
ACKNOWLEDGED:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By:__________________________
Title:_______________________
EXHIBIT 10(a)
CIRCUS CIRCUS ENTERPRISES, INC.
Atwater Casino Group LLC
C/O Richard D. McLellan
Dykema Gossett PLLC
800 Michigan National Tower
Lansing Michigan 48933
RE: Formation of Joint Venture Agreement to Apply for Casino
License in Detroit, Michigan
Ladies and Gentlemen:
This binding letter (the Letter of Intent ) outlines the
material terms and conditions pursuant to which Circus Circus
Enterprises, Inc., or one of its affiliates ( Circus ) is
prepared to enter into a joint venture agreement (the Definitive
Agreement ) with Atwater Casino Group LLC ( Atwater Casino ) to
apply for a casino license in Detroit, Michigan pursuant to the
Michigan Gaming Control and Revenue Act and to own and operate a
hotel/casino and related amenities in Detroit, Michigan.
Collectively, Circus and Atwater Casino are referred to in this
letter of intent as the Joint Venture Members .
The Joint Venture Members acknowledge that they have expended
considerable amounts of time and money and have otherwise set
aside pursuing other bona fide opportunities to develop a
proposal for a casino license and a hotel/casino in Detroit,
Michigan in order to devote their full-time and attention to the
finalization and execution of this Letter of Intent in reliance
upon each Joint Venture Member's agreement to diligently engage
in good faith efforts to fulfill the respective commitments set
forth in this Letter of Intent.
The interests, rights and obligations of the Joint Venture
Members will be evidenced by a Definitive Agreement containing
the terms and conditions described in the Executive Summary set
forth in Exhibit A attached to this Letter of Intent (the
Executive Summary ). The Joint Venture Members acknowledge that
while this Letter of Intent is not intended to constitute the
Definitive Agreement, this Letter of Intent is intended to be a
binding commitment by the Joint Venture Members to enter into a
Definitive Agreement containing the substantive terms described
in the attached Executive Summary (which contains all the
material and essential substantive elements of the joint
venture), together with such additional provisions as are
mutually agreed to by the Joint Venture Members (including
provisions of the Atwater Casino Operating Agreement as amended).
The Joint Venture Members acknowledge and agree, however, that
the ability of Circus to enter into the Definitive Agreement is
conditioned upon, and expressly subject to, obtaining the
approval of the Board of Directors of Circus. Similarly, the
Definitive Agreement is subject to the approval of the Board of
Managers of Atwater Entertainment Associates, L.L.C., and the
Manager of Atwater Casino.
The Executive Summary and all information given by any Joint
Venture Member to any other Joint Venture Member in connection
with this Letter of Intent or the negotiation of the Definitive
Agreement shall be confidential material (herein the
Confidential Information ) and shall not be disclosed except to
the extent expressly mutually agreed by the Joint Venture Members
and/or as required by applicable law, regulatory authorities or
final court order. The Confidential Information shall be used
solely for the purpose of advancing the finalization of the
Definitive Agreement and consummating the joint venture
contemplated by the Definitive Agreement. The Confidential
Information shall be disclosed only to the Joint Venture Members
and their respective representatives, affiliates and/or agents
who need to know such Confidential Information for the purposes
of (I) advancing the completion and execution of the Definitive
Agreement and/or (ii) consummating the joint venture contemplated
by the Definitive Agreement, except to the extent required to be
disclosed by applicable law, regulatory authorities or final
court order. If the proposed Definitive Agreement is not signed
for any reason, each Joint Venture Member will return to the
appropriate Joint Venture Member(s) all Confidential Information
received therefrom in connection with the proposed joint venture.
This Letter of Intent will expire if it is not accepted, signed
and returned by Atwater Casino to Circus prior to 5:00 P.M.,
Detroit, Michigan local time on May 28, 1997.
Very truly yours,
CIRCUS CIRCUS ENTERPRISES, INC.,
A Nevada corporation
By: Michael S. Ensign
Vice Chairman of the Board and
Its:Chief Operating Officer
THE UNDERSIGNED HEREBY ACCEPT AND AGREE TO BE BOUND BY THE TERMS
OF THE CIRCUS CIRCUS ENTERPRISES, INC. LETTER OF INTENT SET FORTH
ABOVE.
ATWATER CASINO GROUP, L.L.C.,
A Michigan limited liability company
By: Z.R.X., L.L.C.,
Its: Manager
By: ZLM Corporation
Its: Manager
By: Thomas Celani
Thomas Celani, President
Acknowledged and Agreed:
Atwater Entertainment Associates, L.L.C.,
A Michigan limited liability company
By: Herbert J. Strather
Its:Manager
EXECUTIVE SUMMARY
OF
JOINT VENTURE AMONG
CIRCUS CIRCUS AND ATWATER CASINO GROUP
1.Joint Venture Members:
Circus Circus Enterprises, Inc., a Nevada corporation or its
subsidiary or affiliate ( Circus ), Atwater Casino Group, L.L.C.,
a Michigan limited liability company (f/k/a X.R.N., L.L.C.) or its
affiliate ( Atwater Casino ),will form Detroit Entertainment,
L.L.C., a limited liability company formed in a jurisdiction
acceptable to the parties (the Joint Venture ), for the purpose of
acquiring, constructing and operating the Project (defined below).
The Joint Venture will be owned 45% by Circus and 55% by Atwater
Casino, which is owned by ZRX, L.L.C., a Michigan limited liability
company ( ZRX ) and Atwater Entertainment Associates, L.L.C., a
Michigan limited liability company ( AEA ), as its Members.
2.Project:
The Joint Venture will be formed to assemble property in Detroit,
Michigan on which it will develop, construct and operate a
hotel/casino [ *
] (the Project ) [
*
]
3.Project Budget:
The total cost of land acquisition, development (including the cost
of the campaign for passage of Proposal E and expenses incurred in
the formation of Joint Venture), design, construction, equipping
and opening of the Project (including initial bankroll and
deposits) is currently estimated and approved not to exceed [
* ] ( Project Budget ). [
*
] Any increase in that Project Budget must be approved
by a majority of all the members of the Joint Venture Board.
* This material has been omitted pursuant to a request for
confidential treatment and has been filed separately with the
Securities and Exchange Commission.
4.Capital Contributions:
[
*
]
* This material has been omitted pursuant to a request for
confidential treatment and has been filed separately with the
Securities and Exchange Commission.
5.Project Financing:
[
*
]
6.Management of the Company: Joint Venture Board
(a)The management of the Joint Venture will be vested in a 12-
member Board. [
*
]
* This material has been omitted pursuant to a request for
confidential treatment and has been filed separately with the
Securities and Exchange Commission.
(b)Board approval will generally require a majority vote. [
*
]
(c)Any costs incurred in furtherance of the Project approved by a
majority of the Board after May 1, 1997 and prior to receipt of a
gaming license shall be borne 45% by Circus and 55% by Atwater
Casino. Except as provided in the Joint Venture Agreement, no
Member is authorized to incur any expenditures on behalf of the
Joint Venture without the prior written consent of the Board. Upon
licensing, all such costs approved by the Board and borne by the
Members shall be included in the Project Budget and shall be
reimbursed immediately to the Members. Notwithstanding the general
authority granted to the Board but consistent with the policies
adopted by the Board, Circus will have the exclusive authority for
implementing decisions relating to the operation of the Project,
including the layout of the casino, marketing and credit policies,
internal control and security procedures and employment decisions.
(d)Notwithstanding the foregoing, the unanimous approval of the
Members in the Joint Venture shall be required for the following
decisions:
(i)any sale, lease, assignment, transfer, or other conveyance
exclusive of financing requirements) of the assets of the Joint
Venture or any merger, consolidation, dissolution, divestiture or
winding-up of the Joint Venture (except as provided in Section
6(b));
(ii)any amendment or restatement of the Joint Venture Agreement of
the Joint Venture;
(iii)any transaction between the Joint Venture and a Member or an
affiliate of a Member, except as provided in Section 7(b);
* This material has been omitted pursuant to a request for
confidential treatment and has been filed separately with the
Securities and Exchange Commission.
(iv)any material change in the character of the business and
affairs of the Joint Venture;
(v)The commission of any act which would make it impossible for the
Joint Venture to carry on its ordinary business and affairs (except
as provided in Section 6(b)); or
(vi)The commission of any act that would contravene any provision
of the Joint Venture Agreement or applicable limited liability
company statute governing the Joint Venture.
7.Management of the Project:
(a)Circus will be responsible for the day to day operations of the
Project. The Joint Venture will pay all costs to operate the
Project. [
*
]
(b)Circus may appoint, from time to time, certain employees of
Circus to devote essentially full time to the day-to-day management
of the Project and retain such employees on Circus payroll. In
such event, the Joint Venture shall reimburse Circus for the out of
pocket compensation (for example, salary, bonus, direct cost of
health and retirement benefit plans but excluding stock options and
other incentive compensation unless approved by the Board) paid to
or on behalf of such employee for performing services to the Joint
Venture on a full time basis. However, the Joint Venture shall not
reimburse Circus for any time or expense associated with Circus
personnel who do not perform full-time services on behalf of the
Joint Venture.
[
*
]
* This material has been omitted pursuant to a request for
confidential treatment and has been filed separately with the
Securities and Exchange Commission.
(d)Other than as set forth above, no Member or its affiliates shall
receive any management, consulting, development, or license fees,
commissions, or other payments in connection with the acquisition,
development or operation of the Project without the approval of a
majority of the Board; [
*
]
8.Gaming License:
Each Member shall be responsible for submitting its own gaming
license application and the applications of any party required to
submit an application due to its affiliation with a Member. [
*
]
9.Transfer Restrictions:
(a)Generally, no Member may transfer its interest in the Joint
Venture without the approval of the majority in interest of the
other Members; provided that Circus shall be allowed to transfer
its ownership interest to a wholly-owned subsidiary or affiliate
without the consent of the other Members or in connection with the
sale or transfer of substantially all of the assets of Circus. In
addition, Atwater Casino may transfer its interest to an entity
that is beneficially-owned by the same persons as the transferring
Member.
* This material has been omitted pursuant to a request for
confidential treatment and has been filed separately with the
Securities and Exchange Commission.
(b)Transfer of any ownership interest in the Joint Venture to an
unrelated person or entity (that is, to a party not already owning
an interest in the Joint Venture member) by any Member shall be
subject to (i) regulatory approval and (ii) a right of first
refusal running to the other Members to purchase the interest on
the same terms and conditions as the proposed third party transfer,
which must be accepted or rejected within one hundred and twenty
(120) days. If more than one Member elects to exercise the right
of first refusal, then the ownership interest shall be allocated
amongst the exercising Members in proportion to their ownership
interest in the Joint Venture. [
*
]
(c)In the event a Member declares bankruptcy or makes an assignment
for the benefit of creditors, then the remaining Members shall have
the right to purchase that ownership interest. If more than one
Member elects to exercise its rights, than the ownership interest
shall be allocated amongst the exercising Members in proportion to
their ownership interest in the Joint Venture. [
*
]
10.Project Cash Flow:
[
*
] Financial statements will be audited annually by a
big six certified public accounting firm. [
*
* This material has been omitted pursuant to a request for
confidential treatment and has been filed separately with the
Securities and Exchange Commission.
*
]
11.Representations and Warranties:
Each Member will represent and warrant to the other Members that,
as of the date of the signing of the Joint Venture agreement, the
party has knowledge of no facts or circumstances that are likely to
affect the ability of such Member (or any party having an interest
in such Member) or the Joint Venture to receive all gaming and
other licenses, permits and approvals necessary or advisable for
the construction, completion, operation, ownership and use of the
Project as a gaming facility or which would otherwise affect any
Member s ability to be found suitable by any applicable authority,
except for certain disputes concerning ownership interests in AEA.
In the event any representation or warranty made by a Member is
untrue or is breached, the defaulting party shall indemnify the
other Members for any damages resulting from such breach.
* This material has been omitted pursuant to a request for
confidential treatment and has been filed separately with the
Securities and Exchange Commission.
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> JAN-31-1998
<PERIOD-END> APR-30-1997
<CASH> 66,051
<SECURITIES> 0
<RECEIVABLES> 21,736
<ALLOWANCES> 0
<INVENTORY> 18,875
<CURRENT-ASSETS> 133,809
<PP&E> 2,570,532
<DEPRECIATION> 553,587
<TOTAL-ASSETS> 2,817,999
<CURRENT-LIABILITIES> 160,722
<BONDS> 1,423,216
0
0
<COMMON> 1,893
<OTHER-SE> 1,012,113
<TOTAL-LIABILITY-AND-EQUITY> 2,817,999
<SALES> 344,098
<TOTAL-REVENUES> 344,098
<CGS> 0
<TOTAL-COSTS> 253,661
<OTHER-EXPENSES> 7,799
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 23,271
<INCOME-PRETAX> 59,367
<INCOME-TAX> 21,878
<INCOME-CONTINUING> 37,489
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 37,489
<EPS-PRIMARY> .40
<EPS-DILUTED> .40
</TABLE>
