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 October 31, 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 November 30, 1997
Common Stock, $.01-2/3 par value 95,078,883 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
October 31, 1997 (Unaudited) and January 31,
1997......................................... 3-4
Condensed Consolidated Statements of Income
(Unaudited) for the Three and Nine Months
Ended October 31, 1997 and 1996.............. 5
Condensed Consolidated Statements of Cash
Flows (Unaudited) for the Nine Months Ended
October 31, 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.. 19-29
Part II. OTHER INFORMATION 30
Part I. FINANCIAL INFORMATION
Item 1. Financial Statements
CIRCUS CIRCUS ENTERPRISES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands)
ASSETS
October 31, January 31,
1997 1997
(Unaudited)
CURRENT ASSETS:
Cash and cash equivalents................ $ 75,287 $ 69,516
Receivables.............................. 16,222 34,434
Inventories.............................. 21,361 19,371
Prepaid expenses and other............... 33,336 28,528
Total current assets................ 146,206 151,849
PROPERTY, EQUIPMENT AND LEASEHOLD INTERESTS,
at cost, less accumulated depreciation
and amortization of $597,912 and $526,902,
respectively............................. 2,328,390 1,920,032
EXCESS OF PURCHASE PRICE OVER FAIR MARKET
value of net assets acquired, net........ 377,927 385,583
NOTES RECEIVABLE............................ 36,240 36,443
INVESTMENTS IN UNCONSOLIDATED AFFILIATES.... 245,288 214,123
OTHER ASSETS................................ 24,599 21,081
Total Assets......................... $3,158,650 $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
October 31, January 31,
1997 1997
(Unaudited)
CURRENT LIABILITIES:
Current portion of long-term debt................ $ 3,044 $ 379
Accounts payable - trade ........................ 21,371 22,658
Accounts payable - construction.................. 29,647 21,144
Accrued liabilities ............................. 107,505 85,587
Total current liabilities ................ 161,567 129,768
LONG-TERM DEBT ...................................... 1,710,574 1,405,897
DEFERRED INCOME TAX ................................. 159,985 152,635
OTHER LONG-TERM LIABILITIES ......................... 4,973 6,439
Total liabilities ........................ 2,037,099 1,694,739
REDEEMABLE PREFERRED STOCK........................... - 17,631
TEMPORARY EQUITY .................................... - 44,950
STOCKHOLDERS' EQUITY:
Common stock, $.01-2/3 par value
Authorized - 450,000,000 shares
Issued - 113,594,008 and 112,808,337 shares ... 1,893 1,880
Preferred stock, $.01 par value
Authorized - 75,000,000 shares ................ - -
Additional paid-in capital ...................... 557,400 498,893
Retained earnings ............................... 1,073,564 984,363
Treasury stock (18,515,125 and 18,749,209 shares),
at cost........................................ (511,306) (513,345)
Total stockholders' equity ............... 1,121,551 971,791
Total Liabilities and
Stockholders' Equity .................. $3,158,650 $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 Nine Months
Ended October 31, Ended October 31,
REVENUES: 1997 1996 1997 1996
Casino ......................... $156,440 $163,589 $ 475,677 $506,620
Rooms .......................... 82,884 73,638 248,815 222,421
Food and beverage .............. 54,415 53,055 163,269 163,603
Other .......................... 37,092 35,085 109,349 116,922
Earnings of unconsolidated
affiliates ................... 26,895 27,753 78,769 63,961
357,726 353,120 1,075,879 1,073,527
Less-complimentary allowances... (15,874) (15,130) (46,637) (43,846)
341,852 337,990 1,029,242 1,029,681
COSTS AND EXPENSES:
Casino ......................... 82,554 75,459 230,936 225,659
Rooms .......................... 31,048 29,247 92,559 87,827
Food and beverage .............. 50,552 50,873 150,483 154,969
Other operating expenses ....... 24,101 21,947 67,629 71,329
General and administrative ..... 57,356 58,330 172,854 169,866
Depreciation and amortization .. 29,235 23,303 86,418 71,808
Abandonment losses ............. - - - 48,309
274,846 259,159 800,879 829,767
OPERATING PROFIT BEFORE CORPORATE
EXPENSE ........................ 67,006 78,831 228,363 199,914
CORPORATE EXPENSE ................ 7,356 7,646 23,328 22,782
INCOME FROM OPERATIONS ........... 59,650 71,185 205,035 177,132
OTHER INCOME (EXPENSE):
Interest, dividend and
other income ................. 7,124 462 8,571 3,108
Interest income and guarantee
fees from unconsolidated
affiliate .................... 1,622 1,759 5,010 5,102
Interest expense ............... (21,465) (12,973) (65,181) (36,546)
Interest expense from
unconsolidated affiliates .... (3,870) (4,774) (12,131) (10,871)
(16,589) (15,526) (63,731) (39,207)
INCOME BEFORE PROVISION FOR
INCOME TAX...................... 43,061 55,659 141,304 137,925
Provision for income tax ....... 15,838 20,846 52,104 52,331
NET INCOME ....................... $ 27,223 $ 34,813 $ 89,200 $ 85,594
EARNINGS PER SHARE................ $ .29 $ .34 $ .94 $ .83
Average shares outstanding .. 95,063,866 103,259,217 94,895,291 103,426,436
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)
Nine Months
Ended October 31,
1997 1996
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 89,200 $ 85,594
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization 94,788 77,389
(Gain) loss on disposition of fixed assets (6,438) 47,732
(Increase) decrease in other current assets 11,414 (8,976)
Increase in other noncurrent assets (3,421) (2,970)
Increase in interest payable 15,423 11,514
Increase in other current liabilities 5,208 26,658
Increase in deferred income tax 7,350 11,943
Decrease in other noncurrent liabilities (49) (49)
Unconsolidated affiliates' earnings in
excess of distributions (29,390) (20,749)
Total adjustments 94,885 142,492
Net cash provided by operating activities 184,085 228,086
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (494,410) (351,045)
Increase in construction payable 8,503 6,851
Increase in investments in unconsolidated
affiliates (2,085) (34,711)
(Increase) decrease in notes receivable 203 (8,987)
Proceeds from sale of equipment and other assets 7,979 2,056
Other - (1,270)
Net cash used in investing activities (479,810) (387,106)
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 541,386 (187,324)
Issuances of debt with original maturities
in excess of three months 37,161 268,934
Principal payments of debt with original
maturities in excess of three months (271,302) (17,283)
Exercise of stock options and warrants 6,383 17,912
Purchases of treasury stock (1,300) (128,858)
Other (10,832) (785)
Net cash provided by financing activities 301,496 152,158
Net increase (decrease) in cash and cash equivalents 5,771 (6,862)
Cash and cash equivalents at beginning of period 69,516 62,704
Cash and cash equivalents at end of period $ 75,287 $ 55,842
CIRCUS CIRCUS ENTERPRISES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (continued)
(In thousands)
(Unaudited)
Nine Months
Ended October 31,
1997 1996
SUPPLEMENTAL CASH FLOW DISCLOSURES
Cash paid during the period for:
Interest (net of amount capitalized) $ 47,799 $ 23,312
Income tax $ 37,270 $ 48,043
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 and nine months ended October 31,
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 hotel and 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 and
nine month periods 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 and nine months ended October 31, 1996
to conform to the financial statement presentation for the three
and nine months ended October 31, 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):
October 31, January 31,
1997 1997
(Unaudited)
Amounts due under corporate
debt program at floating
interest rates, weighted
average of 5.8% and 5.6% $742,353 $501,191
6.45% Senior Notes due 2006
(net of unamortized discount
of $363 and $396) 199,637 199,604
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 $91 and $103) 149,909 149,897
7.0% Debentures due 2036
(net of unamortized
discount of $150 and $160) 149,850 149,840
6.70% Debentures due 2096
(net of unamortized discount
of $291 and $327) 149,709 149,673
10-5/8% Senior Subordinated Notes
due 1997 (net of unamortized
discount of $7) - 99,993
Amounts due under bank credit
agreement at floating interest
rates, weighted average of 6.1% 160,000 -
Other notes 12,160 6,078
1,713,618 1,406,276
Less - current portion (3,044) (379)
$1,710,574 $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
(2) Long-term debt (continued) -
replace such borrowings on a rolling basis as various instruments
come due and to have such borrowings outstanding for longer than
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
(currently 15 basis points) on the unused portion of the
Facility. As of October 31, 1997, the Company had $160 million
outstanding under the Facility. At such date, the Company also
had $742.4 million of indebtedness outstanding under the
corporate debt program thus reducing, by that amount, the credit
available under the 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.
(2) Long-term debt (continued) -
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
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"). The 10-5/8% Notes were redeemed at maturity in June
1997.
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 instruments. To the extent the Company employs such
financial instruments pursuant to this policy, they are accounted
for as hedging instruments. In order to qualify for hedge
accounting, the underlying hedged item must expose the Company to
risks associated with market fluctuations and the financial
instrument used must be designated as a hedge and must reduce the
Company's exposure to market fluctuation throughout the hedge
period. If these criteria are not met, a change in the market
value of the financial instrument is recognized as a gain or loss
in the period of change. Otherwise, gains and losses are not
recognized except to the extent that the financial instrument is
disposed of prior to maturity. Net interest paid or received
(2) Long-term debt (continued) -
pursuant to the financial instrument is included as interest
expense in the period.
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 7.2%) and
receives a variable interest rate (weighted average of
approximately 5.8% at October 31, 1997) on $178 million notional
amount of "initial" swaps, and pays a variable interest rate of
approximately 5.8% at October 31, 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 October 31, 1997, was approximately 0.8%
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
$23.5 million, but declines to $22.5 million by its termination
date in fiscal 1999. One of the initial swaps in the notional
amount of $100 million provides that the swap will terminate two
business days after any date on which three-month Libor is set at
or above 9.0% on or after October 15, 2000. This swap otherwise
terminates in fiscal 2008. Excluding these swaps, the initial
swaps have the following termination dates: $29.5 million in
fiscal 1999, $25 million in fiscal 2000 and $100 million in
fiscal 2008. The reversing swap expires in fiscal 2002.
As of October 31, 1997, under its most restrictive loan
covenants, the Company was restricted as to the purchase of its
own capital stock in excess of $510 million and was restricted
from issuing additional debt in excess of approximately $236
million.
<PAGE>
(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.
Summarized information for stock option plans is as follows:
Nine Months Ended
October 31, 1997
Weighted
Average
Exercise
Options Price
Outstanding at beginning of period.. 7,178,560 $25.42
Granted............................. 425,000 24.25
Exercised........................... (307,005) 21.19
Cancelled........................... (149,900) 31.60
Outstanding at end of period........ 7,146,655 $25.40
Options exercisable at end of period 4,675,550 $24.31
Options available for grant at end
of period......................... 2,057,750
(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.
(4) Stock rights (continued) -
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
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 nine months ended October 31, 1997, the Company
repurchased 38,486 shares of its common stock at a cost of $1.3
million.
During the second quarter, the Company elected to settle,
for cash, outstanding put options on 2.0 million shares of its
common stock and call options on 600,000 shares of common stock.
The net cost to the Company was $9.4 million. The put and call
options were entered into as a complement to the Company's
overall share repurchase program.
(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 and nine-month periods ended October 31, 1997
and 1996 as determined in accordance with SFAS 128.
Three Months Nine Months
Ended October 31, Ended October 31,
Earnings per share 1997 1996 1997 1996
As reported $.29 $.34 $.94 $.83
Basic $.29 $.34 $.94 $.83
Diluted $.29 $.33 $.94 $.81
<PAGE>
(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 (net of amortization). Investments in
unconsolidated affiliates consist of the following (in
thousands):
October 31, January 31,
1997 1997
(Unaudited)
Circus and Eldorado Joint Venture (50%)
(Silver Legacy, Reno, Nevada) $ 64,313 $ 54,269
Elgin Riverboat Resort (50%)
(Grand Victoria, Elgin, Illinois) 47,519 51,174
Victoria Partners (50%)
(Monte Carlo, Las Vegas, Nevada) 133,456 108,680
$245,288 $214,123
The above unconsolidated affiliates operate with fiscal
years ending on December 31. Summarized results of operations of
the unconsolidated affiliates are as follows (unaudited, in
thousands):
Nine Months
Ended September 30,
1997 1996
Revenues $501,746 $392,737
Expenses 355,069 267,776
Operating income 146,677 124,961
Net income 122,600 96,861
The results for the nine months ended September 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. Results for
the nine months ended September 30, 1997 include a full nine
months of operations of Monte Carlo, which opened June 21, 1996.
(9) Investments in unconsolidated affiliates (continued) -
Included in the above are revenues of the Grand Victoria of
$189,375 and $181,915 for the nine months ended September 30,
1997 and 1996. The property's operating margin during those
periods was 35% and 43%, respectively.
(10) Abandonment losses -
During the nine months ended October 31, 1996, the Company
wrote off $48.3 million of various assets. These write-offs
included the special-effects films at Luxor ($12.0 million) which
were replaced by IMAX special-format filmed attractions,
structural elements demolished as part of Luxor's remodeling
($12.1 million), and fixtures and equipment at Circus Circus-Las
Vegas, Excalibur and Circus Circus-Tunica replaced in the course
of upgrading and expanding those properties ($16.0 million). The
Company also 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.
(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 $230 million bank credit
agreement (which amended and restated the joint venture's
previous $220 million credit agreement in November 1997), 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 October
31, 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 November 1997, in connection with amending and
restating the bank credit agreement, the entire loan balance was
repaid.
In Tunica County, Mississippi, the Company is constructing a
1,200-room tower addition to its casino, which has been
remodeled. Effective August 1, 1997, the property was
rechristened Gold Strike Casino Resort. The remodeled casino
opened prior to the Labor Day weekend and approximately 400 of
the new rooms were in service by the Thanksgiving weekend. The
majority of the new rooms should be in service by Christmas. The
(11) Commitments and contingent liabilities (continued) -
estimated cost of this expansion is $135 million, and through
October 31, 1997, the Company had incurred $91.4 million for this
project.
The Company is constructing 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 $800-$900 million (excluding land and
a Four Seasons Hotel as discussed below) and as of October 31,
1997, $158.4 million had been incurred for this project.
Included within Project Paradise and as part of its 3,800
rooms, will be a 440-room Four Seasons Hotel, which will provide
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 $902.4 million was utilized as of October 31,
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 third quarter ended October 31, 1997, the Company
reported net income of $27.2 million, or $.29 per share, versus
$34.8 million, or $.34 per share, in the prior year. For the
nine months, net income was $89.2 million, or $.94 per share,
compared to $85.6 million, or $.83 per share, a year ago.
Average shares outstanding were approximately 95 million for the
three and nine months ended October 31, 1997 against
approximately 103 million for the same periods last year. The
lower average shares outstanding reflects the repurchase of 10.1
million shares of the Company's stock in the third and fourth
quarters of the prior year.
Results for the three and nine months in the current year reflect
a one-time gain of $6.0 million on the sale of a corporate
airplane. Results for the nine months ended October 31, 1996
include asset write-offs of $48.3 million related to various
expansion projects, primarily the new room towers at Luxor and
Circus Circus-Las Vegas, as well as $5.6 million in preopening
expenses related to the June 21, 1996 opening of Monte Carlo (50%
owned by the Company). Excluding the effect of the above
nonrecurring items, earnings per share for the third quarter and
nine months ended October 31, 1997 were $.25 and $.90 versus $.34
and $1.17 for the same periods in the prior year.
Revenues
Revenues for the Company for the three and nine months ended
October 31, 1997 were relatively even with the prior year.
Luxor, with 1,950 new rooms, posted significant revenue increases
in both periods, up $26.9 million, or 51%, in the quarter and
$53.8 million, or 31%, for the nine months, though it was
comparing against prior-year periods when the property
experienced significant construction disruption. Meanwhile,
Circus Circus-Las Vegas posted revenue increases of $3.7 million,
or 7%, and $9.9 million, or 6%, for the three and nine months,
due to 1,000 new rooms which opened late last year, though it too
was comparing against construction-disrupted periods in the prior
year.
The Company's 50% interest in Silver Legacy generated strong
increases in revenues, up $2.0 million, or 41%, in the third
quarter and up $7.2 million, or 66%, for the nine months.
Effective May 1, the Company began receiving a priority return on
its investment representing approximately two-thirds of the joint
venture's operating income. Also, year-to-date results benefited
from the presence of the women's national bowling tournament in
Reno which concluded in July. Monte Carlo was also a significant
contributor to revenues in the nine months, with the Company's
50% interest generating an additional $19.5 million in revenue
compared against the prior year when it was open approximately
four months. (For accounting purposes, the Company's share of
the operating income of joint ventures is reflected as revenue in
Earnings of Unconsolidated Affiliates.)
The above increases were largely offset by the closure of the
Hacienda Hotel and Casino, which posted total revenues of $11.3
million in last year's third quarter, and $38.3 million for the
nine months. That property was demolished December 31, 1996 to
make way for Project Paradise, a new megaresort adjacent to
Luxor. Also, the Company sold its interest in Windsor Casino
Limited in January 1997. That property accounted for revenues of
$2.5 million and $7.4 million in the three and nine months a year
ago. Meanwhile, Excalibur's revenues declined $6.7 million, or
9%, in the third quarter and $18.8 million, or 8%, year-to-date,
as that property faced significant competition from New York-New
York (which opened January 3, 1997), Monte Carlo and the expanded
Luxor, as well as comparing against a record prior year.
Revenues at Circus Circus-Tunica decreased 17% in the third
quarter and 25% for the nine months, as it experienced
significant construction disruption as part of its $135 million
expansion, which will be substantially completed in the fourth
quarter. (See Financial Position and Capital Resources for more
details regarding Project Paradise and the Tunica expansion.)
Operating Income (excluding nonrecurring items)
For the three and nine month periods ended October 31, 1997,
income from operations declined $11.5 million, or 16%, and $26.0
million, or 11%, from the like periods a year ago. Depreciation
was a principal factor, rising $6.6 million in the quarter and
$17.4 million in the nine months. This additional depreciation
related primarily to the expansion projects at Luxor and Circus
Circus-Las Vegas completed in the prior year. The Company's
composite operating margin was 17.4% and 19.9% for the three and
nine months ended October 31, 1997 versus 21.1% and 22.3% for the
same periods in the prior year. A discussion of operating
results by market follows.
<PAGE>
Las Vegas
The Company's Las Vegas properties posted an overall decrease in
operating income of $5.4 million, or 12%, for the three months
ended October 31, 1997 and posted an overall increase in
operating income of $1.2 million, or 1%, for the nine months
compared to the same periods last year. The decrease in the
quarter was due principally to lower results at Excalibur, which
saw operating income fall $6.8 million, or 30%, in the quarter
and $17.5 million, or 25%, in the nine months. This decline in
operating income was primarily the result of significant
competition from New York-New York (which opened January 3,
1997), Monte Carlo and the expanded Luxor. Excalibur was also
comparing against a record prior year. The year-to-date decrease
at Excalibur was offset by results at Monte Carlo (a 50% owned
joint venture which opened June 21, 1996), which generated a
$19.5 million increase in operating income for the nine months
ended October 31, 1997 compared to the prior year when it was
open slightly more than four months. Overall, the Las Vegas
market has been slow to absorb recent room expansions, which has
negatively affected room rates and, more significantly, occupancy
rates at Luxor and Excalibur.
At Luxor, operating income rose $3.5 million, or 44%, in the
quarter and $7.6 million, or 24%, for the nine months due
primarily to 1,950 new rooms which were placed in service late
last year. This property has also undergone substantial
remodeling, which was significantly disruptive to prior-year
results. Certain elements of this remodeling continued into the
current year, including a new 1,200-seat showroom which opened
September 10 with the debut of Imagine, A Theatrical Odyssey.
Construction is continuing on a microbrewery and night club which
will open by the end of the year, as well as the remodeling of
the attractions level. The Company believes that this continued
construction has had a disruptive effect on operations, though
not on the scale suffered in the prior year. Furthermore, the
Company believes that due to the continued phase-in of the
remodeling and the current overall weakness in the Las Vegas
market, improvements in operating results at this property are
likely to occur gradually.
Operating income at Circus Circus-Las Vegas rose 10% in the
quarter, but declined 3% year-to-date. The property had 1,000
new rooms in operation (at virtually 100% occupancy) for the
quarter and nine months versus a year ago. However, additional
depreciation on the new rooms offset much of this benefit. The
Company also believes that many of the new customers at Circus
Circus-Las Vegas are spending a portion of their time visiting
the newer megaresorts on the south end of the Las Vegas Strip.
Further, 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.
Reno
In Reno, the Company's combined operating income was up 4% in the
third quarter and 23% in the nine months, compared against the
same periods last year. Results at Circus Circus-Reno compared
down in the quarter and nine months, due in part to disruption
from the remodeling of the casino, which was completed in
November. However, this was more than offset by strong results
at Silver Legacy, as previously discussed under "Revenues".
Laughlin
The Colorado Belle and the Edgewater in Laughlin posted combined
decreases in operating income of $2.0 million, or 39%, and $5.9
million, or 27%, for the three and nine months ended October 31,
1997 versus the previous year. 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 the
rechristened Gold Strike Casino Resort declined significantly,
down more than 50% in both the three and nine month periods, due
primarily to disruption from the ongoing $135 million expansion.
This expansion project includes a 1,200-room hotel tower (the
property currently has no rooms) and extensive retheming of the
property into a more elegant resort. The remodeling of the
casino was completed by the Labor Day weekend, and approximately
400 of the new rooms were open by the Thanksgiving weekend. The
balance of the new rooms will open in phases, with a majority of
the new rooms in service by Christmas.
Results at the Grand Victoria (a 50% owned riverboat casino in
Elgin, Illinois) reflected a slight increase in the Company's
share of operating income in the quarter and a decrease of $4.4
million year-to-date. The year-to-date decrease was due entirely
to the contribution to a 20% profit sharing arrangement with
public entities in the city and county that began in June 1996.
In December 1997, the Illinois legislature passed a bill to
increase the gaming tax. The annual impact of this increase to
the Company, based upon current year earnings, would be a $9-$10
million reduction in operating income.
Interest Expense
For the three and nine months ended October 31, 1997, interest
expense (excluding joint venture interest expense) increased $8.5
million and $28.6 million versus the prior year. The increase
was due principally to higher average borrowings related to
various construction projects (primarily the new rooms and
improvements at Luxor and Circus Circus-Las Vegas completed in
the prior year, and the ongoing construction of Project Paradise
and the hotel tower in Tunica) and the repurchase of $341.8
million of Circus' common stock in the third and fourth quarters
last year. To date, the share repurchase has had no effect on
earnings per share. Average borrowings were approximately $1.6
billion and $1.5 billion for the current quarter and nine months,
compared against $822 million and $745 million for the same
periods last year. Capitalized interest was $7.0 million and
$15.5 million for the quarter and nine months ended October 31,
1997 versus $4.0 million and $10.5 million in the year-ago
periods. Long-term debt at October 31, 1997 stood at $1.7
billion compared to $980 million at October 31, 1996. Of the
$1.7 billion in borrowings at October 31, 1997, approximately
$902.4 million represents borrowings subject to fluctuations in
interest rates.
The Company also recorded interest expense related to joint
venture projects of $3.9 million and $12.1 million in the quarter
and nine months ended October 31, 1997 compared to $4.8 million
and $10.9 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 and nine months ended October 31, 1997, the
Company's effective tax rate was 36.8% and 36.9%, compared with
37.5% and 37.9% for the three and nine months ended October 31,
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 $75.3 million at
October 31, 1997, reflecting normal daily operating requirements.
The Company's pretax cash flow from operations (before
nonrecurring items) was $91.6 million and $299.8 million for the
three and nine months ended October 31, 1997 versus $96.5 million
and $308.4 million for the same periods 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 has used
its current year 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 third quarter and nine months ended
October 31, 1997 were $191.6 million and $494.4 million. Of
these amounts, $89.2 million and $152.4 million related to the
construction of Project Paradise, $38.4 million and $84.9 million
related to the construction and remodeling at the Gold Strike
Casino Resort in Tunica County, Mississippi, $21.4 million and
$100.9 million related to the remaining elements of the Luxor
expansion, $4.9 million and $24.5 million related to various
renovation projects at Excalibur (primarily expansion of the
casino floor, and the addition of a wedding chapel and meeting
rooms), $7.3 million and $23.7 million related to remodeling the
casino at Circus Circus-Reno, $9.2 million and $19.5 million
related to the remaining tower rooms being remodeled at Circus
Circus-Las Vegas, and $.7 million and $9.7 million related to the
addition of a microbrewery at the Colorado Belle.
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 billion at more favorable terms and
pricing. As of October 31, 1997, Circus had utilized $902
million under the facility. During the third quarter, the
Company also increased the size of its commercial paper program
from $750 million to $1 billion. The commercial paper program is
backed by the $2 billion credit facility (see Note 2 of Notes to
Condensed Consolidated Financial Statements).
Joint Ventures
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 $230 million bank credit
agreement (which amended and restated the joint venture's
previous $220 million credit agreement in November 1997), 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 October
31, 1997, the Company also had outstanding loans to the joint
venture in the principal amount of $35.1 million, which were
repaid in November.
New Projects
The Company is constructing 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 $800-$900 million (excluding land and
a Four Seasons Hotel as discussed below) and as of October 31,
1997, $158.4 million had been incurred for this project.
Included within Project Paradise and as part of its 3,800 rooms,
will be a 440-room Four Seasons Hotel, which will provide 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.
<PAGE>
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 a second hotel lobby, 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 additional restaurants and retail areas
opened in late summer, while the showroom opened September 10.
Construction is continuing on a microbrewery and night club which
will open by the end of the year, as well as the remodeling of
the attractions level. The total cost for the expansion is
approximately $425 million.
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 $130 million. The Company also
recently completed refurbishing the tower rooms at this property
at a total cost of approximately $21 million, of which $20.5
million had been incurred as of October 31, 1997.
In Tunica County, Mississippi, the Company is constructing a
1,200-room tower addition to its casino, which was also
remodeled. Effective August 1, 1997 the property was
rechristened Gold Strike Casino Resort. The remodeled casino
opened prior to the Labor Day weekend and approximately 400 of
the new rooms were in service by the Thanksgiving weekend. The
majority of the new rooms should be in service by Christmas. The
estimated cost of this expansion is $135 million, and through
October 31, 1997, the Company had incurred $91.4 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 has received
all necessary approvals to begin construction. However, these
approvals have been challenged in state and federal court, and
the Company anticipates construction to begin only after final
resolution of all legal actions. 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 has also completed several other improvement projects
this year. At Circus Circus-Reno, the Company remodeled the
casino at a total cost of approximately $21 million, and a
microbrewery was added to the Colorado Belle at a total cost of
approximately $11.0 million.
The Company has entered into an agreement to form a joint venture
with the Detroit-based Atwater Casino Group to pursue one of the
three licenses to be issued to own and operate a casino in
Detroit, Michigan. The Atwater Casino Group is comprised of
numerous Detroit-area business, education, civic and community
leaders. Circus would own a 45% equity interest in the proposed
project and receive a management fee. On November 21, 1997, the
joint venture was selected as one of the three groups to proceed
with negotiation of a development agreement with the city. The
joint venture's ability to proceed with the proposed project is
contingent upon negotiation of this development agreement, as
well as the receipt of all necessary gaming approvals and other
customary conditions. There is no assurance when or whether the
joint venture will successfully negotiate the development
agreement or 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 site (which,
as reported by Mirage, consists of a 181-acre site, approximately
125 acres of which are developable) located in the Marina
District of Atlantic City, New Jersey. The site is the subject
of an agreement between Mirage and the City of Atlantic City
providing, as reported by Mirage, for the City's conveyance of
the site to Mirage in exchange for its agreeing to develop a
hotel-casino thereon and undertake certain other obligations.
The Company's agreement with Mirage provides for the Company to
obtain sufficient land within the site 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 site, Circus will own its land and its resort project, which,
as presently contemplated, will connect to Mirage's resort as
well as to a third resort to be developed by Boyd Gaming
Corporation and Mirage. The Company's participation in the
development of the site is dependent on Mirage's acquisition of
the site, which is subject to the satisfaction of a number of
conditions. Various governmental permits required for the
development of the site have not yet been received. Additionally,
as reported by Mirage, an existing Atlantic City hotel-casino
operator and others have filed various lawsuits which seek to
prevent Mirage's acquisition of the site and construction of road
improvements to the site, thereby potentially delaying or
preventing the Company's acquisition of a portion of the site
from Mirage and development of a hotel-casino thereon. The
ability of the Company to proceed is subject to its obtaining the
requisite gaming and other approvals and licenses in New Jersey
(where the Company and a wholly owned subsidiary have initiated
the gaming application process), as well as the approval of the
gaming authorities in various other jurisdictions. Accordingly,
there can be no assurances as to whether or when the Company will
proceed with the development of a hotel-casino on the site.
While neither the exact extent of the Company's proposed
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.
The collective bargaining agreement with one of the Company's
largest unions expired May 31, 1997. The agreement has been
extended indefinitely as negotiations continue on a new contract.
The Company does not anticipate any difficulties in renewing the
contract.
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 6. Exhibits and Reports on Form 8-K.
(a) The following 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: December 12, 1997 By Clyde T. Turner
Clyde T. Turner
Chairman of the Board and
Chief Executive Officer
Date: December 12, 1997 By Glenn Schaeffer
Glenn Schaeffer
President, Chief Financial
Officer and Treasurer
INDEX TO EXHIBITS
Exhibit
No. Description
4(a). Amendment No. 1 to the $2.0 Billion Loan Agreement, by
and among the Company, the Banks named therein and Bank
of America National Trust and Savings Association, as
administrative agent for the Banks.
4(b). Commercial Paper Dealer Agreement, dated October 9,
1997, between the Company and Merrill Lynch Money
Markets Inc.
4(c). Commercial Paper Dealer Agreement dated October 9,
1997, between the Company and BancAmerica Robertson
Stephens.
4(d). Commercial Paper Dealer Agreement dated October 9,
1997, between the Company and Credit Suisse First
Boston Corporation.
4(e). Issuing and Paying Agency Agreement, dated October 9,
1997, between the Company and The Chase Manhattan Bank.
4(f). Interest Rate Cap Agreement, dated October 20, 1997,
between the Company and Morgan Guaranty Trust Company
of New York.
4(g). Grid Promissory Note, dated October 17, 1997, between
the Company and Lyon Short Term Funding Corp.
4(h). Amendment and Restated Credit Agreement, dated November
25, 1997, by and among Circus and Eldorado Joint
Venture, the Banks named therein and Bank of America
National Trust and Savings Association as
Administrative Agent, and the related Note, Amended and
Restated Make-Well Agreement and Amended and Restated
Deed of Trust.
10(a). Operating Agreement, dated October 7, 1997, by and
between Circus Circus Michigan, Inc. and Atwater Casino
Group, L.L.C.
27. Financial Data Schedule for the nine months ended
October 31, 1997 as required under EDGAR.
Exhibit 4(a)
AMENDMENT NO. 1
Reference is made to the Amended and Restated Loan
Agreement dated as of May 23, 1997 among Circus Circus
Enterprises, Inc., a Nevada corporation, the Banks, Managing
Agents, as Co-Agents, and Lead Managers named therein, and Bank
of America National Trust and Savings Association, as Issuing
Bank and Administrative Agent (as amended, the Loan
Agreement ). Terms defined in the Loan Agreement are used
herein with the same meanings.
The parties hereto agree to amend the Loan Agreement
as follows:
1. Definition of Restricted Expenditures in
Section 1.1. The definition of Restricted Expenditures as
set forth in Section 1.1 of the Loan Agreement is amended to
read in full as follows:
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, Tunica, and Capital Expenditures in an aggregate
amount not to exceed $75,000,000 for the completion of
proposed improvements to the Luxor Hotel and Casino and
the two related hotel tower facilities (located between
the main Luxor pyramid and the Excalibur Resort), in each
case, 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.
2. Condition Precedent. As a condition precedent
to the effectiveness of this Amendment, the Administrative
Agent shall have received executed counterparts of this
Amendment from Borrower and consents hereto from Banks
comprising at least the Majority Banks.
3. Counterparts. This Amendment may be executed in
counterparts in accordance with Section 11.7 of the Loan
Agreement.
4. Confirmation. In all other respects, the Loan
Agreement is confirmed.
This Amendment is dated as of September 30, 1997.
CIRCUS CIRCUS ENTERPRISES, INC.
By: Glenn Schaeffer
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By: Janice Hammond
Title: Vice President
CONSENT OF BANK
This Consent of Bank is delivered with reference to
the Amended and Restated Loan Agreement dated as of May 23,
1997 among Circus Circus Enterprises, Inc., a Nevada
corporation, the Banks, Co-Agents, Managing Agents and Lead
Managers referred to therein, and Bank of America National
Trust and Savings Association, as Issuing Bank and
Administrative Agent (as amended, the Loan Agreement ).
Capitalized terms used but not defined herein are used with the
meanings set forth for those terms in the Loan Agreement.
The undersigned Bank hereby consents to the
execution, delivery and performance of the proposed Amendment
No. 1 to Loan Agreement by the Administrative Agent on behalf
of the Banks, substantially in the form presented to the
undersigned as a draft.
Bank of America
[Typed/Printed Name of Bank]
By: Jon Varnell
Jon Varnell, MD
[Typed/Printed Name and Title]
Dated: September ___, 1997
Exhibit 4(b)
COMMERCIAL PAPER DEALER AGREEMENT
between
CIRCUS CIRCUS ENTERPRISES, INC., as Issuer
and
MERRILL LYNCH MONEY MARKETS INC., as Dealer
Concerning Notes to be issued pursuant to an
Issuing and Paying Agency Agreement dated as
of October 9, 1997 between the Issuer and The
Chase Manhattan Bank, as Issuing and Paying
Agent
Dated as of
October 9, 1997
COMMERCIAL PAPER DEALER AGREEMENT
This Commercial Paper Dealer Agreement (the Agreement )
sets forth the understandings between Circus Circus Enterprises,
Inc. (the Issuer ) and Merrill Lynch Money Markets Inc. (the
Dealer ) in connection with the Dealer s services as the
Issuer s agent, on a non-exclusive basis, to solicit and receive
offers to purchase the Issuer s commercial paper notes.
Section 1. Appointment of Non-Exclusive Agent. The Issuer
hereby appoints the Dealer as its agent on a non-exclusive basis
for the purpose of soliciting and receiving offers to purchase
from the Issuer from time to time its commercial paper notes
issued under the Paying Agency Agreement (as defined), maturing
not later than 270 days from date of issue (the Notes ) in an
aggregate principal amount outstanding not to exceed the amount
authorized from time to time by the Board of Directors of the
Issuer, and the Dealer accepts such appointment, on the terms,
and subject to the conditions, set forth in this Agreement. The
Notes will be issued under an Issuing and Paying Agency Agreement
dated as of October 9, 1997 (the Paying Agency Agreement )
between the Issuer and The Chase Manhattan Bank, as Issuing and
Paying Agent (the Paying Agent ), and will be issued in
denominations of $250,000 and integral multiples of $1,000 in
excess thereof. The Notes may be issued as certificated noted or
as book-entry notes, in each case in accordance with the terms of
the Paying Agency Agreement. The Issuer may sell Notes directly
to the Dealer as principal for resale to others. So long as this
Agreement shall remain in effect the Issuer shall not, without
the consent of the Dealer, offer, solicit or accept offers to
purchase, or sell, any Notes except in transactions with the
Dealer or one or more other dealers each of which is, at the time
it engages in such a transaction with the Issuer, a party to an
agreement with the Issuer that contains provisions substantially
identical to those in Section 3 of this Agreement. The Dealer
acknowledges that the Issuer is entering into such agreements,
each dated as of the date hereof, with BancAmerica Robertson
Stephens and Credit Suisse First Boston Corporation, and the
Issuer hereby undertakes to provide the Dealer prompt notice of
any other dealer with which it enters into such an agreement.
Section 2. Issuance and Purchase of the Notes. If the
Dealer and the Issuer shall agree upon the sale of any Notes to
or through the Dealer (including, but not limited to, agreement
with respect to the price, principal amount, maturity and
interest or discount rate thereof), (i) instructions to the
Paying Agent to complete, authenticate and deliver the Notes
shall be given in the manner described in the Paying Agency
Agreement and (ii) the authentication and delivery to the Dealer
of such Notes by the Paying Agent against payment of the purchase
price therefor shall constitute the issuance of such Notes by the
Issuer.
Section 3. Offering of the Notes; Restrictions on Transfer
(a) The Dealer agrees with the Issuer that (i) it will deliver a
Private Placement Memorandum (as hereinafter defined) to each
prospective investor in the Notes upon or prior to the initial
sale of a Note or Notes to such investor, (ii) it will not
solicit offers for, or offer or sell, Notes by any form of
general solicitation or general advertising or in any manner
involving a public offering within the meaning of Section 4(2) of
the Securities Act of 1933, as amended (the Securities Act ),
and Rule 506 thereunder, and (iii) it will solicit offers for
Notes only from, and will offer Notes only to, (x) institutional
investors that it reasonably believes are accredited investors
within the meaning of Rule 501(a) under the Securities Act or
(y) persons that it reasonably believes are qualified
institutional buyers, as defined in Rule 144A under the
Securities Act ( QIBs ), and, in either case, who, in purchasing
Notes, may be deemed to have represented and agreed as provided
in paragraphs (1) through (7) of Section 3(c).
(b) Offers and sales of the Notes by the Issuer
through the Dealer acting as agent for the Issuer shall be
subject to the restrictions described in a legend appearing as
part of the Private Placement Memorandum used in connection with
such offers and sales and on each certificated note offered and
sold pursuant to this Agreement . Such legend shall appear in
substantially the form set forth in Section 3(c)(6) of this
Agreement.
(c) Each Private Placement Memorandum shall contain
paragraphs in substantially the following form:
Each purchaser of a Note will be deemed to have
represented and agreed as follows:
(1) It understands that the Notes are being issued
only in transactions not involving any public
offering within the meaning of the Securities Act;
(2) It is (A) an institutional investor which is an
Accredited Investor, as defined in Rule 501(a)
of Regulation D under the Securities Act (an
Institutional Accredited Investor ), or a bank,
as defined in Section 3(a)(2) of the Securities
Act, or a savings and loan association or other
institution of the type referred to in Section
3(a)(5)(A) of the Securities Act, that is acting
as a fiduciary in purchasing the Notes for the
account of an Institutional Accredited Investor,
which has such knowledge and experience (or, if
such Institutional Accredited Investor is acting
as a fiduciary, it is a fiduciary with sole
investment discretion having such knowledge and
experience) in financial and business matters that
it is capable (whether acting for its own account
or in such fiduciary capacity) of evaluating the
merits and risks of investing in such Notes, has
had access to such information as it deems
necessary in order to make an informed investment
decision and is not purchasing the Notes with a
view to, or for sale in connection with, any
distribution; or (B) in the case of sales of Notes
pursuant to Rule 144A under the Securities Act, a
qualified institutional buyer, as defined in
Rule 144A under the Securities Act (a QIB ), or a
QIB purchasing the Notes on behalf of one or more
other QIBs;
(3) If in the future it (or any other investor or any
other fiduciary or agent representing it) decides
to sell such Notes prior to maturity, said Notes
will be sold only in a transaction exempt from
registration under the Securities Act in a minimum
amount of $250,000 and only (i) to the Issuer or
to the Dealer or another dealer authorized by the
Issuer (each, an Authorized Dealer ), none of
which shall have any obligation to acquire such
Notes, (ii) through an Authorized Dealer to an
institutional investor approved by such Authorized
Dealer as an Institutional Accredited Investor or
a QIB or (iii) to a QIB pursuant to Rule 144A
under the Securities Act;
(4) It understands that, although the Dealer (or any
other Authorized Dealer) or the Issuer may
repurchase Notes, none of such entities is
obligated to do so, and, accordingly, the
purchaser (or any such other investor) should be
prepared to hold the Notes until maturity;
(5) It acknowledges that the Notes sold to it by the
Dealer may be sold to it pursuant to Rule 144A
under the Securities Act;
(6) It understands that any Notes issued in a
certificated form will bear a legend substantially
as follows:
THE NOTES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE ACT ),
AND OFFERS AND SALES THEREOF MAY BE MADE ONLY IN
COMPLIANCE WITH AN APPLICABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT. BY ITS
ACCEPTANCE OF A NOTE, THE PURCHASER WILL BE DEEMED
TO REPRESENT THAT IT HAS BEEN AFFORDED AN
OPPORTUNITY TO INVESTIGATE MATTERS RELATING TO THE
ISSUER AND THE NOTES, THAT IT IS NOT ACQUIRING
SUCH NOTE WITH A VIEW TO ANY DISTRIBUTION THEREOF
AND THAT IT IS (A) AN INSTITUTION WHICH (i) IS AN
ACCREDITED INVESTOR WITHIN THE MEANING OF RULE
501(a) UNDER THE ACT (AN INSTITUTIONAL ACCREDITED
INVESTOR ) OR IS A BANK, AS DEFINED IN SECTION
3(a)(2) OF THE ACT, OR A SAVINGS AND LOAN
ASSOCIATION OR OTHER INSTITUTION OF THE TYPE
REFERRED TO IN SECTION 3(a)(5)(A) OF THE ACT THAT
IS ACTING AS A FIDUCIARY OR AGENT PURCHASING NOTES
FOR ONE OR MORE ACCOUNTS EACH OF WHICH IS AN
INSTITUTIONAL ACCREDITED INVESTOR AND (ii)
POSSESSES SUCH KNOWLEDGE AND EXPERIENCE (OR IS A
FIDUCIARY OR AGENT WITH SOLE INVESTMENT DISCRETION
HAVING SUCH KNOWLEDGE AND EXPERIENCE) IN FINANCIAL
AND BUSINESS MATTERS THAT IT (OR SUCH FIDUCIARY OR
AGENT) IS CAPABLE OF EVALUATING THE MERITS AND
RISKS OF INVESTING IN SUCH NOTE, OR (B) A
QUALIFIED INSTITUTIONAL BUYER ( QIB ) WITHIN THE
MEANING OF RULE 144A UNDER THE ACT WHICH IS
ACQUIRING NOTES FOR ITS OWN ACCOUNT OR FOR ONE OR
MORE ACCOUNTS, EACH OF WHICH IS A QIB; AND THE
PURCHASER ACKNOWLEDGES THAT THE SELLER MAY RELY
UPON THE EXEMPTION FROM THE REGISTRATION
PROVISIONS OF SECTION 5 OF THE ACT PROVIDED BY
RULE 144A. BY ITS ACCEPTANCE OF A NOTE, THE
PURCHASER SHALL ALSO BE DEEMED TO AGREE THAT ANY
RESALE OR OTHER TRANSFER THEREOF WILL BE MADE ONLY
(A) IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER THE ACT, EITHER (1) TO THE ISSUER OR TO
MERRILL LYNCH MONEY MARKETS INC. OR ANOTHER PERSON
DESIGNATED BY THE ISSUER AS A PLACEMENT AGENT FOR
THE NOTES (COLLECTIVELY, THE PLACEMENT AGENTS ),
NONE OF WHICH SHALL HAVE ANY OBLIGATION TO ACQUIRE
SUCH NOTE, (2) THROUGH A PLACEMENT AGENT TO AN
INSTITUTIONAL ACCREDITED INVESTOR OR A QIB, OR (3)
TO A QIB PURSUANT TO RULE 144A OF THE ACT, AND (B)
IN MINIMUM AMOUNTS OF $250,000;
and
(7) It has received the Private Placement Memorandum
relating to the offering of the Notes and has had
full opportunity (i) to ask questions and receive
answers concerning the terms and conditions of the
offering made pursuant to such Private Placement
Memorandum and (ii) to request from the Issuer and
to review, and has received, all additional
information necessary to verify the accuracy of
the information contained in such Private
Placement Memorandum or incorporated therein by
reference that the Issuer could provide without
unreasonable effort or expense.
(d) The Issuer represents and agrees that the proceeds
of the sale of the Notes are not currently contemplated to be
used for the purpose of buying, carrying or trading securities
within the meaning of Regulation T and the interpretations
thereunder by the Board of Governors of the Federal Reserve
System. In the event that the Issuer determines to use such
proceeds for the purpose of buying, carrying or trading
securities, whether in connection with an acquisition of another
company or otherwise, the Issuer shall give the Dealer at least
five business days prior written notice to that effect.
Thereafter, in the event that the Dealer purchases Notes as
principal and does not resell such Notes on the day of such
purchase, to the extent necessary to comply with Regulation T and
the interpretations thereunder, the Dealer will sell such Notes
only to offerees it reasonably believes to be QIBs or to QIBs it
reasonably believes are acting for other QIBs, in each case in
accordance with Rule 144A.
Section 4. Representations and Warranties. The Issuer
represents and warrants to and agrees with the Dealer as of the
date hereof, as of each date on which the Dealer solicits offers
to purchase Notes, as of each date on which the Issuer accepts an
offer to purchase Notes (including any purchase by the Dealer as
principal), as of each date the Issuer issues and delivers Notes
and as of each date the Private Placement Memorandum is amended
or supplemented, as follows (it being understood that such
representations, warranties and agreements shall be deemed to
relate to the Private Placement Memorandum as amended or
supplemented to each such date):
(a) The Issuer has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
State of Nevada and has full power and authority to execute,
deliver and perform this Agreement. The Issuer has full power
and authority to execute, deliver and perform its obligations
under the Notes and the Paying Agency Agreement.
(b) The Notes have been duly authorized by the Issuer
and, when executed and authenticated in accordance with the
provisions of the Paying Agency Agreement and delivered to and
paid for by the purchasers thereof, will be entitled to the
benefits of the Paying Agency Agreement and will be valid and
binding obligations of the Issuer, enforceable against the Issuer
in accordance with their respective terms, except that (i) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in
effect relating to or affecting creditors rights generally, (ii)
rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability,
(iii) rights to indemnity and contribution may be limited by
state or federal laws relating to securities or by the policies
underlying such laws and (iv) no representation, warranty or
agreement is made with respect to any purported waivers of rights
or defenses.
(c) This Agreement has been duly authorized, executed
and delivered by the Issuer.
(d) The Paying Agency Agreement has been duly
authorized, executed and delivered by the Issuer and, assuming
the due authorization, execution and delivery by the Paying
Agent, is a valid and binding agreement of the Issuer,
enforceable against the Issuer in accordance with its terms,
except that (i) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws now or hereafter in effect relating to or affecting
creditors rights generally, (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability, (iii) rights to indemnity
and contribution may be limited by state or federal laws relating
to securities or by the policies underlying such laws and (iv) no
representation, warranty or agreement is made with respect to any
purported waivers of rights or defenses.
(e) The execution and delivery by the Issuer of, and
the performance by the Issuer of its obligations under, this
Agreement, the Notes and the Paying Agency Agreement will not
contravene any provision of applicable law or the Articles of
Incorporation or Bylaws of the Issuer or any agreement or other
instrument binding upon the Issuer or any of its subsidiaries
that is material to the Issuer and its subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Issuer or any
subsidiary of the Issuer, the contravention of which would have a
material adverse effect on the business of the Issuer and its
subsidiaries, taken as a whole, and no consent, approval,
authorization or order of or qualification with any governmental
body or agency is required for the performance by the Issuer of
its obligations under this Agreement, the Notes and the Paying
Agency Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connection
with the offer and sale of the Notes.
(f) The issuance and sale of the Notes under the
circumstances contemplated hereby and by the Paying Agency
Agreement do not require registration of the Notes under the
Securities Act, pursuant to the exemption from registration
contained in Section 4(2) thereof and the regulations promulgated
thereunder and do not require compliance with any provision of
the Trust Indenture Act of 1939, as amended.
(g) The Issuer is not an investment company or an
entity controlled by an investment company as such terms are
defined in the Investment Issuer Act of 1940, as amended.
(h) There has not occurred any material adverse
change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, or in
the earnings, business or operations of the Issuer and its
subsidiaries, taken as a whole, from that set forth in the
Private Placement Memorandum (as defined), and the information
contained in the Private Placement Memorandum, including the
information in the documents incorporated by reference or
referred to therein, when read in its entirety, with each
statement being deemed to be modified or superseded to the extent
it is modified or superseded by any statement in a subsequently
dated document constituting part of the Private Placement
Memorandum, does not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements made, in the light of the circumstances under
which they were made, not misleading.
(i) The Notes satisfy the requirements set forth in
Rule 144A(d)(3) under the Securities Act.
Section 5. Agreements. The Issuer agrees with the Dealer
as follows:
(a) The Issuer will promptly deliver to the Dealer
copies of all (i) filings by the Issuer with the Securities and
Exchange Commission and any United States securities exchange on
which securities of the Issuer are listed and (ii) all material
information generally supplied by the Issuer to its shareholders
or by the Issuer to any of Standard & Poor s Ratings Group,
Moody s Investors Service, Inc. or Duff & Phelps Credit Rating
Co. (collectively, the Rating Agencies ).
(b) The Issuer will provide to the Dealer as soon as
practicable a Private Placement Memorandum containing business
and financial information concerning the Issuer and a description
of the Notes which (with any amendments or supplements provided
by the Issuer) may be used by the Dealer in connection with the
sale of the Notes until the Issuer provides the Dealer with an
updated or revised memorandum (such Private Placement Memorandum,
together with any amendments or supplements thereto, including
information incorporated therein by reference, if any, is herein
referred to as the Private Placement Memorandum ).
(c) If, at any time when the Dealer is offering Notes
or any Notes are outstanding, any event occurs or condition
exists as a result of which the Private Placement Memorandum as
then amended or supplemented would include an untrue statement of
a material fact, or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances in
which they were made not misleading, or if, in the opinion of the
Issuer, it is necessary at any time to amend or supplement the
Private Placement Memorandum as then amended or supplemented to
comply with applicable law, the Issuer will notify the Dealer as
promptly as practicable and, in any event, prior to any
subsequent issuance of Notes, will prepare and furnish to the
Dealer a revision or supplement to the Private Placement
Memorandum satisfactory in all material respects to the Dealer,
that will correct such statement or omission or effect such
compliance.
(d) The Issuer will, whether or not any sale of Notes
is consummated, pay all reasonable out-of-pocket expenses
incurred by the Dealer incident to the performance of its
obligations under this Agreement, the Notes and the Paying Agency
Agreement, including, without limitation, reasonable fees and
expenses of the Dealer s counsel.
(e) The Issuer will notify the Dealer promptly in
writing of any downgrading, or of the Issuer s receipt of any
notice of any intended or potential downgrading or of any review
for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Issuer s
securities by any of the Rating Agencies.
(f) The Issuer agrees promptly from time to time to
take such action as the Dealer may reasonably request to qualify
the Notes for offer and sale under the securities or Blue Sky
laws of such jurisdictions as the Dealer may reasonably request
and to maintain such qualifications for as long as the Dealer
shall reasonably request. The Issuer also agrees to reimburse
the Dealer for any reasonable fees or costs (including reasonable
out-of-pocket fees and disbursements of counsel) incurred in so
qualifying the Notes.
(g) The Issuer will not sell, offer for sale or
solicit offers to buy or otherwise negotiate in respect of any
security (as defined in the Securities Act) which could be
integrated with the sale of the Notes in a manner which would
require the registration under the Securities Act of the offer
and sale of such Notes.
(h) The Issuer will not solicit any offer to buy or
offer to sell Notes by means of any form of general solicitation
or general advertising, within the meaning of Rule 502(c) under
the Securities Act or otherwise, including: (x) any
advertisement, article, notice or other communication published
in any newspaper, magazine or similar media or broadcast over
television or radio; and (y) any seminar or meeting whose
attendees have been invited by any general solicitation or
general advertising.
(i) The Issuer will furnish to the Dealer such
additional information as you may reasonably request.
(j) At any time when the Issuer is not subject to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, the Issuer shall make available, upon request, to any
holder, beneficial owner or prospective purchaser of any Notes
the information required to be delivered to such persons pursuant
to Rule 144A(d)(4) under the Securities Act and will furnish to
the Dealer, upon its request, copies of such information.
Section 6. Indemnity and Contribution. The Issuer agrees
to (i) indemnify and hold harmless the Dealer and each person, if
any, who controls the Dealer within the meaning of either Section
15 of the Securities Act or Section 20 of the Securities Exchange
Act of 1934, as amended (the Dealer and each such other person
are collectively referred to in this Section 6 as the
Indemnified Party ), from and against any and all losses,
claims, damages and liabilities arising out of or caused by any
untrue statement or alleged untrue statement of a material fact
contained in the Private Placement Memorandum (as amended or
supplemented if the Issuer shall have furnished any amendments or
supplements thereto), or arising out of or caused by any omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and (ii) reimburse the Indemnified Party for all
reasonable out-of-pocket expenses (including reasonable counsel
fees) as they are incurred by the Indemnified Party in connection
with investigating or defending any such loss, claim, damage or
liability. The foregoing indemnity and reimbursement obligation
shall not apply in respect of any statement in or omission from
the Private Placement Memorandum (as so amended or supplemented)
based on information pertaining to the Dealer furnished in
writing to the Issuer by the Dealer, or on behalf of the Dealer.
The Issuer shall not, without the Indemnified Party s prior
written consent, effect any settlement of any pending or
threatened proceeding in respect of which the Indemnified Party
is or could have been a party and indemnity could have been
sought hereunder by the Indemnified Party, unless such settlement
(i) includes an unconditional release of the Indemnified Party
from all liability on claims that are the subject matter of such
proceeding and for which indemnity could have been sought
hereunder and (ii) does not include a statement as to or an
admission of fault, culpability or failure to act, by or on
behalf of the Indemnified Party. If the indemnification provided
for in this Section 6 is unavailable or insufficient in respect
of any losses, claims, damages or liabilities referred to herein,
then the Indemnified Party, on the one hand, and the Issuer, on
the other hand, shall contribute to the amount paid or payable by
the Indemnified Party as a result of such losses, claims, damages
or liabilities in such proportion as is appropriate to reflect
the relative benefits received by the Dealer, on the one hand,
and the Issuer, on the other hand, or, if such allocation is not
permitted by applicable law, to reflect not only the relative
benefits referred to above but also the relative fault of each of
the parties and any other relevant equitable considerations.
Section 7. Payment and Delivery. (a) Payment for Notes
sold to or through the Dealer pursuant to this Agreement shall be
made by the Dealer in immediately available funds payable to the
Paying Agent for the account of the Issuer in such manner and at
such time as provided in the Paying Agency Agreement, at the
offices of the Paying Agent. Delivery of Notes sold to or
through the Dealer hereunder shall be made against payment of the
purchase price therefor by the Paying Agent to the Dealer through
the facilities of The Depository Trust Company or in definitive
form payable to the purchaser (and in such denominations as may
reasonably be requested by the Dealer) by 2:15 p.m. New York time
on the date agreed upon for delivery.
(b) In the event the Issuer shall direct the Paying
Agent to cease issuing Notes, the Paying Agent shall be
instructed by the Issuer to issue such Notes as the Dealer shall
certify were sold within sixty (60) minutes after the Dealer s
receipt of written notice of such cessation and for which the
Dealer had the prior agreement of the Issuer pursuant to Section
1 of this Agreement. The Dealer agrees upon receipt of any such
cessation notice to immediately cease effecting transactions in
Notes; provided, however, that this provision shall have no
effect with respect to Notes purchased by the Dealer as principal
from the Issuer.
Section 8. Conditions of the Dealer s Obligation. If the
Dealer and the Issuer shall agree upon the sale of any Notes
pursuant to Section 1 of this Agreement, the Dealer s obligation
to purchase Notes as principal and the obligation of any other
purchaser to purchase Notes will be subject to the accuracy of
the representations and warranties on the part of the Issuer
herein and to the performance and observance by the Issuer of all
agreements herein contained on its part to be performed and
observed (in the case of the Dealer s obligation to solicit
offers to purchase Notes, at the time of such solicitation, and,
in the case of the Dealer s or any other purchaser s obligation
to purchase Notes, at the time the Issuer accepts the offer to
purchase such Notes and at the time of purchase).
(b) The following documents shall have been delivered
or telecopied to the Dealer at or prior to the execution of this
Agreement and, if provided by telecopy, followed by prompt
delivery of such documents:
(i) an executed copy of the Paying Agency
Agreement;
(ii) a certified copy of resolutions of the Board
of Directors of the Issuer authorizing (a) the issuance
of the Notes and (b) the execution and delivery of this
Agreement and the Paying Agency Agreement; and
(iii) opinions of counsel to the Issuer
substantially in the forms previously consented to by
the Dealer.
Section 9. Notices. All communications hereunder will be
in writing and effective only on receipt, and, if sent to the
Dealer, will be mailed, delivered or telecopied and confirmed to
Merrill Lynch Money Markets Inc. at Merrill Lynch World
Headquarters, World Financial Center - North Tower, 250 Vesey
Street, 23rd Floor, New York, New York 10281-1310, Attention: CP
Product Management (telecopy number: 212-449-2234), or, if sent
to the Issuer, will be mailed, delivered, or telecopied and
confirmed to the Issuer at 2800 Las Vegas Boulevard South, Las
Vegas, Nevada 89109, Attention: Glenn W. Schaeffer, President
and Chief Financial Officer (telecopy number: (702) 691-5840),
or to either of the foregoing parties, or their successors, at
such other address as such party or successor may designate from
time to time by notice duly given in accordance with the terms of
this Section 9 to the other party hereto.
Section 10. Amendments; Successors. (a) This Agreement
may be amended or supplemented if, but only if, such amendment or
supplement is in writing and is signed by the Issuer and the
Dealer. This Agreement is not assignable by either party hereto
without the written consent of the other party.
(b) This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors
and the controlling persons referred to in Section 6 and the
purchasers of Notes (to the extent expressly provided in Section
8), and no other person will have any right or obligation
hereunder.
(c) The Issuer will give you notice of any proposed
cancellation, amendment, supplement, waiver or consent to or
under the Paying Agency Agreement at least seven (7) days prior
to the effective date thereof.
Section 11. Termination. This Agreement may be terminated
at any time by either party hereto upon the giving of written
notice of such termination to the other party hereto, but without
prejudice to any rights, obligations or liabilities of either
party hereto accrued or incurred prior to such termination. If
this Agreement is terminated, the provisions of Sections 4, 5(d),
5(f), 5(g) and 6 shall survive and continue in full force and
effect.
Section 12. Prior Agreements. This Agreement shall
supersede any other agreement between the Issuer and the Dealer
relating to the subject matter of this Agreement, and upon the
execution of this Agreement by the Issuer and the Dealer any such
prior agreement shall be of no further force and effect.
Section 13. Governing Law. This Agreement shall be
governed by and construed in accordance with the internal laws of
the State of New York.
Section 14. Counterparts. This Agreement may be signed in
any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were
upon the same instrument.
Section 15. Headings. The headings of the sections of this
Agreement have been inserted for convenience of reference only
and shall not be deemed a part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the 9th day of October, 1997.
CIRCUS CIRCUS ENTERPRISES, INC., as Issuer
By: /s/ Glenn W. Schaeffer
Glenn W. Schaeffer,
President and Chief Financial Officer
MERRILL LYNCH MONEY MARKETS INC.,
as Dealer
By: /s/ Richard N. Doyle
Name:
Title: Authorized Signatory
Exhibit 4(c)
COMMERCIAL PAPER DEALER AGREEMENT
between
CIRCUS CIRCUS ENTERPRISES, INC., as Issuer
and
BANCAMERICA ROBERTSON STEPHENS, as Dealer
Concerning Notes to be issued pursuant to an
Issuing and Paying Agency Agreement dated as
of October 9, 1997 between the Issuer and The
Chase Manhattan Bank, as Issuing and Paying
Agent
Dated as of
October 9, 1997
COMMERCIAL PAPER DEALER AGREEMENT
This Commercial Paper Dealer Agreement (the Agreement )
sets forth the understandings between Circus Circus Enterprises,
Inc. (the Issuer ) and BancAmerica Robertson Stephens (the
Dealer ) in connection with the Dealer s services as the
Issuer s agent, on a non-exclusive basis, to solicit and receive
offers to purchase the Issuer s commercial paper notes.
Section 1. Appointment of Non-Exclusive Agent. The Issuer
hereby appoints the Dealer as its agent on a non-exclusive basis
for the purpose of soliciting and receiving offers to purchase
from the Issuer from time to time its commercial paper notes
issued under the Paying Agency Agreement (as defined), maturing
not later than 270 days from date of issue (the Notes ) in an
aggregate principal amount outstanding not to exceed the amount
authorized from time to time by the Board of Directors of the
Issuer, and the Dealer accepts such appointment, on the terms,
and subject to the conditions, set forth in this Agreement. The
Notes will be issued under an Issuing and Paying Agency Agreement
dated as of October 9, 1997 (the Paying Agency Agreement )
between the Issuer and The Chase Manhattan Bank, as Issuing and
Paying Agent (the Paying Agent ), and will be issued in
denominations of $250,000 and integral multiples of $1,000 in
excess thereof. The Notes may be issued as certificated noted or
as book-entry notes, in each case in accordance with the terms of
the Paying Agency Agreement. The Issuer may sell Notes directly
to the Dealer as principal for resale to others. So long as this
Agreement shall remain in effect the Issuer shall not, without
the consent of the Dealer, offer, solicit or accept offers to
purchase, or sell, any Notes except in transactions with the
Dealer or one or more other dealers each of which is, at the time
it engages in such a transaction with the Issuer, a party to an
agreement with the Issuer that contains provisions substantially
identical to those in Section 3 of this Agreement. The Dealer
acknowledges that the Issuer is entering into such agreements,
each dated as of the date hereof, with Merrill Lynch Money
Markets Inc. and Credit Suisse First Boston Corporation, and the
Issuer hereby undertakes to provide the Dealer prompt notice of
any other dealer with which it enters into such an agreement.
Section 2. Issuance and Purchase of the Notes. If the
Dealer and the Issuer shall agree upon the sale of any Notes to
or through the Dealer (including, but not limited to, agreement
with respect to the price, principal amount, maturity and
interest or discount rate thereof), (i) instructions to the
Paying Agent to complete, authenticate and deliver the Notes
shall be given in the manner described in the Paying Agency
Agreement and (ii) the authentication and delivery to the Dealer
of such Notes by the Paying Agent against payment of the purchase
price therefor shall constitute the issuance of such Notes by the
Issuer.
Section 3. Offering of the Notes; Restrictions on Transfer
(a) The Dealer agrees with the Issuer that (i) it will deliver a
Private Placement Memorandum (as hereinafter defined) to each
prospective investor in the Notes upon or prior to the initial
sale of a Note or Notes to such investor, (ii) it will not
solicit offers for, or offer or sell, Notes by any form of
general solicitation or general advertising or in any manner
involving a public offering within the meaning of Section 4(2) of
the Securities Act of 1933, as amended (the Securities Act ),
and Rule 506 thereunder, and (iii) it will solicit offers for
Notes only from, and will offer Notes only to, (x) institutional
investors that it reasonably believes are accredited investors
within the meaning of Rule 501(a) under the Securities Act or
(y) persons that it reasonably believes are qualified
institutional buyers, as defined in Rule 144A under the
Securities Act ( QIBs ), and, in either case, who, in purchasing
Notes, may be deemed to have represented and agreed as provided
in paragraphs (1) through (7) of Section 3(c).
(b) Offers and sales of the Notes by the Issuer
through the Dealer acting as agent for the Issuer shall be
subject to the restrictions described in a legend appearing as
part of the Private Placement Memorandum used in connection with
such offers and sales and on each certificated note offered and
sold pursuant to this Agreement . Such legend shall appear in
substantially the form set forth in Section 3(c)(6) of this
Agreement.
(c) Each Private Placement Memorandum shall contain
paragraphs in substantially the following form:
Each purchaser of a Note will be deemed to have
represented and agreed as follows:
(1) It understands that the Notes are being issued
only in transactions not involving any public
offering within the meaning of the Securities Act;
(2) It is (A) an institutional investor which is an
Accredited Investor, as defined in Rule 501(a)
of Regulation D under the Securities Act (an
Institutional Accredited Investor ), or a bank,
as defined in Section 3(a)(2) of the Securities
Act, or a savings and loan association or other
institution of the type referred to in Section
3(a)(5)(A) of the Securities Act, that is acting
as a fiduciary in purchasing the Notes for the
account of an Institutional Accredited Investor,
which has such knowledge and experience (or, if
such Institutional Accredited Investor is acting
as a fiduciary, it is a fiduciary with sole
investment discretion having such knowledge and
experience) in financial and business matters that
it is capable (whether acting for its own account
or in such fiduciary capacity) of evaluating the
merits and risks of investing in such Notes, has
had access to such information as it deems
necessary in order to make an informed investment
decision and is not purchasing the Notes with a
view to, or for sale in connection with, any
distribution; or (B) in the case of sales of Notes
pursuant to Rule 144A under the Securities Act, a
qualified institutional buyer, as defined in
Rule 144A under the Securities Act (a QIB ), or a
QIB purchasing the Notes on behalf of one or more
other QIBs;
(3) If in the future it (or any other investor or any
other fiduciary or agent representing it) decides
to sell such Notes prior to maturity, said Notes
will be sold only in a transaction exempt from
registration under the Securities Act in a minimum
amount of $250,000 and only (i) to the Issuer or
to the Dealer or another dealer authorized by the
Issuer (each, an Authorized Dealer ), none of
which shall have any obligation to acquire such
Notes, (ii) through an Authorized Dealer to an
institutional investor approved by such Authorized
Dealer as an Institutional Accredited Investor or
a QIB or (iii) to a QIB pursuant to Rule 144A
under the Securities Act;
(4) It understands that, although the Dealer (or any
other Authorized Dealer) or the Issuer may
repurchase Notes, none of such entities is
obligated to do so, and, accordingly, the
purchaser (or any such other investor) should be
prepared to hold the Notes until maturity;
(5) It acknowledges that the Notes sold to it by the
Dealer may be sold to it pursuant to Rule 144A
under the Securities Act;
(6) It understands that any Notes issued in a
certificated form will bear a legend substantially
as follows:
THE NOTES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE ACT ),
AND OFFERS AND SALES THEREOF MAY BE MADE ONLY IN
COMPLIANCE WITH AN APPLICABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT. BY ITS
ACCEPTANCE OF A NOTE, THE PURCHASER WILL BE DEEMED
TO REPRESENT THAT IT HAS BEEN AFFORDED AN
OPPORTUNITY TO INVESTIGATE MATTERS RELATING TO THE
ISSUER AND THE NOTES, THAT IT IS NOT ACQUIRING
SUCH NOTE WITH A VIEW TO ANY DISTRIBUTION THEREOF
AND THAT IT IS (A) AN INSTITUTION WHICH (i) IS AN
ACCREDITED INVESTOR WITHIN THE MEANING OF RULE
501(a) UNDER THE ACT (AN INSTITUTIONAL ACCREDITED
INVESTOR ) OR IS A BANK, AS DEFINED IN SECTION
3(a)(2) OF THE ACT, OR A SAVINGS AND LOAN
ASSOCIATION OR OTHER INSTITUTION OF THE TYPE
REFERRED TO IN SECTION 3(a)(5)(A) OF THE ACT THAT
IS ACTING AS A FIDUCIARY OR AGENT PURCHASING NOTES
FOR ONE OR MORE ACCOUNTS EACH OF WHICH IS AN
INSTITUTIONAL ACCREDITED INVESTOR AND (ii)
POSSESSES SUCH KNOWLEDGE AND EXPERIENCE (OR IS A
FIDUCIARY OR AGENT WITH SOLE INVESTMENT DISCRETION
HAVING SUCH KNOWLEDGE AND EXPERIENCE) IN FINANCIAL
AND BUSINESS MATTERS THAT IT (OR SUCH FIDUCIARY OR
AGENT) IS CAPABLE OF EVALUATING THE MERITS AND
RISKS OF INVESTING IN SUCH NOTE, OR (B) A
QUALIFIED INSTITUTIONAL BUYER ( QIB ) WITHIN THE
MEANING OF RULE 144A UNDER THE ACT WHICH IS
ACQUIRING NOTES FOR ITS OWN ACCOUNT OR FOR ONE OR
MORE ACCOUNTS, EACH OF WHICH IS A QIB; AND THE
PURCHASER ACKNOWLEDGES THAT THE SELLER MAY RELY
UPON THE EXEMPTION FROM THE REGISTRATION
PROVISIONS OF SECTION 5 OF THE ACT PROVIDED BY
RULE 144A. BY ITS ACCEPTANCE OF A NOTE, THE
PURCHASER SHALL ALSO BE DEEMED TO AGREE THAT ANY
RESALE OR OTHER TRANSFER THEREOF WILL BE MADE ONLY
(A) IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER THE ACT, EITHER (1) TO THE ISSUER OR TO
BANCAMERICA ROBERTSON STEPHENS OR ANOTHER PERSON
DESIGNATED BY THE ISSUER AS A PLACEMENT AGENT FOR
THE NOTES (COLLECTIVELY, THE PLACEMENT AGENTS ),
NONE OF WHICH SHALL HAVE ANY OBLIGATION TO ACQUIRE
SUCH NOTE, (2) THROUGH A PLACEMENT AGENT TO AN
INSTITUTIONAL ACCREDITED INVESTOR OR A QIB, OR (3)
TO A QIB PURSUANT TO RULE 144A OF THE ACT, AND (B)
IN MINIMUM AMOUNTS OF $250,000;
and
(7) It has received the Private Placement Memorandum
relating to the offering of the Notes and has had
full opportunity (i) to ask questions and receive
answers concerning the terms and conditions of the
offering made pursuant to such Private Placement
Memorandum and (ii) to request from the Issuer and
to review, and has received, all additional
information necessary to verify the accuracy of
the information contained in such Private
Placement Memorandum or incorporated therein by
reference that the Issuer could provide without
unreasonable effort or expense.
(d) The Issuer represents and agrees that the proceeds
of the sale of the Notes are not currently contemplated to be
used for the purpose of buying, carrying or trading securities
within the meaning of Regulation T and the interpretations
thereunder by the Board of Governors of the Federal Reserve
System. In the event that the Issuer determines to use such
proceeds for the purpose of buying, carrying or trading
securities, whether in connection with an acquisition of another
company or otherwise, the Issuer shall give the Dealer at least
five business days prior written notice to that effect.
Thereafter, in the event that the Dealer purchases Notes as
principal and does not resell such Notes on the day of such
purchase, to the extent necessary to comply with Regulation T and
the interpretations thereunder, the Dealer will sell such Notes
only to offerees it reasonably believes to be QIBs or to QIBs it
reasonably believes are acting for other QIBs, in each case in
accordance with Rule 144A.
Section 4. Representations and Warranties. The Issuer
represents and warrants to and agrees with the Dealer as of the
date hereof, as of each date on which the Dealer solicits offers
to purchase Notes, as of each date on which the Issuer accepts an
offer to purchase Notes (including any purchase by the Dealer as
principal), as of each date the Issuer issues and delivers Notes
and as of each date the Private Placement Memorandum is amended
or supplemented, as follows (it being understood that such
representations, warranties and agreements shall be deemed to
relate to the Private Placement Memorandum as amended or
supplemented to each such date):
(a) The Issuer has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
State of Nevada and has full power and authority to execute,
deliver and perform this Agreement. The Issuer has full power
and authority to execute, deliver and perform its obligations
under the Notes and the Paying Agency Agreement.
(b) The Notes have been duly authorized by the Issuer
and, when executed and authenticated in accordance with the
provisions of the Paying Agency Agreement and delivered to and
paid for by the purchasers thereof, will be entitled to the
benefits of the Paying Agency Agreement and will be valid and
binding obligations of the Issuer, enforceable against the Issuer
in accordance with their respective terms, except that (i) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in
effect relating to or affecting creditors rights generally, (ii)
rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability,
(iii) rights to indemnity and contribution may be limited by
state or federal laws relating to securities or by the policies
underlying such laws and (iv) no representation, warranty or
agreement is made with respect to any purported waivers of rights
or defenses.
(c) This Agreement has been duly authorized, executed
and delivered by the Issuer.
(d) The Paying Agency Agreement has been duly
authorized, executed and delivered by the Issuer and, assuming
the due authorization, execution and delivery by the Paying
Agent, is a valid and binding agreement of the Issuer,
enforceable against the Issuer in accordance with its terms,
except that (i) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws now or hereafter in effect relating to or affecting
creditors rights generally, (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability, (iii) rights to indemnity
and contribution may be limited by state or federal laws relating
to securities or by the policies underlying such laws and (iv) no
representation, warranty or agreement is made with respect to any
purported waivers of rights or defenses.
(e) The execution and delivery by the Issuer of, and
the performance by the Issuer of its obligations under, this
Agreement, the Notes and the Paying Agency Agreement will not
contravene any provision of applicable law or the Articles of
Incorporation or Bylaws of the Issuer or any agreement or other
instrument binding upon the Issuer or any of its subsidiaries
that is material to the Issuer and its subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Issuer or any
subsidiary of the Issuer, the contravention of which would have a
material adverse effect on the business of the Issuer and its
subsidiaries, taken as a whole, and no consent, approval,
authorization or order of or qualification with any governmental
body or agency is required for the performance by the Issuer of
its obligations under this Agreement, the Notes and the Paying
Agency Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connection
with the offer and sale of the Notes.
(f) The issuance and sale of the Notes under the
circumstances contemplated hereby and by the Paying Agency
Agreement do not require registration of the Notes under the
Securities Act, pursuant to the exemption from registration
contained in Section 4(2) thereof and the regulations promulgated
thereunder and do not require compliance with any provision of
the Trust Indenture Act of 1939, as amended.
(g) The Issuer is not an investment company or an
entity controlled by an investment company as such terms are
defined in the Investment Issuer Act of 1940, as amended.
(h) There has not occurred any material adverse
change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, or in
the earnings, business or operations of the Issuer and its
subsidiaries, taken as a whole, from that set forth in the
Private Placement Memorandum (as defined), and the information
contained in the Private Placement Memorandum, including the
information in the documents incorporated by reference or
referred to therein, when read in its entirety, with each
statement being deemed to be modified or superseded to the extent
it is modified or superseded by any statement in a subsequently
dated document constituting part of the Private Placement
Memorandum, does not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements made, in the light of the circumstances under
which they were made, not misleading.
(i) The Notes satisfy the requirements set forth in
Rule 144A(d)(3) under the Securities Act.
Section 5. Agreements. The Issuer agrees with the Dealer
as follows:
(a) The Issuer will promptly deliver to the Dealer
copies of all (i) filings by the Issuer with the Securities and
Exchange Commission and any United States securities exchange on
which securities of the Issuer are listed and (ii) all material
information generally supplied by the Issuer to its shareholders
or by the Issuer to any of Standard & Poor s Ratings Group,
Moody s Investors Service, Inc. or Duff & Phelps Credit Rating
Co. (collectively, the Rating Agencies ).
(b) The Issuer will provide to the Dealer as soon as
practicable a Private Placement Memorandum containing business
and financial information concerning the Issuer and a description
of the Notes which (with any amendments or supplements provided
by the Issuer) may be used by the Dealer in connection with the
sale of the Notes until the Issuer provides the Dealer with an
updated or revised memorandum (such Private Placement Memorandum,
together with any amendments or supplements thereto, including
information incorporated therein by reference, if any, is herein
referred to as the Private Placement Memorandum ).
(c) If, at any time when the Dealer is offering Notes
or any Notes are outstanding, any event occurs or condition
exists as a result of which the Private Placement Memorandum as
then amended or supplemented would include an untrue statement of
a material fact, or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances in
which they were made not misleading, or if, in the opinion of the
Issuer, it is necessary at any time to amend or supplement the
Private Placement Memorandum as then amended or supplemented to
comply with applicable law, the Issuer will notify the Dealer as
promptly as practicable and, in any event, prior to any
subsequent issuance of Notes, will prepare and furnish to the
Dealer a revision or supplement to the Private Placement
Memorandum satisfactory in all material respects to the Dealer,
that will correct such statement or omission or effect such
compliance.
(d) The Issuer will, whether or not any sale of Notes
is consummated, pay all reasonable out-of-pocket expenses
incurred by the Dealer incident to the performance of its
obligations under this Agreement, the Notes and the Paying Agency
Agreement, including, without limitation, reasonable fees and
expenses of the Dealer s counsel.
(e) The Issuer will notify the Dealer promptly in
writing of any downgrading, or of the Issuer s receipt of any
notice of any intended or potential downgrading or of any review
for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Issuer s
securities by any of the Rating Agencies.
(f) The Issuer agrees promptly from time to time to
take such action as the Dealer may reasonably request to qualify
the Notes for offer and sale under the securities or Blue Sky
laws of such jurisdictions as the Dealer may reasonably request
and to maintain such qualifications for as long as the Dealer
shall reasonably request. The Issuer also agrees to reimburse
the Dealer for any reasonable fees or costs (including reasonable
out-of-pocket fees and disbursements of counsel) incurred in so
qualifying the Notes.
(g) The Issuer will not sell, offer for sale or
solicit offers to buy or otherwise negotiate in respect of any
security (as defined in the Securities Act) which could be
integrated with the sale of the Notes in a manner which would
require the registration under the Securities Act of the offer
and sale of such Notes.
(h) The Issuer will not solicit any offer to buy or
offer to sell Notes by means of any form of general solicitation
or general advertising, within the meaning of Rule 502(c) under
the Securities Act or otherwise, including: (x) any
advertisement, article, notice or other communication published
in any newspaper, magazine or similar media or broadcast over
television or radio; and (y) any seminar or meeting whose
attendees have been invited by any general solicitation or
general advertising.
(i) The Issuer will furnish to the Dealer such
additional information as you may reasonably request.
(j) At any time when the Issuer is not subject to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, the Issuer shall make available, upon request, to any
holder, beneficial owner or prospective purchaser of any Notes
the information required to be delivered to such persons pursuant
to Rule 144A(d)(4) under the Securities Act and will furnish to
the Dealer, upon its request, copies of such information.
Section 6. Indemnity and Contribution. The Issuer agrees
to (i) indemnify and hold harmless the Dealer and each person, if
any, who controls the Dealer within the meaning of either Section
15 of the Securities Act or Section 20 of the Securities Exchange
Act of 1934, as amended (the Dealer and each such other person
are collectively referred to in this Section 6 as the
Indemnified Party ), from and against any and all losses,
claims, damages and liabilities arising out of or caused by any
untrue statement or alleged untrue statement of a material fact
contained in the Private Placement Memorandum (as amended or
supplemented if the Issuer shall have furnished any amendments or
supplements thereto), or arising out of or caused by any omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and (ii) reimburse the Indemnified Party for all
reasonable out-of-pocket expenses (including reasonable counsel
fees) as they are incurred by the Indemnified Party in connection
with investigating or defending any such loss, claim, damage or
liability. The foregoing indemnity and reimbursement obligation
shall not apply in respect of any statement in or omission from
the Private Placement Memorandum (as so amended or supplemented)
based on information pertaining to the Dealer furnished in
writing to the Issuer by the Dealer, or on behalf of the Dealer.
The Issuer shall not, without the Indemnified Party s prior
written consent, effect any settlement of any pending or
threatened proceeding in respect of which the Indemnified Party
is or could have been a party and indemnity could have been
sought hereunder by the Indemnified Party, unless such settlement
(i) includes an unconditional release of the Indemnified Party
from all liability on claims that are the subject matter of such
proceeding and for which indemnity could have been sought
hereunder and (ii) does not include a statement as to or an
admission of fault, culpability or failure to act, by or on
behalf of the Indemnified Party. If the indemnification provided
for in this Section 6 is unavailable or insufficient in respect
of any losses, claims, damages or liabilities referred to herein,
then the Indemnified Party, on the one hand, and the Issuer, on
the other hand, shall contribute to the amount paid or payable by
the Indemnified Party as a result of such losses, claims, damages
or liabilities in such proportion as is appropriate to reflect
the relative benefits received by the Dealer, on the one hand,
and the Issuer, on the other hand, or, if such allocation is not
permitted by applicable law, to reflect not only the relative
benefits referred to above but also the relative fault of each of
the parties and any other relevant equitable considerations.
Section 7. Payment and Delivery. (a) Payment for Notes
sold to or through the Dealer pursuant to this Agreement shall be
made by the Dealer in immediately available funds payable to the
Paying Agent for the account of the Issuer in such manner and at
such time as provided in the Paying Agency Agreement, at the
offices of the Paying Agent. Delivery of Notes sold to or
through the Dealer hereunder shall be made against payment of the
purchase price therefor by the Paying Agent to the Dealer through
the facilities of The Depository Trust Company or in definitive
form payable to the purchaser (and in such denominations as may
reasonably be requested by the Dealer) by 2:15 p.m. New York time
on the date agreed upon for delivery.
(b) In the event the Issuer shall direct the Paying
Agent to cease issuing Notes, the Paying Agent shall be
instructed by the Issuer to issue such Notes as the Dealer shall
certify were sold within sixty (60) minutes after the Dealer s
receipt of written notice of such cessation and for which the
Dealer had the prior agreement of the Issuer pursuant to Section
1 of this Agreement. The Dealer agrees upon receipt of any such
cessation notice to immediately cease effecting transactions in
Notes; provided, however, that this provision shall have no
effect with respect to Notes purchased by the Dealer as principal
from the Issuer.
Section 8. Conditions of the Dealer s Obligation. If the
Dealer and the Issuer shall agree upon the sale of any Notes
pursuant to Section 1 of this Agreement, the Dealer s obligation
to purchase Notes as principal and the obligation of any other
purchaser to purchase Notes will be subject to the accuracy of
the representations and warranties on the part of the Issuer
herein and to the performance and observance by the Issuer of all
agreements herein contained on its part to be performed and
observed (in the case of the Dealer s obligation to solicit
offers to purchase Notes, at the time of such solicitation, and,
in the case of the Dealer s or any other purchaser s obligation
to purchase Notes, at the time the Issuer accepts the offer to
purchase such Notes and at the time of purchase).
(b) The following documents shall have been delivered
or telecopied to the Dealer at or prior to the execution of this
Agreement and, if provided by telecopy, followed by prompt
delivery of such documents:
(i) an executed copy of the Paying Agency
Agreement;
(ii) a certified copy of resolutions of the Board
of Directors of the Issuer authorizing (a) the issuance
of the Notes and (b) the execution and delivery of this
Agreement and the Paying Agency Agreement; and
(iii) opinions of counsel to the Issuer
substantially in the forms previously consented to by
the Dealer
Section 9. Notices. All communications hereunder will be
in writing and effective only on receipt, and, if sent to the
Dealer, will be mailed, delivered or telecopied and confirmed to
BancAmerica Robertson Stephens at 555 California Street, Twelfth
Floor, San Francisco, California 94104, Attention: Money Market
Finance #8826 (telecopy number: 415-622-3429), or, if sent to
the Issuer, will be mailed, delivered, or telecopied and
confirmed to the Issuer at 2800 Las Vegas Boulevard South, Las
Vegas, Nevada 89109, Attention: Glenn W. Schaeffer, President
and Chief Financial Officer (telecopy number: (702) 691-5840),
or to either of the foregoing parties, or their successors, at
such other address as such party or successor may designate from
time to time by notice duly given in accordance with the terms of
this Section 9 to the other party hereto.
Section 10. Amendments; Successors. (a) This Agreement
may be amended or supplemented if, but only if, such amendment or
supplement is in writing and is signed by the Issuer and the
Dealer. This Agreement is not assignable by either party hereto
without the written consent of the other party.
(b) This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors
and the controlling persons referred to in Section 6 and the
purchasers of Notes (to the extent expressly provided in Section
8), and no other person will have any right or obligation
hereunder.
(c) The Issuer will give you notice of any proposed
cancellation, amendment, supplement, waiver or consent to or
under the Paying Agency Agreement at least seven (7) days prior
to the effective date thereof.
Section 11. Termination. This Agreement may be terminated
at any time by either party hereto upon the giving of written
notice of such termination to the other party hereto, but without
prejudice to any rights, obligations or liabilities of either
party hereto accrued or incurred prior to such termination. If
this Agreement is terminated, the provisions of Sections 4, 5(d),
5(f), 5(g) and 6 shall survive and continue in full force and
effect.
Section 12. Prior Agreements. This Agreement shall
supersede any other agreement between the Issuer and the Dealer
relating to the subject matter of this Agreement, and upon the
execution of this Agreement by the Issuer and the Dealer any such
prior agreement shall be of no further force and effect.
Section 13. Governing Law. This Agreement shall be
governed by and construed in accordance with the internal laws of
the State of New York.
Section 14. Counterparts. This Agreement may be signed in
any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were
upon the same instrument.
Section 15. Headings. The headings of the sections of this
Agreement have been inserted for convenience of reference only
and shall not be deemed a part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the 9th day of October, 1997.
CIRCUS CIRCUS ENTERPRISES, INC., as Issuer
By: /s/ Glenn W. Schaeffer
Glenn W. Schaeffer,
President and Chief Financial Officer
BANCAMERICA ROBERTSON STEPHENS, as Dealer
By: /s/ Paul Kline
Name: Paul Kline
Title: Associate Director
Exhibit 4(d)
COMMERCIAL PAPER DEALER AGREEMENT
between
CIRCUS CIRCUS ENTERPRISES, INC., as Issuer
and
CREDIT SUISSE FIRST BOSTON CORPORATION, as Dealer
Concerning Notes to be issued pursuant to an
Issuing and Paying Agency Agreement dated as
of October 9, 1997 between the Issuer and The
Chase Manhattan Bank, as Issuing and Paying
Agent
Dated as of
October 9, 1997
COMMERCIAL PAPER DEALER AGREEMENT
This Commercial Paper Dealer Agreement (the Agreement )
sets forth the understandings between Circus Circus Enterprises,
Inc. (the Issuer ) and Credit Suisse First Boston Corporation
(the Dealer ) in connection with the Dealer s services as the
Issuer s agent, on a non-exclusive basis, to solicit and receive
offers to purchase the Issuer s commercial paper notes.
Section 1. Appointment of Non-Exclusive Agent. The Issuer
hereby appoints the Dealer as its agent on a non-exclusive basis
for the purpose of soliciting and receiving offers to purchase
from the Issuer from time to time its commercial paper notes
issued under the Paying Agency Agreement (as defined), maturing
not later than 270 days from date of issue (the Notes ) in an
aggregate principal amount outstanding not to exceed the amount
authorized from time to time by the Board of Directors of the
Issuer, and the Dealer accepts such appointment, on the terms,
and subject to the conditions, set forth in this Agreement. The
Notes will be issued under an Issuing and Paying Agency Agreement
dated as of October 9, 1997 (the Paying Agency Agreement )
between the Issuer and The Chase Manhattan Bank, as Issuing and
Paying Agent (the Paying Agent ), and will be issued in
denominations of $250,000 and integral multiples of $1,000 in
excess thereof. The Notes may be issued as certificated noted or
as book-entry notes, in each case in accordance with the terms of
the Paying Agency Agreement. The Issuer may sell Notes directly
to the Dealer as principal for resale to others. So long as this
Agreement shall remain in effect the Issuer shall not, without
the consent of the Dealer, offer, solicit or accept offers to
purchase, or sell, any Notes except in transactions with the
Dealer or one or more other dealers each of which is, at the time
it engages in such a transaction with the Issuer, a party to an
agreement with the Issuer that contains provisions substantially
identical to those in Section 3 of this Agreement. The Dealer
acknowledges that the Issuer is entering into such agreements,
each dated as of the date hereof, with BancAmerica Robertson
Stephens and Merrill Lynch Money Markets Inc., and the Issuer
hereby undertakes to provide the Dealer prompt notice of any
other dealer with which it enters into such an agreement.
Section 2. Issuance and Purchase of the Notes. If the
Dealer and the Issuer shall agree upon the sale of any Notes to
or through the Dealer (including, but not limited to, agreement
with respect to the price, principal amount, maturity and
interest or discount rate thereof), (i) instructions to the
Paying Agent to complete, authenticate and deliver the Notes
shall be given in the manner described in the Paying Agency
Agreement and (ii) the authentication and delivery to the Dealer
of such Notes by the Paying Agent against payment of the purchase
price therefor shall constitute the issuance of such Notes by the
Issuer.
Section 3. Offering of the Notes; Restrictions on Transfer
(a) The Dealer agrees with the Issuer that (i) it will deliver a
Private Placement Memorandum (as hereinafter defined) to each
prospective investor in the Notes upon or prior to the initial
sale of a Note or Notes to such investor, (ii) it will not
solicit offers for, or offer or sell, Notes by any form of
general solicitation or general advertising or in any manner
involving a public offering within the meaning of Section 4(2) of
the Securities Act of 1933, as amended (the Securities Act ),
and Rule 506 thereunder, and (iii) it will solicit offers for
Notes only from, and will offer Notes only to, (x) institutional
investors that it reasonably believes are accredited investors
within the meaning of Rule 501(a) under the Securities Act or
(y) persons that it reasonably believes are qualified
institutional buyers, as defined in Rule 144A under the
Securities Act ( QIBs ), and, in either case, who, in purchasing
Notes, may be deemed to have represented and agreed as provided
in paragraphs (1) through (7) of Section 3(c).
(b) Offers and sales of the Notes by the Issuer
through the Dealer acting as agent for the Issuer shall be
subject to the restrictions described in a legend appearing as
part of the Private Placement Memorandum used in connection with
such offers and sales and on each certificated note offered and
sold pursuant to this Agreement . Such legend shall appear in
substantially the form set forth in Section 3(c)(6) of this
Agreement.
(c) Each Private Placement Memorandum shall contain
paragraphs in substantially the following form:
Each purchaser of a Note will be deemed to have
represented and agreed as follows:
(1) It understands that the Notes are being issued
only in transactions not involving any public
offering within the meaning of the Securities Act;
(2) It is (A) an institutional investor which is an
Accredited Investor, as defined in Rule 501(a)
of Regulation D under the Securities Act (an
Institutional Accredited Investor ), or a bank,
as defined in Section 3(a)(2) of the Securities
Act, or a savings and loan association or other
institution of the type referred to in Section
3(a)(5)(A) of the Securities Act, that is acting
as a fiduciary in purchasing the Notes for the
account of an Institutional Accredited Investor,
which has such knowledge and experience (or, if
such Institutional Accredited Investor is acting
as a fiduciary, it is a fiduciary with sole
investment discretion having such knowledge and
experience) in financial and business matters that
it is capable (whether acting for its own account
or in such fiduciary capacity) of evaluating the
merits and risks of investing in such Notes, has
had access to such information as it deems
necessary in order to make an informed investment
decision and is not purchasing the Notes with a
view to, or for sale in connection with, any
distribution; or (B) in the case of sales of Notes
pursuant to Rule 144A under the Securities Act, a
qualified institutional buyer, as defined in
Rule 144A under the Securities Act (a QIB ), or a
QIB purchasing the Notes on behalf of one or more
other QIBs;
(3) If in the future it (or any other investor or any
other fiduciary or agent representing it) decides
to sell such Notes prior to maturity, said Notes
will be sold only in a transaction exempt from
registration under the Securities Act in a minimum
amount of $250,000 and only (i) to the Issuer or
to the Dealer or another dealer authorized by the
Issuer (each, an Authorized Dealer ), none of
which shall have any obligation to acquire such
Notes, (ii) through an Authorized Dealer to an
institutional investor approved by such Authorized
Dealer as an Institutional Accredited Investor or
a QIB or (iii) to a QIB pursuant to Rule 144A
under the Securities Act;
(4) It understands that, although the Dealer (or any
other Authorized Dealer) or the Issuer may
repurchase Notes, none of such entities is
obligated to do so, and, accordingly, the
purchaser (or any such other investor) should be
prepared to hold the Notes until maturity;
(5) It acknowledges that the Notes sold to it by the
Dealer may be sold to it pursuant to Rule 144A
under the Securities Act;
(6) It understands that any Notes issued in a
certificated form will bear a legend substantially
as follows:
THE NOTES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE ACT ),
AND OFFERS AND SALES THEREOF MAY BE MADE ONLY IN
COMPLIANCE WITH AN APPLICABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT. BY ITS
ACCEPTANCE OF A NOTE, THE PURCHASER WILL BE DEEMED
TO REPRESENT THAT IT HAS BEEN AFFORDED AN
OPPORTUNITY TO INVESTIGATE MATTERS RELATING TO THE
ISSUER AND THE NOTES, THAT IT IS NOT ACQUIRING
SUCH NOTE WITH A VIEW TO ANY DISTRIBUTION THEREOF
AND THAT IT IS (A) AN INSTITUTION WHICH (i) IS AN
ACCREDITED INVESTOR WITHIN THE MEANING OF RULE
501(a) UNDER THE ACT (AN INSTITUTIONAL ACCREDITED
INVESTOR ) OR IS A BANK, AS DEFINED IN SECTION
3(a)(2) OF THE ACT, OR A SAVINGS AND LOAN
ASSOCIATION OR OTHER INSTITUTION OF THE TYPE
REFERRED TO IN SECTION 3(a)(5)(A) OF THE ACT THAT
IS ACTING AS A FIDUCIARY OR AGENT PURCHASING NOTES
FOR ONE OR MORE ACCOUNTS EACH OF WHICH IS AN
INSTITUTIONAL ACCREDITED INVESTOR AND (ii)
POSSESSES SUCH KNOWLEDGE AND EXPERIENCE (OR IS A
FIDUCIARY OR AGENT WITH SOLE INVESTMENT DISCRETION
HAVING SUCH KNOWLEDGE AND EXPERIENCE) IN FINANCIAL
AND BUSINESS MATTERS THAT IT (OR SUCH FIDUCIARY OR
AGENT) IS CAPABLE OF EVALUATING THE MERITS AND
RISKS OF INVESTING IN SUCH NOTE, OR (B) A
QUALIFIED INSTITUTIONAL BUYER ( QIB ) WITHIN THE
MEANING OF RULE 144A UNDER THE ACT WHICH IS
ACQUIRING NOTES FOR ITS OWN ACCOUNT OR FOR ONE OR
MORE ACCOUNTS, EACH OF WHICH IS A QIB; AND THE
PURCHASER ACKNOWLEDGES THAT THE SELLER MAY RELY
UPON THE EXEMPTION FROM THE REGISTRATION
PROVISIONS OF SECTION 5 OF THE ACT PROVIDED BY
RULE 144A. BY ITS ACCEPTANCE OF A NOTE, THE
PURCHASER SHALL ALSO BE DEEMED TO AGREE THAT ANY
RESALE OR OTHER TRANSFER THEREOF WILL BE MADE ONLY
(A) IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER THE ACT, EITHER (1) TO THE ISSUER OR TO
CREDIT SUISSE FIRST BOSTON CORPORATION OR ANOTHER
PERSON DESIGNATED BY THE ISSUER AS A PLACEMENT
AGENT FOR THE NOTES (COLLECTIVELY, THE PLACEMENT
AGENTS ), NONE OF WHICH SHALL HAVE ANY OBLIGATION
TO ACQUIRE SUCH NOTE, (2) THROUGH A PLACEMENT
AGENT TO AN INSTITUTIONAL ACCREDITED INVESTOR OR A
QIB, OR (3) TO A QIB PURSUANT TO RULE 144A OF THE
ACT, AND (B) IN MINIMUM AMOUNTS OF $250,000;
and
(7) It has received the Private Placement Memorandum
relating to the offering of the Notes and has had
full opportunity (i) to ask questions and receive
answers concerning the terms and conditions of the
offering made pursuant to such Private Placement
Memorandum and (ii) to request from the Issuer and
to review, and has received, all additional
information necessary to verify the accuracy of
the information contained in such Private
Placement Memorandum or incorporated therein by
reference that the Issuer could provide without
unreasonable effort or expense.
(d) The Issuer represents and agrees that the proceeds
of the sale of the Notes are not currently contemplated to be
used for the purpose of buying, carrying or trading securities
within the meaning of Regulation T and the interpretations
thereunder by the Board of Governors of the Federal Reserve
System. In the event that the Issuer determines to use such
proceeds for the purpose of buying, carrying or trading
securities, whether in connection with an acquisition of another
company or otherwise, the Issuer shall give the Dealer at least
five business days prior written notice to that effect.
Thereafter, in the event that the Dealer purchases Notes as
principal and does not resell such Notes on the day of such
purchase, to the extent necessary to comply with Regulation T and
the interpretations thereunder, the Dealer will sell such Notes
only to offerees it reasonably believes to be QIBs or to QIBs it
reasonably believes are acting for other QIBs, in each case in
accordance with Rule 144A.
Section 4. Representations and Warranties. The Issuer
represents and warrants to and agrees with the Dealer as of the
date hereof, as of each date on which the Dealer solicits offers
to purchase Notes, as of each date on which the Issuer accepts an
offer to purchase Notes (including any purchase by the Dealer as
principal), as of each date the Issuer issues and delivers Notes
and as of each date the Private Placement Memorandum is amended
or supplemented, as follows (it being understood that such
representations, warranties and agreements shall be deemed to
relate to the Private Placement Memorandum as amended or
supplemented to each such date):
(a) The Issuer has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
State of Nevada and has full power and authority to execute,
deliver and perform this Agreement. The Issuer has full power
and authority to execute, deliver and perform its obligations
under the Notes and the Paying Agency Agreement.
(b) The Notes have been duly authorized by the Issuer
and, when executed and authenticated in accordance with the
provisions of the Paying Agency Agreement and delivered to and
paid for by the purchasers thereof, will be entitled to the
benefits of the Paying Agency Agreement and will be valid and
binding obligations of the Issuer, enforceable against the Issuer
in accordance with their respective terms, except that (i) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in
effect relating to or affecting creditors rights generally, (ii)
rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability,
(iii) rights to indemnity and contribution may be limited by
state or federal laws relating to securities or by the policies
underlying such laws and (iv) no representation, warranty or
agreement is made with respect to any purported waivers of rights
or defenses.
(c) This Agreement has been duly authorized, executed
and delivered by the Issuer.
(d) The Paying Agency Agreement has been duly
authorized, executed and delivered by the Issuer and, assuming
the due authorization, execution and delivery by the Paying
Agent, is a valid and binding agreement of the Issuer,
enforceable against the Issuer in accordance with its terms,
except that (i) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws now or hereafter in effect relating to or affecting
creditors rights generally, (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability, (iii) rights to indemnity
and contribution may be limited by state or federal laws relating
to securities or by the policies underlying such laws and (iv) no
representation, warranty or agreement is made with respect to any
purported waivers of rights or defenses.
(e) The execution and delivery by the Issuer of, and
the performance by the Issuer of its obligations under, this
Agreement, the Notes and the Paying Agency Agreement will not
contravene any provision of applicable law or the Articles of
Incorporation or Bylaws of the Issuer or any agreement or other
instrument binding upon the Issuer or any of its subsidiaries
that is material to the Issuer and its subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Issuer or any
subsidiary of the Issuer, the contravention of which would have a
material adverse effect on the business of the Issuer and its
subsidiaries, taken as a whole, and no consent, approval,
authorization or order of or qualification with any governmental
body or agency is required for the performance by the Issuer of
its obligations under this Agreement, the Notes and the Paying
Agency Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connection
with the offer and sale of the Notes.
(f) The issuance and sale of the Notes under the
circumstances contemplated hereby and by the Paying Agency
Agreement do not require registration of the Notes under the
Securities Act, pursuant to the exemption from registration
contained in Section 4(2) thereof and the regulations promulgated
thereunder and do not require compliance with any provision of
the Trust Indenture Act of 1939, as amended.
(g) The Issuer is not an investment company or an
entity controlled by an investment company as such terms are
defined in the Investment Issuer Act of 1940, as amended.
(h) There has not occurred any material adverse
change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, or in
the earnings, business or operations of the Issuer and its
subsidiaries, taken as a whole, from that set forth in the
Private Placement Memorandum (as defined), and the information
contained in the Private Placement Memorandum, including the
information in the documents incorporated by reference or
referred to therein, when read in its entirety, with each
statement being deemed to be modified or superseded to the extent
it is modified or superseded by any statement in a subsequently
dated document constituting part of the Private Placement
Memorandum, does not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements made, in the light of the circumstances under
which they were made, not misleading.
(i) The Notes satisfy the requirements set forth in
Rule 144A(d)(3) under the Securities Act.
Section 5. Agreements. The Issuer agrees with the Dealer
as follows:
(a) The Issuer will promptly deliver to the Dealer
copies of all (i) filings by the Issuer with the Securities and
Exchange Commission and any United States securities exchange on
which securities of the Issuer are listed and (ii) all material
information generally supplied by the Issuer to its shareholders
or by the Issuer to any of Standard & Poor s Ratings Group,
Moody s Investors Service, Inc. or Duff & Phelps Credit Rating
Co. (collectively, the Rating Agencies ).
(b) The Issuer will provide to the Dealer as soon as
practicable a Private Placement Memorandum containing business
and financial information concerning the Issuer and a description
of the Notes which (with any amendments or supplements provided
by the Issuer) may be used by the Dealer in connection with the
sale of the Notes until the Issuer provides the Dealer with an
updated or revised memorandum (such Private Placement Memorandum,
together with any amendments or supplements thereto, including
information incorporated therein by reference, if any, is herein
referred to as the Private Placement Memorandum ).
(c) If, at any time when the Dealer is offering Notes
or any Notes are outstanding, any event occurs or condition
exists as a result of which the Private Placement Memorandum as
then amended or supplemented would include an untrue statement of
a material fact, or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances in
which they were made not misleading, or if, in the opinion of the
Issuer, it is necessary at any time to amend or supplement the
Private Placement Memorandum as then amended or supplemented to
comply with applicable law, the Issuer will notify the Dealer as
promptly as practicable and, in any event, prior to any
subsequent issuance of Notes, will prepare and furnish to the
Dealer a revision or supplement to the Private Placement
Memorandum satisfactory in all material respects to the Dealer,
that will correct such statement or omission or effect such
compliance.
(d) The Issuer will, whether or not any sale of Notes
is consummated, pay all reasonable out-of-pocket expenses
incurred by the Dealer incident to the performance of its
obligations under this Agreement, the Notes and the Paying Agency
Agreement, including, without limitation, reasonable fees and
expenses of the Dealer s counsel.
(e) The Issuer will notify the Dealer promptly in
writing of any downgrading, or of the Issuer s receipt of any
notice of any intended or potential downgrading or of any review
for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Issuer s
securities by any of the Rating Agencies.
(f) The Issuer agrees promptly from time to time to
take such action as the Dealer may reasonably request to qualify
the Notes for offer and sale under the securities or Blue Sky
laws of such jurisdictions as the Dealer may reasonably request
and to maintain such qualifications for as long as the Dealer
shall reasonably request. The Issuer also agrees to reimburse
the Dealer for any reasonable fees or costs (including reasonable
out-of-pocket fees and disbursements of counsel) incurred in so
qualifying the Notes.
(g) The Issuer will not sell, offer for sale or
solicit offers to buy or otherwise negotiate in respect of any
security (as defined in the Securities Act) which could be
integrated with the sale of the Notes in a manner which would
require the registration under the Securities Act of the offer
and sale of such Notes.
(h) The Issuer will not solicit any offer to buy or
offer to sell Notes by means of any form of general solicitation
or general advertising, within the meaning of Rule 502(c) under
the Securities Act or otherwise, including: (x) any
advertisement, article, notice or other communication published
in any newspaper, magazine or similar media or broadcast over
television or radio; and (y) any seminar or meeting whose
attendees have been invited by any general solicitation or
general advertising.
(i) The Issuer will furnish to the Dealer such
additional information as you may reasonably request.
(j) At any time when the Issuer is not subject to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, the Issuer shall make available, upon request, to any
holder, beneficial owner or prospective purchaser of any Notes
the information required to be delivered to such persons pursuant
to Rule 144A(d)(4) under the Securities Act and will furnish to
the Dealer, upon its request, copies of such information.
Section 6. Indemnity and Contribution. The Issuer agrees
to (i) indemnify and hold harmless the Dealer and each person, if
any, who controls the Dealer within the meaning of either Section
15 of the Securities Act or Section 20 of the Securities Exchange
Act of 1934, as amended (the Dealer and each such other person
are collectively referred to in this Section 6 as the
Indemnified Party ), from and against any and all losses,
claims, damages and liabilities arising out of or caused by any
untrue statement or alleged untrue statement of a material fact
contained in the Private Placement Memorandum (as amended or
supplemented if the Issuer shall have furnished any amendments or
supplements thereto), or arising out of or caused by any omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and (ii) reimburse the Indemnified Party for all
reasonable out-of-pocket expenses (including reasonable counsel
fees) as they are incurred by the Indemnified Party in connection
with investigating or defending any such loss, claim, damage or
liability. The foregoing indemnity and reimbursement obligation
shall not apply in respect of any statement in or omission from
the Private Placement Memorandum (as so amended or supplemented)
based on information pertaining to the Dealer furnished in
writing to the Issuer by the Dealer, or on behalf of the Dealer.
The Issuer shall not, without the Indemnified Party s prior
written consent, effect any settlement of any pending or
threatened proceeding in respect of which the Indemnified Party
is or could have been a party and indemnity could have been
sought hereunder by the Indemnified Party, unless such settlement
(i) includes an unconditional release of the Indemnified Party
from all liability on claims that are the subject matter of such
proceeding and for which indemnity could have been sought
hereunder and (ii) does not include a statement as to or an
admission of fault, culpability or failure to act, by or on
behalf of the Indemnified Party. If the indemnification provided
for in this Section 6 is unavailable or insufficient in respect
of any losses, claims, damages or liabilities referred to herein,
then the Indemnified Party, on the one hand, and the Issuer, on
the other hand, shall contribute to the amount paid or payable by
the Indemnified Party as a result of such losses, claims, damages
or liabilities in such proportion as is appropriate to reflect
the relative benefits received by the Dealer, on the one hand,
and the Issuer, on the other hand, or, if such allocation is not
permitted by applicable law, to reflect not only the relative
benefits referred to above but also the relative fault of each of
the parties and any other relevant equitable considerations.
Section 7. Payment and Delivery. (a) Payment for Notes
sold to or through the Dealer pursuant to this Agreement shall be
made by the Dealer in immediately available funds payable to the
Paying Agent for the account of the Issuer in such manner and at
such time as provided in the Paying Agency Agreement, at the
offices of the Paying Agent. Delivery of Notes sold to or
through the Dealer hereunder shall be made against payment of the
purchase price therefor by the Paying Agent to the Dealer through
the facilities of The Depository Trust Company or in definitive
form payable to the purchaser (and in such denominations as may
reasonably be requested by the Dealer) by 2:15 p.m. New York time
on the date agreed upon for delivery.
(b) In the event the Issuer shall direct the Paying
Agent to cease issuing Notes, the Paying Agent shall be
instructed by the Issuer to issue such Notes as the Dealer shall
certify were sold within sixty (60) minutes after the Dealer s
receipt of written notice of such cessation and for which the
Dealer had the prior agreement of the Issuer pursuant to Section
1 of this Agreement. The Dealer agrees upon receipt of any such
cessation notice to immediately cease effecting transactions in
Notes; provided, however, that this provision shall have no
effect with respect to Notes purchased by the Dealer as principal
from the Issuer.
Section 8. Conditions of the Dealer s Obligation. If the
Dealer and the Issuer shall agree upon the sale of any Notes
pursuant to Section 1 of this Agreement, the Dealer s obligation
to purchase Notes as principal and the obligation of any other
purchaser to purchase Notes will be subject to the accuracy of
the representations and warranties on the part of the Issuer
herein and to the performance and observance by the Issuer of all
agreements herein contained on its part to be performed and
observed (in the case of the Dealer s obligation to solicit
offers to purchase Notes, at the time of such solicitation, and,
in the case of the Dealer s or any other purchaser s obligation
to purchase Notes, at the time the Issuer accepts the offer to
purchase such Notes and at the time of purchase).
(b) The following documents shall have been delivered
or telecopied to the Dealer at or prior to the execution of this
Agreement and, if provided by telecopy, followed by prompt
delivery of such documents:
(i) an executed copy of the Paying Agency
Agreement;
(ii) a certified copy of resolutions of the Board
of Directors of the Issuer authorizing (a) the issuance
of the Notes and (b) the execution and delivery of this
Agreement and the Paying Agency Agreement; and
(iii) opinions of counsel to the Issuer
substantially in the forms previously consented to by
the Dealer.
Section 9. Notices. All communications hereunder will be
in writing and effective only on receipt, and, if sent to the
Dealer, will be mailed, delivered or telecopied and confirmed to
Credit Suisse First Boston Corporation at 11 Madison Avenue, New
York, New York 10010, Attention: Short Term Finance (telecopy
number: 212-325-8183), or, if sent to the Issuer, will be mailed,
delivered, or telecopied and confirmed to the Issuer at 2800 Las
Vegas Boulevard South, Las Vegas, Nevada 89109, Attention: Glenn
W. Schaeffer, President and Chief Financial Officer (telecopy
number: (702) 691-5840), or to either of the foregoing parties,
or their successors, at such other address as such party or
successor may designate from time to time by notice duly given in
accordance with the terms of this Section 9 to the other party
hereto.
Section 10. Amendments; Successors. (a) This Agreement
may be amended or supplemented if, but only if, such amendment or
supplement is in writing and is signed by the Issuer and the
Dealer. This Agreement is not assignable by either party hereto
without the written consent of the other party.
(b) This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors
and the controlling persons referred to in Section 6 and the
purchasers of Notes (to the extent expressly provided in Section
8), and no other person will have any right or obligation
hereunder.
(c) The Issuer will give you notice of any proposed
cancellation, amendment, supplement, waiver or consent to or
under the Paying Agency Agreement at least seven (7) days prior
to the effective date thereof.
Section 11. Termination. This Agreement may be terminated
at any time by either party hereto upon the giving of written
notice of such termination to the other party hereto, but without
prejudice to any rights, obligations or liabilities of either
party hereto accrued or incurred prior to such termination. If
this Agreement is terminated, the provisions of Sections 4, 5(d),
5(f), 5(g) and 6 shall survive and continue in full force and
effect.
Section 12. Prior Agreements. This Agreement shall
supersede any other agreement between the Issuer and the Dealer
relating to the subject matter of this Agreement, and upon the
execution of this Agreement by the Issuer and the Dealer any such
prior agreement shall be of no further force and effect.
Section 13. Governing Law. This Agreement shall be
governed by and construed in accordance with the internal laws of
the State of New York.
Section 14. Counterparts. This Agreement may be signed in
any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were
upon the same instrument.
Section 15. Headings. The headings of the sections of this
Agreement have been inserted for convenience of reference only
and shall not be deemed a part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the 9thday of October, 1997.
CIRCUS CIRCUS ENTERPRISES, INC., as Issuer
By: /s/ Glenn W. Schaeffer
Glenn W. Schaeffer,
President and Chief Financial Officer
CREDIT SUISSE FIRST BOSTON CORPORATION, as
Dealer
By: /s/ Robert W. Ker
Name: Robert W. Ker III
Title: Director
Exhibit 4(e)
ISSUING AND PAYING AGENCY AGREEMENT
This Agreement, dated as of October 9, 1997, by and
between Circus Circus Enterprises, Inc. (the Issuer ) and The
Chase Manhattan Bank ( Chase ), amends and restates in its
entirety the existing agreement relating to Chase s services as
issuing and paying agent with respect to the Issuer s commercial
paper program.
1. APPOINTMENT AND ACCEPTANCE
The Issuer hereby appoints Chase as its issuing
and paying agent in connection with the issuance and payment of
certain short-term promissory notes of the Issuer (the Notes ),
as further described herein, and Chase agrees to act as such
agent upon the terms and conditions contained in this Agreement.
2. COMMERCIAL PAPER PROGRAMS
The Issuer may establish one or more commercial
paper programs under this Agreement by delivering to Chase a
completed program schedule (the Program Schedule ), with respect
to each such program. Chase has given the Issuer a copy of the
current form of Program Schedule and the Issuer has completed and
returned its first Program Schedule to Chase prior to or
simultaneously with the execution of this Agreement. In the
event that any of the information provided in, or attached to, a
Program Schedule shall change, the Issuer shall promptly inform
Chase of such change in writing.
3. NOTES
All Notes issued by the Issuer under this
Agreement shall be short-term promissory notes, exempt from the
registration requirements of the Securities Act of 1933, as
amended, as indicated on the Program Schedules, and from
applicable state securities laws. The Notes may be placed by
dealers (the Dealers ) pursuant to Section 4 hereof. Notes
shall be issued in either certificated or book-entry form.
4. AUTHORIZED REPRESENTATIVES
The Issuer shall deliver to Chase a duly adopted
corporate resolution from the Issuer s Board of Directors
authorizing the issuance of Notes under each program established
pursuant to this Agreement and a certificate of incumbency, with
specimen signatures attached, of those officers, employees and
agents of the Issuer authorized to take certain actions with
respect to the Notes as provided in this Agreement (each such
person is hereinafter referred to as an Authorized
Representative ). Until Chase receives any subsequent incumbency
certificates of the Issuer, Chase shall be entitled to rely on
the last incumbency certificate delivered to it for the purpose
of determining the Authorized Representatives. The Issuer
represents and warrants that each Authorized Representative may
appoint other officers, employees and agents of the Issuer (the
Delegates ), including without limitation any Dealers, to issue
instructions to Chase under this Agreement, and take other
actions on the Issuer s behalf hereunder, provided that notice of
the appointment of each Delegate is delivered to Chase in
writing. Each such appointment shall remain in effect unless and
until revoked by the Issuer in a written notice to Chase.
5. CERTIFICATED NOTES
If and when the Issuer intends to issue
certificated notes ( Certificated Notes ), the Issuer and Chase
shall agree upon the form of such Notes. Thereafter, the Issuer
shall from time to time deliver to Chase adequate supplies of
Certificated Notes which will be in bearer form, serially
numbered, and shall be executed by the manual or facsimile
signature of an Authorized Representative. Chase will
acknowledge receipt of any supply of Certificated Notes received
from the Issuer, noting any exceptions to the shipping manifest
or transmittal letter (if any), and will hold the Certificated
Notes in safekeeping for the Issuer in accordance with Chase s
customary practices. Chase shall not have any liability to the
Issuer to determine by whom or by what means a facsimile
signature may have been affixed on Certificated Notes, or to
determine whether any facsimile or manual signature is genuine,
if such facsimile or manual signature resembles the specimen
signature attached to the Issuer s certificate of incumbency with
respect to such Authorized Representative. Any Certificated Note
bearing the manual or facsimile signature of a person who is an
Authorized Representative on the date such signature was affixed
shall bind the Issuer after completion thereof by Chase,
notwithstanding that such person shall have ceased to hold his or
her office on the date such Note is countersigned or delivered by
Chase.
6. BOOK-ENTRY NOTES
The Issuer s book-entry notes ( Book-Entry Notes )
shall not be issued in physical form, but their aggregate face
amount shall be represented by a master note (the Master Note )
in the form of Exhibit A executed by the Issuer pursuant to the
book-entry commercial paper program of The Depository Trust
Company ( DTC ). Chase shall maintain the Master Note in
safekeeping, in accordance with its customary practices, on
behalf of Cede & Co., the registered owner thereof and nominee of
DTC. As long as Cede & Co. is the registered owner of the Master
Note, the beneficial ownership interest therein shall be shown
on, and the transfer of ownership thereof shall be effected
through, entries on the books maintained by DTC and the books of
its direct and indirect participants. The Master Note and the
Book-Entry Notes shall be subject to DTC s rules and procedures,
as amended from time to time. Chase shall not be liable or
responsible for sending transaction statements of any kind to
DTC s participants or the beneficial owners of the Book-Entry
Notes, or for maintaining, supervising or reviewing the records
of DTC or its participants with respect to such Notes. In
connection with DTC s program, the Issuer understands that as one
of the conditions of its participation therein, it shall be
necessary for the Issuer and Chase to enter into a Letter of
Representations, in the form of Exhibit B hereto, and for DTC to
receive and accept such Letter of Representations. In accordance
with DTC s program, Chase shall obtain from the CUSIP Service
Bureau a written list of CUSIP numbers for Issuer s Book-Entry
Notes, and Chase shall deliver such list to DTC. The CUSIP
Service Bureau shall bill the Issuer directly for the fee or fees
payable for the list of CUSIP numbers for the Issuer s Book-Entry
Notes.
7. ISSUANCE INSTRUCTIONS TO CHASE; PURCHASE PAYMENTS
The Issuer understands that all instructions under
this Agreement are to be directed to Chase s Commercial Paper
Operations Department. Chase shall provide the Issuer, or, if
applicable, the Issuer s Dealers, with access to Chase s Money
Market Issuance System or other electronic means (collectively,
the System ) in order that Chase may receive electronic
instructions for the issuance of Notes. Electronic instructions
will be subject to a separate license agreement issued by Chase
in the event that the Issuer elects to use Chase s communications
software to access the System. Electronic instructions must be
transmitted in accordance with the procedures furnished by Chase
to the Issuer or its Dealers in connection with the System.
These transmissions shall be the equivalent to the giving of a
duly authorized written and signed instruction which Chase may
act upon without liability. In the event that the System is
inoperable at any time, an Authorized Representative or a
Delegate may deliver written, telephone or facsimile instructions
to Chase, which instructions shall be verified in accordance with
any security procedures agreed upon by the parties. Chase shall
incur no liability to the Issuer in acting upon instructions
believed by Chase in good faith to have been given by an
Authorized Representative or a Delegate. In the event that a
discrepancy exists between a telephonic instruction and a written
confirmation, the telephonic instruction will be deemed the
controlling and proper instruction. Chase may electronically
record any conversations made pursuant to this Agreement, and the
Issuer hereby consents to such recordings. All issuance
instructions regarding the Notes must be received by 1:00 P.M.
New York time in order for the Notes to be issued or delivered on
the same day.
(a) Issuance and Purchase of Book-Entry Notes.
Upon receipt of issuance instructions from the Issuer or its
Dealers with respect to Book-Entry Notes, Chase shall transmit
such instructions to DTC and direct DTC to cause appropriate
entries of the Book-Entry Notes to be made in accordance with
DTC s applicable rules, regulations and procedures for book-entry
commercial paper programs. Chase shall assign CUSIP numbers to
the Issuer s Book-Entry Notes to identify the Issuer s aggregate
principal amount of outstanding Book-Entry Notes in DTC s system,
together with the aggregate unpaid interest (if any) on such
Notes. Promptly following DTC s established settlement time on
each issuance date, Chase shall access DTC s system to verify
whether settlement has occurred with respect to the Issuer s
Book-Entry Notes. Prior to the close of business on such
business day, Chase shall deposit immediately available funds in
the amount of the proceeds due the Issuer (if any) to the
Issuer s account at Chase and designated in the applicable
Program Schedule (the Account ), provided, that Chase has
received DTC s confirmation that the Book-Entry Notes have
settled in accordance with DTC s applicable rules, regulations
and procedures. Chase shall have no liability to the Issuer
whatsoever if any DTC participant purchasing a Book-Entry Note
fails to settle or delays in settling its balance with DTC or if
DTC fails to perform in any respect.
(b) Issuance and Purchase of Certificated Notes.
Upon receipt of issuance instructions with respect to
Certificated Notes, Chase shall: (a) complete each Certificated
Note as to principal amount, date of issue, maturity date, place
of payment, and rate or amount of interest (if such Note is
interest bearing) in accordance with such instructions; (b)
countersign each Certificated Note; and (c) deliver each
Certificated Note in accordance with the Issuer s instructions,
except as otherwise set forth below. Whenever Chase is
instructed to deliver any Certificated Note by mail, Chase shall
strike from the Certificated Note the word ~Bearer," insert as
payee the name of the person so designated by the Issuer and
effect delivery by mail to such payee or to such other person as
is specified in such instructions to receive the Certificated
Note. The issuer understands that, in accordance with the custom
prevailing in the commercial paper market, delivery of
Certificated Notes shall be made before the actual receipt of
payment for such Notes in immediately available funds, even if
the Issuer instructs Chase to deliver a Certificated Note against
payment. Therefore, once Chase has delivered a Certificated Note
to the designated recipient, the Issuer shall bear the risk that
such recipient may fail to remit payment of such Note or return
such Note to Chase. Delivery of Certificated Notes shall be
subject to the rules of the New York Clearing House in effect at
the time of such delivery. Funds received in payment of
Certificated Notes shall be credited to the Account.
8. USE OF SALES PROCEEDS IN ADVANCE OF PAYMENT
Chase shall not be obligated to credit the
Issuer s Account unless and until payment of the purchase price
of each Note is received by Chase. From time to time, Chase, in
its sole discretion, may permit the Issuer to have use of funds
payable with respect to a Note prior to Chase s receipt of the
sales proceeds of such Note. If Chase makes a deposit, payment
or transfer of funds on behalf of the Issuer before Chase
receives payment for any Note, such deposit, payment or transfer
of funds shall represent an advance by Chase to the Issuer to be
repaid promptly, and in any event on the same day as it is made,
from the proceeds of the sale of such Note, or by the Issuer if
such proceeds are not received by Chase.
9. PAYMENT OF MATURED NOTES
On any day when a Note matures or is prepaid, the
Issuer shall transmit, or cause to be transmitted, to the
Account, prior to 2:30 P.M. New York time on the same day, an
amount of immediately available funds sufficient to pay the
aggregate principal amount of such Note and any applicable
interest due. Chase shall pay the interest (if any) and
principal on a Book-Entry Note to DTC in immediately available
funds, which payment shall be by net settlement of Chase s
account at DTC. Chase shall pay Certificated Notes upon
presentment. Chase shall have no obligation under the Agreement
to make any payment for which there is not sufficient, available
and collected funds in the Account, and Chase may, without
liability to the Issuer, refuse to pay any Note that would result
in an overdraft to the Account.
10. OVERDRAFTS
(a) Intraday overdrafts with respect to each
Account shall be subject to Chase s policies as in effect from
time to time.
(b) An overdraft will exist in an Account if
Chase, in its sole discretion, (i) permits an advance to be made
pursuant to Section 8 and, notwithstanding the provisions of
Section 8, such advance is not repaid in full on the same day as
it is made, or (ii) pays a Note pursuant to Section 9 in excess
of the available collected balance in such Account. Overdrafts
shall be subject to Chase s established banking practices,
including, without limitation, the imposition of interest, funds
usage charges and administrative fees. The Issuer shall repay
any such overdraft, fees and charges no later than the next
business day, together with interest on the overdraft at the rate
established by Chase for the Account, computed from and including
the date of the overdraft to the date of repayment.
11. NO PRIOR COURSE OF DEALING
No prior action or course of dealing on the part
of Chase with respect to advances of the purchase price or
payments of matured Notes shall give rise to any claim or cause
of action by the Issuer against Chase in the event that Chase
refuses to pay or settle any Notes for which the Issuer has not
timely provided funds as required by this Agreement.
12. RETURN OF CERTIFICATED NOTES
Chase will in due course cancel any Certificated
Note presented for payment and return such Note to the Issuer.
Chase shall also cancel and return to the Issuer any spoiled or
voided Certificated Notes. Promptly upon written request of the
Issuer or at the termination of this Agreement, Chase shall
destroy all blank, unissued Certificated Notes in its possession
and furnish a certificate to the Issuer certifying such actions.
13. INFORMATION FURNISHED BY CHASE
Upon the reasonable request of the Issuer, Chase
shall promptly provide the Issuer with information with respect
to any Note issued and paid hereunder, provided, that the Issuer
delivers such request in writing and, to the extent applicable,
includes the serial number or note number, principal amount,
payee, date of issue, maturity date, amount of interest (if any)
and place of payment of such Note.
14. REPRESENTATIONS AND WARRANTIES
The Issuer represents and warrants that: (i) it
has the right, capacity and authority to enter into this
Agreement; and (ii) it will comply with all of its obligations
and duties under this Agreement. The Issuer further represents
and agrees that each Note issued and distributed upon its
instruction pursuant to this Agreement shall constitute the
Issuer s representation and warranty to Chase that such Note is a
legal, valid and binding obligation of the Issuer, and that such
Note is being issued in a transaction which is exempt from
registration under the Securities Act of 1933, as amended, and
any applicable state securities law.
15. DISCLAIMERS
Neither Chase nor its directors, officers,
employees or agents shall be liable for any act or omission under
this Agreement except in the case of gross negligence or willful
misconduct. IN NO EVENT SHALL CHASE BE LIABLE FOR SPECIAL,
INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND WHATSOEVER
(INCLUDING BUT NOT LIMITED TO LOST PROFITS), EVEN IF CHASE HAS
BEEN ADVISED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE AND
REGARDLESS OF THE FORM OF ACTION. In no event shall Chase be
considered negligent in consequence of complying with DTC s
rules, regulations and procedures. The duties and obligations of
Chase, its directors, officers, employees or agents shall be
determined by the express provisions of this Agreement and they
shall not be liable except for the performance of such duties and
obligations as are specifically set forth herein and no implied
covenants shall be read into this Agreement against them.
Neither Chase nor its directors, officers, employees or agents
shall be required to ascertain whether any issuance or sale of
any Notes (or any amendment or termination of this Agreement) has
been duly authorized or is in compliance with any other agreement
to which the Issuer is a party (whether or not Chase is also a
party to such agreement).
16. INDEMNIFICATION
The Issuer agrees to indemnify and hold harmless
Chase, its directors, officers, employees and agents from and
against any and all liabilities, claims, losses, damages,
penalties, costs and expenses (including attorneys fees and
disbursements) suffered or incurred by or asserted or assessed
against Chase or any of them arising out of Chase or any of them
acting as the Issuer s agent under this Agreement, except for
such liability, claim, loss, damage, penalty, cost or expense
resulting from the gross negligence or willful misconduct of
Chase, its directors, officers, employees or agents. This
indemnity will survive the termination of this Agreement.
17. OPINION OF COUNSEL
The Issuer shall deliver to Chase all documents it
may reasonably request relating to the existence of the Issuer
and authority of the Issuer for this Agreement, including,
without limitation, an opinion of counsel satisfactory to Chase.
18. NOTICES
All notices, confirmations and other
communications hereunder shall (except to the extent otherwise
expressly provided) be in writing and shall be sent by first-
class mail, postage prepaid, by telecopier or by hand, addressed
as follows, or to such other address as the party receiving such
notice shall have previously specified to the party sending such
notice:
If to the Issuer: Circus Circus Enterprises, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: Glenn W. Schaeffer
Telephone: 702-691-5912
Facsimile: 702-691-5840
If to Chase concerning the daily issuance and
redemption of Notes:
Attention: Commercial Paper Operations
55 Water Street, 2nd Floor
New York NY 10041 -2413
Telephone: (212) 638-0441
Facsimile: (212) 638-7881
All other: Attention: Commercial Paper Service
Delivery Unit
450 West 33rd Street, 15th Floor
New York NY 10001-2697
Telephone: (212) 946-3108
Facsimile: (212) 946-8181
19. COMPENSATION
The Issuer shall pay compensation for services
pursuant to this Agreement in accordance with the pricing
schedules furnished by Chase to the Issuer from time to time and
upon such payment terms as the parties shall determine. The
Issuer shall also reimburse Chase for any fees and charges
imposed by DTC with respect to services provided in connection
with the Book-Entry Notes.
20. BENEFIT OF AGREEMENT
This Agreement is solely for the benefit of the
parties hereto and no other person shall acquire or have any
right under or by virtue hereof.
21. TERMINATION
This Agreement may be terminated at any time by
either party by written notice to the other, but such termination
shall not affect the respective liabilities of the parties
hereunder arising prior to such termination.
22. FORCE MAJEURE
In no event shall Chase be liable for any failure
or delay in the performance of its obligations hereunder because
of circumstances beyond Chase s control, including, but not
limited to, acts of God, flood, war (whether declared or
undeclared), terrorism, fire, riot, strikes or work stoppages for
any reason, embargo, government action, including any laws,
ordinances, regulations or the like which restrict or prohibit
the providing of the services contemplated by this Agreement,
inability to obtain material, equipment, or communications or
computer facilities, or the failure of equipment or interruption
of communications or computer facilities, and other causes beyond
Chase s control whether or not of the same class or kind as
specifically named above.
23. ENTIRE AGREEMENT
This Agreement, together with the exhibits
attached hereto, constitutes the entire agreement between Chase
and the Issuer with respect to the subject matter hereof and
supersedes in all respects all prior proposals, negotiations,
communications, discussions and agreements between the parties
concerning the subject matter of this Agreement.
24. WAIVERS AND AMENDMENTS
No failure or delay on the part of any party in
exercising any power or right under this Agreement shall operate
as a waiver, nor does any single or partial exercise of any power
or right preclude any other or further exercise, or the exercise
of any other power or right. Any such waiver shall be effective
only in the specific instance and for the purpose for which it is
given. No amendment, modification or waiver of any provision of
this Agreement shall be effective unless the same shall be in
writing and signed by the Issuer and Chase.
25. BUSINESS DAY
Whenever any payment to be made hereunder shall be
due on a day which is not a business day for Chase, then such
payment shall be made on Chase s next succeeding business day.
26. COUNTERPARTS
This Agreement may be executed in counterparts,
each of which shall be deemed an original and such counterparts
together shall constitute but one instrument.
27. HEADINGS
The headings in this Agreement are for purposes of
reference only and shall not in any way limit or otherwise affect
the meaning or interpretation of any of the terms of this
Agreement.
28. GOVERNING LAW
This Agreement and the Notes shall be governed by
and construed in accordance with the internal laws of the State
of New York, without regard to the conflict of laws provisions
thereof.
29. JURISDICTION AND VENUE
Each party hereby irrevocably and unconditionally
submits to the jurisdiction of the United States District Court
for the Southern District of New York and any New York State
court located in the Borough of Manhattan in New York City and of
any appellate court from any thereof for the purposes of any
legal suit, action or proceeding arising out of or relating to
this Agreement (a Proceeding ). Each party hereby irrevocably
agrees that all claims in respect of any Proceeding may be heard
and determined in such Federal or New York State court and
irrevocably waives, to the fullest extent it may effectively do
so, any objection it may now or hereafter have to the laying of
venue of any Proceeding in any of the aforementioned courts and
the defense of an inconvenient forum to the maintenance of any
Proceeding.
30. WAIVER OF TRIAL BY JURY
EACH PARTY HEREBY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO ANY OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
31. ACCOUNT CONDITIONS
Each Account shall be subject to Chase s account
conditions, as in effect from time to time.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on their behalf by duly authorized
officers as of the day and year first-above written.
THE CHASE MANHATTAN BANK CIRCUS CIRCUS ENTERPRISES, INC.
By: /s/ Lloyd A. Baggs By: /s/ Glenn W. Schaeffer
Name: Lloyd A. Baggs Name: Glenn W. Schaeffer
Title: Vice President Title: President and Chief
Financial Officer
Date: October 9, 1997 Date: October 9, 1997
Exhibit 4(f)
JP Morgan
Morgan Guaranty
Trust Company of
New York
Circus Circus Enterprises, Las Vegas
Attn: Les Martin
Fax: (702) 791-0310
From: Rajan Kundra
Morgan Guaranty Trust Company of New York
New York Branch
Date: 20 October 1997
RATE CAP TRANSACTION
The purpose of this document is to confirm the terms and
conditions of the Rate Cap Transaction entered into between
Circus Circus Enterprises ("Counterparty") and Morgan Guaranty
Trust Company of New York ("MGT") on the Trade Date specified
below (the "Swap Transaction"). This agreement constitutes a
"Confirmation" as referred to in the 1992 ISDA Master Agreement
specified below. It is our intention to have this confirmation
serve as final documentation for this transaction and
accordingly, no other confirmation will follow.
The definitions and provisions contained in the 1991 ISDA
Definitions (the "Definitions") as published
by the International Swap and Derivatives Association, Inc.
("ISDA") are incorporated into this Confirmation. In the event of
any inconsistency between those definitions and provisions and
this Confirmation, this Confirmation will govern.
If MGT and the Counterparty are not yet parties to a Swap
Agreement, the parties agree that this Transaction will be
documented under a master agreement to be entered into on the
basis of the printed form of Master Agreement (Multicurrency-
Cross Border) published by the International Swap Dealers
Association, Inc., together with changes as shall be agreed
between the parties (the "Master Agreement"). Upon execution and
delivery by the parties of a Master Agreement, this Confirmation
shall supplement, form a part of, and be subject to such Master
Agreement. Until the parties execute and deliver a Master
Agreement, this Confirmation shall supplement, form a part of,
and be subject to the printed form of Master Agreement published
by ISDA, as if the parties had executed that agreement (but
without any Schedule thereto) on the Trade Date of this
Confirmation.
JP Morgan
Page 2
The terms of the particular Rate Cap Transaction to which this
Confirmation relates are as follows:
MGT Deal Number 213149
Type of Transaction Rate Cap Transaction
Notional Amount USD 100,000,000
Trade Date 17 October 1997
Effective Date 21 October 1997
Termination Date 21 October 2007, subject to
adjustment in accordance with the
Modified Following Business Day
Convention
Cap Premium Amounts
Premium Payer Counterparty
Premium Amount The Premium Payer shall pay to the
Cap Provider the Cap Premium
hereinafter defined: "Cap Premium"
shall mean, with respect to each
Calculation Period, an amount equal
to the Cap Rate less 3 Month Libor
(if positive) multiplied by the
notional amount.
Premium Settlement Dates Each 21 January, 21 April, 21 July
and 21 October, commencing from and
including 21 January 1998 and
continuing to and including the
Termination Date, subject to
adjustment in accordance with the
Modified Following Business Day
Convention.
Cap Payment Amounts
Cap Provider MGT
Cap Rate 6.10%
JP Morgan
Page 3
Settlement Dates Each 21 January, 21 April 21
July and 21 October,
commencing from and including
21 January 1998 and continuing
to and including the
Termination Date, subject to
adjustment in accordance with
the Modified Following
Business Day Convention
Floating Rate Option USD-LIBOR-BBA
Telerate Page 3750
Designated Maturity 3 Months
Floating Rate Day
Count Fraction Actual/360
Reset Dates The first day of each
Calculation Period.
Compounding Inapplicable
Compounding Dates Inapplicable
Business Day Centers New York & London
Business Day Convention Modified Following
Calculation Agent MGT
Additional Provisions This transaction will
terminate 2 Business Days
after any date on which 3
Month Libor is set at or above
9.0% on or after 15 October
2000. All future obligations
between the parties shall be
terminated 2 Business Days
after such date. Any unpaid
accrued interest shall be
settled on the Termination
Date.
JPMORGAN
Page 4
Account Details
MGT Payment Instructions: Morgan Guaranty Trust Company
of New York, NY
ABA # 021-000-238
For the account of Morgan
Guaranty Trust Co. London A/C
No:670-07-054 Further credit
to the JPM Swaps Group
Account: 10005035
Counterparty Payments Instructions To Be Advised
Offices:
(a) The Office of Morgan for the Transaction is New York,
(b) The office of the Counterparty for the Transaction is: Las
Vegas
All inquiries regarding this Confirmation should be sent to:
60 Wall Street 60 Wall Street
7th Floor 7th Floor
New York, New York 10260-0060 New York, New York 10260-0060
Attention: Lori Ann Niemeyer Attention:Bob Candella
Tel: (212)648-3105 Tel: (212) 648-6712
Fax: (212)648-5088 Fax: (212) 649-5088
Please quote MGT Deal Number: 213149
JPMorgan
page 5
Each party will be deemed to represent to the other party on the
date on which it enters into that Transaction that (absent a
written agreement between the parties that expressly impose
affirmative obligations to the contrary for that Transaction):
(a) Non-Reliance. It is acting for its own account, and it has
made its own independent decisions to enter into that Transaction
and as to whether that Transaction is appropriate or proper for
it based upon its own judgement and upon advise from such
advisors as it has deemed necessary. It is not relying on any
communication (written or oral) of the other party as investment
advise or as a recommendation to enter into that Transaction; it
being understood that information and explanations related to the
terms and conditions of a Transaction shall not be considered
investment advise or a recommendation to enter into that
Transaction. No communication (written or oral) received from the
other party shall be deemed to be assurance or guarantee as to
the expected results of that Transaction.
(b) Assessment and Understanding. It is capable of assessing
the merits of and understanding (on its own behalf or through
independent professional advise), and understands and accepts,
the terms, the conditions and risks of that Transaction. It is
also capable of assuming, and assumes, the risks of that
Transaction.
(c) Status of Parties. The other party is not acting as a
fiduciary for or an advisor to it in respect of that Transaction.
Please confirm that the foregoing correctly sets forth the terms
of our agreement by executing the copy of this Confirmation
enclosed for that purpose and returning it to us.
Yours sincerely,
JP Morgan Securities Inc. acting as agent for
MORGAN GUARANTY COMPANY OF NEW YORK
By: Rajan Kundra
Name: Rajan Kundra
Title: Associate
Confirmed as of the date first above written:
Circus Circus Enterprises
By: Glenn Schaeffer
Name: Glenn Schaeffer
Title: President
Exhibit 4(g)
GRID PROMISSORY NOTE
For value received, Circus Circus Enterprises, Inc. (The
"Borrower"), a Nevada corporation, promises to pay to the order
of Lyon Short Term Funding Corp. (the "Lender"), in lawful money
of the United States of America at the office of the Lender, the
principal amount of each Advance ("Advance") endorsed on the
schedule of schedules attached hereto as Exhibit A (the
"Schedules") on the maturity date of such Advance as shown in the
applicable Schedule, provided that the failure to so endorse
shall not affect the obligations of the Borrower to the Lender,
and to pay, at said principal office, interest on the unpaid
balance of the principal amount of such Advance from and
including the date of such Advance (as shown in the applicable
Schedule) to such maturity date at the rate per annum in respect
of such Advance quoted by the Lender and agreed to by the
undersigned and specified in the applicable Schedule, such
interest to be payable on the maturity date of each Advance.
Interest shall be calculated on the basis of a year of 360 days
and actual days elapsed. Each request by the Borrower for an
Advance shall constitute a representation and warranty by the
Borrower, as of the making of such and Advance and after giving
effect to the application of the proceeds therefrom, that this
Note is the legal, binding and enforceable obligation of the
Borrower (except to the extent that enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the endorsement of creditors'
rights generally and be the effect of general principles of
equity regardless of whether enforceability is considered in a
proceeding in equity or at law). The Borrower shall have no
right to prepay any unpaid principal amount of any Advance. All
Advances made hereunder shall be credited to the account of
Circus Circus Enterprises, Inc. at Bank of America
(ABA#122400724) Account # . The Borrower shall make each
payment hereunder on or before 1:00 p.m. (New York City time) on
the day when due in lawful money of the United States of America
to the Lender at Credit Lyonnaise New York Branch, 1301 Avenue of
the Americas, New York, New York 10019, ABA No. 026008073, for
Lyon Account No. , in same day funds. Whenever any payment
to be made hereunder shall be otherwise due on a Saturday, a
Sunday or a public or bank holiday in (a) New York or (b) the
city in which the principal office of the Lender is located (any
other day being a "Business Day"), such extension of time shall
in such case be included in the computation of payment of
interest. This is not a commitment to lend but rather sets forth
the procedures to be used in connection with requests by the
Borrower to the Lender for Advances from time to time, and, in
the event the Lender makes Advances to the Borrower hereunder,
the Borrower's obligations to the Lender with respect thereto.
The Borrower shall at all times maintain, and each request for an
Advance shall constitute a representation and warranty that the
Borrower has maintained, unused and undedicated bank facilities
or alternative sources of liquidity from one or more commercial
banks which together are at least equal to the then outstanding
amount of credit extended hereunder (giving effect to such
Advance) and such Advance is being incurred, and will be repaid,
in the ordinary course of the Borrower's business and financial
affairs and in accordance with ordinary business terms.
If the Borrower shall not pay the Lender said principal and
interest when due, or if the Borrower shall fail generally to pay
its debts as they become due, make a general assignment for the
benefit of creditors, or if the transaction of usual business of
the Borrower shall be suspended, or any proceeding, procedure or
remedy supplementary to or in enforcement of judgment shall be
resorted to or commenced against, or with respect to, any
property of the Borrower, or if a petition of bankruptcy or for
any relief under any bankruptcy, insolvency or other law relating
to the relief of debtors, adjustment of indebtedness,
reorganization, composition or extension shall be filed, or any
proceeding shall be instituted under any such law, by or against
the Borrower, or any court shall take possession of any
substantial part of the property of, or assume control over the
affairs or operations of, or a receiver, custodian or similar
official shall be appointed for the Borrower, or if any
indebtedness of the Borrower for borrowed money in a principal
amount in excess of $25,000,000 shall not be paid when due or
shall become due and payable by acceleration of maturity thereof,
or if the Borrower shall be dissolved or be a party to any merger
or consolidation in which the Borrower is not the survivor
without the written consent of the Lender, then the principal
amount of this Note and all interest due thereon to the maturity
date, as appropriate, of each Advance shall, unless the Lender
shall otherwise elect, forthwith be due and payable without
presentment, demand, protest or notice of any kind. The Borrower
shall be liable hereunder and all provisions hereof shall apply
to the Borrower.
The Borrower shall not institute against, or join any other
person in instituting against, the Lender any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding
under any federal or state bankruptcy or similar law for one year
and one day after the latest maturing commercial paper note
issued by the Lender is paid in full.
The Borrower agrees to pay on demand all costs, expenses and
losses, if any, incurred by the Lender in connection with the
endorsement of this Note.
<PAGE>
Any overdue principal amount and overdue amount of interest, fees
or other amounts payable hereunder shall bear interest, payable
on demand, at a fluctuating interest rate per annum equal at all
times to two percent (2%) over the daily prevailing Base Rate.
"Base Rate" means, as determined on a daily basis, the higher of
(i) the rate per annum established by Credit Lyonnais New York
Branch ("CLNY") from time to time as the reference rate for
short-term commercial loans in United States dollars to domestic
corporate borrowers, such Base Rate to change as and when such
reference rate changes and (ii) the overnight cost of funds of
CLNY plus one-quarter of one percent per annum (1/4 of 1% per
annum).
The Lender may not assign to any bank or other entity all or any
part of or grant participations to any bank or other entity in or
to all or any part of, any Advance or Advances hereunder without
the prior consent of the Borrower, which consent shall not be
unreasonably withheld; provided that the Lender may at any time
assign to any branch or lending office of Credit Lyonnais all or
any part of its rights and obligations hereunder. The Borrower
may not assign its rights or obligations hereunder or any
interest herein without the Lender's prior written consent and
any such assignment with the Lender's consent shall be null and
void. The Lender represents that it is an :accredited investor"
as that term is defined in Rule 501 under the Securities Act of
1933, as amended (the "Act"), and that it is not acquiring this
Note with a view to the distribution thereof or of any Advance or
interest therein within the meaning of the Act.
This Note shall be construed according to and governed by the
internal laws of the State of New York without giving effect to
the conflict of laws principles thereof.
CIRCUS CIRCUS ENTERPRISES, INC.
Dated: October 17, 1997 By: Glenn Schaeffer
Name: Glenn Schaeffer
Exhibit 4(h)
__________________________________________________
__________________________________________________
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of November 24, 1997
among
CIRCUS AND ELDORADO JOINT VENTURE,
as Borrower,
THE LENDERS LISTED HEREIN,
as Lenders,
and
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Administrative Agent
__________________________________________________
__________________________________________________
TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS. . . . . . . . . . . . . .2
1.1 Certain Defined Terms. . . . . . . . .2
1.2Accounting Terms; Utilization of GAAP for Purposes
of Calculations Under Agreement 33
1.3 Other Definitional Provisions. . . . 33
SECTION 2 AMOUNTS AND TERMS OF COMMITMENTS
AND LOANS . . . . . . . . . . . 34
2.1Commitments; Making of Loans; the Register;
Optional Notes . . . . . . 34
A. Commitments . . . . . . . . . . 34
B. Borrowing Mechanics . . . . . . 34
C. Disbursement of Funds . . . . . 35
D. The Register. . . . . . . . . . 36
E. Optional Notes. . . . . . . . . 37
2.2 Interest on the Loans. . . . . . . . 37
A. Rate of Interest. . . . . . . . 37
B. Interest Periods. . . . . . . . 38
C. Interest Payments . . . . . . . 39
D. Conversion or Continuation. . . 39
E. Post-Maturity Interest. . . . . 41
F. Computation of Interest and Fees41
2.3 Fees . . . . . . . . . . . . . . . . 42
A. Commitment Fees . . . . . . . . 42
B. Upfront Fee . . . . . . . . . . 42
C. Arrangement Fee and Servicing Fee42
D. Amendment Fee . . . . . . . . . 42
2.4 Prepayments and Reductions in Commitments;
General Provisions Regarding Payments42
A. Scheduled Reductions of Commitments42
B. Prepayments and Unscheduled Reductions in
Commitments . . . . . 43
C. General Provisions Regarding Payments45
2.5 Use of Proceeds. . . . . . . . . . . 46
2.6Special Provisions Governing Eurodollar Rate Loans47
A. Determination of Applicable Interest Rate47
B. Inability to Determine Applicable Interest
Rate. . . . . . . . . 47
C. Illegality or Impracticability of Eurodollar
Rate Loans. . . . . . 47
D. Compensation For Breakage or Non-
Commencement of Interest Periods48
E. Booking of Eurodollar Rate Loans49
F. Assumptions Concerning Funding of
Eurodollar Rate Loans 49
G. Eurodollar Rate Loans After Default49
2.7 Increased Costs; Taxes; Capital Adequacy49
A. Compensation for Increased Costs and
Taxes . . . . . . . . 49
B. Withholding of Taxes. . . . . . 51
C. Capital Adequacy Adjustment . . 53
2.8 Obligation of Lenders and Issuing Lender to
Mitigate . . . . . . . . . 54
2.9 Termination of Make-Well Agreement . 55
2.10 Swing Line. . . . . . . . . . . . . 55
SECTION 3 LETTERS OF CREDIT. . . . . . . . . . 59
3.1Issuance of Letters of Credit and Lenders' Purchase
of Participations Therein. 59
A. Letters of Credit . . . . . . . 59
B. Mechanics of Issuance . . . . . 60
3.2 Letter of Credit Fees. . . . . . . . 61
3.3Drawings and Reimbursement of Amounts Drawn
Under Letters of Credit. . 62
3.4 Obligations Absolute . . . . . . . . 65
3.5Indemnification; Nature of Issuing Lender's Duties66
A. Indemnification . . . . . . . . 66
B. Nature of Issuing Lender's Duties66
3.6Increased Costs and Taxes Relating to Letters of
Credit . . . . . . . . . . 67
SECTION 4 CONDITIONS TO LOANS AND LETTERS OF
CREDIT. . . . . . . . . . . . . 69
4.1 Conditions to Initial Loans and Letters of Credit69
A. Borrower Documents. . . . . . . 69
B. Certain General Partner Documents70
C. Opinions of Loan Parties' Counsel70
D. Opinions of Administrative Agent's
Counsel . . . . . . . 71
E. Perfection of Security Interests71
F. Title Policy. . . . . . . . . . 71
G. Insurance . . . . . . . . . . . 71
H. Necessary Consents. . . . . . . 72
I. Environmental Indemnities . . . 72
J. Fees. . . . . . . . . . . . . . 72
K. No Material Adverse Effect. . . 72
L. Representations and Warranties;
Performance of Agreements 72
M. Interbank Arrangements. . . . . 72
N. Completion of Proceedings . . . 72
4.2 Conditions to All Loans, Letters of Credit and
Swing Line Loans . . . . . 73
4.3 Conditions to Letters of Credit. . . 74
SECTION 5 REPRESENTATIONS AND WARRANTIES . . . 76
5.1Organization, Powers, Qualification, Good Standing,
Business and Subsidiaries. 76
A. Organization and Powers . . . . 76
B. Qualification and Good Standing 76
C. Conduct of Business . . . . . . 76
D. Subsidiaries. . . . . . . . . . 76
5.2 Authorization of Borrowing, etc. . . 77
A. Authorization of Borrowing. . . 77
B. No Conflict . . . . . . . . . . 77
C. Governmental Consents . . . . . 77
D. Binding Obligation. . . . . . . 78
5.3 Financial Condition. . . . . . . . . 78
5.4 No Material Adverse Change; No Restricted
Junior Payments. . . . . . 78
5.5 Title to Properties; Liens; All Collateral78
5.6 Litigation; Adverse Facts. . . . . . 79
5.7 Payment of Taxes . . . . . . . . . . 79
5.8Performance of Agreements; Materially Adverse
Agreements . . . . . . . . 79
5.9 Governmental Regulation. . . . . . . 80
5.10 Securities Activities . . . . . . . 80
5.11 Employee Benefit Plans. . . . . . . 80
5.12 Environmental Protection. . . . . . 81
5.13 Employee Matters. . . . . . . . . . 82
5.14 Disclosure. . . . . . . . . . . . . 83
5.15 Compliance With Laws; Licenses, Permits and
Authorizations . . . . . . 83
5.16 Intangible Property. . . . . . . . 84
5.17 Rights to Hotel Agreements, Permits and
Licenses . . . . . . . . . 84
SECTION 6 AFFIRMATIVE COVENANTS. . . . . . . . 86
6.1 Financial Statements and Other Reports86
6.2 Borrower or Corporate Existence, etc 93
6.3 Payment of Taxes and Claims; Tax Consolidation93
6.4 Maintenance of Properties; Insurance 93
6.5 Inspection; Lender Meeting . . . . . 94
6.6 Compliance with Laws, etc. . . . . . 94
6.7 Environmental Disclosure and Inspection94
6.8Borrower's Remedial Action Regarding Hazardous
Material . . . . . . . . . 97
6.9Documentation Concerning General Partner
Subordinated Debt. . . . . 97
SECTION 7 NEGATIVE COVENANTS . . . . . . . . . 98
7.1 Indebtedness . . . . . . . . . . . . 98
7.2 Liens and Related Matters. . . . . . 99
7.3 Investments. . . . . . . . . . . . .101
7.4 Contingent Obligations . . . . . . .101
7.5 Restricted Junior Payments . . . . .102
7.6 Financial Covenants. . . . . . . . .103
7.7Restriction on Fundamental Changes; Asset Sales and
Acquisitions . . . . . . .104
7.8 Capital Expenditures . . . . . . . .105
7.9 Sales and Lease-Backs. . . . . . . .105
7.10 Sale or Discount of Receivables . .106
7.11 Transactions with Shareholders and Affiliates106
7.12 Conduct of Business . . . . . . . .107
7.13 Amendments of Related Documents . .107
7.14 Fiscal Year . . . . . . . . . . . .107
7.15 Transfer of Borrower Interests. . .107
SECTION 8 EVENTS OF DEFAULT. . . . . . . . . .109
8.1 Failure to Make Payments When Due. .109
8.2 Default in Other Agreements. . . . .109
8.3 Breach of Certain Covenants. . . . .110
8.4 Breach of Warranty . . . . . . . . .110
8.5 Other Defaults Under Loan Documents.110
8.6 Involuntary Bankruptcy; Appointment of Receiver,
etc. . . . . . . . . . . .111
8.7 Voluntary Bankruptcy; Appointment of Receiver,
etc. . . . . . . . . . . .111
8.8 Judgments and Attachments. . . . . .112
8.9 Dissolution. . . . . . . . . . . . .112
8.10 Employee Benefit Plans. . . . . . .112
8.11 Material Adverse Effect . . . . . .112
8.12 Change in Control . . . . . . . . .112
8.13 Invalidity of Environmental Indemnities or
Guaranties . . . . . . . .113
8.14 Impairment of Collateral. . . . . .113
8.15 Loss of Governmental Authorizations113
8.16 Gaming License. . . . . . . . . . .114
8.17 Remedies. . . . . . . . . . . . . .114
SECTION 9 Administrative Agent . . . . . . . .116
9.1 Appointment. . . . . . . . . . . . .116
9.2 Powers; General Immunity . . . . . .116
9.3Representations and Warranties; No Responsibility
For Appraisal of Creditworthiness118
9.4 Right to Indemnity . . . . . . . . .118
9.5 Successor Administrative Agent . . .119
9.6 Collateral Documents . . . . . . . .120
SECTION 10 MISCELLANEOUS . . . . . . . . . . .122
10.1 Assignments and Participations in Loans and
Letters of Credit. . . . .122
10.2 Expenses. . . . . . . . . . . . . .124
10.3 Indemnity . . . . . . . . . . . . .125
10.4 Set-Off; Security Interest in Deposit Accounts126
10.5 Ratable Sharing . . . . . . . . . .127
10.6 Amendments and Waivers; Release of Collateral127
10.7 Independence of Covenants . . . . .129
10.8 Notices . . . . . . . . . . . . . .129
10.9 Survival of Representations, Warranties and
Agreements . . . . . . . .129
10.10 Failure or Indulgence Not Waiver; Remedies
Cumulative . . . . . . . .130
10.11 Marshalling; Payments Set Aside130
10.12 Severability. . . . . . . . . .130
10.13Obligations Several; Independent Nature of
Lenders' Rights. . . . . .131
10.14 Headings. . . . . . . . . . . .131
10.15 Applicable Law. . . . . . . . .131
10.16 Successors and Assigns. . . . .131
10.17 Consent to Jurisdiction and Service of Process132
10.18 Waiver of Jury Trial. . . . . .132
10.19 Confidentiality . . . . . . . .133
10.20 Counterparts; Effectiveness . .133
10.21 Non-Recourse to General Partners134
10.22 Cooperation With Gaming Boards.134
10.23 Principles of Restatement; Assignment by Prior
Agent . . . . . . . .135
EXHIBITS
A Assignment Agreement
B Certificate Re: Non-Bank Status
C Compliance Certificate
D Form of Note
E Notice of Borrowing
F Notice of Conversion/Continuation
G Notice of Issuance of Letter of Credit
H Subordination Agreement
SCHEDULES
2.1
Lenders' Commitments
5.1
Subsidiaries
5.12
Environmental Matters
5.16
Intellectual Property
7.2 Certain Existing Liens
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT
AGREEMENT is dated as of November 24, 1997 and
entered into by and among CIRCUS AND ELDORADO
JOINT VENTURE, a Nevada general partnership
("Borrower"), the financial institutions listed on the
signature pages hereof (each individually referred to herein
as a "Lender" and collectively as "Lenders"), THE LONG-
TERM CREDIT BANK OF JAPAN, LTD. and SOCIETE
GENERALE as Managing Agents, CIBC INC. and
CREDIT LYONNAIS, as Co-Agents, WELLS FARGO
BANK, N.A., as Documentation Agent ("Documentation
Agent"), and BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Administrative Agent
("Administrative Agent") with reference to the following
facts.
R E C I T A L S
A. On or about May 30, 1995, Borrower, the
Lenders, Managing Agents and Co-Agents therein
named, and the Prior Agent, entered into a Credit
Agreement dated as of May 30, 1995, which has been
amended and restated in its entirety by an Amended and
Restated Credit Agreement dated as of September 9,
1996 (as heretofore amended, the "Existing Credit
Agreement").
B. The parties hereto desire to amend and restate the
Existing Credit Agreement in its entirety as set forth
herein.
C. Concurrently herewith, the parties have agreed to
nominate and appoint Bank of America National Trust
and Savings Association as successor agent to the Prior
Agent (in this capacity, the "Administrative Agent").
NOW, THEREFORE, in consideration of the
premises and the agreements, provisions and covenants
herein contained, the parties hereto agree to amend and
restate the Existing Credit Agreement in its entirety as
follows:
SECTION 1
DEFINITIONS
1.1 Certain Defined Terms.
The following terms used in this Agreement shall
have the meanings set forth below:
"Additional Contributions" has the meaning set
forth for that term in the Make-Well Agreement.
"Adjusted Eurodollar Rate" means, for any
Interest Rate Determination Date with respect to an Interest
Period for a Eurodollar Rate Loan, the rate per annum
obtained by dividing (i) the offered quotation, if any, to
Administrative Agent (or an Affiliate of Administrative
Agent) by prime banks for U.S. dollar deposits of amounts
in same day funds comparable to the principal amount of
the Eurodollar Rate Loan of Administrative Agent for
which the Adjusted Eurodollar Rate is then being
determined with maturities comparable to such Interest
Period as of approximately 11:00 A.M. (Pacific time) on
such Interest Rate Determination Date by (ii) a percentage
equal to 100% minus the stated maximum rate of all
reserve requirements (including, without limitation, any
marginal, emergency, supplemental, special or other
reserves) applicable on such Interest Rate Determination
Date to any member bank of the Federal Reserve System in
respect of "Eurocurrency liabilities" as defined in
Regulation D (or any successor category of liabilities under
Regulation D).
"Administrative Agent" has the meaning assigned
to that term in the introduction to this Agreement and also
means and includes any successor Administrative Agent
appointed pursuant to Section 9.5.
"Affected Lender" has the meaning assigned to
that term in Section 2.4C.
"Affected Loans" has the meaning assigned to that
term in Section 2.4C.
"Affiliate," as applied to any Person, means any
other Person directly or indirectly controlling, controlled
by, or under common control with, that Person. For the
purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling," "controlled
by" and "under common control with"), as applied to any
Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management
and policies of that Person, whether through the ownership
of voting securities or by contract or otherwise.
"Agreement" means this Amended and Restated
Credit Agreement, as it may hereafter be amended,
supplemented or otherwise modified from time to time.
"Applicable Base Rate Margin" means (i) during
the Make-Well Period, 0%, and (ii) during each portion of
any Pricing Period after the Make-Well Period, the
percentage set forth below (expressed in basis points)
opposite the Stand-Alone Leverage Ratio as of the last day
of the Fiscal Quarter ended approximately 60 days prior to
the first day of such Pricing Period:
Stand-Alone Leverage Ratio Margin
Less than 1.50:1.00 0
Equal to or greater
than 1.50:1.00 but less
than 2.00:1.00 25.00
Equal to or greater
than 2.00:1.00 but less
than 2.50:1.00 50.00
Equal to or greater
than 2.50:1.00 75.00
"Applicable Commitment Fee Rate" means (i)
during each Pricing Period which occurs during the Make-
Well Period, the percentage per annum set forth below
(expressed in basis points) opposite the then applicable
Circus Pricing Level (subject to change on any Circus
Pricing Date in accordance with the related change in the
Circus Pricing Level):
Circus Pricing Level Commitment Fee
Rate
I 10.00
II 12.50
III 15.00
IV 17.50
V 25.00
VI 25.00
and (ii) during each Pricing Period beginning after the
Make-Well Period, the percentage set forth below
(expressed in basis points) opposite the Stand-Alone
Leverage Ratio as of the last day of the Fiscal Quarter
ended approximately 60 days prior to the first day of such
Pricing Period:
Stand Alone Leverage Ratio Commitment Fee
Greater than or equal to 2.50:1.00 43.75
Greater than or equal to 2.00:1.00 37.50
but less than 2.50:1.00
Greater than or equal to 1.50:1.00 31.25
but less than 2.00:1.00
Less than 1.50:1.00 25.00
"Applicable Eurodollar Rate Margin" means (i)
during each Pricing Period which occurs during the Make-
Well Period, the percentage set forth below (expressed in
basis points) opposite the then applicable Circus Pricing
Level (subject to change on any Circus Pricing Date in
accordance with the related change in the Circus Pricing
Level):
Circus Pricing Level Margin
I 36.50
II 37.50
III 60.00
IV 65.00
V 85.00
VI 100.00;
provided that (a) 10.0 basis points will be added to each of
the Applicable Eurodollar Rate Margins set forth above
when the Circus Funded Debt Ratio exceeds 3.50:1.00, and
(b) 20.0 basis points will be added to each of the
Applicable Eurodollar Rate Margins set forth above when
the Circus Funded Debt Ratio exceeds 4.00:1.00, and (ii)
during each Pricing Period which occurs following the
Make-Well Period, the percentage set forth below
(expressed in basis points) opposite the Stand-Alone
Leverage Ratio as of the last day of the Fiscal Quarter
ended approximately 60 days prior to the first day of such
Pricing Period:
Stand-Alone Leverage Ratio Margin
Less than 1.50:1.00 100.00
Equal to or greater
than 1.50:1.00 but less
than 2.00:1.00 125.00
Equal to or greater
than 2.00:1.00 but less
than 2.50:1.00 150.00
Equal to or greater
than 2.50:1.00 175.00
"Arranger" means BancAmerica Robertson
Stephens, Inc.
"Asset Sale" means the sale by Borrower or any
of its Subsidiaries to any Person other than Borrower or
any of its wholly-owned Subsidiaries of (i) any of the stock
of any of Borrower's Subsidiaries, (ii) substantially all of
the assets of any division or line of business of Borrower or
any of its Subsidiaries, or (iii) any other assets (whether
tangible or intangible) of Borrower or any of its
Subsidiaries outside of the ordinary course of business
(including, without limitation, sale of the Premises);
provided, in each case, that no such sale or disposition shall
be an Asset Sale for purposes of this Agreement unless the
fair market value of the assets sold or disposed exceeds
$3,000,000 for any given transaction or series of related
transactions or $6,000,000 in the aggregate in any calendar
year.
"Assignment Agreement" means an Assignment
Agreement in substantially the form of Exhibit A.
"Assignment of Rents and Revenues" means the
Assignment of Rents and Revenues executed and delivered
by Borrower in favor of the Prior Agent on May 30, 1995
and recorded in the official records of Washoe County,
Nevada, on May 31, 1995 in Book 4312, Page 859, as
Instrument 1837111, as amended and restated as of
September 9, 1996, and as assigned by the Prior Agent to
the Administrative Agent by an Amended and Restated
Assignment of Rents and Revenues, as it may hereafter be
amended, supplemented or otherwise modified from time to
time.
"Available Cash Flow" means, for any period, an
amount equal to EBITDA for that period minus the sum,
without duplication, during that period of (a) the amount by
which the average daily Total Utilization during the four
Fiscal Quarter period ending concurrently with that period
exceeds Maximum Availability as of the last day of that
period, (b) payments made by Borrower with respect to
Capital Leases, (c) Cash Interest Expense, (d) Make-Well
Fees paid in cash, (e) Tax Distributions permitted under
Section 7.5(ii) made by Borrower in Cash, and (f) Capital
Expenditures, in each case during that period.
"Bankruptcy Code" means Title 11 of the United
States Code entitled "Bankruptcy", as now and hereafter in
effect, or any successor statute.
"Base Rate" means, at any time, the higher of
(x) the Reference Rate or (y) the rate which is 1/2 of 1% in
excess of the Federal Funds Effective Rate.
"Base Rate Loans" means Loans bearing interest
at rates determined by reference to the Base Rate as
provided in Section 2.2A.
"Borrower" has the meaning assigned to that term
in the introduction to this Agreement.
"Business Day" means any day excluding
Saturday, Sunday and any day which is a legal holiday
under the laws of the States of Nevada, New York or
California or is a day on which banking institutions located
in any such state are authorized or required by law or other
governmental action to close.
"Capital Expenditures" means, for any period, the
sum of (i) the aggregate of all expenditures (whether paid in
cash or other consideration or accrued as a liability and
including that portion of Capital Leases that is capitalized
on the balance sheet of Borrower and its Subsidiaries) by
Borrower and its Subsidiaries during that period that, in
conformity with GAAP, are included in "additions to
property, plant or equipment" or comparable items reflected
in the statement of cash flows of Borrower and its
Subsidiaries plus (ii) to the extent not covered by
clause (i) of this definition, the aggregate of all
expenditures by Borrower and its Subsidiaries during that
period to acquire (by purchase or otherwise) the business,
property or fixed assets of any Person, or the stock or other
evidence of beneficial ownership of any Person that, as a
result of such acquisition, becomes a Subsidiary of
Borrower.
"Capital Lease," as applied to any Person, means
any lease of any property (whether real, personal or mixed)
by that Person as lessee that, in conformity with GAAP, is
accounted for as a capital lease on the balance sheet of that
Person.
"Cash" means money, currency or a credit
balance in a Deposit Account.
"Cash Equivalents" means, as at any date of
determination, (i) marketable securities (a) issued or
directly and unconditionally guaranteed as to interest and
principal by the United States Government or (b) issued by
any agency of the United States the obligations of which are
backed by the full faith and credit of the United States, in
each case maturing within one year after such date;
(ii) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any
such state or any public instrumentality thereof, in each
case maturing within one year after such date and having,
at the time of the acquisition thereof, the highest rating
obtainable from either Standard & Poor's Ratings Group
("S&P") or Moody's Investors Service, Inc. ("Moody's");
(iii) commercial paper maturing no more than one year
from the date of creation thereof and having, at the time of
the acquisition thereof, a rating of at least A-1 from S&P or
at least P-1 from Moody's; (iv) certificates of deposit or
bankers' acceptances maturing within one year after such
date and issued or accepted by any Lender or by any
commercial bank organized under the laws of the United
States of America or any state thereof or the District of
Columbia that, at the time of the acquisition of such
certificates or acceptances (a) is at least "adequately
capitalized" (as defined in the regulations of its primary
Federal banking regulator) and (b) has Tier 1 capital (as
defined in such regulations) of not less than $100,000,000;
(v) shares of any money market mutual fund that (a) has at
least 95% of its assets invested continuously in the types of
investments referred to in clauses (i) and (ii) above, (b) has
net assets of not less than $500,000,000, and (c) has the
highest rating obtainable from either S&P or Moody's, and
(vi) overnight repurchase agreements executed with
Lenders; provided that the terms of such repurchase
agreements require physical delivery of securities (which
must be "Cash Equivalents" as described in clauses (i) - (iv)
above), except in the case of treasury obligations delivered
through the Federal Reserve book entry system.
"Cash Interest Expense" means Interest Expense
paid or payable in cash, other than Interest Expense accrued
but unpaid with respect to the General Partner Subordinated
Debt.
"Certificate re Non-Bank Status" means a
certificate substantially in the form of Exhibit B delivered
by a Lender to Administrative Agent pursuant to
Section 2.7B(iii).
"Circus" means Circus Circus Enterprises, Inc., a
Nevada corporation, its successors and permitted assigns.
"Circus Bridge" means the elevated building
structure that spans Fifth Street and connects the
Improvements with the buildings located on the adjacent
real property owned by Circus Circus Casinos, Inc., a
Nevada corporation.
"Circus Debt Rating" means, as of each date of
determination, the most creditworthy rating, actual or
implicit, assigned to (i) senior unsecured Indebtedness of
Circus by S&P, (ii) senior unsecured Indebtedness of
Circus by Moody's or (iii) in the event such a rating is
issued, the bank debt rating assigned to the Indebtedness
evidenced by the Circus Loan Agreement by Moody's or
S&P, whichever is highest.
"Circus Funded Debt Ratio" means, as of any date
of determination, the ratio of (a) the "Average Daily
Funded Debt" of Circus as of the last day of the then most
recently ended fiscal quarter of Circus to (b) the greater of
(i) "Adjusted EBITDA" of Circus for the four Fiscal
Quarter period ending on that date, or (ii) four times
"Adjusted EBITDA" of Circus for the Fiscal Quarter
ending on that date, in each case determined in accordance
with the terms of the Circus Loan Agreement.
"Circus Loan Agreement" means that certain
Amended and Restated Loan Agreement dated as of May
23, 1997, among Circus, the Banks and Co-Administrative
Agents named therein, and Bank of America National Trust
and Savings Association, as Administrative Agent as in
effect as of the date of this Agreement.
"Circus Pricing Date" means (a) with respect to
any change in the Circus Funded Debt Ratio which results
in a change in the Circus Pricing Level, the earlier of
(i) the date upon which Circus delivers a copy of its
compliance certificate under the Circus Loan Agreement to
the Administrative Agent pursuant to Section 2.14 of the
Make-Well Agreement reflecting such changed Circus
Funded Debt Ratio and (ii) the date upon which Circus is
required to deliver such a compliance certificate, and
(b) with respect to any change in the Circus Debt Rating
which results in a change in the Circus Pricing Level, the
date which is five (5) Banking Days after the
Administrative Agent has received evidence reasonably
satisfactory to it of such change.
"Circus Pricing Level" means the pricing level set
forth below opposite the pricing criteria achieved by Circus
as of the then most recent Circus Pricing Date (and, if the
Circus Funded Debt Ratio and the Circus Debt Rating are
then at different pricing levels, then the pricing level which
yields the lowest Applicable Base Rate Margin and
Applicable Eurodollar Margin to Borrower):
Circus Pricing Level Pricing Criteria
Circus Funded Circus 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
"Closing Date" means the date upon which each of the
conditions precedent specified in Section 4.1 are satisfied or
waived and this Agreement becomes effective.
"Co-Agents" means CIBC Inc. and Credit
Lyonnais. The capacity of the Co-Agents is purely titular
in nature, and the Co-Agents shall not derive any rights or
obligations under the Loan Documents solely by reason of
being the Co-Agents.
"Collateral" means all the real, personal and
mixed property made subject to a Lien pursuant to the
Collateral Documents.
"Collateral Account Agreement" means the
Collateral Account Agreement executed and delivered by
Borrower in favor of the Prior Agent as of May 30, 1995,
as amended and restated as of September 9, 1996, and as
assigned to the Administrative Agent for the benefit of the
Lenders and amended and restated on the date of this
Agreement, as such Collateral Account Agreement may
hereafter be amended, supplemented or otherwise modified
from time to time.
"Collateral Documents" means the Security
Agreement, the Collateral Account Agreement, the Deed of
Trust and the Assignment of Rents and Revenues and all
other instruments or documents now or hereafter granting
Liens on property of Borrower or its Subsidiaries to
Administrative Agent for benefit of Lenders.
"Commitment" means the Commitment of
any Lender, and "Commitments" means such commitments
of all Lenders in the aggregate at the time of reference.
Initially, the aggregate principal amount of the
Commitments is $230,000,000, but it may hereafter be
reduced in the manner provided for in Section 2.4.
"Compliance Certificate" means a certificate
substantially in the form of Exhibit C delivered to
Administrative Agent and Lenders by Borrower pursuant to
Section 6.1(iv).
"Contingent Obligation," as applied to any
Person, means any direct or indirect liability, contingent or
otherwise, of that Person (i) with respect to any Indebted-
ness, lease, dividend or other obligation of another if the
primary purpose or intent thereof by the Person incurring
the Contingent Obligation is to provide assurance to the
obligee of such obligation of another that such obligation of
another will be paid or discharged, or that any agreements
relating thereto will be complied with, or that the holders of
such obligation will be protected (in whole or in part)
against loss in respect thereof, (ii) with respect to any letter
of credit issued for the account of that Person or as to
which that Person is otherwise liable for reimbursement of
drawings, or (iii) under Interest Rate Agreements.
Contingent Obligations shall include, without limitation,
(a) the direct or indirect guaranty, endorsement (other than
for collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse
by such Person of the obligation of another, (b) the
obligation to make take-or-pay or similar payments if
required regardless of non-performance by any other party
or parties to an agreement, and (c) any liability of such
Person for the obligation of another through any agreement
(contingent or otherwise) (X) to purchase, repurchase or
otherwise acquire such obligation or any security therefor,
or to provide funds for the payment or discharge of such
obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise) or (Y) to
maintain the solvency or any balance sheet item, level of
income or financial condition of another if, in the case of
any agreement described under subclauses (X) or (Y) of
this sentence, the primary purpose or intent thereof is as
described in the preceding sentence. For purposes of this
definition, the amount of any Contingent Obligation at any
time of determination shall be computed as the amount that,
in light of all the facts and circumstances existing at such
time represents the amount that reasonably can be expected
at such time of determination to become an actual or
matured liability.
"Contractual Obligation," as applied to any
Person, means any provision of any Security issued by that
Person or of any material indenture, mortgage, deed of
trust, contract, undertaking, agreement or other instrument
(which other instrument is for the payment of money) to
which that Person is a party or by which it or any of its
properties is bound or to which it or any of its properties is
subject.
"Coverage Ratio" means, for the purposes of
Section 7.6A, (a) as of the last day of each Fiscal Quarter
ending before the termination of the Make-Well in
accordance with Section 2.9, the Make-Well Coverage
Ratio, and (b) as of the last day of each subsequent Fiscal
Quarter, the Stand-Alone Coverage Ratio.
"Default" means a condition or event that,
after notice or lapse of time or both, would constitute an
Event of Default.
"Documentation Agent" means Wells Fargo
Bank, N.A. Wells Fargo Bank, N.A. shall not derive any
rights or obligations under the Loan Documents solely by
reason of it being the Documentation Agent.
"Deed of Trust" means that certain
Construction Deed of Trust, Fixture Filing and Security
Agreement with Assignment of Rents executed by Borrower
in favor of Prior Agent as of May 30, 1995 and recorded in
the official records of Washoe County, Nevada on May 31,
1995 at Book 4312, Page 814 and as Instrument 1897110,
as amended and restated as of September 9, 1996, as
assigned by the Prior Agent to the Administrative Agent as
of the date hereof and further amended and restated by an
Amended and Restated Construction Deed of Trust, Fixture
Filing With Security Agreement and Assignment of Rents
dated as of the date hereof and as it may hereafter be
amended, supplemented or otherwise modified from time to
time.
"Deposit Account" means a demand, time,
savings, passbook or like account with a bank, savings and
loan association, credit union or like organization, other
than an account evidenced by a negotiable certificate of
deposit.
"Dollars" and the sign "$" mean the lawful
money of the United States of America.
"EBITDA" means, for any period, Net
Income for such period plus, to the extent such items were
subtracted in the determination of Net Income, the sum of
the amounts for such period of (i) Interest Expense,
(ii) provisions for taxes based on income, (iii) total
depreciation expense, (iv) total amortization expense, (v)
Pre-Opening Expenses, and (vi) other non-cash items
reducing Net Income less, to the extent such items were
added in the determination of Net Income, the sum of the
amounts for such period of non-cash items increasing Net
Income, all of the foregoing as determined for Borrower
and its Subsidiaries in conformity with GAAP.
"Eldorado Bridge" means the elevated
building structure that spans Fourth Street and connects the
Improvements with the buildings located on the adjacent
real property owned by Eldorado Hotel.
"Eldorado Hotel" means Eldorado Resorts,
LLC, a Nevada limited liability company (successor by
merger to Eldorado Hotel Associates Limited Partnership)
and a member of Eldorado LLC.
"Eldorado LLC" means Eldorado Limited
Liability Company, a Nevada limited liability company.
"Eligible Assignee" means (A)(i) a
commercial bank organized under the laws of the United
States or any state thereof; (ii) a savings and loan
association, savings bank organized or other financial
institution under the laws of the United States or any state
thereof; and (iii) a commercial bank organized under the
laws of any other country or a political subdivision thereof;
provided that (x) such bank is acting through a branch or
agency located in the United States or (y) such bank is
organized under the laws of a country that is a member of
the Organization for Economic Cooperation and
Development or a political subdivision of such country; and
(B) any Lender and any Affiliate of any Lender which
qualifies as a lender under applicable Nevada laws;
provided that no Affiliate of Borrower, Circus or Eldorado
Hotel shall be an Eligible Assignee.
"Employee Benefit Plan" means any
"employee benefit plan" as defined in Section 3(3) of
ERISA which is, or was at any time, maintained or
contributed to by Borrower or any of its ERISA Affiliates.
"Environmental Claim" means any
accusation, allegation, notice of violation, claim, demand,
abatement order, cleanup order, removal order, or other
order or direction (conditional or otherwise) by any
governmental authority or any Person for any injury, loss
or damage, including, without limitation, personal injury
(including sickness, disease or death), tangible or intangible
property damage, contribution, indemnity, indirect or
consequential damages, damage to the environment,
nuisance, pollution, contamination or other adverse effects
on the environment, or for fines, penalties or restrictions or
to compel cleanup or remediation, in each case relating to,
resulting from or in connection with any Hazardous
Material and relating to Borrower, any of its Subsidiaries
or any Facility.
"Environmental Indemnities" means the
Environmental Indemnities from Circus, Eldorado Hotel
and Borrower executed on May 30, 1995 in favor of Prior
Agent for the benefit of Lenders, as reaffirmed as of
September 30, 1996, as assigned by the Prior Agent to the
Administrative Agent as of the date hereof and reaffirmed,
and as it may hereafter be amended, supplemented or
otherwise modified from time to time.
"Environmental Laws" means all statutes,
ordinances, orders, rules, regulations, plans, policies,
decrees, permits, guidance documents, and any other
requirements of Governmental Authorities relating to
(i) environmental matters, including, without limitation,
those relating to fines, injunctions, penalties, damages,
contribution, cost recovery compensation, losses or injuries
resulting from the Release or threatened Release of
Hazardous Material, (ii) the presence, generation, use,
storage, transportation or disposal of Hazardous Material,
or (iii) occupational safety and health, industrial hygiene,
land use or the protection of human, plant or animal health
or welfare, in any manner applicable to Borrower or any of
its Subsidiaries or any of their respective properties,
including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act
(42 U.S.C. 9601 et seq.), 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 Federal Water Pollution Control Act (
33 U.S.C. 1251 et seq.), the Clean Air Act (42 U.S.C.
7401 et seq.), the Toxic Substances Control Act (15
U.S.C. 2601 et seq.), the Federal Insecticide, Fungicide
and Rodenticide Act (7 U.S.C. 136 et seq.), the
Occupational Safety and Health Act (29 U.S.C. 651 et
seq.) and the Emergency Planning and Community Right-
to-Know Act (42 U.S.C. 11001 et seq.), each as amended
or supplemented, and any analogous future or present local,
state and federal statutes, ordinances and other laws, and
rules and regulations promulgated pursuant thereto, each as
in effect as of the date of determination.
"ERISA" means the Employee Retirement
Income Security Act of 1974, as amended from time to
time, and any successor statute.
"ERISA Affiliate", as applied to any Person,
means (i) any Person that is, or was at any time, a member
of a controlled group of Persons within the meaning of
Section 414(b) of the Internal Revenue Code of which that
Person is, or was at any time, a member; (ii) any trade or
business (whether or not incorporated) which is, or was at
any time, a member of a group of trades or businesses
under common control within the meaning of Section 414(c)
of the Internal Revenue Code of which that Person is, or
was at any time, a member; and (iii) any member of an
affiliated service group within the meaning of
Section 414(m) or (o) of the Internal Revenue Code of
which that Person, any Person described in clause (i) above
or any trade or business described in clause (ii) above is, or
was at any time, a member.
"ERISA Event" means (i) a "reportable
event" within the meaning of Section 4043 of ERISA and
the regulations issued thereunder with respect to any
Pension Plan (excluding those for which the provision for
30-day notice to the PBGC has been waived by regulation);
(ii) the failure to meet the minimum funding standard of
Section 412 of the Internal Revenue Code with respect to
any Pension Plan (whether or not waived in accordance
with Section 412(d) of the Internal Revenue Code) or the
failure to make by its due date a required installment under
Section 412(m) of the Internal Revenue Code with respect
to any Pension Plan or the failure to make any required
contribution to a Multiemployer Plan; (iii) the provision by
the administrator of any Pension Plan pursuant to
Section 4041(a)(2) of ERISA of a notice of intent to
terminate such plan in a distress termination described in
Section 4041(c) of ERISA; (iv) the withdrawal by Borrower
or any of its ERISA Affiliates from any Pension Plan with
two or more contributing sponsors or the termination of any
such Pension Plan resulting in liability pursuant to
Sections 4063 or 4064 of ERISA; (v) the institution by the
PBGC of proceedings to terminate any Pension Plan, or the
occurrence of any event or condition which might constitute
grounds under ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan;
(vi) the imposition of liability on Borrower or any of its
ERISA Affiliates pursuant to Section 4062(e) or 4069 of
ERISA or by reason of the application of Section 4212(c) of
ERISA; (vii) the withdrawal by Borrower or any of its
ERISA Affiliates in a complete or partial withdrawal
(within the meaning of Sections 4203 and 4205 of ERISA)
from any Multiemployer Plan if there is any potential
liability therefor, or the receipt by Borrower or any of its
ERISA Affiliates of notice from any Multiemployer Plan
that it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA, or that it intends to
terminate or has terminated under Section 4041A or 4042
of ERISA; (viii) the occurrence of an act or omission which
could give rise to the imposition on Borrower or any of its
ERISA Affiliates of fines, penalties, taxes or related
charges under Chapter 43 of the Internal Revenue Code or
under Section 409 or 502(c), (i) or (l) or 4071 of ERISA in
respect of any Employee Benefit Plan; (ix) the assertion of
a material claim (other than routine claims for benefits)
against any Employee Benefit Plan other than a
Multiemployer Plan or the assets thereof, or against
Borrower or any of its ERISA Affiliates in connection with
any such Employee Benefit Plan; (x) receipt from the
Internal Revenue Service of notice of the failure of any
Pension Plan (or any other Employee Benefit Plan intended
to be qualified under Section 401(a) of the Internal Revenue
Code) to qualify under Section 401(a) of the Internal
Revenue Code, or the failure of any trust forming part of
any Pension Plan to qualify for exemption from taxation
under Section 501(a) of the Internal Revenue Code; or
(xi) the imposition of a Lien pursuant to Section 401(a)(29)
or 412(n) of the Internal Revenue Code or pursuant to
ERISA with respect to any Pension Plan.
"Eurodollar Rate Loans" means Loans
bearing interest at rates determined by reference to the
Adjusted Eurodollar Rate as provided in Section 2.2A.
"Event of Default" means each of the events
set forth in Section 8.
"Exchange Act" means the Securities
Exchange Act of 1934, as amended from time to time, and
any successor statute.
"Executive Committee" means the executive
committee of Borrower organized in accordance with
Section 5.7 of the Joint Venture Agreement.
"Executive Committee Signatories" means
the individuals from time to time serving as Borrower's
Director of Finance and Administration and General
Manager each of whom shall have been authorized to sign
on behalf of the Executive Committee and Borrower
pursuant to a resolution of the Executive Committee.
"Existing Credit Agreement" means the
Amended and Restated Credit Agreement dated as of
September 9, 1996 referred to in the recitals to this
Agreement, as heretofore amended.
"Facility" and "Facilities" mean any and all
real property (including, without limitation, all buildings,
fixtures or other improvements located thereon) now,
hereafter or heretofore owned, leased, operated or used by
Borrower or any of its Subsidiaries.
"Federal Funds Effective Rate" means, for
any period, a fluctuating interest rate equal for each day
during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers,
as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average
of the quotations for such day on such transactions received
by Administrative Agent from three Federal funds brokers
of recognized standing selected by Administrative Agent.
"Fee Letter" means that certain letter
agreement of even date herewith between Borrower and
Administrative Agent.
"Fiscal Quarter" means a fiscal quarter of
Borrower ending on any March 31, June 30, September 30
or December 31.
"Fiscal Year" means a fiscal year of
Borrower ending on each December 31.
"Flood Act" means the National Flood
Insurance Act of 1968 as amended by the Flood Disaster
Protection Act of 1973 (42 U.S.C. 4013 et. seq.).
"Funding and Payment Office" means the
office of Administrative Agent located at the address set
forth on the signature pages hereof.
"Funding Date" means, with respect to any
particular Loan, the date of the funding of that Loan.
"GAAP" means, subject to the limitations on
the application thereof set forth in Section 1.2, generally
accepted accounting principles set forth in opinions and pro-
nouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other
entity as may be approved by a significant segment of the
accounting profession (including, without limitation, in the
AICPA Audit and Accounting Guide: Audits of Casinos), in
each case as the same are applicable to the circumstances as
of the date of determination.
"Gaming Board" means, collectively, (a) the
Nevada Gaming Commission, (b) the Nevada State Gaming
Control Board, and (c) any other Governmental Authority
that holds regulatory, licensing or permit authority over
gambling, gaming or casino activities conducted by
Borrower and its Subsidiaries within its jurisdiction.
"Gaming Laws" means all statutes, rules,
regulations, ordinances, codes and administrative or judicial
precedents (including, without limitation, the Nevada
Gaming Control Act (N.R.S. Ch. 463)) 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.
"General Partner Subordinated Debt" means
any Subordinated Indebtedness of Borrower issued subject
to a Subordination Agreement, to Circus or any of Circus'
wholly-owned Subsidiaries pursuant to credit documents
which are substantially in the form of the Loan Agreement
dated as of May 30, 1995 by and between Circus and
Borrower, and the related deed of trust and security
agreement made by Borrower for the benefit of Circus.
"General Partners" means, at any time,
Galleon, Inc., a Nevada corporation and a wholly-owned
Subsidiary of Circus, and Eldorado LLC, a Nevada limited
liability company, each a general partner of Borrower, and
their respective successors and assigns at such time.
"Governmental Authority" means any of the
United States government, the government of the State of
Nevada or any other state and any political subdivision,
agency, department, commission, court, board, bureau or
instrumentality of any of them, including any local
authorities.
"Governmental Authorization" means any
permit, license, authorization, plan, directive, consent order
or consent decree of or from any Governmental Authority.
"Hazardous Material" means (i) any
chemical, material or substance at any time defined as or
included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials", "extremely
hazardous waste", "restricted hazardous waste", "infectious
waste", "toxic substances" or any other formulations
intended to define, list or classify substances by reason of
deleterious properties such as ignitability, corrosivity,
reactivity, carcinogenicity, toxicity, reproductive toxicity,
"TCLP toxicity" or "EP toxicity" or words of similar
import under any applicable Environmental Law or
publication promulgated pursuant thereto; (ii) any oil,
petroleum, petroleum fraction or petroleum derived
substance; (iii) any drilling fluid, produced water and other
waste associated with the exploration, development or
production of crude oil, natural gas or geothermal
resources; (iv) any flammable substance or explosive;
(v) any radioactive material; (vi) asbestos in any form;
(vii) urea formaldehyde foam insulation; (viii) electrical
equipment which contains any oil or dielectric fluid
containing polychlorinated biphenyls; (ix) any pesticide; and
(x) any other chemical, material or substance, exposure to
which is prohibited, limited or regulated by any
governmental authority or which may or could pose a
hazard to human health and safety or the environment if
released into the workplace or the environment.
"Hotel" means the Silver Legacy Hotel and
Casino in Reno, Nevada, including, without limitation, the
Premises; the Improvements (including, without limitation,
the Silver Legacy Bridge and the Tunnel); the Skyways, all
street work; drainage; plantings; signalization; and other
installations, equipment and facilities located on or off of
the Premises and required of Borrower by Governmental
Authorities in connection with development of the
Premises.
"Hotel-Casino Management" means Hotel-
Casino Management, Inc., a Nevada corporation and a
member of both Eldorado LLC and Eldorado Hotel, and its
successors and permitted assigns.
"Improvements" means all buildings,
structures, facilities and other improvements of every kind
and description now or hereafter located on the Premises,
including all parking areas, roads, driveways, walks,
fences, walls, beams, recreation facilities, drainage
facilities, lighting facilities and other site improvements, all
water, sanitary and storm sewer, drainage, electricity,
steam, gas, telephone and other utility equipment and
facilities, all plumbing, lighting, heating, ventilating, air-
conditioning, refrigerating, incinerating, compacting, fire
protection and sprinkler, surveillance and security, vacuum
cleaning, public address and communications equipment and
systems, all screens, awnings, floor coverings, partitions,
elevators, escalators, motors, machinery, pipes, fittings and
other items of equipment and personal property of every
kind and description now or hereafter located on the
Premises or attached to the improvements (excluding the
Skyways but including any support structures attached to
the improvements with respect to the Skyways and
including the Silver Legacy Bridge and the Tunnel) that by
the nature of their location thereon or attachment thereto
are real property under applicable law.
"Indebtedness" as applied to any Person,
means, without duplication, (i) all indebtedness for
borrowed money, (ii) that portion of obligations with
respect to Capital Leases that is properly classified as a
liability on a balance sheet in conformity with GAAP,
(iii) notes payable and drafts accepted representing exten-
sions of credit whether or not representing obligations for
borrowed money, (iv) any obligation owed for all or any
part of the deferred purchase price of property or services
(excluding any such obligations incurred under ERISA),
which purchase price is (a) due more than six months from
the date of incurrence of the obligation in respect thereof or
(b) evidenced by a note or similar written instrument,
(excluding, as an example, any trade payables payable in
the ordinary course of business that are not so due or so
evidenced) and (v) all indebtedness secured by any Lien on
any property or asset owned or held by that Person regard-
less of whether the indebtedness secured thereby shall have
been assumed by that Person or is nonrecourse to the credit
of that Person. Obligations under Interest Rate Agreements
constitute Contingent Obligations and not Indebtedness.
Indebtedness under this Agreement shall be determined by
reference to Total Utilization on any date of determination.
"Indemnitee" has the meaning assigned to
that term in Section 10.3.
"Intellectual Property" means all patents,
trademarks, tradenames, customer lists, copyrights,
technology, know-how and processes (i) used in or
necessary for the conduct of the business of Borrower and
its Subsidiaries as currently conducted and as proposed to
be conducted and (ii) that are material to the condition
(financial or otherwise), business or operations of Borrower
and its Subsidiaries, taken as a whole.
"Interest Expense" means, for any period,
total interest expense (including that portion attributable to
Capital Leases in accordance with GAAP and capitalized
interest) of Borrower and its Subsidiaries with respect to all
outstanding Indebtedness of Borrower and its Subsidiaries,
including, without limitation, all commissions, discounts
and other fees and charges owed with respect to letters of
credit and bankers' acceptance financing and net costs
under Interest Rate Agreements.
"Interest Payment Date" means (i) with
respect to any Base Rate Loan, the last day of each month
of each year, commencing on the first such date to occur
after the Closing Date, and (ii) with respect to any
Eurodollar Rate Loan, the last day of each Interest Period
applicable to such Loan; provided that in the case of each
Interest Period of longer than three months "Interest
Payment Date" shall also include each date that is three
months, or an integral multiple thereof, after the
commencement of such Interest Period.
"Interest Period" has the meaning assigned to
that term in Section 2.2B.
"Interest Rate Agreement" means any
interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement or other similar agreement or
arrangement designed to protect Borrower or any of its
Subsidiaries against fluctuations in interest rates.
"Interest Rate Determination Date" means,
with respect to any Interest Period, the second Business
Day prior to the first day of such Interest Period.
"Internal Revenue Code" means the Internal
Revenue Code of 1986, as amended to the date hereof and
from time to time hereafter.
"Investment" means (i) any direct or indirect
purchase or other acquisition by Borrower or any of its
Subsidiaries of, or of a beneficial interest in, any Securities
of any other Person, (ii) any direct or indirect redemption,
retirement, purchase or other acquisition for value, by
Borrower or any Subsidiary of Borrower from any Person
other than Borrower or any of its Subsidiaries, of any
equity Securities of such Subsidiary, or (iii) any direct or
indirect loan, advance (other than advances to employees
for moving, entertainment and travel expenses, drawing
accounts and similar expenditures in the ordinary course of
business) or capital contribution by Borrower or any of its
Subsidiaries to any other Person, other than any
indebtedness or account receivable or both from that other
Person that is a current asset or arose from sales to that
other Person in the ordinary course of business. The
amount of any Investment shall be the original cost of such
Investment plus the cost of all additions thereto, without
any adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such
Investment.
"Issuing Lender" means Administrative
Agent.
"Joint Venture" means a joint venture,
partnership or other similar arrangement, whether in
corporate, partnership or other legal form; provided that in
no event shall any corporate Subsidiary of any Person be
considered to be a Joint Venture to which such Person is a
party.
"Joint Venture Agreement" means the Circus
and Eldorado Joint Venture Agreement, dated as of
March 1, 1994, between the General Partners as amended
by the First Amendment to Agreement of Joint Venture of
Circus and Eldorado Joint Venture, dated as of July 27,
1994, as amended, supplemented or otherwise modified
from time to time in accordance with the terms of
Section 7.14B.
"Lender" and "Lenders" means the persons
identified as "Lenders" and listed on the signature pages of
this Agreement, together with their successors and
permitted assigns pursuant to Section 10.1. The term
"Lenders" when used without a modifier or when modified
only by "the" means Requisite Lenders.
"Letter of Credit" or "Letters of Credit"
means Standby Letters of Credit issued or to be issued by
Issuing Lender for the account of Borrower pursuant to
Section 3.1.
"Letter of Credit Usage" means, as at any
date of determination, the sum of (i) the maximum
aggregate amount that is or at any time thereafter may
become available for drawing under all Letters of Credit
then outstanding plus (ii) the aggregate amount of all
drawings under Letters of Credit honored by Issuing Lender
and not theretofore reimbursed by Borrower
(reimbursement out of the proceeds of Loans pursuant to
Section 3.3B shall be considered reimbursement by
Borrower for purposes hereof).
"Leverage Ratio" means, for the purposes of
Section 7.6B, (a) as of the last day of each Fiscal Quarter
ending before the termination of the Make-Well in
accordance with Section 2.9, the Make-Well Leverage
Ratio, and (b) as of the last day of each subsequent Fiscal
Quarter, the Stand-Alone Leverage Ratio.
"License Revocation" means the revocation,
failure to renew (other than with respect to particular types
of gambling or gaming activities (e.g., Keno or Pai Gow)
that Borrower has elected no longer to pursue) 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 or any of its
Subsidiaries.
"Lien" means any lien, mortgage, pledge,
assignment, security interest, charge or encumbrance of any
kind (including any conditional sale or other title retention
agreement, any lease in the nature thereof, any agreement
to give any security interest and any mechanic's liens) and
any option, trust or other preferential arrangement having
the practical effect of any of the foregoing.
"Loan Documents" means this Agreement,
any Notes, the Swing Line Documents, the Letters of
Credit (and any applications for, or reimbursement
agreements or other documents or certificates executed by
Borrower in favor of an Issuing Lender relating to, the
Letters of Credit), the Collateral Documents, the Make-
Well Agreement, the Subordination Agreement, the
Environmental Indemnities, each Interest Rate Agreement
entered into between Borrower and any Lender (provided
that each such Interest Rate Agreement shall be entitled to
the benefits of the Collateral Documents to the extent set
forth in Section 9.7) and each reaffirmation thereof.
"Loan Exposure" means, with respect to any
Lender as of any date of determination (i) prior to the
termination of the Commitments, that Lender's
Commitment and (ii) after the termination of the
Commitments, the sum of (a) the aggregate outstanding
principal amount of the Loans of that Lender plus (b) in the
event that Lender is an Issuing Lender, the aggregate Letter
of Credit Usage in respect of all Letters of Credit issued by
that Lender (in each case net of any participations
purchased by other Lenders in such Letters of Credit or any
unreimbursed drawings thereunder) plus (c) the aggregate
amount of all participations purchased by that Lender in
any drawings under Letters of Credit honored by Issuing
Lender and not theretofore reimbursed by Borrower.
"Loan Party" means any of Borrower,
Borrower's Subsidiaries and General Partners and "Loan
Parties" means Borrower, Borrower's Subsidiaries and
General Partners, collectively.
"Loans" means any loans made by the
Lenders to Borrower pursuant to Section 2.1
"Make-Well Agreement" means the
Amended and Restated Make-Well Agreement executed and
delivered by Circus and Administrative Agent as of the
Closing Date, as it may hereafter be amended,
supplemented or otherwise modified from time to time.
"Make-Well Coverage Ratio" means, as of
the last day of each Fiscal Quarter, the ratio of (a) EBITDA
minus the sum (without duplication) of Tax Distributions
made pursuant to Section 7.5(ii), Other Borrower
Distributions made pursuant to Section 7.5(iii) or 7.5(iv),
and Capital Expenditures (other than Capital Expenditures
for the improvements to the mezzanine level of the Hotel
described in the proviso to Section 7.8), to (b) the amount
by which the average daily Total Utilization during the four
Fiscal Quarter period then ended exceeds Maximum
Availability as of such date plus Cash Interest Expense plus
Other Permitted Indebtedness Payments actually made in
Cash, plus Make-Well Fees actually paid in Cash, in each
case for the four Fiscal Quarter Period ending on such date,
provided that any contribution of cash to Borrower by
Circus in exchange for equity of Borrower or General
Partner Subordinated Debt shall be included, without
duplication, in Net Income for the Fiscal Quarter in which
such contribution is made (or, if made within 25 calendar
days of the end of a Fiscal Quarter, for such Fiscal Quarter
immediately ended if Circus notifies Administrative Agent
in writing at the time of such contribution that such
contribution is to be so credited).
"Make-Well Fees" means, for any period,
the amount of fees paid in cash to Circus by Borrower on
account of the Make-Well Agreement during that period
pursuant to Section 2.4 of the Joint Venture Agreement.
"Make-Well Leverage Ratio" means, as of
the last day of any Fiscal Quarter, the ratio of (i) the sum
of (a) the average of the daily Total Utilization during the
immediately preceding Fiscal Quarter (excluding, for this
purpose, Letters of Credit which are not issued to support
Indebtedness) plus (b) Other Permitted Indebtedness
outstanding as of the last day of such period plus (c)
Indebtedness outstanding in respect of Capital Leases as of
the last day of such period to (ii) EBITDA for the four
consecutive Fiscal Quarter period ending on the date as of
which the determination is being made.
"Make-Well Period" means the period from
the Closing Date until the Make-Well Agreement is
terminated.
"Manager" means the Person elected to
manage the affairs of a limited liability company.
"Managing Agents" means The Long-Term
Credit Bank of Japan, Ltd. and Societe Generale. The
capacity of the Managing Agents is purely titular in nature,
and the Managing Agents shall not derive any rights or
obligations under the Loan Documents solely by reason of
being the Managing Agents.
"Managing Partner" means, at any time,
Galleon, Inc., a Nevada corporation and a wholly-owned
subsidiary of Circus, or its successors or assigns, in the
capacity of managing partner of Borrower under the Joint
Venture Agreement, at such time.
"Margin Stock" has the meaning assigned to
that term in Regulation U of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"Material Adverse Effect" means (i) a
material adverse effect upon (a) the business, operations,
properties, assets, condition (financial or otherwise) or
prospects of any Loan Party and its Subsidiaries taken as a
whole, (b) the validity, priority or enforceability of any of
the Loan Documents or any Lien created or intended to be
created thereby, or (c) the use, occupancy or operation of
all or any material part of the Hotel or (ii) the impairment
of the ability of any Loan Party materially to perform, or of
Administrative Agent or Lenders to enforce, the
Obligations.
"Maturity Date" means June 30, 2003.
"Maximum CapEx Amount" has the meaning
assigned to that term in Section 7.8.
"Maximum Availability" means the
aggregate amount of the Commitments available as of the
date of determination whether or not drawn or outstanding
or used as Loans or for Letters of Credit.
"Multiemployer Plan" means a
"multiemployer plan", as defined in Section 3(37) of
ERISA, to which Borrower or any of its ERISA Affiliates
is contributing, or ever has contributed, or to which
Borrower or any of its ERISA Affiliates has, or ever has
had, an obligation to contribute.
"Net Income" means, for any period, the net
income (or loss) of Borrower and its Subsidiaries for such
period taken as a single accounting period determined in
conformity with GAAP; provided that there shall be
excluded (i) the income (or loss) of any Person (other than
a Subsidiary of Borrower) in which any other Person (other
than Borrower or any of its Subsidiaries) has a joint
interest, except to the extent of the amount of dividends or
other distributions actually paid to Borrower or any of its
Subsidiaries by such Person during such period, (ii) the
income (or loss) of any Person accrued prior to the date it
becomes a Subsidiary of Borrower or is merged into or
consolidated with Borrower or any of its Subsidiaries or
that Person's assets are acquired by Borrower or any of its
Subsidiaries, (iii) the income of any Subsidiary of Borrower
to the extent that the declaration or payment of dividends or
similar distributions by that Subsidiary of that income is not
at the time permitted by operation of the terms of its
charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to
that Subsidiary, (iv) any after-tax gains or losses
attributable to Asset Sales or returned surplus assets of any
Pension Plan, and (v) (to the extent not included in clauses
(i) through (iv) above) any net non-cash extraordinary gains
or net non-cash extraordinary losses.
"Notes" means any promissory notes of
Borrower issued pursuant to Section 2.1E to evidence the
Loans made by Lenders, substantially in the form of
Exhibit D, with appropriate insertions, as they may be
amended, supplemented or otherwise modified from time to
time.
"Notice of Borrowing" means a notice
substantially in the form of Exhibit E delivered by
Borrower to Administrative Agent pursuant to Section 2.1B
with respect to a proposed borrowing.
"Notice of Conversion/Continuation" means
a notice substantially in the form of Exhibit F delivered by
Borrower to Administrative Agent pursuant to Section 2.2D
with respect to a proposed conversion or continuation of the
applicable basis for determining the interest rate with
respect to the Loans specified therein.
"Notice of Issuance of Letter of Credit"
means a notice substantially in the form of Exhibit G
delivered by Borrower to Administrative Agent pursuant to
Section 3.1B(i) with respect to the proposed issuance of a
Letter of Credit.
"Obligations" means all obligations of every
nature of any Loan Party, from time to time owed to
Administrative Agent, Lenders or any of them under the
Loan Documents, whether for principal, interest,
reimbursement of amounts drawn under Letters of Credit,
fees, expenses, indemnification or otherwise and whether or
not the obligation is allowed as a claim in any proceeding
referred to in Section 8.6 or 8.7.
"Officers' Certificate" means, as applied to
any Person a certificate executed by that Person or on
behalf of that Person by an authorized Person; provided
that every Officers' Certificate with respect to the
compliance with a condition precedent to the making of any
Loans hereunder shall include (i) a statement that the
officer or officers making or giving such Officers' Certif-
icate have read such condition and any definitions or other
provisions contained in this Agreement relating thereto,
(ii) a statement that, in the opinion of the signers, they have
made or have caused to be made such examination or
investigation as is necessary to enable them to express an
informed opinion as to whether or not such condition has
been complied with, and (iii) a statement as to whether, in
the opinion of the signers, such condition has been
complied with.
"Operating Lease" means, as applied to any
Person, any lease (including, without limitation, leases that
may be terminated by the lessee at any time) of any
property (whether real, personal or mixed) that is not a
Capital Lease other than any such lease under which that
Person is the lessor.
"Other Borrower Distributions" means
distributions to the General Partners pursuant to the terms
of the Joint Venture Agreement other than Tax
Distributions, and in any event excluding the repayment of
the Subordinated Debt owed to Circus on the Closing Date
in accordance with Section 7.5(i).
"Other Permitted Indebtedness" means
Indebtedness permitted under Sections 7.1(iii) or 7.1(vi).
"Other Permitted Indebtedness Payments"
means payments of principal and interest on Other
Permitted Indebtedness.
"Parents" means the General Partners,
Circus, Eldorado Hotel, Recreational Enterprises, Hotel-
Casino Management, Inc. and their respective successors
and assigns.
"PBGC" means the Pension Benefit Guaranty
Corporation (or any successor thereto).
"Pension Plan" means any Employee Benefit
Plan, other than a Multiemployer Plan, which is subject to
Section 412 of the Internal Revenue Code or Section 302 of
ERISA.
"Percentage Interests" has the meaning
assigned to that term in the Joint Venture Agreement.
"Permitted Encumbrances" means the
following types of Liens (other than any such Lien imposed
pursuant to Section 401(a)(29) or 412(n) of the Internal
Revenue Code or by ERISA):
(i) Liens for taxes, assessments or govern-
mental charges or claims the payment of which is not, at
the time, required by Section 6.3;
(ii) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics and materialmen and
other Liens imposed by law incurred in the ordinary
course of business for sums not yet delinquent or being
contested in good faith, if such reserve or other
appropriate provision, if any, as shall be required by
GAAP shall have been made therefor;
(iii) easements, rights of tenants,
reservations, covenants, rights-of-way, restrictions, minor
defects, minor encroachments or minor irregularities in
title and other similar immaterial charges or encumbrances
that (i) arise prior to the Closing Date and are approved in
writing by the Administrative Agent or (ii) arise after the
Closing Date and would not, individually or in the
aggregate, result in a Material Adverse Effect; and
(iv) Liens arising solely from filing UCC
financing statements relating solely to leases permitted by
this Agreement.
"Person" means and includes natural
persons, corporations, limited partnerships, general
partnerships, joint stock companies, Joint Ventures,
associations, companies, trusts, banks, trust companies,
land trusts, business trusts, limited liability companies or
other organizations, whether or not legal entities, and
governments and agencies and political subdivisions
thereof.
"Premises" means the real property situated
in Reno, Nevada, and more particularly described in the
Deed of Trust.
"Pre-Opening Expenses" means, with respect
to any fiscal period, the amount of expenses (other than
Interest Expense) incurred with respect to capital projects
and properly deferred and charged to expense as of
commencement of operations, which are classified as "pre-
opening expenses" on the applicable financial statements of
Borrower and its Subsidiaries for such period, prepared in
accordance with GAAP.
"Pricing Period" means each of the
consecutive approximately 90 day periods beginning on
March 1, June 1, September 1 and December 1 of each
year.
"Prior Agent" means Wells Fargo Bank,
N.A., in its former capacity as
Agent under the Existing Credit Agreement.
"Pro Rata Share" means, with respect to
each Lender, the percentage obtained by dividing (x) the
Loan Exposure of that Lender by (y) the aggregate Loan
Exposure of all Lenders, as such percentage may be
adjusted by assignments permitted pursuant to Section 10.1.
The Pro Rata Share of each Lender on the Closing Date is
set forth opposite the name of that Lender in Schedule 2.1.
"Recreational Enterprises" means
Recreational Enterprises, Inc., a Nevada corporation and
member of Eldorado LLC and a member of Eldorado
Hotel.
"Reduction Date" means March 31, 1998
and each subsequent June 30, September 30, December 31
and March 31 through the Maturity Date.
"Reference Period" has the meaning assigned
to that term in Section 7.8.
"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.
"Register" has the meaning assigned to that
term in Section 2.1D.
"Regulation D" means Regulation D of the
Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Reimbursement Date" has the meaning
assigned to that term in Section 3.3B.
"Release" means any release, spill, emission,
leaking, pumping, pouring, injection, escaping, deposit,
disposal, discharge, dispersal, dumping, leaching or
migration of Hazardous Material into the indoor or outdoor
environment (including, without limitation, the
abandonment or disposal of any barrels, containers or other
closed receptacles containing any Hazardous Material), or
into or out of any Facility, including the movement of any
Hazardous Material through the air, soil, surface water,
groundwater or property.
"Requisite Lenders" means Lenders having
or holding 66 2/3% or more of the aggregate Loan
Exposure of all Lenders.
"Restricted Junior Payment" means (i) any
distribution of cash or property or other distribution, direct
or indirect, on account of any partnership interest in
Borrower now or hereafter outstanding, except a
distribution payable solely in interests of that class of
partnership interest to the holders of that class, (ii) any
redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect,
of any interests of any class of partnership interest in
Borrower now or hereafter outstanding, (iii) any payment
made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire any
interests of any class of partnership interests in Borrower
now or hereafter outstanding, and (iv) any payment or
prepayment of principal of, premium, if any, or interest on,
or redemption, purchase, retirement, defeasance (including
in-substance or legal defeasance), sinking fund or similar
payment with respect to, any Subordinated Indebtedness.
"Scheduled Facility Reductions" means
reductions to the Commitments made pursuant to
Section 2.4A.
"Securities" means any stock, shares,
partnership interests, voting trust certificates, certificates of
interest or participation in any profit-sharing agreement or
arrangement, options, warrants, bonds, debentures, notes,
or other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any
instruments commonly known as "securities" or any certifi-
cates of interest, shares or participations in temporary or
interim certificates for the purchase or acquisition of, or
any right to subscribe to, purchase or acquire, any of the
foregoing.
"Security Agreement" means the Amended
and Restated Security Agreement executed and delivered by
Borrower and Administrative Agent on the Closing Date, as
it may hereafter be amended, supplemented or otherwise
modified from time to time.
"Senior Officer" means, with respect to any
Person, any Chief Executive Officer, President, Executive
Vice President, Vice President, Chief Financial Officer,
Treasurer or Controller of such Person, or any individual
holding an equivalent position with such Person or any
partner or member of such Person, including, without
limitation, in the case of Borrower, the General Manager of
Silver Legacy Hotel and Casino and the Director of Finance
and Administration of the Silver Legacy Hotel and Casino.
"Silver Legacy Bridge" means the elevated
building structure that connects the hotel portion of the
Hotel with the casino portion of the Hotel.
"Skyway Easements" means those two
certain Bridge Easements recorded in the Official Records
of Washoe County, Nevada, one by and between Borrower
and Eldorado Hotel and the other by and between Borrower
and Circus Circus Casinos, Inc., pursuant to which, among
other things, Borrower was granted perpetual easements for
pedestrian access to and from the Improvements via the
Eldorado Bridge and the Circus Bridge, respectively.
"Skyways" means the Circus Bridge and the
Eldorado Bridge; the Skyways are owned by Circus and
Eldorado Hotel, respectively, and are subject to the terms
and provisions of the Skyway Easements. The Skyways do
not include the Silver Legacy Bridge.
"Stand-Alone Coverage Ratio" means, as of
the last day of each Fiscal Quarter, the ratio of (a) EBITDA
(without any increase by reason of any amounts paid to
Borrower under the Make-Well Agreement) minus the sum
(without duplication) of Tax Distributions made pursuant to
Section 7.5(ii), Other Borrower Distributions made
pursuant to Section 7.5(iii) or 7.5(iv) and Capital
Expenditures (other than Capital Expenditures for the
improvements to the mezzanine level of the Hotel described
in the proviso to Section 7.8) to (b) Scheduled Facility
Reductions during that period (whether or not Borrower is
actually required to make any payments to the Lenders to
meet such Scheduled Facility Reductions) plus Cash Interest
Expense plus Other Permitted Indebtedness Payments, in
each case for the four Fiscal Quarter Period ending on such
date.
"Stand-Alone Leverage Ratio" means, as of
the last day of any Fiscal Quarter, the ratio of (i) the sum
of the average of the daily Total Utilization during the
immediately preceding Fiscal Quarter plus all other
Indebtedness of Borrower for borrowed money outstanding
as of the last day of such period plus Indebtedness
outstanding in respect of Capital Leases as of the last day
of such period to (ii) EBITDA for the four consecutive
Fiscal Quarter period ending on the date as of which the
determination is being made.
"Standby Letter of Credit" means any
standby letter of credit or similar instrument issued for the
purpose of supporting (i) Indebtedness of Borrower or any
of its Subsidiaries in respect of industrial revenue or
development bonds or financings, (ii) workers'
compensation liabilities of Borrower or any of its
Subsidiaries, (iii) the obligations of third party insurers of
Borrower or any of its Subsidiaries arising by virtue of the
laws of any jurisdiction requiring third party insurers, and
(iv) performance, payment, deposit or surety obligations of
Borrower or any of its Subsidiaries, in any case if required
by law or governmental rule or regulation or in accordance
with custom and practice in the industry; provided that
Standby Letters of Credit may not be issued for the purpose
of supporting (a) trade payables, (b) any Indebtedness
constituting "antecedent debt" (as that term is used in
Section 547 of the Bankruptcy Code), or (c) any
Indebtedness or Contingent Obligation of Borrower or any
of its Subsidiaries if such Indebtedness or Contingent
Obligation is secured by real property of Borrower or such
Subsidiary located in the State of California.
"Subordination Agreement" means a
Subordination Agreement executed and delivered by Circus,
Borrower and Administrative Agent as of the date of the
issuance by Borrower of any General Partner Subordinated
Debt, substantially in the form of Exhibit H hereto, and in
any event, as it may hereafter be amended, supplemented or
otherwise modified from time to time.
"Subordinated Indebtedness" means (i) the
General Partner Subordinated Debt and (ii) any other
Indebtedness of Borrower subordinated in right of payment
to the Obligations pursuant to documentation containing
maturities, amortization schedules, covenants, defaults,
remedies, subordination provisions and other material terms
in form and substance satisfactory to Administrative Agent
and Lenders.
"Subsidiary" means, with respect to any
Person, any corporation, partnership, association, joint
venture or other business entity of which more than 50% of
the total voting power of shares of stock or other ownership
interests entitled (without regard to the occurrence of any
contingency) to vote in the election of the Person or
Persons (whether directors, managers, trustees or other
Persons performing similar functions) having the power to
direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof.
"Supermajority Lenders" means Lenders
having or holding 75% or more of the aggregate Loan
Exposure of all Lenders.
"Swing Line" means the revolving line of
credit established by the Swing Line Lender in favor of
Borrower pursuant to Section 2.10.
"Swing Line Documents" means the
promissory note and any other documents executed by
Borrower in favor of the Swing Line Lender in connection
with the Swing Line.
"Swing Line Lender" means Bank of
America, acting through its Las Vegas Commercial Banking
Division.
"Swing Line Loans" means loans made by
the Swing Line Lender to Borrower pursuant to
Section 2.10.
"Swing Line Outstandings" means, as of any
date of determination, the aggregate principal Indebtedness
of Borrower on all Swing Line Loans then outstanding.
"Tax" or "Taxes" means any present or
future tax, levy, impost, duty, charge, fee, deduction or
withholding of any nature and whatever called, by whomso-
ever, on whomsoever and wherever imposed, levied,
collected, withheld or assessed; provided that "Tax on the
overall net income" of a Person shall be construed as a
reference to a tax imposed by the jurisdiction in which that
Person's principal office (and/or, in the case of a Lender,
its lending office) is located or in which that Person is
deemed to be doing business on all or part of the net
income, profits or gains of that Person (whether worldwide,
or only insofar as such income, profits or gains are
considered to arise in or to relate to a particular
jurisdiction, or otherwise).
"Tax Distributions" means distributions to
the General Partners of cash or property pursuant to
Section 4.1(a) of the Joint Venture Agreement as in effect
on the Closing Date made in order to satisfy the General
Partners' federal tax liability accruing in the Fiscal Year
with respect to which such distributions are made assuming
each General Partner's tax liabilities accrue at the maximum
marginal federal income tax rate that applies to such
General Partner as set forth in Section 4.2 of the Joint
Venture Agreement as in effect on the Closing Date.
"Title Policy" means the American Land
Title Association extended coverage mortgagee title
insurance policy issued on or about the May 30, 1995 to
the Prior Agent and the Lenders by First American Title
Insurance Company, together with all related coinsurance
and reinsurance policies and subsequent endorsements,
including those provided under Section 4.1F.
"Total Utilization" means, as at any date of
determination, the sum of (i) the aggregate principal amount
of all outstanding Loans (other than Loans made for the
purpose of reimbursing the Issuing Lender for any amount
drawn under any Letter of Credit but not yet so applied)
plus (ii) the Swing Line Outstandings plus (iii) the Letter of
Credit Usage.
"Tunnel" means the tunnel beneath Sierra
Street that connects the casino portion of the Hotel to the
hotel portion of the Hotel.
"Unutilized Amount" has the meaning
assigned to that term in Section 7.8.
1.2 Accounting Terms; Utilization of GAAP for
Purposes of Calculations Under Agreement.
Except as otherwise expressly provided in
this Agreement, all accounting terms not otherwise defined
herein shall have the meanings assigned to them in
conformity with GAAP. Financial statements and other
information required to be delivered by Borrower to
Lenders pursuant to clauses (i), (ii), (iii) and (xiii) of
Section 6.1 shall be prepared in accordance with GAAP as
in effect at the time of such preparation (and delivered
together with the reconciliation statements provided for in
Section 6.1(v)). Calculations in connection with the
definitions, covenants and other provisions of this
Agreement shall utilize accounting principles and policies in
conformity with GAAP as in effect at the time such
calculations are made.
1.3 Other Definitional Provisions.
References to "Sections," and "Exhibits"
shall be to Sections of and Exhibits to this Agreement
unless otherwise specifically provided. Any of the terms
defined in Section 1.1 may, unless the context otherwise
requires, be used in the singular or the plural, depending on
the reference.<PAGE>
SECTION 2
AMOUNTS AND TERMS OF COMMITMENTS AND
LOANS
2.1 Commitments; Making of Loans; the
Register; Optional Notes.
A. Commitments. Subject to the terms and
conditions of this Agreement and in reliance upon the
representations and warranties of the Loan Parties set forth
in the Loan Documents, each Lender hereby severally
agrees to lend to Borrower from time to time during the
period from the Closing Date to but excluding the Maturity
Date an aggregate amount not exceeding its Pro Rata Share
of the aggregate amount of the Commitments, provided
that, notwithstanding any other provision of this
Agreement, the Total Utilization shall not at any time
exceed the Commitments then in effect. The amount of
each Lender's Commitment shall be as set forth on
Schedule 2.1; provided that (i) the Commitments of
Lenders shall be adjusted to give effect to any assignments
of the Commitments pursuant to Section 10.1, and (ii) the
amount of the Commitments shall be reduced from time to
time by the amount of any reductions thereto made pursuant
to Sections 2.4A, 2.4B(ii) and 2.4B(iii) or terminated as set
forth in Section 8. Each Lender's Commitment shall expire
on the Maturity Date and all Loans and all other amounts
owed hereunder with respect to the Loans and the
Commitments shall be paid in full no later than that date.
Amounts borrowed under this Section 2.1A may be repaid
and reborrowed at any time prior to the Maturity Date.
B. Borrowing Mechanics. The Loans made on
each Funding Date (other than Loans made pursuant to
Section 3.3B for the purpose of reimbursing Issuing Lender
for the amount of a drawing under a Letter of Credit issued
by it) shall be in an aggregate minimum amount of
$1,000,000 and integral multiples of $100,000 in excess of
that amount; provided that each Eurodollar Rate Loan shall
be in an aggregate minimum amount of $1,000,000 and
integral multiples of $100,000 in excess of that amount.
Subject to the next following paragraph, whenever
Borrower desires that Lenders make Loans it shall deliver
to Administrative Agent a Notice of Borrowing no later
than 9:00 A.M. (Pacific time) at least three Business Days
in advance of the proposed Funding Date (in the case of a
Eurodollar Rate Loan) or at least one Business Day in
advance of the proposed Funding Date (in the case of a
Base Rate Loan). The Notice of Borrowing shall specify
(i) the proposed Funding Date (which shall be a Business
Day), (ii) the amount of Loans requested, (iii) whether such
Loans shall be Base Rate Loans or Eurodollar Rate Loans,
and (iv) in the case of a Eurodollar Rate Loan, the initial
Interest Period requested therefor. Loans may be continued
as or converted into Base Rate Loans and Eurodollar Rate
Loans in the manner provided in Section 2.2D.
Unless Administrative Agent, in its sole and
absolute discretion, has notified Borrower to the contrary, a
Loan may be requested by telephone by a duly authorized
officer or other Person authorized to borrow on behalf of
Borrower, in which case Borrower shall confirm such
request by delivering promptly a Notice of Borrowing with
respect to such Loan in person or by telecopier to
Administrative Agent. Neither Administrative Agent nor
any Lender shall incur any liability to any Loan Party in
acting upon any such telephonic notice that Administrative
Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to borrow on
behalf of Borrower or for otherwise acting in good faith
under this Section 2.1B, and upon funding of Loans by
Lenders in accordance with this Agreement pursuant to any
such telephonic notice Borrower shall have effected Loans
hereunder.
Borrower shall notify Administrative Agent
prior to the funding of any Loans in the event that any of
the matters to which Borrower is required to certify in the
applicable Notice of Borrowing is no longer true and
correct as of the applicable Funding Date, and the
acceptance by Borrower of the proceeds of any Loans shall
constitute a re-certification by Borrower, as of the
applicable Funding Date, as to the matters to which
Borrower is required to certify in the applicable Notice of Borrowing.
Except as otherwise provided in
Sections 2.6B, 2.6C and 2.6G, a Notice of Borrowing for a
Eurodollar Rate Loan (or telephonic notice in lieu thereof)
shall be irrevocable on and after the related Interest Rate
Determination Date, and Borrower shall be bound to make
a borrowing in accordance therewith.
C. Disbursement of Funds. All Loans under
this Agreement shall be made by Lenders severally and
simultaneously and in proportion to their respective Pro
Rata Shares, it being understood that no Lender shall be
responsible for any default by any other Lender in that
other Lender's obligation to make a Loan requested
hereunder nor shall the Commitment of any Lender be
increased or decreased as a result of a default by any other
Lender in that other Lender's obligation to make a Loan
requested hereunder. Promptly after receipt by
Administrative Agent of a Notice of Borrowing pursuant to
Section 2.1B (or telephonic notice in lieu thereof),
Administrative Agent shall notify each Lender of the pro-
posed borrowing. Each Lender shall make the amount of
its Loan available to Administrative Agent, in same day
funds in Dollars, at the Funding and Payment Office, not
later than 1:00 P.M. (Pacific time) on the applicable
Funding Date. Except as provided in Section 3.3B with
respect to Loans used to reimburse Issuing Lender for the
amount of a drawing under a Letter of Credit issued by it,
upon satisfaction or waiver of the conditions precedent
specified in Sections 4.1 (in the case of the initial Loans
made hereunder) and 4.2 (in the case of all Loans),
Administrative Agent shall make the proceeds of such
Loans available to Borrower on the applicable Funding
Date by causing an amount of same day funds in Dollars
equal to the proceeds of all such Loans received by
Administrative Agent from Lenders to be credited to the
account of Borrower at the Funding and Payment Office.
Unless Administrative Agent shall have been
notified by any Lender prior to the Funding Date for any
Loans that such Lender does not intend to make available to
Administrative Agent the amount of such Lender's Loan
requested on such Funding Date, Administrative Agent may
assume that such Lender has made such amount available to
Administrative Agent on such Funding Date and
Administrative Agent may, in its sole discretion, but shall
not be obligated to, make available to Borrower a
corresponding amount on such Funding Date. If such
corresponding amount is not in fact made available to
Administrative Agent by such Lender, Administrative
Agent shall be entitled to recover such corresponding
amount on demand from such Lender together with interest
thereon, for each day from such Funding Date until the date
such amount is paid to Administrative Agent, at the Federal
Funds Effective Rate for three Business Days and thereafter
at the Base Rate. If such Lender does not pay such
corresponding amount forthwith upon Administrative
Agent's demand therefor, Administrative Agent shall
promptly notify Borrower and Borrower shall immediately
pay such corresponding amount to Administrative Agent
together with interest thereon, for each day from such
Funding Date until the date such amount is paid to
Administrative Agent, at the rate payable under this
Agreement for Base Rate Loans. Nothing in this
Section 2.1C shall be deemed to relieve any Lender from
its obligation to fulfill its Commitment hereunder or to
prejudice any rights that Borrower may have against any
Lender as a result of any default by such Lender hereunder.
D. The Register.
(i) Administrative Agent shall maintain, at its address
referred to in Section 10.8, a register for the recordation of
the names and addresses of Lenders and the Commitment
and Loans of each Lender from time to time (the
"Register"). The Register shall be available for inspection
by Borrower, any Lender or any Gaming Board and their
respective agents at any reasonable time and from time to
time upon reasonable prior notice.
(ii) Administrative Agent shall record in the
Register the Commitment and the Loans from time to time
of each Lender and each repayment or prepayment in
respect of the principal amount of the Loans of each
Lender. Any such recordation shall be presumed to be
correct; provided that failure to make any such recordation,
or any error in such recordation, shall not affect
Borrower's Obligations in respect of the applicable Loans.
(iii) Each Lender shall record on its internal records
(including, without limitation, any Note held by such
Lender) the amount of each Loan made by it and each
payment in respect thereof. Any such recordation shall be
presumed to be correct; provided that failure to make any
such recordation, or any error in such recordation, shall not
affect Borrower's Obligations in respect of the applicable
Loans; and provided, further that in the event of any
inconsistency between the Register and any Lender's
records, the recordations in the Register shall govern.
(iv) Borrower, Administrative Agent and Lenders
shall deem and treat the Persons listed as Lenders in the
Register as the holders and owners of the corresponding
Commitments and Loans listed therein for all purposes
hereof, and no assignment or transfer of any such
Commitment or Loan shall be effective, in each case unless
and until an Assignment Agreement effecting the
assignment or transfer thereof shall have been accepted by
Administrative Agent and recorded in the Register as
provided in Section 10.1B(ii). Prior to such recordation,
all amounts owed with respect to the applicable
Commitment or Loan shall be owed to the Lender listed in
the Register as the owner thereof, and any request,
authority or consent of any Person who, at the time of
making such request or giving such authority or consent, is
listed in the Register as a Lender shall be conclusive and
binding on any subsequent holder, assignee or transferee of
the corresponding Commitment or Loans.
(v) Borrower hereby designates Administrative
Agent to serve as Borrower's agent solely for purposes of
maintaining the Register as provided in this Section 2.1D,
and Borrower hereby agrees that, to the extent
Administrative Agent serves in such capacity,
Administrative Agent and its officers, directors, employees,
agents and affiliates shall constitute Indemnitees for all
purposes under Section 10.3.
E. Optional Notes. If so requested by any
Lender, Borrower shall execute and deliver a Note to such
Lender.
2.2 Interest on the Loans.
A. Rate of Interest. Subject to the provisions of
Sections 2.6 and 2.7, each Loan shall bear interest on the
unpaid principal amount thereof from the date made
through maturity (whether by acceleration or otherwise) at a
rate determined by reference to the Base Rate or the
Adjusted Eurodollar Rate, as the case may be. The applic-
able basis for determining the rate of interest with respect
to any Loan shall be selected by Borrower initially at the
time a Notice of Borrowing is given with respect to such
Loan pursuant to Section 2.1B. The basis for determining
the interest rate with respect to any Loan may be changed
from time to time pursuant to Section 2.2D. If on any day a
Loan is outstanding with respect to which notice has not
been delivered to Administrative Agent in accordance with
the terms of this Agreement specifying the applicable basis
for determining the rate of interest, then for that day that
Loan shall bear interest determined by reference to the Base
Rate.
Subject to the provisions of Sections 2.2E
and 2.6, the Loans shall bear interest through maturity as
follows:
(i) if a Eurodollar Rate Loan, then at the sum of the
Adjusted Eurodollar Rate plus the Applicable Eurodollar
Rate Margin.
(ii) if a Base Rate Loan, then at the sum of the Base Rate
plus the Applicable Base Rate Margin.
B. Interest Periods. In connection with each
Eurodollar Rate Loan, Borrower may, pursuant to the
applicable Notice of Borrowing or Notice of Conversion/
Continuation, as the case may be, select an interest period
(each an "Interest Period") to be applicable to such Loan,
which Interest Period shall be, at Borrower's option, either
a one, two, three or six month period; provided that:
(i) the initial Interest Period for any Eurodollar
Rate Loan shall commence on the Funding Date in respect
of such Loan, in the case of a Loan initially made as a
Eurodollar Rate Loan, or on the date specified in the
applicable Notice of Conversion/Continuation, in the case
of a Loan converted to a Eurodollar Rate Loan;
(ii) in the case of immediately successive Interest
Periods applicable to a Eurodollar Rate Loan continued as
such pursuant to a Notice of Conversion/Continuation, each
successive Interest Period shall commence on the day on
which the immediately preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire
on the next succeeding Business Day; provided that, if any
Interest Period would otherwise expire on a day that is not
a Business Day but is a day of the month after which no
further Business Day occurs in such month, such Interest
Period shall expire on the next preceding Business Day;
(iv) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall, subject to
clause (v) of this Section 2.2B, end on the last Business
Day of a calendar month;
(v) no Interest Period with respect to any portion
of the Loans shall extend beyond the Maturity Date;
(vi) no Interest Period with respect to any portion
of the Loans shall extend beyond the date on which a
permanent reduction of the Commitments is scheduled to
occur unless the sum of (a) the aggregate principal amount
of Loans that are Base Rate Loans plus (b) the aggregate
principal amount of Loans that are Eurodollar Rate Loans
with Interest Periods expiring on or before such date plus
(c) the excess of the Commitments then in effect over the
Total Utilization as of such date equals or exceeds the
permanent reduction of the Commitments that is scheduled
to occur on such date;
(vii) there shall be no more than ten Interest Periods out-
standing at any time; and
(viii) in the event Borrower fails to specify an Interest
Period for any Eurodollar Rate Loan in the applicable
Notice of Borrowing or Notice of Conversion/Continuation,
Borrower shall be deemed to have selected an Interest
Period of one month.
C. Interest Payments. Subject to the provisions
of Section 2.2E, interest on each Loan shall be payable in
arrears on and to each Interest Payment Date applicable to
that Loan, upon any prepayment of that Loan (to the extent
accrued on the amount being prepaid) and at maturity
(including final maturity); provided that in the event any
Loans that are Base Rate Loans are prepaid pursuant to
Section 2.4B(i), interest accrued on such Loans through the
date of such prepayment shall be payable on the next
succeeding Interest Payment Date applicable to Base Rate
Loans (or, if earlier, at final maturity).
D. Conversion or Continuation. Subject to the
provisions of Section 2.6, Borrower shall have the option at
any time (i) to convert all or any part of its outstanding
Loans equal to $1,000,000 and integral multiples of
$100,000 in excess of that amount from Loans bearing
interest at a rate determined by reference to one basis to
Loans bearing interest at a rate determined by reference to
an alternative basis or (ii) upon the expiration of any
Interest Period applicable to a Eurodollar Rate Loan, to
continue all or any portion of such Loan equal to
$1,000,000 and integral multiples of $100,000 in excess of
that amount as a Eurodollar Rate Loan; provided, however,
that a Eurodollar Rate Loan may only be converted into a
Base Rate Loan on the expiration date of an Interest Period
applicable thereto.
Subject to the next following paragraph,
Borrower shall deliver a Notice of Conversion/Continuation
to Administrative Agent no later than 9:00 A.M. (Pacific
time) at least one Business Day in advance of the proposed
conversion date (in the case of a conversion to a Base Rate
Loan) and at least three Business Days in advance of the
proposed conversion/continuation date (in the case of a
conversion to, or a continuation of, a Eurodollar Rate
Loan). A Notice of Conversion/Continuation shall specify
(i) the proposed conversion/continuation date (which shall
be a Business Day), (ii) the amount and type of the Loan to
be converted/continued, (iii) the nature of the proposed
conversion/continuation, (iv) in the case of a conversion to,
or a continuation of, a Eurodollar Rate Loan, the requested
Interest Period, and (v) in the case of a conversion to, or a
continuation of, a Eurodollar Rate Loan, that no Default or
Event of Default has occurred and is continuing.
Unless Administrative Agent, in its sole and
absolute discretion, has notified Borrower to the contrary, a
Loan may be requested by telephone by a duly authorized
officer or other Person authorized to borrow on behalf of
Borrower, in which case Borrower shall confirm such
request by delivering promptly a Notice of Borrowing with
respect to such Loan in person or by telecopier to
Administrative Agent. Borrower and Lenders may enter a
memorandum of understanding that sets forth specific
procedures for such telephonic requests; if Lenders comply
with the procedures set forth in such memorandum (or if no
such memorandum is entered), neither Administrative
Agent nor any Lender shall incur any liability to Borrower
in acting upon any such telephonic notice that
Administrative Agent believes in good faith to have been
given by a duly authorized officer or other person
authorized to act on behalf of Borrower or for otherwise
acting in good faith under this Section 2.2D, and upon
conversion or continuation of the applicable basis for
determining the interest rate with respect to any Loans in
accordance with this Agreement pursuant to any such
telephonic notice Borrower shall have effected a conversion
or continuation, as the case may be, hereunder.
Except as otherwise provided in
Sections 2.6B, 2.6C and 2.6G, a Notice of Conversion/
Continuation for conversion to, or continuation of, a
Eurodollar Rate Loan (or telephonic notice in lieu thereof)
shall be irrevocable on and after the related Interest Rate
Determination Date, and Borrower shall be bound to effect
a conversion or continuation in accordance therewith.
E. Post-Maturity Interest. Any principal
payments on the Loans not paid when due and, to the
extent permitted by applicable law, any interest payments
on the Loans or any fees or other amounts owed hereunder
not paid when due, in each case whether at stated maturity,
by notice of prepayment (which may be revoked by
Borrower to the extent such revocation will not result in the
incurrence of costs by Administrative Agent or any Lender
or, if incurred, such costs are reimbursed by Borrower), by
acceleration or otherwise, shall thereafter bear interest
(including post-petition interest in any proceeding under the
Bankruptcy Code or other applicable bankruptcy laws)
payable on demand at a rate which is 2% per annum in
excess of the interest rate otherwise payable under this
Agreement with respect to the applicable Loans (or, in the
case of any such fees and other amounts, at a rate which is
2% per annum in excess of the interest rate otherwise
payable under this Agreement for Base Rate Loans);
provided that, in the case of Eurodollar Rate Loans, upon
the expiration of the Interest Period in effect at the time any
such increase in interest rate is effective such Eurodollar
Rate Loans shall thereupon become Base Rate Loans and
shall thereafter bear interest payable upon demand at a rate
which is 2% per annum in excess of the interest rate
otherwise payable under this Agreement for Base Rate
Loans. Payment or acceptance of the increased rates of
interest provided for in this Section 2.2E is not a permitted
alternative to timely payment and shall not constitute a
waiver of any Event of Default or otherwise prejudice or
limit any rights or remedies of Administrative Agent or any
Lender.
F. Computation of Interest and Fees. Interest
on the Loans shall be computed (i) in the case of Base Rate
Loans, on the basis of a 365-day or 366-day year, as the
case may be, and (ii) in the case of Eurodollar Rate Loans,
on the basis of a 360-day year, in each case for the actual
number of days elapsed in the period during which it
accrues. Fees payable by Borrower under this Agreement
shall be computed on the basis of a 360-day year for the
actual number of days during which the fee accrues. In
computing interest on any Loan, the date of the making of
such Loan or the first day of an Interest Period applicable
to such Loan or, with respect to a Base Rate Loan being
converted from a Eurodollar Rate Loan, the date of
conversion of such Eurodollar Rate Loan to such Base Rate
Loan, as the case may be, shall be included, and the date of
payment of such Loan or the expiration date of an Interest
Period applicable to such Loan or, with respect to a Base
Rate Loan being converted to a Eurodollar Rate Loan, the
date of conversion of such Base Rate Loan to such
Eurodollar Rate Loan, as the case may be, shall be
excluded; provided that if a Loan is repaid on the same day
on which it is made, one day's interest shall be paid on that
Loan.
2.3 Fees.
A. Commitment Fees. Borrower agrees to pay
to Administrative Agent, for distribution to each Lender in
proportion to that Lender's Pro Rata Share, commitment
fees for the period from and including the Closing Date to
and excluding the Maturity Date equal to: the average of
the daily excess of the Maximum Availability over the
Total Utilization multiplied by the Applicable Commitment
Fee Rate, provided that for purposes of calculating
commitment fees hereunder, the Swing Line Obligations
shall not be included in Total Utilization. These
commitment fees shall be payable quarterly in arrears on
each March 31, June 30, September 30 and December 31,
commencing on the first such date to occur after the
Closing Date, and on the Maturity Date.
B. Arrangement Fee and Servicing Fee.
Borrower agrees to pay to Administrative Agent a non-
refundable arrangement fee and a non-refundable servicing
fee, payable in amounts set forth in the Fee Letter.
C. Amendment Fee. Borrower agrees to pay to
each Lender a non-refundable amendment fee in an amount
equal to such Lender's allocated Commitment times 10.0
basis points.
2.4 Prepayments and Reductions in
Commitments; General Provisions Regarding
Payments.
A. Scheduled Reductions of Commitments. The
Commitments shall be permanently reduced on each
Reduction Date occurring during a period set forth below in
the amount set forth opposite that period:
Reduction Dates During Amount
March 31, 1998 through
December 31, 2000
$4,250,000
March 31, 2001 through
December 31, 2002
$5,500,000
March 31, 2003
$6,000,000
June 30, 2003
$129,000,000
provided that the scheduled reductions of the Commitments
set forth above shall be (i) reduced in connection with any
voluntary or mandatory reductions of the Commitments in
accordance with Section 2.4B(iv) and (ii) accelerated to the
extent acceleration of the Loans occurs pursuant to
Section 8.20B.
B. Prepayments and Unscheduled Reductions in
Commitments.
(i) Voluntary Prepayments. Borrower may, upon not
less than one Business Day's prior written or telephonic
notice, in the case of Base Rate Loans, and three Business
Days' prior written or telephonic notice, in the case of
Eurodollar Rate Loans, in each case given to
Administrative Agent by 9:00 A.M. (Pacific time) on the
date required and, if given by telephone, promptly
confirmed in writing to Administrative Agent (which
original written or telephonic notice Administrative Agent
will promptly transmit by telefacsimile or telephone to each
Lender), at any time and from time to time prepay any
Loans on any Business Day in whole or in part in an aggre-
gate minimum amount of $1,000,000 and integral multiples
of $100,000 in excess of that amount; provided, however,
that the payment of any Eurodollar Rate Loan on a date
other than the last day of the related Interest Period shall be
subject to Section 2.6D. Notice of prepayment having been
given as aforesaid, the principal amount of the Loans
specified in such notice shall become due and payable on
the prepayment date specified therein; provided that such
notice may be revoked by Borrower to the extent such
revocation will not result in the incurrence of costs by
Administrative Agent or any Lender or, if incurred, such
costs are reimbursed by Borrower. Any such voluntary
prepayment shall be applied as specified in
Section 2.4B(iv).
(ii) Voluntary Reductions of Commitments. Borrower
may, upon not less than three Business Days' prior written
or telephonic notice confirmed in writing to Administrative
Agent (which original written or telephonic notice
Administrative Agent will promptly transmit by
telefacsimile or telephone to each Lender), at any time and
from time to time terminate in whole or permanently reduce
in part, without premium or penalty, the Commitments in
an amount up to the amount by which the Commitments
exceed the Total Utilization at the time of such proposed
termination or reduction; provided that any such partial
reduction of the Commitments shall be in an aggregate
minimum amount of $1,000,000 and integral multiples of
$100,000 in excess of that amount. Borrower's notice to
Administrative Agent shall designate the date (which shall
be a Business Day) of such termination or reduction and the
amount of any partial reduction, and such termination or
reduction of the Commitments shall be effective on the date
specified in Borrower's notice and shall reduce the
Commitment of each Lender proportionately to its Pro Rata
Share. Any such voluntary reduction of the Commitments
shall be applied as specified in Section 2.4B(iv).
(iii) Mandatory Prepayments and Mandatory Reductions
of Commitments.
(a) Prepayments and Reductions Due to Reversion of
Surplus Assets of Pension Plans. On the date of return
to Borrower or any of its Subsidiaries of any surplus
assets of any pension plan (as defined in Section 3(2) of
ERISA) of Borrower or any of its Subsidiaries, Borrower
shall prepay the Loans, and the Commitments shall be
permanently reduced, in an amount equal to 100% of
such returned surplus assets, net of transaction costs and
expenses incurred in obtaining such return, including
incremental taxes payable as a result thereof. Any such
mandatory prepayments or reductions of the
Commitments shall be applied as specified in
Section 2.4B(iv).
(b) Prepayments Due to Reductions or Restrictions of
Commitments. Borrower shall prepay the Loans to the
extent necessary so that the Total Utilization shall not at
any time exceed the Commitments then in effect.
Borrower shall make any prepayment required under this
Section 2.4B(iii)(b) within three (3) Business Days of the
earlier of (x) the date on which any Senior Officer of
Borrower learns that such excess exists or (y) the date on
which Borrower receives written notice from any Lender
that a payment is due under this Section 2.4B(iii)(b).
Any such mandatory prepayments shall be applied as
specified in Section 2.4B(iv).
(iv) Application of Prepayments and Unscheduled
Reductions of Commitments.
(a) Application of Prepayments to Base Rate Loans and
Eurodollar Rate Loans. Any prepayment of the Loans
shall be applied first to Base Rate Loans to the full
extent thereof before application to Eurodollar Rate
Loans, in each case in a manner which minimizes the
amount of any payments required to be made by
Borrower pursuant to Section 2.6D.
(b) Application of Unscheduled Reductions of
Commitments. Any voluntary or mandatory reduction of
the Commitments pursuant to Section 2.4B(ii) or
2.4B(iii) shall be applied to ratably reduce the then
remaining Scheduled Facility Reductions.
C. General Provisions Regarding Payments.
(i) Manner and Time of Payment. All payments by
Borrower of principal, interest, fees and other Obligations
hereunder and under the Notes shall be made in Dollars in
same day funds, without defense, set-off or counterclaim,
free of any restriction or condition, and delivered to
Administrative Agent not later than 11:00 A.M. (Pacific
time) on the date due at the Funding and Payment Office
for the account of Lenders; funds received by
Administrative Agent after that time on such due date shall
be deemed to have been paid by Borrower on the next
succeeding Business Day. Borrower hereby authorizes
Administrative Agent to charge its accounts with
Administrative Agent upon the occurrence and during the
continuance of an Event of Default, in order to cause timely
payment to be made to Administrative Agent of all
principal, interest, fees and expenses due hereunder (subject
to sufficient funds being available in its accounts for that
purpose) and after such a charge is made on sufficient funds
available, payment of principal, interest and fees under this
Section 2.4C shall be deemed to have been made; provided
however that until such occurrence and continuance of an
Event of Default Administrative Agent shall not charge
Borrower's accounts with Administrative Agent until receipt
by Administrative Agent of written authorization from
Borrower in accordance with the provisions of
Section 10.8.
(ii) Application of Payments to Principal and Interest. All
payments in respect of the principal amount of any Loan
shall include payment of accrued interest on the principal
amount being repaid or prepaid, and all such payments shall
be applied to the payment of interest before application to
principal.
(iii) Apportionment of Payments. Aggregate principal and
interest payments shall be apportioned among all out-
standing Loans to which such payments relate, in each case
proportionately to Lenders' respective Pro Rata Shares.
Administrative Agent shall promptly distribute to each
Lender, at its primary address set forth below its name on
the appropriate signature page hereof or at such other
address as such Lender may request, its Pro Rata Share of
all such payments received by Administrative Agent and the
commitment fees of such Lender when received by
Administrative Agent pursuant to Section 2.3.
Notwithstanding the foregoing provisions of this
Section 2.4C(iii), if, pursuant to the provisions of
Section 2.6C, any Notice of Conversion/Continuation is
withdrawn as to any Affected Lender or if any Affected
Lender makes Base Rate Loans in lieu of its Pro Rata Share
of any Eurodollar Rate Loans, Administrative Agent shall
give effect thereto in apportioning payments received
thereafter.
(iv) Payments on Business Days. Whenever any payment
to be made hereunder shall be stated to be due on a day
that is not a Business Day, such payment shall be made on
the next succeeding Business Day and such extension of
time shall be included in the computation of the payment of
interest hereunder or of the commitment fees hereunder, as
the case may be.
(v) Notation of Payment. Each Lender agrees that before
disposing of any Note held by it, or any part thereof (other
than by granting participations therein), that Lender will
make a notation thereon of all Loans evidenced by that
Note and all principal payments previously made thereon
and of the date to which interest thereon has been paid;
provided that the failure to make (or any error in the
making of) a notation of any Loan made under such Note
shall not limit or otherwise affect the obligations of any
Loan Party hereunder or under such Note with respect to
any Loan or any payments of principal or interest on such
Note.
2.5 Use of Proceeds.
A. The proceeds of the Loans, together with other
funds available to Borrower, shall be applied by Borrower
(i) on the Closing Date, to refinance the obligations under
the Existing Credit Agreement and to repay the
Subordinated Obligations to Circus described in Section
7.5(i), and (ii) thereafter, to fund distributions permitted
under Section 7.5 to the General Partners, for working
capital and other general business purposes.
B. Margin Regulations. No portion of the proceeds
of any borrowing under this Agreement shall be used by
Borrower or any of its Subsidiaries in any manner that
might cause the borrowing or the application of such
proceeds to violate Regulation G, Regulation U, Regulation
T or Regulation X of the Board of Governors of the
Federal Reserve System or any other regulation of such
Board or to violate the Exchange Act, in each case as in
effect on the date or dates of such borrowing and such use
of proceeds.
2.6 Special Provisions Governing Eurodollar Rate
Loans.
Notwithstanding any other provision of this
Agreement to the contrary, the following provisions shall
govern with respect to Eurodollar Rate Loans as to the
matters covered:
A. Determination of Applicable Interest Rate. As
soon as practicable after 9:00 A.M. (Pacific time) on each
Interest Rate Determination Date, Administrative Agent
shall determine (which determination shall, absent manifest
error, be final, conclusive and binding upon all parties) the
interest rate that shall apply to the Eurodollar Rate Loans
for which an interest rate is then being determined for the
applicable Interest Period and shall promptly give notice
thereof (in writing or by telephone confirmed in writing) to
Borrower and each Lender.
B. Inability to Determine Applicable Interest Rate.
In the event that Administrative Agent shall have
determined (which determination shall be final and
conclusive and binding upon all parties hereto), on any
Interest Rate Determination Date with respect to any
Eurodollar Rate Loans, that by reason of circumstances
affecting the interbank Eurodollar market adequate and fair
means do not exist for ascertaining the interest rate
applicable to such Loans on the basis provided for in the
definition of Adjusted Eurodollar Rate, Administrative
Agent shall on such date give notice (by telefacsimile or by
telephone confirmed in writing) to Borrower and each
Lender of such determination, whereupon (i) no Loans may
be made as, or converted to, Eurodollar Rate Loans until
such time as Administrative Agent notifies Borrower and
Lenders that the circumstances giving rise to such notice no
longer exist and (ii) any Notice of Borrowing or Notice of
Conversion/Continuation given by Borrower with respect to
the Loans in respect of which such determination was made
shall be deemed to be rescinded by Borrower.
C. Illegality or Impracticability of Eurodollar Rate
Loans. In the event that on any date any Lender shall have
determined (which determination shall be final and
conclusive and binding upon all parties hereto but shall be
made only after consultation with Borrower and
Administrative Agent) that the making, maintaining or
continuation of its Eurodollar Rate Loans (i) has become
unlawful as a result of compliance by such Lender in good
faith with any law, treaty, governmental rule, central bank
directive, regulation, guideline or order (or would conflict
with any such treaty, governmental rule, regulation,
guideline or order not having the force of law even though
the failure to comply therewith would not be unlawful) or
(ii) has become impracticable, or would cause such Lender
material hardship, as a result of contingencies occurring
after the date of this Agreement which materially and
adversely affect the interbank Eurodollar market or the
position of such Lender in that market, then, and in any
such event, such Lender shall be an "Affected Lender" and
it shall on that day give notice (by telefacsimile or by
telephone confirmed in writing) to Borrower and
Administrative Agent of such determination (which notice
Administrative Agent shall promptly transmit to each other
Lender). Thereafter (a) the obligation of the Affected
Lender to make Loans as, or to convert Loans to,
Eurodollar Rate Loans shall be suspended until such notice
shall be withdrawn by the Affected Lender, (b) to the
extent such determination by the Affected Lender relates to
a Eurodollar Rate Loan then being requested by Borrower
pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, the Affected Lender shall make
such Loan as (or convert such Loan to, as the case may be)
a Base Rate Loan, (c) the Affected Lender's obligation to
maintain its outstanding Eurodollar Rate Loans (the
"Affected Loans") shall be terminated at the earlier to occur
of the expiration of the Interest Period then in effect with
respect to the Affected Loans or when required by law, and
(d) the Affected Loans shall automatically convert into Base
Rate Loans on the date of such termination.
Notwithstanding the foregoing, to the extent a determination
by an Affected Lender as described above relates to a
Eurodollar Rate Loan then being requested by Borrower
pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, Borrower shall have the option,
subject to the provisions of Section 2.6D, to rescind such
Notice of Borrowing or Notice of Conversion/Continuation
as to all Lenders by giving notice (by telefacsimile or by
telephone confirmed in writing) to Administrative Agent of
such rescission on the date on which the Affected Lender
gives notice of its determination as described above (which
notice of rescission Administrative Agent shall promptly
transmit to each other Lender). Except as provided in the
immediately preceding sentence, nothing in this
Section 2.6C shall affect the obligation of any Lender other
than an Affected Lender to make or maintain Loans as, or
to convert Loans to, Eurodollar Rate Loans in accordance
with the terms of this Agreement.
D. Compensation For Breakage or Non-
Commencement of Interest Periods. Borrower shall
compensate each Lender, upon written request by that
Lender (which request shall set forth the basis for request-
ing such amounts), for all reasonable losses, expenses and
liabilities (including, without limitation, any interest paid by
that Lender to lenders of funds borrowed by it to make or
carry its Eurodollar Rate Loans and any loss, expense or
liability sustained by that Lender in connection with the
liquidation or re-employment of such funds) which that
Lender may sustain: (i) if for any reason (other than a
default by that Lender) a borrowing of any Eurodollar Rate
Loan does not occur on a date specified therefor in a Notice
of Borrowing or a telephonic request for borrowing, or a
conversion to or continuation of any Eurodollar Rate Loan
does not occur on a date specified therefor in a Notice of
Conversion/Continuation or a telephonic request for conver-
sion or continuation, (ii) if any prepayment or other
principal payment or any conversion of any of its
Eurodollar Rate Loans occurs on a date prior to the last day
of an Interest Period applicable to that Loan, (iii) if any
prepayment of any of its Eurodollar Rate Loans is not made
on any date specified in a notice of prepayment given by
Borrower, or (iv) as a consequence of any other default by
Borrower in the repayment of its Eurodollar Rate Loans
when required by the terms of this Agreement.
E. Booking of Eurodollar Rate Loans. Any Lender
may make, carry or transfer Eurodollar Rate Loans at, to,
or for the account of any of its branch offices or the office
of an Affiliate of that Lender.
F. Assumptions Concerning Funding of Eurodollar
Rate Loans. Calculation of all amounts payable to a
Lender under this Section 2.6 and under Section 2.7A shall
be made as though that Lender had actually funded each of
its relevant Eurodollar Rate Loans through the purchase of
a Eurodollar deposit bearing interest at the rate obtained
pursuant to clause (i) of the definition of Adjusted
Eurodollar Rate in an amount equal to the amount of such
Eurodollar Rate Loan and having a maturity comparable to
the relevant Interest Period and through the transfer of such
Eurodollar deposit from an offshore office of that Lender to
a domestic office of that Lender in the United States of
America; provided, however, that each Lender may fund
each of its Eurodollar Rate Loans in any manner it sees fit
and the foregoing assumptions shall be utilized only for the
purposes of calculating amounts payable under this
Section 2.6 and under Section 2.7A.
G. Eurodollar Rate Loans After Default. After the
occurrence of and during the continuation of a Default or
an Event of Default, (i) Borrower may not elect to have a
Loan be made or maintained as, or converted to, a
Eurodollar Rate Loan after the expiration of any Interest
Period then in effect for that Loan and (ii) subject to the
provisions of Section 2.6D, any Notice of Borrowing or
Notice of Conversion/Continuation given by Borrower with
respect to a requested borrowing or conversion/continuation
that has not yet occurred shall be deemed to be rescinded
by Borrower.
2.7 Increased Costs; Taxes; Capital Adequacy.
A. Compensation for Increased Costs and Taxes.
Subject to the provisions of Section 2.7B, in the event that
any Lender shall determine (which determination shall,
absent manifest error, be final and conclusive and binding
upon all parties hereto) that any law, treaty or governmen-
tal rule, regulation or order, or any change therein or in the
interpretation, administration or application thereof
(including the introduction of any new law, treaty or
governmental rule, regulation or order), or any
determination of a court or governmental authority, in each
case that becomes effective after the date hereof, or
compliance by such Lender with any guideline, request or
directive issued or made after the date hereof by any central
bank or other governmental or quasi-governmental authority
(whether or not having the force of law):
(i) subjects such Lender (or its applicable lending office)
to any additional Tax (other than any Tax on the overall net
income of such Lender) with respect to this Agreement or
any of its obligations hereunder or any payments to such
Lender (or its applicable lending office) of principal,
interest, fees or any other amount payable hereunder;
(ii) imposes, modifies or holds applicable any reserve
(including without limitation any marginal, emergency,
supplemental, special or other reserve), special deposit,
compulsory loan, FDIC insurance or similar requirement
against assets held by, or deposits or other liabilities in or
for the account of, or advances or loans by, or other credit
extended by, or any other acquisition of funds by, any
office of such Lender (other than any such reserve or other
requirements with respect to Eurodollar Rate Loans that are
reflected in the definition of Adjusted Eurodollar Rate); or
(iii) imposes any other condition (other than with respect
to a Tax matter) on or affecting such Lender (or its
applicable lending office) or its obligations hereunder or the
interbank Eurodollar market;
and the result of any of the foregoing is to increase the cost
to such Lender of agreeing to make, making or maintaining
Loans hereunder or to reduce any amount received or
receivable by such Lender (or its applicable lending office)
with respect thereto; then, in any such case, Borrower shall
promptly pay to such Lender, upon receipt of the statement
referred to in the next sentence, such additional amount or
amounts (in the form of an increased rate of, or a different
method of calculating, interest or otherwise as such Lender
in its sole discretion shall determine) as may be necessary
to compensate such Lender for any such increased cost or
reduction in amounts received or receivable hereunder.
Such Lender shall deliver to Borrower (with a copy to
Administrative Agent) a written statement, setting forth in
reasonable detail the basis for calculating the additional
amounts owed to such Lender under this Section 2.7A,
which statement shall be conclusive and binding upon all
parties hereto absent manifest error.
B. Withholding of Taxes.
(i) Payments to Be Free and Clear. All sums payable
by Borrower under this Agreement and the other Loan
Documents shall be paid free and clear of and (except to
the extent required by law) without any deduction or
withholding on account of any Tax (other than a Tax on the
overall net income of any Lender) imposed, levied,
collected, withheld or assessed by or within the United
States of America or any political subdivision in or of the
United States of America or any other jurisdiction from or
to which a payment is made by or on behalf of Borrower or
by any federation or organization of which the United
States of America or any such jurisdiction is a member at
the time of payment.
(ii) Grossing-up of Payments. If Borrower or any other
Person is required by law to make any deduction or
withholding on account of any such Tax (other than a Tax
on the overall net income of any Lender) from any sum
paid or payable by Borrower to Administrative Agent or
any Lender under any of the Loan Documents:
(a) Borrower shall notify Administrative Agent of any
such requirement or any change in any such requirement
as soon as Borrower becomes aware of it;
(b) Borrower shall pay any such Tax (other than a Tax
on the overall net income of any Lender) before the date
on which penalties attach thereto, such payment to be
made (if the liability to pay is imposed on Borrower) for
its own account or (if that liability is imposed on
Administrative Agent or such Lender, as the case may
be) on behalf of and in the name of Administrative Agent
or such Lender;
(c) the sum payable by Borrower in respect of which the
relevant deduction, withholding or payment is required
shall be increased to the extent necessary to ensure that,
after the making of that deduction, withholding or
payment, Administrative Agent or such Lender, as the
case may be, receives on the due date a net sum equal to
what it would have received had no such deduction,
withholding or payment been required or made; and
(d) within 30 days after paying any sum from which it
is required by law to make any deduction or withholding,
and within 30 days after the due date of payment of any
Tax which it is required by clause (b) above to pay,
Borrower shall deliver to Administrative Agent evidence
satisfactory to the other affected parties of such
deduction, withholding or payment and of the remittance
thereof to the relevant taxing or other authority;
(iii) Evidence of Exemption from U.S. Withholding Tax.
(a) Each Lender that is organized under the laws of any
jurisdiction other than the United States or any state or
other political subdivision thereof (for purposes of this
Section 2.7B(iii), a "Non-US Lender") shall deliver to
Administrative Agent for transmission to Borrower, on
or prior to the Closing Date (in the case of each Lender
listed on the signature pages hereof) or on the date of the
Assignment Agreement pursuant to which it becomes a
Lender (in the case of each other Lender), and at such
other times as may be necessary in the determination of
Borrower or Administrative Agent (each in the
reasonable exercise of its discretion), (1) two original
copies of Internal Revenue Service Form 1001 or 4224
(or any successor forms), properly completed and duly
executed by such Lender, together with any other
certificate or statement of exemption required under the
Internal Revenue Code or the regulations issued
thereunder to establish that such Lender is not subject to
deduction or withholding of United States federal income
tax with respect to any payments to such Lender of
principal, interest, fees or other amounts payable under
any of the Loan Documents or (2) if such Lender is not
a "bank" or other Person described in Section 881(c)(3)
of the Internal Revenue Code and cannot deliver either
Internal Revenue Service Form 1001 or 4224 pursuant to
clause (1) above, a Certificate re Non-Bank Status
together with two original copies of Internal Revenue
Service Form W-8 (or any successor form), properly
completed and duly executed by such Lender, together
with any other certificate or statement of exemption
required under the Internal Revenue Code or the
regulations issued thereunder to establish that such
Lender is not subject to deduction or withholding of
United States federal income tax with respect to any
payments to such Lender of interest payable under any of
the Loan Documents.
(b) Each Lender required to deliver any forms,
certificates or other evidence with respect to United
States federal income tax withholding matters pursuant to
Section 2.7B(iii)(a) hereby agrees, from time to time
after the initial delivery by such Lender of such forms,
certificates or other evidence, whenever a lapse in time
or change in circumstances renders such forms,
certificates or other evidence obsolete or inaccurate in
any material respect, such Lender shall (1) deliver to
Administrative Agent for transmission to Borrower two
new original copies of Internal Revenue Service Form
1001 or 4224, or a Certificate re Non-Bank Status and
two original copies of Internal Revenue Service Form
W-8, as the case may be, properly completed and duly
executed by such Lender, together with any other
certificate or statement of exemption required in order to
confirm or establish that such Lender is not subject to
deduction or withholding of United States federal income
tax with respect to payments to such Lender under the
Loan Documents or (2) immediately notify
Administrative Agent and Borrower of its inability to
deliver any such forms, certificates or other evidence.
(c) Borrower shall not be required to pay any additional
amount to any Non-US Lender under clause (c) of
Section 2.7B(ii) if such Lender shall have failed to
satisfy the requirements of Section 2.7B(iii)(a); provided
that if such Lender shall have satisfied such requirements
on the Closing Date (in the case of each Lender listed on
the signature pages hereof) or on the date of the
Assignment Agreement pursuant to which it became a
Lender (in the case of each other Lender), nothing in this
Section 2.7B(iii)(c) shall relieve Borrower of its
obligation to pay any additional amounts pursuant to
clause (c) of Section 2.7B(ii) in the event that, as a result
of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in
the interpretation, administration or application thereof,
such Lender is no longer properly entitled to deliver
forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender is not subject to
withholding as described in Section 2.7B(iii)(a).
C. Capital Adequacy Adjustment. If any Lender
shall have determined that the adoption, effectiveness,
phase-in or applicability after the date hereof of any law,
rule or regulation (or any provision thereof) regarding
capital adequacy, or any change therein or in the interpreta-
tion or administration thereof by any governmental
authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance
by any Lender (or its applicable lending office) with any
guideline, request or directive regarding capital adequacy
(whether or not having the force of law) of any such
governmental authority, central bank or comparable agency,
has or would have the effect of reducing the rate of return
on the capital of such Lender or any corporation controlling
such Lender as a consequence of, or with reference to, such
Lender's Loans or Commitment or Letters of Credit or
participations therein or other obligations hereunder with
respect to the Loans or the Letters of Credit to a level
below that which such Lender or such controlling corpora-
tion could have achieved but for such adoption,
effectiveness, phase-in, applicability, change or compliance
(taking into consideration the policies of such Lender or
such controlling corporation with regard to capital
adequacy), then from time to time, within five Business
Days after receipt by Borrower from such Lender of the
statement referred to in the next sentence, Borrower shall
pay to such Lender such additional amount or amounts as
will compensate such Lender or such controlling
corporation on an after-tax basis for such reduction. Such
Lender shall deliver to Borrower (with a copy to
Administrative Agent) a written statement, setting forth in
reasonable detail the basis of the calculation of such
additional amounts, which statement shall be conclusive and
binding upon all parties hereto absent manifest error.
2.8 Obligation of Lenders and Issuing Lender to
Mitigate.
Each Lender and Issuing Lender agrees that, as
promptly as practicable after the officer of such Lender or
Issuing Lender responsible for administering the Loans or
Letters of Credit of such Lender or Issuing Lender, as the
case may be, becomes aware of the occurrence of an event
or the existence of a condition that would cause such
Lender to become an Affected Lender or that would entitle
such Lender or Issuing Lender to receive payments under
Section 2.7 or Section 3.6, it will, to the extent not
inconsistent with the internal policies of such Lender or
Issuing Lender and any applicable legal or regulatory
restrictions, use reasonable efforts (i) to make, issue, fund
or maintain the Commitment of such Lender or the affected
Loans or Letters of Credit of such Lender or Issuing
Lender through another lending or letter of credit office of
such Lender or Issuing Lender, or (ii) take such other
measures as such Lender or Issuing Lender may deem
reasonable, if as a result thereof the circumstances which
would cause such Lender to be an Affected Lender would
cease to exist or the additional amounts which would
otherwise be required to be paid to such Lender or Issuing
Lender pursuant to Section 2.7 or Section 3.6 would be
materially reduced and if, as determined by such Lender or
Issuing Lender in its sole discretion, the making, issuing,
funding or maintaining of such Commitment or Loans or
Letters of Credit through such other lending or letter of
credit office or in accordance with such other measures, as
the case may be, would not otherwise materially adversely
affect such Commitment or Loans or Letters of Credit or
the interests of such Lender or Issuing Lender; provided
that such Lender or Issuing Lender will not be obligated to
utilize such other lending or letter of credit office pursuant
to this Section 2.8 unless Borrower agrees to pay all
incremental expenses incurred by such Lender or Issuing
Lender as a result of utilizing such other lending or letter of
credit office as described in clause (i) above. A certificate
as to the amount of any such expenses payable by Borrower
pursuant to this Section 2.8 (setting forth in reasonable
detail the basis for requesting such amount) submitted by
such Lender or Issuing Lender to Borrower (with a copy to
Administrative Agent) shall be conclusive absent manifest
error.
2.9 Termination of Make-Well Agreement. It is
acknowledged that, during the period from December 31,
2000 through December 31, 2001, Circus shall have the
option to elect to terminate the Make-Well Agreement
pursuant to Section 2.14 thereof if all the following
conditions have been satisfied:
(i) on the last day of each of the two most recent
Fiscal Quarters for which financial statements of
Borrower have been delivered pursuant to Section
5.1, the Stand-Alone Leverage Ratio shall be
3.00:1.00 or less;
(ii) for each of the two most recent Fiscal
Quarters for which financial statements of
Borrower have been delivered pursuant to Section
5.1, the Stand-Alone Coverage Ratio for the four
consecutive Fiscal Quarters then ended shall be
not less than 1.25:1.00;
(iii) no Event of Default or Default shall have
occurred and be continuing; and
(iv) Circus shall not be in default in any of its
monetary agreements under the Make-Well
Agreement.
Borrower acknowledges that termination of the Make-Well
Agreement under such circumstances shall be at the option
of Circus, and that any such termination will result in
higher interest rates and more restrictive covenants
hereunder, as set forth herein.
2.10 Swing Line. (A) Subject to the terms and
conditions set forth herein, from the Closing Date through
the day prior to the Maturity Date, the Swing Line Lender
shall make Swing Line Loans to Borrower in such amounts
as it may request which do not result in the Total
Utilization being in excess of the then effective
Commitments, provided that (i) after giving effect to each
Swing Line Loan, the Swing Line Outstandings shall not
exceed $10,000,000, (ii) without the consent of all of the
Lenders, no Swing Line Loan may be made during the
continuation of a Default or Event of Default and (iii) the
Swing Line Lender has not given at least twenty-four
hours prior notice to Borrower that availability under the
Swing Line is suspended or terminated. Each request for a
Swing Line Loan shall constitute a representation by
Borrower that each of the representations and warranties set
forth herein are true and correct, to the extent set forth in
Section 4.2(b). Borrower may borrow, repay and reborrow
under this Section. Unless notified to the contrary by the
Swing Line Lender, borrowings under the Swing Line may
be made in amounts which are integral multiples of
$100,000 upon telephonic request by a Senior Officer of
Borrower made to the Administrative Agent not later than
1:00 p.m., Pacific time, on the Banking Day of the
requested borrowing (which telephonic request shall be
promptly confirmed in writing by telecopier), provided that
if the requested Swing Line Loan is to be credited to an
account which is not with the Swing Line Lender, the
request must be submitted by 11:30 a.m., Pacific time.
Promptly after receipt of such a request for borrowing, the
Administrative Agent shall provide telephonic verification
to the Swing Line Lender that, after giving effect to such
request, the Total Utilization will not exceed the then
effective Commitments (and such verification shall be
promptly confirmed in writing by telecopier). Unless
notified to the contrary by the Swing Line Lender, each
repayment of a Swing Line Loan shall be in an amount
which is an integral multiple of $100,000. If Borrower
instructs the Swing Line Lender to debit its demand deposit
account at the Swing Line Lender in the amount of any
payment with respect to a Swing Line Loan, or the Swing
Line Lender otherwise receives repayment, after 3:00 p.m.,
Pacific time, on a Banking Day, such payment shall be
deemed received on the next Banking Day. The Swing
Line Lender shall promptly notify the Administrative Agent
of the Swing Loan Outstandings each time there is a change
therein or if it suspends or terminates availability under the
Swing Line.
(B) Swing Line Loans 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 Lender
and in any event on the Maturity Date. The Swing Line
Lender shall be responsible for invoicing Borrower for such
interest. Interest payable on Swing Line Loans is solely for
the account of the Swing Line Lender (subject to clause (D)
below).
(C) The Swing Line Loans shall be payable
within five (5) Banking Days after demand made by the
Swing Line Lender and in any event on the Maturity Date
or any earlier date when all other Obligations are due.
(D) Upon the making of a Swing Line Loan in
accordance with Section 2.10(A), each Lender shall be
deemed to have purchased from the Swing Line Lender a
participation therein in an amount equal to that Lender's
Pro Rata Share times the amount of the Swing Line Loan.
Upon demand made by the Swing Line Lender through the
Administrative Agent, each Lender shall, according to its
Pro Rata Share, promptly provide to the Swing Line Lender
its purchase price therefor in an amount equal to its
participation therein. The obligation of each Lender to so
provide its purchase price to the Swing Line Lender shall
be absolute and unconditional (subject only to the making of
a demand upon that Lender by the Swing Line Lender) and
shall not be affected by the occurrence of a Default or
Event of Default; provided that no Lender shall be
obligated to purchase its Pro Rata Share of (i) Swing Line
Loans to the extent that Swing Line Outstandings are in
excess of $10,000,000 or to the extent that the making of
such Swing Line Loan results in the Total Utilization being
in excess of the then effective Commitments, or (ii) any
Swing Line Loan is made (absent the consent of all of the
Lenders) during the continuation of any Default or Event of
Default. Each Lender that has provided to the Swing Line
Lender the purchase price due for its participation in Swing
Line Loans shall thereupon acquire a pro rata participation,
to the extent of such payment, in the claim of the Swing
Line Lender 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 Lender paid the Swing Line Lender its purchase price)
with respect to such claim.
(E) In the event that the Swing Line Outstandings
are (a) outstanding five consecutive Banking Days, or (b)
the Swing Line Outstandings are in excess of $5,000,000
for three Banking Days, then (unless Borrower has made
other arrangements acceptable to the Swing Line Lender to
pay the Swing Line Outstandings in full), on the next
Banking Day, Borrower shall request a Loan pursuant to
Section 2.1 which is sufficient to pay the Swing Line
Outstandings in full. In addition, upon any demand for
payment of the Swing Line Outstandings by the Swing Line
Lender (unless Borrower has made other arrangements
acceptable to the Swing Line Lender to reduce the Swing
Line Outstandings to $0), Borrower shall request a Loan
pursuant to Section 2.1 which is sufficient to repay all
Swing Line Outstandings (and, for this purpose, the
conditions precedent to the making of Loans shall not
apply). In each case, the Administrative Agent shall
automatically provide the Loans made by each Lender to
the Swing Line Lender (which the Swing Line Lender shall
then apply to the Swing Line Outstandings). In the event
that Borrower fails to request a Loan within the time speci-
fied by Section 2.1B on any such date, the Administrative
Agent may, but is not required to, without notice to or the
consent of Borrower, cause Loans to be made by the
Lenders under their Commitments in amounts which are
sufficient to reduce the Swing Line Outstandings as
required above. The conditions precedent set forth in
Section 4 shall not apply to Loans made pursuant to the
three preceding sentences but the Lenders shall not be
obligated to make such Loans to the extent that the
conditions set forth in Section 2.10(A)(i), (ii) and (iii) were
not satisfied as to any Swing Line Loan which is part of
such Swing Line Outstandings. The proceeds of such
Loans shall be paid directly to the Swing Line Lender for
application to the Swing Line Outstandings.
SECTION 3
LETTERS OF CREDIT
3.1 Issuance of Letters of Credit and Lenders'
Purchase of Participations Therein.
A. Letters of Credit. In addition to Borrower
requesting that Lenders make Loans pursuant to
Section 2.1A, Borrower may request, in accordance with
the provisions of this Section 3.1, from time to time during
the period from the Closing Date to but excluding the
Maturity Date, that Issuing Lender issue Letters of Credit
for the account of Borrower for the purposes specified in
the definition of Standby Letters of Credit. Subject to the
terms and conditions of this Agreement and in reliance
upon the representations and warranties of the Loan Parties
set forth in the Loan Documents, Issuing Lender shall be
obligated, as provided in Section 3.1B(ii), to issue such
Letters of Credit in accordance with the provisions of this
Section 3.1; provided that Borrower shall not request that
Issuing Lender issue (and Issuing Lender shall not issue):
(i) any Letter of Credit if, after giving effect to such
issuance, the Total Utilization would exceed the
Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such
issuance, the Letter of Credit Usage would exceed
$5,000,000;
(iii) any Standby Letter of Credit having an expiration
date later than the earlier of (a) the Maturity Date and
(b) the date that is one year from the date of issuance of
such Standby Letter of Credit; provided that the
immediately preceding clause (b) shall not prevent Issuing
Lender from agreeing that a Standby Letter of Credit will
automatically be extended for one or more successive
periods not to exceed one year each unless Issuing Lender
elects not to extend for any such additional period;
provided, further that Issuing Lender shall deliver a written
notice to Administrative Agent setting forth the last day on
which Issuing Lender may give notice that it will not extend
such Standby Letter of Credit (the "Notification Date" with
respect to such Standby Letter of Credit) at least ten
Business Days prior to such Notification Date; and
provided, further that, unless Lenders otherwise consent,
Issuing Lender shall give notice that it will not extend such
Standby Letter of Credit if it has knowledge that an Event
of Default has occurred and is continuing on such
Notification Date; or
(iv) any Letter of Credit denominated in a currency
other than Dollars.
B. Mechanics of Issuance.
(i) Notice of Issuance. Whenever Borrower desires the
issuance of a Letter of Credit, it shall deliver to
Administrative Agent a Notice of Issuance of Letter of
Credit no later than 10:00 A.M. (Pacific time) at least 5
Business Days, or such shorter period as may be agreed to
by the Issuing Lender in any particular instance, in advance
of the proposed date of issuance. The Notice of Issuance
of Letter of Credit shall specify (a) the proposed date of
issuance (which shall be a Business Day), (b) the face
amount of the Letter of Credit, (c) the expiration date of
the Letter of Credit, (d) the name and address of the
beneficiary, and (e) the verbatim text of the proposed Letter
of Credit or the proposed terms and conditions thereof,
including a precise description of any documents and the
verbatim text of any certificates to be presented by the
beneficiary that, if presented by the beneficiary prior to the
expiration date of the Letter of Credit, would require the
Issuing Lender to make payment under the Letter of Credit;
provided that the Issuing Lender, in its reasonable
discretion, may require changes in the text of the proposed
Letter of Credit or any such documents or certificates; and
provided, further that no Letter of Credit shall require
payment against a conforming draft to be made thereunder
on the same business day (under the laws of the jurisdiction
in which the office of the Issuing Lender to which such
draft is required to be presented is located) that such draft
is presented if such presentation is made after 10:00 A.M.
(Pacific time) on such business day.
Borrower shall notify the Issuing Lender prior to
the issuance of any Letter of Credit in the event that any of
the matters to which Borrower is required to certify in the
applicable Notice of Issuance of Letter of Credit is no
longer true and correct as of the proposed date of issuance
of such Letter of Credit, and upon the issuance of any
Letter of Credit Borrower shall be deemed to have re-
certified, as of the date of such issuance, as to the matters
to which Borrower is required to certify in the applicable
Notice of Issuance of Letter of Credit.
(ii) Issuing Lender. Subject to the terms and conditions
hereof, upon receipt by Administrative Agent of a Notice of
Issuance of Letter of Credit pursuant to Section 3.1B(i)
requesting the issuance of a Letter of Credit, Administrative
Agent shall be the Issuing Lender with respect thereto.
Administrative Agent shall be obligated to issue such Letter
of Credit and shall be the Issuing Lender with respect
thereto, notwithstanding the fact that the Letter of Credit
Usage with respect to such Letter of Credit and with
respect to all other Letters of Credit issued by
Administrative Agent, when aggregated with Administrative
Agent's outstanding Loans, may exceed Administrative
Agent's Commitment then in effect.
(iii) Issuance of Letter of Credit. Upon satisfaction or
waiver (in accordance with Section 10.6) of the conditions
set forth in Section 4.3, the Issuing Lender shall issue the
requested Letter of Credit in accordance with the Issuing
Lender's standard operating procedures.
(iv) Notification to Lenders. Upon the issuance of any
Letter of Credit the Issuing Lender shall promptly notify
each other Lender of such issuance, which notice shall be
accompanied by a copy of such Letter of Credit. Promptly
after receipt of such notice, Administrative Agent shall
notify each Lender of the amount of such Lender's
respective participation in such Letter of Credit, determined
in accordance with Section 3.1C.
(v) Reports to Lenders. Within 15 days after the end of
each calendar quarter ending after the Closing Date, so
long as any Letter of Credit shall have been outstanding
during such calendar quarter, Issuing Lender shall deliver
to each other Lender a report setting forth the average for
such calendar quarter of the daily maximum amount
available to be drawn under the Letters of Credit issued by
Issuing Lender that were outstanding during calendar
quarter.
C. Lenders' Purchase of Participations in Letters of
Credit. Immediately upon the issuance of each Letter of
Credit, each Lender (including the Lender that acts as
Issuing Lender) shall be deemed to, and hereby agrees to,
have irrevocably purchased from the Issuing Lender a
participation in such Letter of Credit and drawings
thereunder in an amount equal to such Lender's Pro Rata
Share of the maximum amount which is or at any time may
become available to be drawn thereunder.
3.2 Letter of Credit Fees.
Borrower agrees to pay the following amounts to
Issuing Lender with respect to Letters of Credit issued by it:
(A) with respect to each Standby Letter of Credit,
a letter of credit fee in an amount equal to the greater of
(i) the product of the maximum aggregate amount that is,
or at any time, may become available for drawing with
respect to such Letter of Credit multiplied by the
Applicable Eurodollar Rate Margin and (ii) $500; which
amount shall be payable in advance upon issuance for the
term of such Letter of Credit.
(B) with respect to the issuance, amendment or
transfer of each Letter of Credit and each drawing made
thereunder (in addition to the fees payable under
clause (i) above), documentary and processing charges in
accordance with Issuing Lender's standard schedule for
such charges in effect at the time of such issuance,
amendment, transfer or drawing, as the case may be.
Promptly upon receipt by Issuing Lender of any amount
described in clause (A) of this Section 3.2, Issuing Lender
shall distribute to each other Lender its Pro Rata Share of
such amount.
3.3 Drawings and Reimbursement of Amounts Drawn
Under Letters of Credit.
A. Responsibility of Issuing Lender With Respect to
Drawings. In determining whether to honor any drawing
under any Letter of Credit by the beneficiary thereof, the
Issuing Lender shall be responsible only to determine that
the documents and certificates required to be delivered
under such Letter of Credit have been delivered and that
they comply on their face with the requirements of such
Letter of Credit.
B. Reimbursement by Borrower of Amounts Drawn
Under Letters of Credit. In the event Issuing Lender has
determined to honor a drawing under a Letter of Credit
issued by it, Issuing Lender shall immediately notify
Borrower and Administrative Agent, and Borrower shall
reimburse Issuing Lender on or before the Business Day
immediately following the date on which such drawing is
honored (the "Reimbursement Date") in an amount in
Dollars and in same day funds equal to the amount of such
drawing; provided that, anything contained in this
Agreement to the contrary notwithstanding, (i) unless
Borrower shall have notified Administrative Agent and
Issuing Lender prior to 8:30 A.M. (Pacific time) on the
date of such drawing that Borrower intends to reimburse
Issuing Lender for the amount of such drawing with funds
other than the proceeds of Loans, Borrower shall be
deemed to have given a timely Notice of Borrowing to
Administrative Agent requesting Lenders to make Loans
that are Base Rate Loans on the Reimbursement Date in an
amount in Dollars equal to the amount of such drawing and
(ii) subject only to satisfaction or waiver of the conditions
specified in Section 4.5B, Lenders shall, on the
Reimbursement Date, make Loans that are Base Rate Loans
in the amount of such drawing, the proceeds of which shall
be applied directly by Administrative Agent to reimburse
Issuing Lender for the amount of such drawing; and
provided, further that if for any reason proceeds of Loans
are not received by Issuing Lender on the Reimbursement
Date in an amount equal to the amount of such drawing,
Borrower shall reimburse Issuing Lender, on demand, in an
amount in same day funds equal to the excess of the amount
of such drawing over the aggregate amount of such Loans,
if any, that are so received. Nothing in this Section 3.3B
shall be deemed to relieve any Lender from its obligation to
make Loans on the terms and conditions set forth in this
Agreement, and Borrower shall retain any and all rights it
may have against any Lender resulting from the failure of
such Lender to make such Loans under this Section 3.3B.
C. Payment by Lenders of Unreimbursed Drawings
Under Letters of Credit.
(i) Payment by Lenders. In the event that Borrower
shall fail for any reason to reimburse Issuing Lender as
provided in Section 3.3B in an amount equal to the amount
of any drawing honored by Issuing Lender under a Letter
of Credit issued by it, Issuing Lender shall promptly notify
each other Lender of the unreimbursed amount of such
drawing and of such other Lender's respective participation
therein based on such Lender's Pro Rata Share. Each
Lender shall make available to Issuing Lender an amount
equal to its respective pro rata participation, in Dollars and
in same day funds, at the office of Issuing Lender specified
in such notice, not later than 1:30 P.M. (Pacific time) on
the first business day (under the laws of the jurisdiction in
which such office of Issuing Lender is located) after the
date notified by Issuing Lender. In the event that any
Lender fails to make available to Issuing Lender on such
business day the amount of such Lender's participation in
such Letter of Credit as provided in this Section 3.3C,
Issuing Lender shall be entitled to recover such amount on
demand from such Lender together with interest thereon at
the Federal Funds Effective Rate for three Business Days
and thereafter at the Base Rate. Nothing in this
Section 3.3C shall be deemed to prejudice the right of any
Lender to recover from Issuing Lender any amounts made
available by such Lender to Issuing Lender pursuant to this
Section 3.3C in the event that it is determined by the final
judgment of a court of competent jurisdiction that the
payment with respect to a Letter of Credit by Issuing
Lender in respect of which payment was made by such
Lender constituted gross negligence or willful misconduct
on the part of Issuing Lender.
(ii) Distribution to Lenders of Reimbursements Received
From Borrower. In the event Issuing Lender shall have
been reimbursed by other Lenders pursuant to
Section 3.3C(i) for all or any portion of any drawing
honored by Issuing Lender under a Letter of Credit issued
by it, Issuing Lender shall distribute to each other Lender
which has paid all amounts payable by it under
Section 3.3C(i) with respect to such drawing such other
Lender's Pro Rata Share of all payments subsequently
received by Issuing Lender from Borrower in reimburse-
ment of such drawing within five (5) Business Days of the
date when such payments are received by Issuing Lender.
Any such distribution shall be made to a Lender at its
primary address set forth below its name on the appropriate
signature page hereof or at such other address as such
Lender may request.
D. Interest on Amounts Drawn Under Letters of
Credit.
(i) Payment of Interest by Borrower. Borrower agrees
to pay to Issuing Lender, with respect to drawings made
under any Letters of Credit issued by it, interest on the
amount paid by Issuing Lender in respect of each such
drawing from and including the date of such drawing to but
excluding the date such amount is reimbursed by Borrower
(including any such reimbursement out of the proceeds of
Loans pursuant to Section 3.3B) at a rate equal to (a) for
the period from the date of such drawing to but excluding
the Reimbursement Date, the rate then in effect under this
Agreement with respect to Loans that are Base Rate Loans
and (b) thereafter, a rate which is 2% per annum in excess
of the rate of interest otherwise payable under this
Agreement with respect to Loans that are Base Rate Loans;
provided that in no event shall interest accrue for two days
when a drawing and the reimbursement of amounts paid in
respect of such drawing occur on consecutive days.
Interest payable pursuant to this Section 3.3D(i) shall be
payable on demand or, if no demand is made, on the date
on which the related drawing under a Letter of Credit is
reimbursed in full.
(ii) Distribution of Interest Payments by Issuing Lender.
Promptly upon receipt by Issuing Lender of any payment of
interest pursuant to Section 3.3D(i) with respect to a
drawing under a Letter of Credit issued by it, in the event
Issuing Lender shall have been reimbursed by other
Lenders pursuant to Section 3.3C(i) for all or any portion
of such drawing, Issuing Lender shall distribute to each
other Lender which has paid all amounts payable by it
under Section 3.3C(i) with respect to such drawing such
other Lender's proportionate share (based on the amount
reimbursed to the Issuing Lender pursuant to
Section 3.3C(i)) of any interest received by Issuing Lender
in respect of that portion of such drawing so reimbursed by
other Lenders for the period from the date on which Issuing
Lender was so reimbursed by other Lenders to and
including the date on which such portion of such drawing is
reimbursed by Borrower. Any such distribution shall be
made by Issuing Lender within five (5) Business Days of its
receipt of such payment from Borrower to a Lender at its
primary address set forth below its name on the appropriate
signature page hereof or at such other address as such
Lender may request.
3.4 Obligations Absolute.
The obligation of Borrower to reimburse Issuing
Lender for drawings made under the Letters of Credit
issued by it and to repay any Loans made by Lenders
pursuant to Section 3.3B and the obligations of Lenders
under Section 3.3C(i) shall be unconditional and irrevocable
and shall be paid strictly in accordance with the terms of
this Agreement under all circumstances including, without
limitation, the following circumstances:
(i) any lack of validity or enforceability of any Letter of
Credit;
(ii) the existence of any claim, set-off, defense or other
right which Borrower or any Lender may have at any time
against a beneficiary or any transferee of any Letter of
Credit (or any Persons for whom any such transferee may
be acting), Issuing Lender or other Lender or any other
Person or, in the case of a Lender, against Borrower,
whether in connection with this Agreement, the transactions
contemplated herein or any unrelated transaction (including
any underlying transaction between Borrower or one of its
Subsidiaries and the beneficiary for which any Letter of
Credit was procured);
(iii) any draft, demand, certificate or other document
presented under any 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;
(iv) payment by the Issuing Lender under any Letter of
Credit against presentation of a demand, draft or certificate
or other document which does not comply with the terms of
such Letter of Credit;
(v) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) or
prospects of Borrower or any of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan
Document by any party thereto;
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Default shall
have occurred and be continuing;
provided, in each case, that payment by the Issuing Lender
under the applicable Letter of Credit shall not have
constituted gross negligence or willful misconduct of
Issuing Lender under the circumstances in question (as
determined by a final judgment of a court of competent
jurisdiction).
3.5 Indemnification; Nature of Issuing Lender's
Duties.
A. Indemnification. In addition to amounts payable
as provided in Section 3.6, Borrower hereby agrees to
protect, indemnify, pay and save harmless Issuing Lender
from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including
reasonable fees, expenses and disbursements of counsel and
allocated costs of internal counsel) which Issuing Lender
may incur or be subject to as a consequence, direct or
indirect, of (i) the issuance of any Letter of Credit by
Issuing Lender, other than as a result of (a) the gross
negligence or willful misconduct of Issuing Lender as
determined by a final judgment of a court of competent
jurisdiction or (b) subject to the following clause (ii), the
wrongful dishonor by Issuing Lender of a proper demand
for payment made under any Letter of Credit issued by it or
(ii) the failure of Issuing Lender to honor a drawing under
any such Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de
jure or de facto government or governmental authority (all
such acts or omissions herein called "Governmental Acts").
B. Nature of Issuing Lender's Duties. As between
Borrower and Issuing Lender, Borrower assumes all risks
of the acts and omissions of, or misuse of the Letters of
Credit issued by Issuing Lender by, the respective
beneficiaries of such Letters of Credit. In furtherance and
not in limitation of the foregoing, but subject to the last
paragraph of this Section 3.5, Issuing Lender shall not be
responsible for: (i) the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application
for and issuance of any such Letter of Credit, even if it
should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any such Letter
of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid
or ineffective for any reason; (iii) failure of the beneficiary
of any such Letter of Credit to comply fully with any
conditions required in order to draw upon such Letter of
Credit; (iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise, whether or not they be in
cipher; (v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of
any document required in order to make a drawing under
any such Letter of Credit or of the proceeds thereof;
(vii) the misapplication by the beneficiary of any such
Letter of Credit of the proceeds of any drawing under such
Letter of Credit; or (viii) any consequences arising from
causes beyond the control of Issuing Lender, including
without limitation any Governmental Acts, and none of the
above shall affect or impair, or prevent the vesting of, any
of Issuing Lender's rights or powers hereunder.
In furtherance and extension and not in limitation
of the specific provisions set forth in the first paragraph of
this Section 3.5B, any action taken or omitted by Issuing
Lender under or in connection with the Letters of Credit
issued by it or any documents and certificates delivered
thereunder, if taken or omitted in good faith, shall not put
Issuing Lender under any resulting liability to Borrower.
Notwithstanding anything to the contrary
contained in this Section 3.5, Borrower shall retain any and
all rights it may have against Issuing Lender for any
liability arising solely out of the gross negligence or willful
misconduct of Issuing Lender, as determined by a final
judgment of a court of competent jurisdiction.
3.6 Increased Costs and Taxes Relating to Letters of
Credit.
In the event that Issuing Lender or any Lender
shall determine (which determination shall be presumed to
be correct) that any law, treaty or governmental rule,
regulation or order, or any change therein or in the
interpretation, administration or application thereof
(including the introduction of any new law, treaty or
governmental rule, regulation or order), or any
determination of a court or governmental authority, in each
case that becomes effective after the date hereof, or
compliance by Issuing Lender or any Lender with any
guideline, request or directive issued or made after the date
hereof by any central bank or other governmental or quasi-
governmental authority (whether or not having the force of
law):
(i) subjects such Issuing Lender or Lender (or its
applicable lending or letter of credit office) to any
additional Tax (other than any Tax on the overall net
income of such Issuing Lender or Lender) with respect to
the issuing or maintaining of any Letters of Credit or the
purchasing or maintaining of any participations therein or
any other obligations under this Section 3, whether directly
or by such being imposed on or suffered by Issuing Lender;
(ii) imposes, modifies or holds applicable any reserve
(including without limitation any marginal, emergency,
supplemental, special or other reserve), special deposit,
compulsory loan, FDIC insurance or similar requirement in
respect of any Letters of Credit issued by Issuing Lender or
participations therein purchased by any Lender; or
(iii) imposes any other condition (other than with respect
to a Tax matter) on or affecting such Issuing Lender or
Lender (or its applicable lending or letter of credit office)
regarding this Section 3 or any Letter of Credit or any
participation therein;
and the result of any of the foregoing is to increase the cost
to such Issuing Lender or Lender of agreeing to issue,
issuing or maintaining any Letter of Credit or agreeing to
purchase, purchasing or maintaining any participation
therein or to reduce any amount received or receivable by
such Issuing Lender or Lender (or its applicable lending or
letter of credit office) with respect thereto; then, in any
case, Borrower shall promptly pay to such Issuing Lender
or Lender, upon receipt of the statement referred to in the
next sentence, such additional amount or amounts as may
be necessary to compensate such Issuing Lender or Lender
for any such increased cost or reduction in amounts
received or receivable hereunder. Such Issuing Lender or
Lender shall deliver to Borrower a written statement,
setting forth in reasonable detail the basis for calculating the
additional amounts owed to such Issuing Lender or Lender
under this Section 3.6, which statement shall be conclusive
and binding upon all parties hereto absent manifest error.
SECTION 4
CONDITIONS TO LOANS AND LETTERS OF CREDIT
The obligations of Lenders to make Loans and the
issuance of Letters of Credit hereunder and to make the
Swing Line Loans are subject to the satisfaction of the
following conditions.
4.1 Conditions to Initial Loans and Letters of Credit.
The obligations of Lenders to make the Loans to
be made on the Closing Date, the obligation of the Issuing
Lender to provide the initial Letters of Credit hereunder,
and the obligation of the Swing Line Lender to make the
initial Swing Line Loans, in addition to satisfaction of the
conditions precedent specified in Section 4.2, are subject to
prior or concurrent satisfaction of the following conditions:
A. Borrower Documents. On or before the Closing
Date, Borrower shall deliver or cause to be delivered to
Lenders (or one originally executed copy to Administrative
Agent and, in the case of the Credit Agreement, sufficient
originally executed copies for each Lender to
Administrative Agent) the following, each, unless otherwise
noted, dated the Closing Date and in form reasonably
satisfactory to the Lenders:
(i) Copies of the Joint Venture Agreement certified by
an Executive Committee Signatory;
(ii) Resolutions of the Board of Directors of each
General Partner, in each case, in its capacity as a general
partner of Borrower, and of the Executive Committee, each
approving and authorizing the execution, delivery and
performance of this Agreement and the other Loan
Documents to which Borrower is a party;
(iii) Executed originals of this Agreement, any Notes,
the Security Agreement, the Deed of Trust, the Assignment
of Rents and Revenues, the Collateral Account Agreement
and the other Loan Documents to which Borrower is a
party; and
(iv) Such other documents as Administrative Agent may
reasonably request.
B. Certain General Partner Documents. On or before
the Closing Date, each of Circus, Eldorado Hotel and
General Partners shall deliver or cause to be delivered to
Lenders (or to Administrative Agent for Lenders) the
following, each, unless otherwise noted, dated the Closing
Date:
(i) Certificates as to the absence of any changes in the
certified copies of its Articles of Incorporation or
Organization or charter documents previously delivered to
the Lenders, together with, as applicable, a good standing
certificate from the Secretary of State of the state of its
incorporation or organization, each dated a recent date prior
to the Closing Date;
(ii) Certificates as to the absence of any changes in the
certified copies of its Bylaws or Operating Agreement,
certified as of the Closing Date by its or its managing
general partner's secretary or an assistant secretary;
(iii) Resolutions of its or its managing general partner's
Board of Directors, approving and authorizing the
execution, delivery and performance of the Environmental
Indemnities and each other Loan Document to which it is a
party, certified as of the Closing Date by its or its
managing general partner's secretary or an assistant secre-
tary as being in full force and effect without modification or
amendment;
(iv) Executed originals of the Amended and Restated
Make-Well Agreement and/or the other Loan Documents to
which it is a party; and
(v) Evidence acceptable to the Administrative Agent that
the Indebtedness under the Loan Agreement dated as of
May 30, 1995 between Borrower and Circus has been
repaid, that such Loan Agreement has been terminated, and
that the Liens securing such Indebtedness have been
reconveyed and terminated.
C. Opinions of Loan Parties' Counsel. Lenders and
their respective counsel shall have received (i) originally
executed copies of one or more favorable written opinions
of Wolf, Block, Schorr & Solis-Cohen LLP, special
counsel for Borrower and Circus, and Jones Vargas,
Nevada counsel for Borrower and Circus, dated as of the
Closing Date as to such matters as Administrative Agent
acting on behalf of Lenders may reasonably request and
(ii) evidence satisfactory to Administrative Agent that
Borrower has requested such counsel to deliver such
opinions to Lenders.
D. Opinions of Administrative Agent's Counsel.
Lenders shall have received originally executed copies of
one or more favorable written opinions of Sheppard,
Mullin, Richter & Hampton LLP, counsel to Administrative
Agent, dated as of the Closing Date, as to such matters as
Administrative Agent acting on behalf of Lenders may
reasonably request.
E. Perfection of Security Interests. The Prior Agent
shall have delivered assignments to the Administrative
Agent of the deed of trust and the assignment of rents
executed in connection with the Existing Credit Agreement.
Borrower shall have taken or caused to be taken such
actions in such a manner so that Administrative Agent, for
the benefit of Lenders, has a valid and perfected first
priority security interest in all Collateral in which a Lien is
purported to be granted by the Collateral Documents or any
of them, executed as of the Closing Date. Such actions
shall include, without limitation: (i) the delivery to
Administrative Agent of Uniform Commercial Code
financing statements, executed by Borrower as to the
Collateral granted by Borrower for all jurisdictions as may
be necessary or desirable to perfect Administrative Agent's
security interest in such collateral; (ii) evidence that
counterparts of the Deed of Trust and Assignment of Rents
and Revenues were recorded in all locations to the extent
necessary or desirable, in the reasonable judgment of
Administrative Agent, effectively to create a valid and
enforceable first priority Lien (subject only to Permitted
Encumbrances) on the Premises in favor of Administrative
Agent for the benefit of Lenders and (iii) evidence
reasonably satisfactory to Administrative Agent that all
other filings, recordings and other actions Administrative
Agent deems necessary or advisable to establish, preserve
and perfect the first priority Liens (subject to the Liens
permitted under Section 7.2) granted to Administrative
Agent, for the benefit of Lenders, in the Collateral shall
have been made.
F. Title Policy. Administrative Agent and Lenders
shall have received a modification endorsement to the Title
Policy assuring the continued priority and perfection of the
Title Policy to secure the Obligations in form and substance
acceptable to the Administrative Agent, and shall have
received an endorsement to the Title Policy increasing the
insurance thereunder from $220,000,000 to $230,000,000.
G. Insurance. Administrative Agent shall have
received evidence, satisfactory to Administrative Agent, of
insurance required to be procured and maintained pursuant
to Section 6.4 hereof and Section 8 of the Security
Agreement and Section 6 of the Deed of Trust indicating
that, with respect to casualty insurance, such policies of
insurance have been endorsed to name Administrative
Agent, on behalf of Lenders, as loss payee pursuant to a
standard mortgagee clause and, with respect to liability
insurance, such policies of insurance name Administrative
Agent, on behalf of Lenders, as an additional insured.
H. Necessary Consents. On or before the Closing
Date, each Loan Party shall have obtained all consents to
the transactions contemplated under this Agreement and the
other Loan Documents, of any Person required under any
Contractual Obligation of any Loan Party, including,
without limitation, approval of the terms of the Loans by
the Executive Committee pursuant to Section 5.9(c) of the
Joint Venture Agreement and by the General Partners, all
of the foregoing in form and substance satisfactory to
Administrative Agent.
I. Environmental Indemnities. Lenders shall have
received reaffirmations of the Environmental Indemnities in
form, scope and substance satisfactory to Lenders.
J. Fees. Borrower shall have paid to Administrative
Agent, for distribution (as appropriate) to Administrative
Agent and Lenders, the fees payable on the Closing Date
referred to in Section 2.3.
K. No Material Adverse Effect. Since December 31,
1996, no Material Adverse Effect (in the sole discretion of
Administrative Agent and Lenders) shall have occurred.
L. Representations and Warranties; Performance of
Agreements. Borrower shall have delivered to
Administrative Agent an Officers' Certificate from each
General Partner and Executive Committee Signatories, in
form and substance satisfactory to Administrative Agent, to
the effect that the representations and warranties in
Section 5 hereof are true, correct and complete on and as of
the Closing Date to the same extent as though made on and
as of that date and that Borrower shall have performed all
agreements and satisfied all conditions which this
Agreement provides shall be performed or satisfied by it on
or before the Closing Date except as otherwise disclosed to
and agreed to in writing by Administrative Agent and
Lenders.
M. Interbank Arrangements. Any Lender under the
Existing Credit Agreement which will not continue as a
Lender under this Agreement shall have assigned its rights
under the Existing Credit Agreement to one or more
Lenders under this Agreement, with such assignment to
become effective concurrently with the effectiveness hereof.
N. Completion of Proceedings. All corporate and
other proceedings taken or to be taken in connection with
the transactions contemplated hereby and all documents
incidental thereto not previously found acceptable by
Administrative Agent, acting on behalf of Lenders, and its
counsel shall be satisfactory in form and substance to
Administrative Agent and such counsel, and Administrative
Agent and such counsel shall have received all such
counterpart originals or certified copies of such documents
as Administrative Agent may reasonably request.
4.2 Conditions to All Loans, Letters of Credit and
Swing Line Loans.
The obligations of Lenders to make Loans on each
Funding Date, the issuance of each Letter of Credit, and
the making of each Swing Line Loan, are each subject to
the following further conditions precedent:
A. Administrative Agent shall have received before
that Funding Date, in accordance with the provisions of
Section 2.1B, an originally executed Notice of Borrowing,
in each case signed by the Director of Finance and
Administration or the General Manager of Borrower, or the
chief executive officer, the chief financial officer or the
treasurer of Managing Partner on behalf of Borrower or by
any executive officer of Managing Partner on behalf of
Borrower designated in writing by the Executive Committee
or by two Executive Committee Signatories.
B. As of that Funding Date:
(i) The representations and warranties contained
herein and in the other Loan Documents shall be true,
correct and complete on and as of that Funding Date to the
same extent as though made on and as of that date, except
to the extent such representations and warranties
specifically relate to an earlier date, in which case such
representations and warranties shall have been true, correct
and complete in all material respects on and as of such
earlier date;
(ii) No event shall have occurred and be continuing or
would result from the consummation of the borrowing
contemplated by such Notice of Borrowing that would
constitute an Event of Default or a Default;
(iii) Each Loan Party shall have performed in all
material respects all agreements and satisfied all conditions
which this Agreement provides shall be performed or
satisfied by it on or before that Funding Date;
(iv) No order, judgment or decree of any court,
arbitrator or governmental authority shall purport to enjoin
or restrain any Lender from making the Loans to be made
by it on that Funding Date;
(v) The making of the Loans requested on such
Funding Date shall not violate any law including, without
limitation, Regulation G, Regulation T, Regulation U or
Regulation X of the Board of Governors of the Federal
Reserve System; and
(vi) There shall not be pending or, to the knowledge
of any Senior Officer of Borrower or Executive Committee
Signatory, threatened, any action, suit, proceeding,
governmental investigation or arbitration against or
affecting any Loan Party or any of its Subsidiaries or any
property of any Loan Party or any of its Subsidiaries that is
required to be disclosed but has not been disclosed by
Borrower in writing pursuant to Section 5.6 or 6.1(x) prior
to the making of the last preceding Loans (or, in the case of
the initial Loans, prior to the execution of this Agreement),
and there shall have occurred no development in any such
action, suit, proceeding, governmental investigation or
arbitration so disclosed by Borrower in writing pursuant to
Section 5.6 or 6.1(x) prior to the making of the last
preceding Loans (or in the case of the initial Loans, prior
to the execution of this Agreement), that, in either event, in
the opinion of such Senior Officer or Executive Committee
Signatory could reasonably be expected to have a Material
Adverse Effect; and no injunction or other restraining order
shall have been issued and no hearing to cause an injunction
or other restraining order to be issued shall be pending or
noticed with respect to any action, suit or proceeding
seeking to enjoin or otherwise prevent the consummation
of, or to recover any damages or obtain relief as a result
of, the transactions contemplated by this Agreement or the
making of Loans hereunder.
C. Since December 31, 1996, no Material Adverse
Effect (as determined in the reasonable discretion of
Administrative Agent and Lenders) shall have occurred.
4.3 Conditions to Letters of Credit.
The issuance of any Letter of Credit hereunder
(whether or not the Issuing Lender is obligated to issue
such Letter of Credit) is subject to the following conditions
precedent:
A. On or before the date of issuance of the initial
Letter of Credit pursuant to this Agreement, the initial
Loans shall have been made.
B. On or before the date of issuance of such Letter of
Credit, Administrative Agent shall have received, in
accordance with the provisions of Section 3.1B(i), an
originally executed Notice of Issuance of Letter of Credit,
in each case signed by the chief executive officer, the chief
financial officer or the treasurer of Managing Partner on
behalf of Borrower or by any executive officer of
Managing Partner on behalf of Borrower designated by any
of the above-described officers or by two Executive
Committee Signatories in a writing delivered to
Administrative Agent, together with all other information
specified in Section 3.1B(i) and such other documents or
information as the Issuing Lender may reasonably require
in connection with the issuance of such Letter of Credit.
C. Since December 31, 1996, no Material Adverse
Effect (as determined in the reasonable discretion of
Administrative Agent and Lenders) shall have occurred.
D. On the date of issuance of such Letter of Credit,
all conditions precedent described in Section 4.2B shall be
satisfied to the same extent as if the issuance of such Letter
of Credit were the making of a Loan and the date of
issuance of such Letter of Credit were a Funding Date.
SECTION 5
REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this
Agreement and to make the Loans, to induce Issuing
Lender to issue Letters of Credit and to induce other
Lenders to purchase participations therein, Borrower
represents and warrants to each Lender, on the date of this
Agreement, on each Funding Date and on the date of
issuance of each Letter of Credit, that the following
statements are true, correct and complete:
5.1 Organization, Powers, Qualification, Good
Standing, Business and Subsidiaries.
A. Organization and Powers. Borrower is a general
partnership duly organized, validly existing under the laws
of the State of Nevada. Borrower has all requisite
partnership power and authority to own and operate its
properties, to carry on its business as now conducted and as
proposed to be conducted, to enter into the Loan
Documents and to carry out the transactions contemplated
thereby.
B. Qualification and Good Standing. Borrower is
qualified to do business in every jurisdiction where its
assets are located and wherever necessary to carry out its
business and operations, except in jurisdictions where the
failure to be so qualified or in good standing has not had
and will not have a Material Adverse Effect.
C. Conduct of Business. Borrower and its
Subsidiaries are engaged only in the businesses permitted to
be engaged in pursuant to Section 7.13.
D. Subsidiaries. All of the Subsidiaries of Borrower
are identified in Schedule 5.1, as said Schedule 5.1 may be
supplemented from time to time pursuant to the provisions
of Section 6.1(xvii). The capital stock of each of the
Subsidiaries of Borrower identified in Schedule 5.1 (as so
supplemented) is duly authorized, validly issued, fully paid
and nonassessable and none of such capital stock constitutes
Margin Stock. Each of the Subsidiaries of Borrower
identified in Schedule 5.1 (as so supplemented) is a
corporation duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of
incorporation set forth therein, has all requisite corporate
power and authority to own and operate its properties and
to carry on its business as now conducted and as proposed
to be conducted, and is qualified to do business and in good
standing in every jurisdiction where its assets are located
and wherever necessary to carry out its business and
operations, in each case except where failure to be so
qualified or in good standing or a lack of such corporate
power and authority has not had and will not have a
Material Adverse Effect. Schedule 5.1 (as so
supplemented) correctly sets forth the ownership interest of
Borrower and each of its Subsidiaries in each of the
Subsidiaries of Borrower identified therein.
5.2 Authorization of Borrowing, etc.
A. Authorization of Borrowing. The execution,
delivery and performance of the Loan Documents have
been duly authorized by all necessary partnership action on
the part of Borrower.
B. No Conflict. The execution, delivery and perfor-
mance by Borrower of the Loan Documents to which it is a
party and the consummation of the transactions
contemplated hereby and thereby do not and will not
(i) violate any provision of any law or any governmental
rule or regulation applicable to Borrower or any of its
Subsidiaries which violation or violations, in the aggregate,
could not reasonably be expected to have a Material
Adverse Effect, (ii) violate the Certificate or Articles of
Incorporation or charter documents or Bylaws or
partnership agreement of Borrower or any of its
Subsidiaries or any order, judgment or decree of any court
or other agency of government binding on Borrower or any
of its Subsidiaries, (iii) conflict with, result in a breach of
or constitute (with due notice or lapse of time or both) a
default under any Contractual Obligation of Borrower or
any of its Subsidiaries, (iv) result in or require the creation
or imposition of any Lien upon any of the properties or
assets of Borrower or any of its Subsidiaries (other than any
Liens created under any of the Loan Documents in favor of
Administrative Agent on behalf of Lenders), or (v) require
any approval of stockholders or any approval or consent of
any Person under any Contractual Obligation of Borrower
or any of its Subsidiaries, except for such approvals or
consents which will be obtained on or before the Closing
Date and disclosed in writing to Lenders.
C. Governmental Consents. The execution, delivery
and performance by Borrower of the Loan Documents to
which it is a party and the consummation of the transactions
contemplated hereby and thereby do not and will not
require any registration with, consent or approval of, or
notice to, or other action to, with or by, any federal, state
or other governmental authority or regulatory body except
(i) those that have been obtained and copies of which have
been delivered to Administrative Agent pursuant to
Section 4.1I or the absence of which Administrative Agent
has deemed satisfactory pursuant to Section 4.1I, (ii) those
notices or informational filings or both that will be required
to be given to the Securities and Exchange Commission or
any Gaming Board but that are not yet due and (iii) any
right of any Gaming Board to object to any Lender or
participant in the Loans at any future date.
D. Binding Obligation. Each of the Loan Documents
and to which it is a party has been duly executed and
delivered by Borrower and General Partners, assuming due
execution and delivery by the other parties thereto, and is
the legally valid and binding obligation of Borrower,
enforceable against Borrower in accordance with its
respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability.
5.3 Financial Condition.
Borrower has heretofore delivered to Lenders
audited financial statements of Borrower as of
December 31, 1996 which have been prepared in
conformity with GAAP and fairly present the financial
position of Borrower as of that date. Borrower does not
(and will not as a result of the funding of the initial Loans)
have any Contingent Obligation, contingent liability or
liability for taxes, long-term lease or unusual forward or
long-term commitment that is not reflected in the foregoing
balance sheet and which in any such case is material in
relation to the business, operations, properties, assets,
condition (financial or otherwise) or prospects of Borrower
and its Subsidiaries, taken as a whole.
5.4 No Material Adverse Change; No Restricted
Junior Payments.
Since December 31, 1996, no event or change has
occurred that has caused or evidences, either in any case or
in the aggregate, a Material Adverse Effect. Neither
Borrower nor any of its Subsidiaries has directly or
indirectly declared, ordered, paid or made, or set apart any
sum or property for, any Restricted Junior Payment or
agreed to do so except as permitted by Section 7.5.
5.5 Title to Properties; Liens; All Collateral.
Borrower and its Subsidiaries have (i) good,
sufficient and legal title to all of their respective properties
and assets reflected in the financial statements referred to in
Section 5.3 or in the most recent financial statements
delivered pursuant to Section 6.1, in each case except for
assets disposed of since the date of such financial statements
in the ordinary course of business or as otherwise permitted
under Section 7.7. Except as permitted or required by this
Agreement, all such properties and assets are free and clear
of Liens. The Collateral constitutes all of the assets of
Borrower related to those portions of the Hotel owned by
or under the control of Borrower.
5.6 Litigation; Adverse Facts.
There are no actions, suits, proceedings,
arbitrations or governmental investigations (whether or not
purportedly on behalf of Borrower or any of its
Subsidiaries) at law or in equity or before or by any
federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality,
domestic or foreign, pending or, to the knowledge of any
Senior Officer of Borrower, threatened against or affecting
Borrower or any of its Subsidiaries or any property of
Borrower or any of its Subsidiaries that, individually or in
the aggregate, could reasonably be expected to result in a
Material Adverse Effect. Neither Borrower nor any of its
Subsidiaries is (i) in violation of any applicable laws that,
individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect or
(ii) subject to or in default with respect to any final
judgments, writs, injunctions, decrees, rules or regulations
of any court or any federal, state, municipal or other
governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, that,
individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect.
5.7 Payment of Taxes.
Except to the extent permitted by Section 6.3, all
tax returns and reports of Borrower and its Subsidiaries
required to be filed by any of them have been timely filed,
and all taxes, assessments, fees and other governmental
charges upon Borrower and its Subsidiaries and upon their
respective properties, assets, income, businesses and fran-
chises which are due and payable have been paid when due
and payable. Borrower knows of no proposed tax
assessment against Borrower or any of its Subsidiaries
which is not being actively contested by Borrower or such
Subsidiary in good faith and by appropriate proceedings;
provided that such reserves or other appropriate provisions,
if any, as shall be required in conformity with GAAP shall
have been made or provided therefor.
5.8 Performance of Agreements; Materially Adverse
Agreements.
A. Neither Borrower nor any of its Subsidiaries is in
default in the performance, observance or fulfillment of any
of the obligations, covenants or conditions contained in any
of its Contractual Obligations, and no condition exists that,
with the giving of notice or the lapse of time or both,
would constitute such a default, except where the conse-
quences, direct or indirect, of such default or defaults, if
any, would not have a Material Adverse Effect.
B. Neither Borrower nor any of its Subsidiaries is a
party to or is otherwise subject to any agreements or
instruments or any charter or other internal restrictions
which, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect.
5.9 Governmental Regulation.
Neither Borrower nor any of its Subsidiaries is
subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act or the Investment Company Act
of 1940 or under any other federal or state statute or
regulation which may limit its ability to incur Indebtedness
(other than Gaming Laws) or which may otherwise render
all or any portion of the Obligations unenforceable.
5.10 Securities Activities.
Neither Borrower nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of
purchasing or carrying any Margin Stock, and none of the
proceeds of the Loans will be used to purchase or carry
Margin Stock in violation of Regulations G, T, U or X of
the Board of Governors of the Federal Reserve System.
5.11 Employee Benefit Plans.
A. Borrower and each of its ERISA Affiliates are in
compliance with all applicable provisions and requirements
of ERISA and the regulations and published interpretations
thereunder with respect to each Employee Benefit Plan, and
have performed all their obligations under each Employee
Benefit Plan.
B. No ERISA Event has occurred or is reasonably
expected to occur with respect to Borrower or any or its
ERISA Affiliates.
C. Except to the extent required under Section 4980B
of the Internal Revenue Code, no Employee Benefit Plan
provides health or welfare benefits (through the purchase of
insurance or otherwise) for any retired or former employees
of Borrower or any of its ERISA Affiliates.
D. As of the most recent valuation date for any
Pension Plan, the amount of unfunded benefit liabilities (as
defined in Section 4001(a)(18) of ERISA), individually or
in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans with
respect to which assets exceed benefit liabilities), does not
exceed $5,000,000.
5.12 Environmental Protection.
Except as set forth in Schedule 5.12, in each
particular instance, with respect to the particular clause of
this Section 5.12 to which such exception is taken:
(i) to the best knowledge of Borrower, the operations
of Borrower and of each of its Subsidiaries (including,
without limitation, all operations and conditions at or in the
Facilities) related to the Hotel or Facilities comply in all
material respects with all Environmental Laws;
(ii) to the best knowledge of Borrower, each of
Borrower and its Subsidiaries has obtained all
Governmental Authorizations under Environmental Laws
necessary to its operations related to the Hotel or Facilities,
and all such Governmental Authorizations are in good
standing, and Borrower and each of its Subsidiaries are in
compliance with all material terms and conditions of such
Governmental Authorizations;
(iii) neither Borrower nor any of its Subsidiaries has
received (a) any notice or claim to the effect that it is or
may be liable to any Person as a result of or in connection
with any Hazardous Material related to the Hotel or
Facilities or (b) any letter or request for information under
Section 104 of the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C.
9604) or comparable state laws, with respect to that
portion of the Hotel or Facilities which are owned or
controlled by Borrower and, to the best of Borrower's
Senior Officers' knowledge, none of the operations of
Borrower or any of its Subsidiaries is the subject of any
federal or state investigation relating to or in connection
with any Hazardous Material at any Facility or any
Hazardous Material in any other manner related to the
Hotel;
(iv) neither of Borrower or any of its Subsidiaries is a
party to any judicial or administrative proceeding alleging
the violation of or liability under any Environmental Laws
which if adversely determined could reasonably be expected
to have a Material Adverse Effect;
(v) neither Borrower nor any of its Subsidiaries is
subject to any outstanding written order or agreement with
any governmental authority or private party relating to
(a) any Environmental Laws or (b) any Environmental
Claims;
(vi) to the best knowledge of Borrower, neither
Borrower nor any of its Subsidiaries has any contingent
liability in connection with any Release of any Hazardous
Material related to the Hotel or Facilities which could
reasonably be expected to have a Material Adverse Effect;
(vii) none of Borrower or any of its Subsidiaries, and,
to the best knowledge of Senior Officers of Borrower none
of their respective predecessors, has filed any notice under
any Environmental Law indicating past or present treatment
or Release of Hazardous Material at any Facility and none
of Borrower's or any of its Subsidiaries' operations
involves the generation, transportation, treatment, storage
or disposal of hazardous waste, as defined under 40 C.F.R.
Parts 260-270 or any state equivalent;
(viii) no Hazardous Material exists on, under or
about any Facility in a manner that has a reasonable
possibility of giving rise to an Environmental Claim having
a Material Adverse Effect, and neither Borrower nor any of
its Subsidiaries has filed any notice or report of a Release
of any Hazardous Material that has a reasonable possibility
of giving rise to an Environmental Claim having a Material
Adverse Effect;
(ix) to the best knowledge of Borrower, none of
Borrower, any of its Subsidiaries and, to the best
knowledge of Senior Officers of Borrower, any of their
respective predecessors has disposed of any Hazardous
Material in a manner that has a reasonable possibility of
giving rise to an Environmental Claim having a Material
Adverse Effect;
(x) to the best knowledge of Borrower, no
underground storage tanks or surface impoundments are on
or at any Facility; and
(xi) no Lien in favor of any Person relating to or in
connection with any Environmental Claim has been filed or
has been attached to any Facility.
5.13 Employee Matters.
There is no strike or work stoppage in existence
or, to the best knowledge of Senior Officers of Borrower,
threatened involving Borrower or any of its Subsidiaries
that could reasonably be expected to have a Material
Adverse Effect.
5.14 Disclosure.
No representation or warranty of Borrower or any
of its Subsidiaries contained in any Loan Document or in
any other document, certificate or written statement fur-
nished to Lenders by or on behalf of Borrower or any of its
Subsidiaries for use in connection with the transactions
contemplated by this Agreement contains any untrue
statement of a material fact or omits to state a material fact
(known to Borrower, in the case of any document not
furnished by it) necessary in order to make the statements
contained herein or therein not misleading in light of the
circumstances in which the same were made. Any
projections and pro forma financial information contained in
such materials are based upon good faith estimates and
assumptions believed by Borrower to be reasonable at the
time made, it being recognized by Lenders that such projec-
tions as to future events are not to be viewed as facts and
that actual results during the period or periods covered by
any such projections may differ from the projected results.
5.15 Compliance With Laws; Licenses,
Permits and Authorizations.
Each of Borrower and its Subsidiaries is in
compliance with the requirements of all applicable laws,
rules, regulations, ordinances and orders (including,
without limitation, Gaming Laws), noncompliance with
which would, individually or in the aggregate, materially
adversely affect the ability of any such party to complete or
operate those portions of the Hotel owned by or under the
control of Borrower or would, individually or in the
aggregate, materially adversely affect the ability of any of
Borrower and its Subsidiaries to perform its obligations
under the Loan Documents to which it is a party. The
planned use of those portions of the Hotel owned by or
under the control of Borrower complies with applicable
zoning ordinances, regulations and restrictive covenants
affecting the Premises as well as all ecological, landmark,
and other applicable laws and regulations (including,
without limitation, Gaming Laws), noncompliance with
which would, individually or in the aggregate, materially
adversely affect the ability of any of Borrower and its
Subsidiaries to operate those portions of the Hotel owned
by or under the control of Borrower or would, individually
or in the aggregate, materially adversely affect the ability of
any of Borrower and its Subsidiaries to perform its
obligations under the Loan Documents to which it is a
party; and all requirements for such use have been satisfied.
Those portions of the Hotel owned by or under the control
of Borrower are in compliance and will comply with all
applicable laws, ordinances, regulations, restrictive
covenants and agreements and requirements of
Governmental Authorities (including, without limitation,
Gaming Laws, zoning laws and environmental regulations),
noncompliance with which would, individually or in the
aggregate, materially adversely affect the ability of any of
Borrower and its Subsidiaries to complete or operate those
portions of the Hotel owned by or under the control of
Borrower or would, individually or in the aggregate,
materially adversely affect the ability of any of Borrower
and its Subsidiaries to perform its obligations under the
Loan Documents to which it is a party. All authorizations,
plot plan approval, subdivision approval, sewer permits and
zoning variances, if any, building and other material
permits and Governmental Authorizations required by any
Governmental Authority for the use, occupancy and
operation of the Premises and/or those portions of the Hotel
owned by or under the control of Borrower for the
purposes contemplated herein have been obtained; and all
requirements for such use have been satisfied. There are
no violations of any permits, approvals, licenses or other
requirements of any Governmental Authority with respect
to (a) those portions of the Hotel owned by or under the
control of Borrower or (b) the Premises, in each case to the
extent that any such violation could be reasonably likely to
result in a Material Adverse Effect.
5.16 Intangible Property.
Each of Borrower and its Subsidiaries is the sole
and exclusive owner or licensee, or has the right to use in
the conduct of its business as presently conducted, all trade
names, unregistered trademarks and service marks, brand
names, patents, registered and unregistered copyrights,
registered trademarks and service marks, and all
applications for any of the foregoing, and all permits,
grants and licenses or other rights with respect thereto, the
absence of which would materially adversely affect its
business, operations, properties or financial condition or the
use, occupancy or operation of those portions of the Hotel
owned by or under the control of Borrower. Neither
Borrower nor its Subsidiaries owns, or has applied for, any
service marks and registered trademarks except as set forth
on Schedule 5.16. None of Borrower and its Subsidiaries
has been charged with any material infringement of any
intangible property of the character described above or been
notified or advised of any material claim of any other
Person relating to any of the intangible property.
5.17 Rights to Hotel Agreements, Permits
and Licenses.
Borrower is the owner of all rights in and to all
existing agreements, permits and licenses relating to the
Hotel (other than rights of third parties under leases and
agreements permitted hereunder), and will be the true
owner of all rights in and to all future agreements, permits
and licenses relating to the Hotel (other than rights of third
parties under leases and agreements permitted hereunder).
Borrower's interest in all such agreements, permits, and
licenses is not subject to any matured claim (other than
under the Loan Documents), setoff or deduction other than
in the ordinary course of business.
SECTION 6
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that, so long as
the Commitments hereunder shall remain in effect and until
payment in full of all of the Loans and other Obligations
and the cancellation or expiration of all Letters of Credit,
unless Lenders shall otherwise give prior written consent,
Borrower shall perform, and shall cause each of its
Subsidiaries to perform, all covenants in this Section 6.
6.1 Financial Statements and Other Reports.
Borrower will maintain, and cause each of its
Subsidiaries to maintain, a system of accounting established
and administered in accordance with sound business
practices to permit preparation of financial statements in
conformity with GAAP. Borrower will deliver to
Administrative Agent and Lenders:
(i) Monthly Financials: as soon as available and in any
event within 45 days after the end of each month ending
after the Closing Date, (a) the balance sheet of Borrower as
at the end of such month and the related statements of
income, partners' equity and cash flows of Borrower for
such month and for the period from the beginning of the
then current Fiscal Year to the end of such month, setting
forth in each case in comparative form the corresponding
figures for the corresponding periods of the previous Fiscal
Year and the corresponding figures from the plan and
financial forecast for the current Fiscal Year delivered
pursuant to Section 6.1(xiii), to the extent prepared on a
monthly basis, all in reasonable detail and certified by the
chief financial officer of Managing Partner on behalf of
Borrower that they fairly present the financial condition of
Borrower as at the dates indicated and the results of its
operations and its cash flows for the periods indicated,
subject to changes resulting from audit and normal year-end
adjustments, and (b) a narrative report, if any is prepared
for presentation to senior management, describing the
operations of Borrower in the form so prepared for such
month and for the period from the beginning of the then
current Fiscal Year to the end of such month;
(ii) Quarterly Financials: as soon as available and in
any event within 60 days after the end of each of the first
three Fiscal Quarters of each Fiscal Year and, with respect
to the fourth Fiscal Quarter of each Fiscal Year,
concurrently with the delivery of financial statements
pursuant to subdivision (iii) below, (a) the balance sheet of
Borrower as at the end of such Fiscal Quarter and the
related statements of income, partners' equity and cash
flows of Borrower for such Fiscal Quarter and for the
period from the beginning of the then current Fiscal Year to
the end of such Fiscal Quarter, setting forth in each case in
comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year and the
corresponding figures from the plan and financial forecast
for the current Fiscal Year delivered pursuant to
Section 6.1(xiii), all in reasonable detail and certified by the
chief financial officer of Managing Partner on behalf of
Borrower that they fairly present the financial condition of
Borrower as at the dates indicated and the results of its
operations and its cash flows for the periods indicated,
subject to changes resulting from audit and normal year-end
adjustments, and (b) a narrative report, if any is prepared
for presentation to senior management, describing the
operations of Borrower in the form so prepared for such
Fiscal Quarter and for the period from the beginning of the
then current Fiscal Year to the end of such Fiscal Quarter;
(iii) Year-End Financials: as soon as available and in
any event within 100 days after the end of each Fiscal
Year, (a) the balance sheet of Borrower as at the end of
such Fiscal Year and the related statements of income,
partners' equity and cash flows of Borrower for such Fiscal
Year, setting forth in each case in comparative form the
corresponding figures for the previous Fiscal Year and,
when available, the corresponding figures from the plan and
financial forecast delivered pursuant to Section 6.1(xiii) for
the Fiscal Year covered by such financial statements, all in
reasonable detail and certified by the chief financial officer
of Managing Partner on behalf of Borrower that they fairly
present the financial condition of Borrower as at the dates
indicated and the results of its operations and its cash flows
for the periods indicated, (b) a narrative report, if any is
prepared for presentation to senior management, describing
the operations of Borrower in the form so prepared for such
Fiscal Year, and (c) in the case of such financial
statements, a report thereon of Arthur Andersen LLP or
other independent certified public accountants of recognized
national standing selected by Borrower and satisfactory to
Administrative Agent, which report shall be without
qualification as to the scope of the audit, shall express no
doubts about the ability of Borrower to continue as a going
concern, and shall state that financial statements fairly
present the financial position of Borrower as at the dates
indicated and the results of its operations and its cash flows
for the periods indicated in conformity with GAAP applied
on a basis consistent with prior years (except as otherwise
disclosed in such financial statements) and that the
examination by such accountants in connection with such
financial statements has been made in accordance with
generally accepted auditing standards;
(iv) Officers' and Compliance Certificates: (a) together
with each delivery of financial statements of Borrower
pursuant to subdivisions (ii) and (iii) above, an Officers'
Certificate of Borrower stating that the signers have
reviewed the terms of this Agreement and have made, or
caused to be made under their supervision, a review in
reasonable detail of the transactions and condition of
Borrower during the accounting period covered by such
financial statements and that such review has not disclosed
the existence during or at the end of such accounting
period, and that the signers do not have knowledge of the
existence as at the date of such Officers' Certificate, of any
condition or event that constitutes an Event of Default or
Default, or, if any such condition or event existed or exists,
specifying the nature and period of existence thereof and
what action Borrower has taken, is taking and proposes to
take with respect thereto; and (b) together with each
delivery of financial statements of Borrower pursuant to
subdivision (ii) above, a Compliance Certificate
demonstrating in reasonable detail compliance during and at
the end of the applicable accounting periods with the
restrictions contained in Sections 7.6 and 7.8;
(v) Reconciliation Statements: if, as a result of any
change in accounting principles and policies from those
used in the preparation of the audited financial statements
referred to in Section 5.3, the financial statements of
Borrower delivered pursuant to subdivisions (i), (ii), (iii) or
(xiii) of this Section 6.1 will differ in any material respect
from the financial statements that would have been
delivered pursuant to such subdivisions had no such change
in accounting principles and policies been made, then
(a) together with the first delivery of financial statements
pursuant to subdivision (i), (ii), (iii) or (xiii) of this
Section 6.1 following such change, financial statements of
Borrower for (y) the current Fiscal Year to the effective
date of such change and (z) the two full Fiscal Years
immediately preceding the Fiscal Year in which such
change is made, in each case prepared on a pro forma basis
as if such change had been in effect during such periods,
and (b) together with each delivery of financial statements
pursuant to subdivision (i), (ii), (iii) or (xiii) of this
Section 6.1 following such change, a written statement of
the chief accounting officer or chief financial officer of
Managing Partner on behalf of Borrower setting forth the
differences which would have resulted if such financial
statements had been prepared without giving effect to such
change;
(vi) Accountants' Certification: together with each
delivery of financial statements of Borrower pursuant to
subdivision (iii) above, a written statement by the
independent certified public accountants giving the report
thereon (a) stating that their audit has included a review of
the terms of this Agreement and the other Loan Documents
as they relate to accounting matters, (b) stating whether, in
connection with their audit, any condition or event that
constitutes an Event of Default or Default has come to their
attention and, if such a condition or event has come to their
attention, specifying the nature and period of existence
thereof; provided that such accountants shall not be liable
by reason of any failure to obtain knowledge of any such
Event of Default or Default that would not be disclosed in
the course of their audit and their report may state that their
audit was not directed toward obtaining such knowledge,
and (c) stating that based on their audit nothing has come to
their attention that causes them to believe either or both that
the information contained in the certificates delivered
therewith pursuant to subdivision (iv) above is not correct
or that the matters set forth in the Compliance Certificates
delivered therewith pursuant to clause (b) of subdivision
(iv) above for the applicable Fiscal Year are not stated in
accordance with the terms of this Agreement;
(vii) Accountants' Reports: promptly upon receipt
thereof, but in no case later than concurrently with each
delivery of financial statements of Borrower pursuant to
subdivisions (ii) and (iii) above (unless restricted by
applicable professional standards), copies of all reports
submitted to Borrower by independent certified public
accountants in connection with each annual, interim or
special audit of the financial statements of Borrower made
by such accountants, including, without limitation, any
comment letter submitted by such accountants to
management in connection with their annual audit;
(viii) SEC Filings and Press Releases: promptly upon
their becoming available, and, with respect to (a) and (b)
below, at and after the time Borrower or a Subsidiary of
Borrower becomes subject to the reporting requirements
under Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, copies of (a) all financial
statements, reports, notices and proxy statements sent or
made available generally by Borrower to its security
holders or by any Subsidiary of Borrower to its security
holders other than Borrower or another Subsidiary of
Borrower, (b) all regular and periodic reports and all
registration statements (other than on Form S-8 or a similar
form) and prospectuses, if any, filed by Borrower or any of
Borrower's Subsidiaries with any securities exchange or
with the Securities and Exchange Commission or any
governmental or private regulatory authority, and (c) all
press releases and other statements made available generally
by or on behalf of Borrower or any of Borrower's Subsid-
iaries to the public concerning material developments in the
business of Borrower or any of Borrower's Subsidiaries;
(ix) Events of Default, etc.: promptly upon any Senior
Officer of any General Partner or any Executive Committee
member obtaining knowledge, but in no case later than
concurrently with each delivery of financial statements of
Borrower pursuant to subdivisions (ii) and (iii) above, (a) of
any condition or event that constitutes an Event of Default
or Default, or becoming aware that any Lender has given
any notice (other than to Administrative Agent) or taken
any other action with respect to a claimed Event of Default
or Default, (b) that any Person has given any notice to
Borrower or any of its Subsidiaries or taken any other
action with respect to a claimed default or event or
condition of the type referred to in Section 8.2, (c) of the
occurrence of any event or change that has caused or
evidences, either in any case or in the aggregate, a Material
Adverse Effect, or (d) that any Gaming Board has indicated
its intent to consider or act upon a License Revocation or a
fine or penalty of $1,000,000 or more with respect to
Borrower or any of its Subsidiaries, an Officers' Certificate
specifying the nature and period of existence of such
condition, event or change, or specifying the notice given
or action taken by any such Person and the nature of such
claimed Event of Default, Default, default, event or condi-
tion, and what action Borrower has taken, is taking and
proposes to take with respect thereto;
(x) Litigation or Other Proceedings: (a) promptly upon
any officer of Borrower obtaining knowledge of, but in no
case later than concurrently with each delivery of financial
statements of Borrower pursuant to subdivisions (ii) and
(iii) above, (X) the institution of any action, suit, proceed-
ing (whether administrative, judicial or otherwise),
governmental investigation or arbitration against or
affecting Borrower or any of its Subsidiaries or any
property of Borrower or any of its Subsidiaries (collec-
tively, "Proceedings") not previously disclosed in writing
by Borrower to Lenders or (Y) any material development in
any Proceeding that, in any case:
(1) if adversely determined, has a reasonable possibility
of giving rise to a Material Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain
relief as a result of, the transactions contemplated
hereby;
written notice thereof together with such other information
as may be reasonably available to Borrower to enable
Lenders and their counsel to evaluate such matters; and
(b) together with each delivery of financial statements
pursuant to subdivision (ii) above, a schedule of all
Proceedings involving an alleged liability of, or claims
against or affecting, Borrower or any of its Subsidiaries
equal to or greater than $5,000,000, and promptly after
request by Administrative Agent such other information as
may be reasonably requested by Administrative Agent to
enable Administrative Agent and its counsel to evaluate any
of such Proceedings;
(xi) ERISA Events: promptly upon becoming aware of
the occurrence of or forthcoming occurrence of any ERISA
Event with respect to Borrower or any of its ERISA
Affiliates, but in no case later than concurrently with each
delivery of financial statements of Borrower pursuant to
subdivisions (ii) and (iii) above, a written notice specifying
the nature thereof, what action Borrower or any of its
ERISA Affiliates has taken, is taking or proposes to take
with respect thereto and, when known, any action taken or
threatened by the Internal Revenue Service, the Department
of Labor or the PBGC with respect thereto;
(xii) ERISA Notices: together with each delivery of
financial statements of Borrower pursuant to subdivision (ii)
above, copies of (a) each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) filed
by Borrower or any of its ERISA Affiliates with the
Internal Revenue Service with respect to each Pension Plan
since the last such delivery of financial statements; (b) all
notices received by Borrower or any of its ERISA Affiliates
from a Multiemployer Plan sponsor concerning an ERISA
Event since the last such delivery of financial statements;
and (c) such other documents or governmental reports or
filings relating to any Employee Benefit Plan as
Administrative Agent shall reasonably request;
(xiii) Financial Plans: concurrent with delivery thereof
pursuant to Section 5.2 (or any successor provision) of the
Joint Venture Agreement, and in any event no later than 90
days after the end of each Fiscal Year, a copy of the
"Annual Business Plan" (as such term is defined in
Section 5.2 (or any successor provision) of the Joint
Venture Agreement) as approved by the Executive
Committee pursuant to such Section 5.2;
(xiv) Insurance: as soon as practicable and in any event
no later than 90 days after the end of each Fiscal Year, a
report in form and substance satisfactory to Administrative
Agent outlining all material insurance coverage maintained
as of the date of such report by Borrower and its
Subsidiaries and all material insurance coverage planned to
be maintained by Borrower and its Subsidiaries in the
immediately succeeding Fiscal Year to the extent not
included in the information delivered pursuant to
Section 6.1(xiii);
(xv) Environmental Audits and Reports: promptly upon
receipt thereof, but in no case later than concurrently with
each delivery of financial statements of Borrower pursuant
to subdivisions (ii) and (iii) above, copies of all environ-
mental audits and reports, whether prepared by personnel of
Borrower or its Subsidiaries or by independent consultants,
with respect to significant environmental matters at any
Facility, that could result in a Material Adverse Effect;
(xvi) Certain Changes Within Borrower; Events of
Bankruptcy: with reasonable promptness, but in no case
later than concurrently with each delivery of financial
statements of Borrower pursuant to Subdivision (ii) and (iii)
above, written notice of (a) any change or proposed change
in Managing Partner or any change in "General Manager"
(as such term is used in the Joint Venture Agreement) or
(b) the occurrence of any event or action that, with the
passage of time, would become an "Event of Bankruptcy"
(as such term is defined in Section 14.1 of the Joint
Venture Agreement as in effect as of the Closing Date);
(xvii) Formation of Subsidiary; Circus Loan Agreement:
together with each delivery of financial statements of
Borrower pursuant to subdivision (ii) and (iii) above, (a) a
written notice with respect to any Person that has become a
Subsidiary of Borrower since the last such delivery of
financial statements, setting forth (1) the date on which
such Person became a Subsidiary of Borrower and (2) all of
the data required to be set forth in Schedule 5.1 with
respect to all Subsidiaries of Borrower (it being understood
that such written notice shall be deemed to supplement
Schedule 5.1 for all purposes of this Agreement) and
(b) copies of any amendment, supplement or modification
of the Circus Loan Agreement since the Closing Date that
have not previously been delivered;
(xviii) Other Information: with reasonable promptness,
such other information and data with respect to Borrower or
any of its Subsidiaries as from time to time may be
reasonably requested by any Lender; and
(xix) Regulation 6.090 Reports: Promptly after the
same are available, but in no case later than concurrently
with each delivery of the financial statements of Borrower
pursuant to subdivisions (ii) and (iii) above, copies of the
Nevada "Regulation 6.090 Report" and "6-A Report" and
copies of any written communication to Borrower or any of
its Subsidiaries from any Gaming Board advising it of a
violation of or non-compliance with, any Gaming Law by
Borrower or any of its Subsidiaries.
6.2 Borrower or Corporate Existence, etc.
Except as permitted under Section 7.7, Borrower
will, and will cause each of its Subsidiaries to, at all times
preserve and keep in full force and effect its partnership or
corporate existence, as applicable, and all rights and
franchises material to its business.
6.3 Payment of Taxes and Claims; Tax Consolidation.
A. Borrower will, and will cause each of its
Subsidiaries to, pay all taxes, assessments and other
governmental charges imposed upon it or any of its
properties or assets or in respect of any of its income,
businesses or franchises before any penalty accrues thereon,
and all claims (including, without limitation, claims for
labor, services, materials and supplies) for sums that have
become due and payable and that by law have or may
become a Lien upon any of its properties or assets, prior to
the time when any penalty or fine shall be incurred with
respect thereto; provided that no such charge or claim need
be paid if being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted
and if such reserve or other appropriate provision, if any,
as shall be required in conformity with GAAP shall have
been made therefor.
B. Borrower will not, nor will it permit any of its
Subsidiaries to, file or consent to the filing of any
consolidated income tax return with any Person (other than
Borrower or any of its Subsidiaries).
6.4 Maintenance of Properties; Insurance.
Borrower will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained in good
repair, working order and condition, ordinary wear and tear
excepted, all material properties used or owned by
Borrower and useful in the business of Borrower and its
Subsidiaries (including, without limitation, maintenance of
Intellectual Property) and from time to time will make or
cause to be made all appropriate repairs, renewals and
replacements thereof and will comply fully with the terms
and conditions of the Section 4 of the Deed of Trust.
Borrower will maintain or cause to be maintained, with
financially sound and reputable insurers, insurance with
respect to its properties and business and the properties and
businesses of its Subsidiaries against loss or damage of the
kinds customarily carried or maintained under similar
circumstances by Persons of established reputation engaged
in similar businesses and will otherwise comply fully with
the terms and conditions of Section 6 of the Deed of Trust.
Each such policy of insurance shall name Administrative
Agent for the benefit of Lenders as the loss payee
thereunder for amounts in excess of $1,000,000 and shall
provide for at least 30 days prior written notice to
Administrative Agent of any modification or cancellation of
such policy.
6.5 Inspection; Lender Meeting.
To the extent not prohibited by applicable law,
Borrower shall, and shall cause each of its Subsidiaries to,
permit any authorized representatives designated by any
Lender to visit and inspect any of the properties of
Borrower or any of its Subsidiaries, including its and their
financial and accounting records, and to make copies and
take extracts therefrom, and to discuss its and their affairs,
finances and accounts with its and their officers and
independent public accountants (provided that Borrower
may, if it so chooses, be present at or participate in any
such discussion), all upon reasonable notice and at such
reasonable times during normal business hours and as often
as may be reasonably requested. Without in any way
limiting the foregoing, Borrower will, upon the request of
Administrative Agent or Lenders, participate in a meeting
of Administrative Agent and Lenders once during each
Fiscal Year to be held at Borrower's principal offices (or
such other location as may be agreed to by Borrower and
Administrative Agent) at such time as may be agreed to by
Borrower and Administrative Agent.
6.6 Compliance with Laws, etc.
Borrower shall, and shall cause each of its
Subsidiaries to, comply with the requirements of all
applicable laws, rules, regulations and orders of any
governmental authority, including, without limitation, all
Gaming Laws, and to obtain and keep in full force and
effect each permit, license, consent, or approval required to
permit the operation of the Hotel, except where the failure
to be in compliance or to obtain and keep in full force and
effect could not reasonably be expected to cause a Material
Adverse Effect. Borrower shall and shall cause each of its
Subsidiaries to comply with the requirements of all Gaming
Laws applicable to such Person.
6.7 Environmental Disclosure and Inspection.
A. Borrower shall, and shall cause each of its
Subsidiaries to, exercise due diligence in order to comply
and use its best efforts to cause (i) all tenants under any
leases or occupancy agreements affecting any portion of the
Facilities and (ii) all other Persons on or occupying such
property, to comply with all Environmental Laws.
B. Borrower agrees that Administrative Agent may,
from time to time and in its sole and absolute discretion,
retain, at Borrower's expense, an independent professional
consultant to review any report relating to Hazardous
Material prepared by or for Borrower and, whether or not
any such report exists, upon reasonable notice to Borrower,
to conduct its own investigation of any Facility currently or
previously owned, leased, operated or used by Borrower or
any of its Subsidiaries, and Borrower agrees to use its best
efforts to obtain permission for Administrative Agent's
professional consultant to conduct its own investigation of
any Facility previously owned, leased, operated or used by
Borrower or any of its Subsidiaries. Borrower hereby
grants to Administrative Agent and its Administrative
Agents, employees, consultants and contractors the right to
enter into or on to the Facilities currently owned, leased,
operated or used by Borrower or any of its Subsidiaries to
perform such tests on such property as are reasonably
necessary to conduct such a review and/or investigation.
Any such investigation of any Facility shall be conducted,
unless otherwise agreed to by Borrower and Administrative
Agent, during normal business hours and, to the extent
reasonably practicable, shall be conducted with prior notice
and so as not to interfere with the ongoing operations at any
such Facility or to cause any damage or loss to any
property at such Facility. Borrower and Administrative
Agent hereby acknowledge and agree that any report of any
investigation conducted at the request of Administrative
Agent pursuant to this Section 6.7B will be obtained and
shall be used by Administrative Agent and Lenders for the
purposes of Lenders' internal credit decisions, to monitor
and police the Loans and to protect Lenders' security
interests, if any, created by the Loan Documents.
Administrative Agent agrees to deliver a copy of any such
report to Borrower promptly after its completion, and
Borrower acknowledges and agrees that (i) it will indemnify
and hold harmless Administrative Agent and each Lender
from any costs, losses or liabilities relating to Borrower's
use of or reliance on any such report, (ii) neither
Administrative Agent nor any Lender makes any
representation or warranty with respect to any such report,
and (iii) by delivering such report to Borrower, neither
Administrative Agent nor any Lender is requiring or
recommending the implementation of any suggestions or
recommendations contained in any such report; provided,
however, that Administrative Agent shall not be required by
this Section 6.7B to deliver any such report to Borrower
that is protected by the attorney-client privilege or other
privilege if and to the extent that to do so could reasonably
be expected to result in the waiver or loss of that privilege.
C. Borrower shall promptly advise Lenders in writing
and in reasonable detail of (i) any Release of any
Hazardous Material required to be reported to any federal,
state or local governmental or regulatory agency under any
applicable Environmental Laws, (ii) any and all written
communications with respect to any Environmental Claims
that have a reasonable possibility of giving rise to a
Material Adverse Effect or with respect to any Release of
Hazardous Material required to be reported to any federal,
state or local governmental or regulatory agency, (provided,
however, that Borrower shall not be required by this
Section 6.7C to advise Lenders of the contents of any
written communication that is protected by the attorney-
client or other privilege if and to the extent that to do so
could reasonably be expected to result in the waiver or loss
of that privilege), (iii) any remedial action taken by
Borrower or any other Person in response to (x) any
Hazardous Material on, under or about any Facility, the
existence of which has a reasonable possibility of resulting
in an Environmental Claim having a Material Adverse
Effect, or (y) any Environmental Claim that reasonably
could have a Material Adverse Effect, (iv) Borrower's
discovery of any occurrence or condition on any real
property adjoining or in the vicinity of any Facility that
reasonably could cause such Facility or any part thereof to
be subject to (x) any restrictions on the ownership or
transferability thereof or (y) any material restriction on the
occupancy or use thereof under any Environmental Laws
which restriction on occupancy or use could reasonably be
expected to result in a Material Adverse Effect, and (v) any
request for information from any governmental agency that
indicates such agency is investigating whether Borrower or
any of its Subsidiaries may be potentially responsible for a
Release of Hazardous Material.
D. Borrower shall promptly notify Lenders of (i) any
proposed acquisition of stock, assets, or property by
Borrower or any of its Subsidiaries that could reasonably be
expected to expose Borrower or any of its Subsidiaries to,
or result in, Environmental Claims that could have a
Material Adverse Effect or that could reasonably be
expected to have a material adverse effect on any Govern-
mental Authorization then held by Borrower or any of its
Subsidiaries and (ii) any action that Borrower or any of its
Subsidiaries proposes to take to commence manufacturing,
industrial or other operations that reasonably could be
expected to subject Borrower or any of its Subsidiaries to
laws, rules or regulations (including, without limitation,
laws, rules and regulations requiring additional
environmental permits or licenses) not theretofore
applicable to the Hotel, Facilities or operations of Borrower
or any of its Subsidiaries.
E. Borrower shall, at its own expense, provide copies
of such documents or information as Administrative Agent
may reasonably request in relation to any matters disclosed
pursuant to this Section 6.7 (provided, however, that
Borrower shall not be required by the provisions of this
Section 6.7E to provide documents or information that is
protected by the attorney-client or other privilege if and to
the extent that to do so could reasonably be expected to
result in the waiver or loss of that privilege).
6.8 Borrower's Remedial Action Regarding Hazardous
Material.
Borrower shall promptly take, and shall cause
each of its Subsidiaries promptly to take, any and all
necessary remedial action in connection with the presence,
storage, use, disposal, transportation or Release of any
Hazardous Material on, under or about any Facility in
order to comply with all applicable Environmental Laws
and Governmental Authorizations. In the event Borrower
or any of its Subsidiaries undertakes any remedial action
with respect to any Hazardous Material on, under or about
any Facility, Borrower or such Subsidiary shall conduct and
complete such remedial action in compliance with all
applicable Environmental Laws and other applicable legal
requirements (including lawful policies, orders and
directives of federal, state and local governmental
authorities).
6.9 Documentation Concerning General Partner
Subordinated Debt.
In the event that Circus elects to make any
required Additional Contributions pursuant to the Make-
Well Agreement, Borrower shall promptly, and in any
event within the periods required for the making of such
Additional Contributions, execute and deliver to Circus, in
a form reasonably acceptable to the Administrative Agent,
credit documentation of the type contemplated by the
definition of General Partner Subordinated Debt.
SECTION 7
NEGATIVE COVENANTS
Borrower covenants and agrees that, so long as
the Commitments remain in effect and until payment in full
of all of the Loans and other Obligations and the
cancellation or expiration of all Letters of Credit, unless
Lenders shall otherwise give prior written consent,
Borrower shall perform, and shall cause each of its
Subsidiaries to perform, all covenants in this Section 7.
7.1 Indebtedness.
Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume
or guaranty, or otherwise become or remain directly or
indirectly liable with respect to, any Indebtedness, except
that Borrower may become and remain liable with respect
to:
(i) the Obligations;
(ii) Contingent Obligations permitted by Section 7.4
and, upon any matured obligations actually arising pursuant
thereto, the Indebtedness corresponding to the Contingent
Obligations so extinguished;
(iii) Indebtedness in respect of Capital Leases in an
aggregate principal amount not to exceed $15,000,000 at
any one time outstanding; provided that such Capital Leases
are not prohibited under the terms of Section 7.8; provided,
further that all such Indebtedness incurred pursuant to in
this clause (iii) of this Section 7.1 shall reduce the Other
Permitted Indebtedness permitted in clause (vi) of this
Section 7.1;
(iv) Indebtedness to any of its wholly-owned
Subsidiaries, and any wholly-owned Subsidiary of Borrower
may become and remain liable with respect to Indebtedness
to Borrower incurred in the ordinary course of the business
of Borrower and that Subsidiary; provided that (a) all such
intercompany Indebtedness shall be evidenced by
promissory notes, (b) all such intercompany Indebtedness
owed by Borrower to any of its Subsidiaries shall be
subordinated in right of payment to the payment in full of
the Obligations pursuant to the terms of the applicable
promissory notes or an intercompany subordination
agreement, and (c) any payment by any Subsidiary of
Borrower under any guaranty of the Obligations shall result
in a pro tanto reduction of the amount of any intercompany
Indebtedness owed by such Subsidiary to Borrower or to
any of its Subsidiaries for whose benefit such payment is
made;
(v) Indebtedness consisting of the amount of General
Partner Subordinated Debt required to be contributed from
time to time to Borrower in accordance with the terms of
the Make-Well Agreement; and
(vi) other Indebtedness in an aggregate principal amount
not to exceed $15,000,000 at any time outstanding minus
the amount of Indebtedness outstanding under clause (iii)
above.
7.2 Liens and Related Matters.
A. Prohibition on Liens. Borrower shall not, and
shall not permit any of its Subsidiaries to, directly or
indirectly, create, incur, assume or permit to exist any Lien
on or with respect to any property or asset of any kind
(including any document or instrument in respect of goods
or accounts receivable) of Borrower or any of its
Subsidiaries, whether now owned or hereafter acquired, or
any income or profits therefrom, or file or permit the filing
of, or permit to remain in effect, any financing statement or
other similar notice of any Lien with respect to any such
property, asset, income or profits under the Uniform
Commercial Code of any State or under any similar
recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens described in Schedule 7.2;
(iii) Liens granted pursuant to the Collateral Documents;
(iv) Liens securing Indebtedness permitted under
Section 7.1(iii); provided that such Liens relate solely to the
property financed with such Indebtedness;
(v) Liens securing Indebtedness permitted under
Section 7.1(vi); provided that such Liens relate solely to the
property financed with such Indebtedness;
(vi) Liens created by or resulting from litigation or a
legal proceeding against Borrower or any of its Subsidiaries
or both in the ordinary course of business which litigation
or legal proceeding currently is being contested in good
faith by appropriate proceedings and which litigation or
legal proceeding does not result in an Event of Default
under Section 8.8; provided that such Lien shall be bonded
or foreclosure of such Lien stayed by order of a court of
competent jurisdiction and; provided further, that any such
Lien shall cease to be a permitted exception to this
Section 7.2 if any attempt to foreclose thereon could
reasonably be expected to occur within the next 60 days;
and
(vii) In the event that Circus makes any required
Additional Contributions under the Make-Well Agreement
in the form of General Partner Subordinated Debt, Liens
securing such General Partner Subordinated Debt which are
subordinated to the Indebtedness hereunder pursuant to a
Subordination Agreement.
B. Equitable Lien in Favor of Lenders. If Borrower
or any of its Subsidiaries shall create or assume any Lien
upon any of its properties or assets, whether now owned or
hereafter acquired, other than Liens excepted by the
provisions of Section 7.2A, it shall make or cause to be
made effective provision whereby the Obligations will be
secured by such Lien equally and ratably with any and all
other Indebtedness secured thereby as long as any such
Indebtedness shall be so secured; provided that,
notwithstanding the foregoing, this covenant shall not be
construed as a consent by Lenders to the creation or
assumption of any such Lien not permitted by the provi-
sions of Section 7.2A.
C. No Further Negative Pledges. Except with
respect to (i) specific property encumbered pursuant to
Section 7.2A(iv) or (v) to secure payment of particular
Indebtedness, (ii) specific property to be sold pursuant to an
executed agreement with respect to an Asset Sale or (iii) a
Lien created in favor of Administrative Agent pursuant to
the Collateral Documents, neither Borrower nor any of its
Subsidiaries shall enter into any agreement prohibiting the
creation or assumption of any Lien upon any of its
respective properties or assets, whether now owned or
hereafter acquired.
D. No Restrictions on Subsidiary Distributions to
Borrower or Other Subsidiaries. Except as provided
herein, Borrower will not, and will not permit any of its
Subsidiaries to, create or otherwise cause or suffer to exist
or become effective any consensual encumbrance or
restriction of any kind on the ability of any such Subsidiary
to (i) pay dividends or make any other distributions on any
of such Subsidiary's capital stock owned by Borrower or
any other Subsidiary of Borrower, (ii) repay or prepay any
Indebtedness owed by such Subsidiary to Borrower or any
other Subsidiary of Borrower, (iii) make loans or advances
to Borrower or any other Subsidiary of Borrower, or
(iv) transfer any of its property or assets to Borrower or
any other Subsidiary of Borrower.
7.3 Investments.
Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, make or own any
Investment in any Person, including any Joint Venture,
except:
(i) Borrower and its Subsidiaries may make and own
Investments in Cash Equivalents;
(ii) Borrower and its wholly-owned Subsidiaries may
create, and make and own Investments in, wholly-owned
Subsidiaries engaged in operations reasonably necessary for
the business of Borrower with respect to the Hotel;
provided, however, that (a) the aggregate of all such
Investments (without duplication in the case of Investments
through multiple tiers of Subsidiaries) may not exceed
$10,000,000, (b) no such Subsidiary may (1) create, incur,
assume or guarantee, or otherwise become or remain
directly or indirectly liable with respect to, any
Indebtedness (other than Indebtedness permitted under
clause (iv) of Section 7.1), (2) create, incur, assume or
permit to exist any Lien on or with respect to any property
or asset of any kind of such Subsidiary (other than
Permitted Encumbrances and Liens granted pursuant to the
Collateral Documents), or (3) create or become or remain
liable with respect to any Contingent Obligation (other than
Contingent Obligations under any guarantee of the
Obligations);
(iii) Borrower and its Subsidiaries may make Capital
Expenditures permitted by Section 7.8; and
(iv) Borrower and its Subsidiaries may make advances
to customers in the ordinary course of business substantially
consistent with the practice of other gaming institutions in
connection with their gaming operations in the State of
Nevada.
7.4 Contingent Obligations.
Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create or become or
remain liable with respect to any Contingent Obligation,
except that Borrower may become and remain liable with
respect to:
(i) Contingent Obligations in respect of Letters of
Credit;
(ii) Interest Rate Agreements; provided that the
aggregate notional amount with respect to such Interest Rate
Obligations shall not exceed at any time the aggregate
amount, without duplication, of the Commitments and the
Loans then in effect or outstanding;
(iii) Contingent Obligations pursuant to indemnity
obligations with respect to taxes of Borrower, the
Environmental Indemnity, workers compensation for
Borrower's employees, a title policy and other indemnity
obligations incurred in the ordinary course of business.
7.5 Restricted Junior Payments.
Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, declare, order or pay
any sum for any Restricted Junior Payment; provided that
so long as no Event of Default or Default shall have
occurred and be continuing or occurs as a result thereof
Borrower may make the following Restricted Junior
Payments:
(i) payment of all Subordinated Debt owed to Circus (the
principal amount of which is $35,103,549) on the Closing
Date, together with interest thereon through the Closing
Date;
(ii) Tax Distributions to General Partners in proportion
to their Percentage Interests;
(iii) In addition to the foregoing, during the Make-Well
Period, Other Borrower Distributions which do not exceed
45% of Available Cash Flow for the period beginning with
the first full fiscal quarter after the Closing Date and ending
with the then most recently ended fiscal quarter (calculated
without reduction for such Other Borrower Distribution),
provided that no such Borrower Distributions shall be made
if the Make-Well Leverage Ratio (as of the then most
recent Fiscal Quarter and on a pro forma basis giving effect
to such payment) would be in excess of 4.75:1.00; and
(iv) In addition to the foregoing, following the Make-
Well Period, Other Borrower Distributions which do not
exceed 25% of Available Cash Flow for the period
beginning with the first day of the fiscal quarter during
which the Make-Well Period ended and ending with the
then most recently ended fiscal quarter (calculated without
reduction for such Other Borrower Distributions);
Neither Borrower nor any of its Subsidiaries may directly
or indirectly declare, order, pay or make, or set apart any
sum or property for, any Restricted Junior Payment or
agree to do so except as permitted by this Section 7.5.
7.6 Financial Covenants.
A. Minimum Coverage Ratio. Borrower shall not
permit the Coverage Ratio:
(a) As of the last day of any Fiscal Quarter which
ends during the Make-Well Period, to be less than
1.05:1.00, provided that Borrower shall be deemed not
to be in default under this Section 7.6A if Circus or its
Affiliates make a timely Additional Contribution (as that
term is defined in the Make-Well Agreement) pursuant to
the terms of the Make-Well Agreement; or
(b) As of the last day of any Fiscal Quarter which
ends after the Make-Well Period, to be less than
1.25:1.00.
B. Maximum Leverage Ratio. Borrower shall not
permit the Leverage Ratio as of the last day of any Fiscal
Quarter ending during a period described below to exceed
the ratio set forth opposite that period:
Quarters Ending Maximum
Leverage Ratio
Closing Date through 4.85:1.00
December 31, 1997
January 1, 1998 through
December 31, 1998 4.50:1.00
January 1, 1999 through
March 31, 1999 4.25:1.00
April 1, 1999 through
December 31, 1999 4.00:1.00
January 1, 2000
June 30, 2000 3.50:1.00
July 1, 2000 through
December 31, 2000 3.25:1.00
Thereafter through Termination Date 3.00:1.00
7.7 Restriction on Fundamental Changes; Asset Sales
and Acquisitions.
Borrower shall not, and shall not permit any of its
Subsidiaries to, alter the corporate, partnership, capital or
legal structure of Borrower or any of its Subsidiaries, or
enter into any transaction of merger or consolidation, or
liquidate, wind-up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease, sublease,
transfer or otherwise dispose of, in one transaction or a
series of transactions, all or any part of its business,
property or fixed assets, whether now owned or hereafter
acquired, or acquire by purchase or otherwise all or
substantially all the business, property or fixed assets of, or
stock or other evidence of beneficial ownership of, any
Person or any division or line of business of any Person,
except:
(i) any Subsidiary of Borrower may be merged with or
into Borrower or any wholly-owned Subsidiary of
Borrower, or be liquidated, wound up or dissolved, or all
or any part of its business, property or assets may be
conveyed, sold, leased, transferred or otherwise disposed
of, in one transaction or a series of transactions, to
Borrower or any wholly-owned Subsidiary of Borrower;
provided that, in the case of such a merger, Borrower or
such wholly-owned Subsidiary shall be the continuing or
surviving Person;
(ii) Borrower and its Subsidiaries may make Capital
Expenditures permitted under Section 7.8;
(iii) Borrower and its Subsidiaries may sell or otherwise
dispose of assets in transactions that do not constitute Asset
Sales; provided that the consideration received for such
assets shall be in an amount at least equal to the fair market
value thereof;
(iv) Borrower and its Subsidiaries may, in the ordinary
course of business, sell for cash, equipment that is obsolete
or in need of replacement and no longer used or useful in
its business;
(v) Borrower may dispose of personal property to
customers or potential customers in connection with
promotions in the ordinary course of business substantially
consistent with the practice of other gaming institutions in
connection with their gaming operations in the State of
Nevada; and
(vi) Borrower and its wholly-owned Subsidiaries may
make Investments permitted by Section 7.3(ii).
7.8 Capital Expenditures.
Borrower shall not, and shall not permit its
Subsidiaries to, make or incur Capital Expenditures (other
than additional Capital Expenditures of up to $7,500,000
for purposes of initial construction of (but not subsequent
improvement of) a restaurant, retail or entertainment
attraction to be constructed on the mezzanine level of the
Hotel), in any calendar year in an aggregate amount in
excess of $7,000,000, provided that (a) any amount not so
expended during any calendar year may be expended in the
immediately succeeding calendar year, and
(b) notwithstanding clause (a) the aggregate amount so
expended shall never exceed $10,000,000 in any calendar
year..
7.9 Sales and Lease-Backs.
Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, become or remain
liable as lessee or as a guarantor or other surety with
respect to any lease, whether an Operating Lease or a
Capital Lease, of any property (whether real, personal or
mixed), whether now owned or hereafter acquired,
(i) which Borrower or any of its Subsidiaries has sold or
transferred or is to sell or transfer to any other Person
(other than Borrower or any of its Subsidiaries) or
(ii) which Borrower or any of its Subsidiaries intends to use
for substantially the same purpose as any other property
which has been or is to be sold or transferred by Borrower
or any of its Subsidiaries to any Person (other than
Borrower or any of its Subsidiaries) in connection with
such lease, other than as contemplated by Sections 7.1(iii)
and 7.1(vi).
7.10 Sale or Discount of Receivables.
Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, sell with recourse, or
discount or otherwise sell for less than the face value
thereof, any of its notes or accounts receivable (other than
settlements in the ordinary course of business and
substantially consistent with the practice at other gaming
institutions in connection with their gaming operations in
the State of Nevada with payors of such notes or accounts
receivable reached to facilitate collection from such payor
of such notes or accounts receivable).
7.11 Transactions with Shareholders and Affiliates.
Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, enter into or permit
to exist any transaction (including, without limitation, the
purchase, sale, lease or exchange of any property or the
rendering of any service) with any holder of 5% or more of
any class of equity Securities of Borrower or with any
Affiliate of Borrower or of any such holder; provided that
the foregoing restriction shall not apply to (i) any
transaction between Borrower and any of its wholly-owned
Subsidiaries or between any of its wholly-owned
Subsidiaries, (ii) reasonable and customary management
fees and reimbursements of expenses paid to Managing
Partner pursuant to the terms of the Joint Venture Agree-
ment, (iii) other payments permitted by the Joint Venture
Agreement as in effect at the Closing Date and not
otherwise prohibited or restricted by the terms of this
Agreement, (iv) the Make-Well Agreement and
Subordinated Debt incurred pursuant thereto, or
(v) transactions between Borrower and its Affiliates
necessary to the operation of the Hotel that the Executive
Committee has determined in good faith are conducted on
terms no less favorable than could be obtained from a third
party in an arm's-length transaction.
7.12 Conduct of Business.
From and after the Closing Date, Borrower shall
not, and shall not permit any of its Subsidiaries to, engage
in any business other than the operation of the hotel and
casino business of the Hotel and other businesses
reasonably incidental thereto and located on or adjacent to
the Premises.
7.13 Amendments of Related Documents.
A. Borrower shall not, and shall not permit any of its
Subsidiaries to, amend or otherwise change the terms of
any Subordinated Indebtedness, or make any payment
consistent with an amendment thereof or change thereto, if
the effect of such amendment or change is to increase the
interest rate on such Subordinated Indebtedness, change (to
earlier dates) any dates upon which payments of principal
or interest are due thereon, change any event of default or
condition to an event of default with respect thereto (other
than to eliminate any such event of default), change the
redemption, prepayment or defeasance provisions thereof,
change the subordination provisions thereof (or of any
guaranty thereof), or change any collateral therefor (other
than to release such collateral), or if the effect of such
amendment or change, together with all other amendments
or changes made, is to increase materially the obligations of
the obligor thereunder or to confer any additional rights on
the holders of such Subordinated Indebtedness (or a trustee
or other representative on their behalf) which would be
materially adverse to Borrower or adverse to Lenders.
B. Borrower shall not amend or otherwise change the
terms of the Joint Venture Agreement if the effect of such
amendment or change, together with all other amendments
or changes made, is to increase the obligations of Borrower
thereunder or to confer any additional rights on the other
parties thereto that in either case would be materially
adverse to Borrower or adverse to Lenders.
7.14 Fiscal Year.
Borrower shall not change its Fiscal Year-end
from December 31 without giving notice to Administrative
Agent at least 30 days in advance of such change.
7.15 Transfer of Borrower Interests.
No General Partner shall transfer all or any
portion of its interest in Borrower or any rights therein
except as permitted pursuant to Section 12.4 of the Joint
Venture Agreement as in effect as of the Closing Date;
provided that the provisions of this Section shall not limit
the operation of Section 8.12.
SECTION 8
EVENTS OF DEFAULT
If any of the following conditions or events
("Events of Default") shall occur:
8.1 Failure to Make Payments When Due.
(a) Failure by Borrower to pay any installment of
principal of any Loan when due, whether at stated maturity,
by acceleration, by notice of voluntary prepayment (unless
such notice is revoked by Borrower and would not result in
the incurrence of any costs by Administrative Agent or any
Lender or, if incurred, such costs are reimbursed by
Borrower) by mandatory prepayment or otherwise;
(b) Failure by Borrower to pay when due any
amount payable to an Issuing Lender in reimbursement of
any drawing under a Letter of Credit; or
(c) Failure by Borrower to pay any interest on
any Loan or any fee or any other amount due under this
Agreement or the other Loan Documents within five days
after the date due; or
8.2 Default in Other Agreements.
A. Borrower's Agreements.
(i) Failure of Borrower or any of its Subsidiaries
to pay when due (a) any principal of or interest on any
Indebtedness (other than Indebtedness referred to in
Section 8.1) in an individual principal amount of
$2,500,000 or more or any items of Indebtedness with an
aggregate principal amount of $5,000,000 or more or
(b) any Contingent Obligation in an individual principal
amount of $2,500,000 or more or any Contingent
Obligations with an aggregate principal amount of
$5,000,000 or more, in each case beyond the end of any
grace period provided therefor; or (ii) breach or default
by Borrower or any of its Subsidiaries with respect to
any other material term of (a) any evidence of any
Indebtedness in an individual principal amount of
$2,500,000 or more or any items of Indebtedness with an
aggregate principal amount of $5,000,000 or more or
any Contingent Obligation in an individual principal
amount of $2,500,000 or more or any Contingent
Obligations with an aggregate amount of $5,000,000 or
more or (b) any loan agreement, mortgage, indenture or
other agreement relating to such Indebtedness or
Contingent Obligations, if the effect of such breach or
default is to cause, or to permit the holder or holders of
that Indebtedness or Contingent Obligations (or a trustee
on behalf of such holder or holders) to cause, that
Indebtedness or Contingent Obligations to become or be
declared due and payable prior to its stated maturity or
the stated maturity or any underlying obligation, as the
case may be (upon the giving or receiving of notice,
lapse of time, both, or otherwise); or
B. Circus Loan Agreement.
If the Make-Well Agreement is then in effect, the
occurrence of (i) any default (or in the case of
amendment, supplementation, other modification or
termination of the Circus Loan Agreement after the
Closing Date, the occurrence of any event that would
have been a default had such amendment,
supplementation, modification or termination not
occurred) under Sections 6.3, 9.1(a), 9.1(b), 9.1(c),
9.1(g), 9.1(k) or 9.1(o) of the Circus Loan Agreement,
whether or not such default is later cured or waived or
(ii) any default under the Circus Loan Agreement if, as a
result thereof, the lenders thereunder elect the remedies
described in Section 9.2(a)(2) thereof.
8.3 Breach of Certain Covenants.
Failure of Borrower or its Subsidiaries to perform
or comply with any term or condition contained in
Section 2.4A, 2.4B(iii), 2.5, 6.1(ix), 6.2, 6.6 or Section 7
of this Agreement; or
8.4 Breach of Warranty.
Any representation, warranty, certification or
other statement made by any Loan Party or by any of
Parents in any Loan Document or in any statement or
certificate at any time given by any of them in writing
pursuant hereto or thereto or in connection herewith or
therewith shall be false in any material respect on the date
as of which made; or
8.5 Other Defaults Under Loan Documents.
Any Loan Party or Circus or Eldorado Hotel shall
default in the performance of or compliance with any term
contained in this Agreement or any of the other Loan
Documents to be complied with by such Person, other than
any such term referred to in any other Section of this
Section 8, and such default shall not have been remedied or
waived within 15 days after receipt by Borrower of notice
from Administrative Agent or any Lender of such default;
or
8.6 Involuntary Bankruptcy; Appointment of Receiver,
etc.
(i) A court having jurisdiction in the premises
shall enter a decree or order for relief in respect of any
Loan Party in an involuntary case under the Bankruptcy
Code or under any other applicable bankruptcy, insolvency
or similar law now or hereafter in effect, which decree or
order is not stayed; or any other similar relief shall be
granted under any applicable federal or state law; or (ii) an
involuntary case shall be commenced against any Loan
Party under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or
hereafter in effect; or a decree or order of a court having
jurisdiction in the premises for the appointment of a
receiver, liquidator, sequestrator, trustee, custodian or other
officer having similar powers over any Loan Party, or over
all or a substantial part of its property, shall have been
entered; or there shall have occurred the involuntary
appointment of an interim receiver, trustee or other
custodian of any Loan Party for all or a substantial part of
its property; or a warrant of attachment, execution or
similar process shall have been issued against any
substantial part of the property of any Loan Party, and any
such event described in this clause (ii) shall continue for 60
days unless dismissed, bonded or discharged; or
8.7 Voluntary Bankruptcy; Appointment of Receiver,
etc.
(i) Any Loan Party shall have an order for relief
entered with respect to it or commence a voluntary case
under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in
effect, or shall consent to the entry of an order for relief in
an involuntary case, or to the conversion of an involuntary
case to a voluntary case, under any such law, or shall
consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial
part of its property; or any Loan Party shall make any
assignment for the benefit of creditors; or (ii) any Loan
Party shall be unable, or shall fail generally, or shall admit
in writing its inability, to pay its debts as such debts
become due; or the Board of Directors of any Loan Party
(or any committee thereof) shall adopt any resolution or
otherwise authorize any action to approve any of the actions
referred to in clause (i) above or this clause (ii); or
8.8 Judgments and Attachments.
Any money judgment, writ or warrant of
attachment or similar process involving (i) in any individual
case an amount in excess of $2,500,000 or (ii) in the
aggregate at any time an amount in excess of $5,000,000
(in either case not adequately covered by insurance as to
which a solvent and unaffiliated insurance company has
acknowledged coverage) shall be entered or filed against
any Loan Party or any of their respective assets and shall
remain undischarged, unvacated, unbonded or unstayed for
a period of 60 days (or in any event later than five days
prior to the date of any proposed sale thereunder); or
8.9 Dissolution.
(i) Any order, judgment or decree shall be entered
against any Loan Party decreeing the dissolution or split up
of such Loan Party and such order shall remain
undischarged or unstayed for a period in excess of 30 days;
or
(ii) the occurrence of any "Liquidating Event" (as such
term is defined in Section 13.1 (or any successor provision)
of the Joint Venture Agreement).
8.10 Employee Benefit Plans.
There shall occur one or more ERISA Events
which individually or in the aggregate results in or might
reasonably be expected to result in liability of Borrower or
any of its ERISA Affiliates in excess of $5,000,000 during
the term of this Agreement; or there shall exist an amount
of unfunded benefit liabilities (as defined in
Section 4001(a)(18) of ERISA), individually or in the
aggregate for all Pension Plans sponsored by Borrower or
any of its ERISA Affiliates (excluding for purposes of such
computation any Pension Plans with respect to which assets
exceed benefit liabilities), which exceeds $5,000,000; or
8.11 Material Adverse Effect.
Any event or change shall occur that has caused
or evidences, either in any case or in the aggregate, a
Material Adverse Effect; or
8.12 Change in Control.
General Partners or their Affiliates on the Closing
Date shall cease to beneficially own and control all of the
partnership interests in Borrower or Circus and its Affiliates
shall cease to beneficially own and control at least 50% of
the partnership interests in Borrower; or
8.13 Invalidity of Environmental Indemnities or
Guaranties.
Any Environmental Indemnity or any guaranty of
the Obligations, including, without limitation, the Make-
Well Agreement for any reason, other than the satisfaction
in full of all Obligations (or in the case of the Make-Well
Agreement, its termination in accordance with its terms)
ceases to be in full force and effect or is declared to be null
and void, or any guarantor or indemnitor, including Circus
and Eldorado Hotel, denies that it has any further liability,
including, without limitation, with respect to future
advances by Lenders, under any indemnity or guaranty or
under any make-well agreement, including the Make-Well
Agreement, or under any Environmental Indemnity or gives
notice to such effect, in each case, to the extent it relates to
the Obligations; or
8.14 Impairment of Collateral.
(A) A judgment creditor of any Loan Party or any
of their respective Subsidiaries shall obtain possession of
any material portion of the Collateral under the Collateral
Documents by any means, including, without limitation,
levy, distraint, replevin or self-help, (B) any substantial
portion of the Collateral shall be taken by eminent domain
or condemnation, (C) any of the Collateral Documents shall
cease for any reason to be in full force and effect, or any
party thereto shall purport to disavow its obligations
thereunder or shall declare that it does not have any further
obligations thereunder or shall contest the validity or
enforceability thereof or Lenders shall cease to have a valid
and perfected first priority security interest in any material
Collateral therein except as permitted under the terms of
such Collateral Document, or (D) Administrative Agent's
security interests or Liens, in each case on behalf of
Lenders, on any material portion of the Collateral under the
Collateral Documents shall become otherwise impaired or
unenforceable; or
8.15 Loss of Governmental Authorizations.
Any Governmental Authorization that is material
to the ownership, use or operation of the Hotel ceases to be
valid and in full force or effect or to be held by the Person
required to hold such Governmental Authorization for more
than five (5) calendar days; or
8.16 Gaming License.
The occurrence of a License Revocation that
continues for at least five (5) calendar days;
8.17 Remedies.
THEN
at any time, (i) upon the occurrence of any Event of
Default described in Section 8.6 or 8.7, each of (a) the
unpaid principal amount of and accrued interest on the
Loans, (b) an amount equal to the maximum amount that
may at any time be drawn under all Letters of Credit then
outstanding (whether or not any beneficiary under any such
Letter of Credit shall have presented, or shall be entitled at
such time to present, the drafts or other documents or
certificates required to draw under such Letter of Credit),
and (c) all other Obligations shall automatically become
immediately due and payable, without presentment,
demand, protest or other requirements of any kind, all of
which are hereby expressly waived by Borrower, and the
obligation of each Lender to make any Loan, the obligation
of Administrative Agent to issue any Letter of Credit and
the right of any Lender to issue any Letter of Credit
hereunder shall thereupon automatically terminate, and
(ii) upon the occurrence and during the continuation of any
other Event of Default, Administrative Agent shall, upon
the written request or with the written consent of Requisite
Lenders, by written notice to Borrower, declare all or any
portion of the amounts described in clauses (a) through (c)
above to be, and the same shall forthwith become, immedi-
ately due and payable, and the obligation of each Lender to
make any Loan, the obligation of Administrative Agent to
issue any Letter of Credit and the right of any Lender to
issue any Letter of Credit hereunder shall thereupon
terminate; provided that the foregoing shall not affect in
any way the obligations of Lenders under Section 3.3C(i).
No remedy conferred in this Agreement upon any Lender is
intended to be exclusive of any other remedy, and each and
every such remedy shall be cumulative and shall be in
addition to every other remedy conferred herein or now or
hereafter existing at law or in equity or by statute or
otherwise.
Any amounts described in clause (b) of
Section 8.17, when received by Administrative Agent, shall
be held by Administrative Agent pursuant to the terms of
the Collateral Account Agreement and shall be applied as
therein provided.
Notwithstanding anything contained in the second
preceding paragraph, if at any time within 60 days after an
acceleration of the Loans pursuant to such paragraph
Borrower shall pay all arrears of interest and all payments
on account of principal which shall have become due
otherwise than as a result of such acceleration (with interest
on principal and, to the extent permitted by law, on
overdue interest, at the rates specified in this Agreement)
and all Events of Default and Potential Events of Default
(other than non-payment of the principal of and accrued
interest on the Loans, in each case which is due and
payable solely by virtue of acceleration) shall be remedied
or waived pursuant to Section 10.6, then Supermajority
Lenders, by written notice to Borrower, may at their option
rescind and annul such acceleration and its consequences;
but such action shall not affect any subsequent Event of
Default or Default or impair any right consequent thereon.
The provisions of this paragraph are intended to bind all
Lenders to a decision that may be made at the election of
Supermajority Lenders and are not intended to benefit
Borrower and do not grant Borrower the right to require
Lenders to rescind or annul any acceleration hereunder,
even if the conditions set forth herein are met.
<PAGE>
SECTION 9
Administrative Agent
9.1 Appointment.
Bank of America National Trust and Savings
Association is hereby appointed Administrative Agent here-
under and under the other Loan Documents and each
Lender hereby authorizes Administrative Agent to act as its
Administrative Agent in accordance with the terms of this
Agreement and the other Loan Documents. Administrative
Agent agrees to act upon the express conditions contained
in this Agreement and the other Loan Documents, as
applicable. The provisions of this Section 9 are solely for
the benefit of Administrative Agent and Lenders and
Borrower shall have no rights as a third party beneficiary of
any of the provisions thereof. In performing its functions
and duties under this Agreement, Administrative Agent
shall act solely as an Administrative Agent of Lenders and
does not assume and shall not be deemed to have assumed
any obligation towards or relationship of agency or trust
with or for Borrower or any of its Subsidiaries other than
as set forth in Section 2.1D(v).
9.2 Powers; General Immunity.
A. Duties Specified. Each Lender irrevocably
authorizes Administrative Agent to take such action on such
Lender's behalf and to exercise such powers hereunder and
under the other Loan Documents as are specifically
delegated to Administrative Agent by the terms hereof and
thereof, together with such powers as are reasonably
incidental thereto. Administrative Agent shall have only
those duties and responsibilities that are expressly specified
in this Agreement and the other Loan Documents and it
may perform such duties by or through its agents or
employees. Administrative Agent shall not have, by reason
of this Agreement or any of the other Loan Documents, a
fiduciary relationship in respect of any Lender; and nothing
in this Agreement or any of the other Loan Documents,
expressed or implied, is intended to or shall be so construed
as to impose upon Administrative Agent any obligations in
respect of this Agreement or any of the other Loan
Documents except as expressly set forth herein or therein.
B. No Responsibility for Certain Matters.
Administrative Agent shall not be responsible to any Lender
for the execution, effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this
Agreement or any other Loan Document or for any
representations, warranties, recitals or statements made
herein or therein or made in any written or oral statements
or in any financial or other statements, instruments, reports
or certificates or any other documents furnished or made by
Administrative Agent to Lenders or by or on behalf of
Borrower to Administrative Agent or any Lender in
connection with the Loan Documents and the transactions
contemplated thereby or for the financial condition or
business affairs of Borrower or any other Person liable for
the payment of any Obligations, nor shall Administrative
Agent be required to ascertain or inquire as to the perfor-
mance or observance of any of the terms, conditions,
provisions, covenants or agreements contained in any of the
Loan Documents or as to the use of the proceeds of the
Loans or the use of the Letters of Credit or as to the exis-
tence or possible existence of any Event of Default or
Default. Anything contained in this Agreement to the
contrary notwithstanding, Administrative Agent shall not
have any liability arising from confirmations of the amount
of outstanding Loans or the Letter of Credit Usage or the
component amounts thereof.
C. Exculpatory Provisions. Neither Administrative
Agent nor any of its officers, directors, employees or
agents shall be liable to Lenders for any action taken or
omitted by Administrative Agent under or in connection
with any of the Loan Documents except to the extent
caused by Administrative Agent's gross negligence or
willful misconduct. If Administrative Agent shall request
instructions from Lenders with respect to any act or action
(including the failure to take an action) in connection with
this Agreement or any of the other Loan Documents,
Administrative Agent shall be entitled to refrain from such
act or taking such action unless and until Administrative
Agent shall have received instructions from Requisite
Lenders, Supermajority Lenders or all Lenders if unanimity
is required hereunder. Without prejudice to the generality
of the foregoing, (i) Administrative Agent shall be entitled
to rely, and shall be fully protected in relying, upon any
communication, instrument or document reasonably
believed by it to be genuine and correct and to have been
signed or sent by the proper person or persons, and shall be
entitled to rely and shall be protected in relying on opinions
and judgments of attorneys (who may be attorneys for
Borrower and its Subsidiaries), accountants, experts and
other professional advisors reasonably selected by it; and
(ii) no Lender shall have any right of action whatsoever
against Administrative Agent as a result of Administrative
Agent acting or (where so instructed) refraining from acting
under this Agreement or any of the other Loan Documents
in accordance with the instructions of Requisite Lenders or
all Lenders as required or permitted by this Agreement.
Administrative Agent shall be entitled to refrain from
exercising any power, discretion or authority vested in it
under this Agreement or any of the other Loan Documents
unless and until it has obtained the instructions of Requisite
Lenders.
D. Administrative Agent Entitled to Act as Lender.
The agency hereby created shall in no way impair or affect
any of the rights and powers of, or impose any duties or
obligations upon, Administrative Agent in its individual
capacity as a Lender hereunder. With respect to its par-
ticipation in the Loans and the Letters of Credit,
Administrative Agent shall have the same rights and powers
hereunder as any other Lender and may exercise the same
as though it were not performing the duties and functions
delegated to it hereunder, and the term "Lender" or
"Lenders" or any similar term shall, unless the context
clearly otherwise indicates, include Administrative Agent in
its individual capacity. Administrative Agent and its
Affiliates may accept deposits from, lend money to and
generally engage in any kind of banking, trust, financial
advisory or other business with Borrower or any of its
Affiliates as if it were not performing the duties specified
herein, and may accept fees and other consideration from
Borrower for services in connection with this Agreement
and otherwise without having to account for the same to
Lenders.
9.3 Representations and Warranties; No Responsibility
For Appraisal of Creditworthiness.
Each Lender represents and warrants that it has
made its own independent investigation of the financial
condition and affairs of Borrower and its Subsidiaries in
connection with the making of the Loans and the issuance
of Letters of Credit hereunder and that it has made and
shall continue to make its own appraisal of the
creditworthiness of Borrower and its Subsidiaries.
Administrative Agent shall not have any duty or
responsibility, either initially or on a continuing basis, to
make any such investigation or any such appraisal on behalf
of Lenders or to provide any Lender with any credit or
other information with respect thereto, whether coming into
its possession before the making of the Loans or at any
time or times thereafter, and Administrative Agent shall not
have any responsibility with respect to the accuracy of or
the completeness of any information provided to Lenders.
9.4 Right to Indemnity.
Each Lender, in proportion to its Pro Rata Share,
severally agrees to indemnify Administrative Agent, to the
extent that Administrative Agent shall not have been
reimbursed by Borrower or another Loan Party, for and
against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses
(including, without limitation, counsel fees and
disbursements) or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or
asserted against Administrative Agent in performing its
duties hereunder or under the other Loan Documents or
otherwise in its capacity as Administrative Agent in any
way relating to or arising out of this Agreement or the
other Loan Documents; provided that no Lender shall be
liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from Administrative
Agent's gross negligence or willful misconduct; provided,
further, that if Administrative Agent is subsequently
reimbursed by Borrower or any other Loan Party for any
such liabilities, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements in an
amount that, together with amounts paid to Administrative
Agent by Lenders under this Section 9.4, exceeds the
amount actually expended by Administrative Agent
therefor, Administrative Agent shall promptly disburse such
excess amount to those Lenders that made payments under
this Section 9.4 in proportion to their payments hereunder.
If any indemnity furnished to Administrative Agent for any
purpose shall, in the opinion of Administrative Agent, be
insufficient or become impaired, Administrative Agent may
call for additional indemnity and cease, or not commence,
to do the acts indemnified against until such additional
indemnity is furnished. The Prior Agent shall be entitled to
the continued protection of the indemnities provided to the
Prior Agent under the Existing Credit Agreement for the
period in which it served as agent under the Existing Credit
Agreement.
9.5 Successor Administrative Agent.
Administrative Agent may resign at any time by
giving 30 days' prior written notice thereof to Lenders and
Borrower, and Administrative Agent may be removed at
any time with or without cause by an instrument or
concurrent instruments in writing delivered to Borrower and
Administrative Agent and signed by Requisite Lenders
(determined without giving effect to Administrative Agent's
Loan Exposure). Upon any such notice of resignation or
any such removal, Lenders shall have the right, with the
consent of Borrower (which consent shall not be withheld
unreasonably), to appoint a successor Administrative Agent
provided that such Requisite Lenders may proceed without
Borrower's consent if Borrower refuses to consent to one of
two successive nominees for successor Administrative
Agent who are Lenders on the Closing Date. Upon the
acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, that
successor Administrative Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges
and duties of the retiring or removed Administrative Agent
and the retiring or removed Administrative Agent shall be
discharged from its duties and obligations under this Agree-
ment. After any retiring or removed Administrative
Agent's resignation or removal hereunder as Administrative
Agent, the provisions of this Section 9 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.
9.6 Collateral Documents.
Each Lender hereby further authorizes
Administrative Agent to enter into the Collateral Documents
as secured party on behalf of and for the benefit of each
Lender and agrees to be bound by the terms of the
Collateral Documents; provided that Administrative Agent
shall not enter into or consent to any amendment,
modification, termination or waiver of any provision
contained in the Collateral Documents except as set forth in
Section 10.6. Anything contained in any of the Loan
Documents to the contrary notwithstanding, each Lender
agrees that no Lender shall have any right individually to
realize upon any of the collateral under the Collateral
Documents, it being understood and agreed that all rights
and remedies under the Collateral Documents may be
exercised solely by Administrative Agent for the benefit of
Lenders in accordance with the terms thereof.
Section 9.7 - Administrative Agent to Hold Liens for
Benefit of Lenders as Parties to Interest Rate Agreements.
A. Borrower hereby agrees that each of the liens and
security interests granted to the Administrative Agent for
the benefit of the Lenders under this Agreement and the
other Loan Documents shall be deemed to also secure the
obligations of Borrower to Lenders under Interest Rate
Agreements entered into with respect to the Obligations and
Indebtedness evidenced by this Agreement and the other
Loan Documents. The obligations under any such Interest
Rate Agreements shall rank pari passu with, and shall be
entitled to the benefit of the Collateral Documents to the
same extent as, the other Obligations to the extent of the
Administrative Agent s risk assessment factor for such
obligations (but shall be subordinate and junior to the
Loans, Letters of Credit and other Obligations to the extent
of any excess amounts); provided that the right of the
holders of such Interest Rate Agreements with respect to
the Collateral shall be limited to the right to receive a share
of the proceeds of the Collateral and that Lenders shall
have the right to make all determinations with respect to the
exercise of remedies with respect to the Collateral until
payment in full of all of the Loans and other Obligations
and the cancellation or expiration of all Letters of Credit.
Each Interest Rate Agreement entered into by Borrower
with any Lender shall be conclusively presumed to relate to
the obligations and Indebtedness evidenced by this
Agreement unless it otherwise specifies.
B. Each Lender hereby irrevocably appoints the
Administrative Agent to act as collateral agent for that
Lender with respect to the liens and security interests
created by the Loan Documents for the benefit of that
Lender as a creditor under Interest Rate Agreements of the
type described in clause (A) of this Section; in such
capacity the Administrative Agent shall be entitled to the
indemnity provided by Section 9.4 of the Credit Agreement
and to the other indemnities and protections afforded to the
Administrative Agent by this Agreement and the other Loan
Documents, mutatis mutandis.
C. Each Lender agrees that the claims of the Lenders
under this Agreement and the claims of each Lender under
any Interest Rate Agreement shall rank pari passu, provided
that the right of each Lender with respect to the Collateral
by reason of its claims under such Interest Rate Agreements
shall be limited to the right to receive a share of the
proceeds of the Collateral and that the Lenders (in their
capacity as Lenders under this Agreement) shall have the
exclusive right to make all determinations with respect to
the exercise of remedies with respect to the Collateral until
payment in full of all of the Loans and other Obligations
and the cancellation or expiration of all Letters of Credit.
No person other than the Lenders shall be deemed to have
any rights under this clause (C).
D. Notwithstanding any other provision of this
Agreement to the contrary, no Interest Rate Agreement
shall have the benefit of the Make-Well Agreement.
SECTION 10
MISCELLANEOUS
10.1 Assignments and Participations in Loans and
Letters of Credit.
A. General. Each Lender shall have the right at any
time to (i) sell, assign or transfer to any Eligible Assignee,
or (ii) sell participations to any Person in, all or any part of
its Commitment or any Loan or Loans made by it or its
Letters of Credit or participations therein or any other
interest herein or in any other Obligations owed to it;
provided that no such sale, assignment, transfer or partici-
pation shall, without the consent of Borrower, require
Borrower to file a registration statement with the Securities
and Exchange Commission or apply to qualify such sale,
assignment, transfer or participation under the securities
laws of any state; provided, further that no such sale,
assignment or transfer described in clause (i) above shall be
effective unless and until an Assignment Agreement
effecting such sale, assignment or transfer shall have been
accepted by Administrative Agent and recorded in the
Register as provided in Section 10.1B(ii); provided, further
that no such sale, assignment, transfer or participation of
any Letter of Credit or any participation therein may be
made separately from a sale, assignment, transfer or
participation of a corresponding interest in the Commitment
and the Loans of the Lender effecting such sale,
assignment, transfer or participation; and provided further
that no such sale, assignment, transfer or participation of
any Letter of Credit or any participation therein shall be
required to the extent it would be prohibited by any Gaming
Law. Except as otherwise provided in this Section 10.1, no
Lender shall, as between Borrower and such Lender, be
relieved of any of its obligations hereunder as a result of
any sale, assignment or transfer of, or any granting of
participations in, all or any part of its Commitment or the
Loans, the Letters of Credit or participations therein, or the
other Obligations owed to such Lender.
B. Assignments.
(i) Amounts and Terms of Assignments. Each Lender
may assign its interests in the Commitment, Loan, Letter of
Credit or participation therein, or other Obligation,
provided that each such assignment (i) shall be subject to
the written consent of Borrower and the Administrative
Agent (which consents shall not be unreasonably withheld,
provided that when an Event of Default exists, no such
consent will be required from Borrower), (ii) which is not
to another Lender or to an Affiliate of the assigning Lender
shall be in an amount not less than $10,000,000 (or such
lesser amount as shall constitute the aggregate amount of
the Commitment, Loans, Letters of Credit and
participations therein, and other Obligations of the assigning
Lender) and shall be to an Eligible Assignee described in
clause (A) of the definition of "Eligible Assignee", and (iii)
shall effect a pro rata assignment of the Loans, Letters of
Credit (or participations therein) and commitment of the
assigning Lender. The parties to each such assignment
shall execute and deliver to Administrative Agent, for its
acceptance and recording in the Register, an Assignment
Agreement, together with a processing and recordation fee
of $2,500 and such forms, certificates or other evidence, if
any, with respect to United States federal income tax
withholding matters as the assignee under such Assignment
Agreement may be required to deliver to Administrative
Agent pursuant to Section 2.7B(iii)(a). Upon such
execution, delivery, acceptance and recordation, from and
after the effective date specified in such Assignment
Agreement, (y) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such
Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and (z) the assigning
Lender thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to
such Assignment Agreement, relinquish its rights and be
released from its obligations under this Agreement (and, in
the case of an Assignment Agreement covering all or the
remaining portion of an assigning Lender's rights and
obligations under this Agreement, such Lender shall cease
to be a party hereto). The Commitments hereunder shall be
modified to reflect the Commitment of such assignee and
any remaining Commitment of such assigning Lender and,
if any such assignment occurs after the issuance of any
Notes hereunder, the assigning Lender shall, upon the
effectiveness of such assignment or as promptly thereafter
as practicable, surrender its Note, if any, to Administrative
Agent for cancellation, and thereupon new Notes shall, if
so requested by the assignee and/or the assigning Lender in
accordance with Section 2.1E, be issued to the assignee
and/or to the assigning Lender to reflect the new
Commitments of the assignee and/or the assigning Lender.
(ii) Acceptance by Administrative Agent; Recordation in
Register. Upon its receipt of an Assignment Agreement
executed by an assigning Lender and an assignee
representing that it is an Eligible Assignee, together with
the processing and recordation fee referred to in
Section 10.1B(i) and any forms, certificates or other
evidence with respect to United States federal income tax
withholding matters that such assignee may be required to
deliver to Administrative Agent pursuant to
Section 2.7B(iii)(a), Administrative Agent shall, if such
Assignment Agreement has been completed, (a) accept such
Assignment Agreement by executing a counterpart thereof
as provided therein (which acceptance shall evidence any
required consent of Administrative Agent to such
assignment), (b) record the information contained therein in
the Register, and (c) give prompt notice thereof to
Borrower. Administrative Agent shall maintain a copy of
each Assignment Agreement delivered to and accepted by it
as provided in this Section 10.1B(ii).
C. Participations. The holder of any participation
shall not be entitled to require such Lender to take or omit
to take any action hereunder except action directly affecting
(i) the extension of the scheduled final maturity date of any
Loan allocated to such participation or (ii) a reduction of
the principal amount of or the rate of interest payable on
any Loan allocated to such participation, and all amounts
payable by Borrower hereunder (including without
limitation amounts payable to such Lender pursuant to
Sections 2.6D, 2.7 and 3.6) shall be determined as if such
Lender had not sold such participation. Borrower and each
Lender hereby acknowledge and agree that, solely for
purposes of Sections 10.4 and 10.5, (a) any participation
will give rise to a direct obligation of Borrower to the
participant and (b) the participant shall be considered to be
a "Lender".
D. Assignments to Federal Reserve Banks. In
addition to the assignments and participations permitted
under the foregoing provisions of this Section 10.1, any
Lender may assign and pledge all or any portion of its
Loans, the other Obligations owed to such Lender, and its
Note to any Federal Reserve Bank as collateral security
pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any operating circular issued
by such Federal Reserve Bank; provided that (i) no Lender
shall, as between Borrower and such Lender, be relieved of
any of its obligations hereunder as a result of any such
assignment and pledge and (ii) in no event shall such
Federal Reserve Bank be considered to be a "Lender" or be
entitled to require the assigning Lender to take or omit to
take any action hereunder.
E. Information. Each Lender may furnish any
information concerning Borrower and its Subsidiaries in the
possession of that Lender from time to time to assignees
and participants (including prospective assignees and
participants), subject to Section 10.19.
10.2 Expenses.
Whether or not the transactions contemplated
hereby shall be consummated, Borrower agrees to pay
promptly (i) all the actual and reasonable costs and
expenses of preparation of the Loan Documents; (ii) all the
costs of furnishing all opinions by counsel for Borrower
and any other Loan Party (including without limitation any
opinions requested by Lenders as to any legal matters
arising hereunder) and of each Loan Party's performance of
and compliance with all agreements and conditions on its
part to be performed or complied with under this
Agreement and the other Loan Documents including,
without limitation, with respect to confirming compliance
with environmental and insurance requirements; (iii) the
reasonable fees, expenses and disbursements of counsel to
Administrative Agent in connection with the negotiation,
preparation, execution and administration of the Loan
Documents and the Loans and any consents, amendments,
waivers or other modifications hereto or thereto and any
other documents or matters requested by Borrower or any
other Loan Party; (iv) all other actual and reasonable costs
and expenses incurred by Administrative Agent in
connection with the syndication of the Commitments prior
to the Closing Date and the negotiation, preparation and
execution of the Loan Documents and the transactions
contemplated hereby and thereby; and (v) after the
occurrence of an Event of Default, all costs and expenses,
including reasonable attorneys' fees (including allocated
costs of internal counsel) and costs of settlement, incurred
by Administrative Agent and Lenders in enforcing any
Obligations of or in collecting any payments due from
Borrower or any other Loan Party hereunder or under the
other Loan Documents by reason of such Event of Default
or in connection with any refinancing or restructuring of the
credit arrangements provided under this Agreement in the
nature of a "work-out" or pursuant to any insolvency or
bankruptcy proceedings.
10.3 Indemnity.
In addition to the payment of expenses pursuant to
Section 10.2, whether or not the transactions contemplated
hereby shall be consummated, Borrower agrees to defend,
indemnify, pay and hold harmless Administrative Agent,
the Arranger, the Documentation Agent, and each Lender,
and the officers, directors, employees, agents and affiliates
thereof (collectively called the "Indemnitees") from and
against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, claims, costs,
expenses and disbursements of any kind or nature
whatsoever (including without limitation the reasonable fees
and disbursements of counsel for such Indemnitees in
connection with any investigative, administrative or judicial
proceeding commenced or threatened by any Person,
whether or not any such Indemnitee shall be designated as a
party or a potential party thereto), whether direct, indirect
or consequential and whether based on any federal, state or
foreign laws, statutes, rules or regulations (including
without limitation securities and commercial laws, statutes,
rules or regulations and Environmental Laws), on common
law or equitable cause or on contract or otherwise, that
may be imposed on, incurred by, or asserted against any
such Indemnitee, in any manner relating to or arising out of
this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby (including
without limitation Lenders' agreement to make the Loans
hereunder or the use or intended use of the proceeds of any
of the Loans or the issuance of Letters of Credit hereunder
or the use or intended use of any of the Letters of Credit)
or the statements contained in the commitment letter
delivered by any Lender to Borrower with respect thereto
(collectively called the "Indemnified Liabilities"); provided
that Borrower shall not have any obligation to an
Indemnitee hereunder with respect to any Indemnified
Liabilities to the extent such Indemnified Liabilities arise
solely from the gross negligence or willful misconduct of
that Indemnitee as determined by a final judgment of a
court of competent jurisdiction. To the extent that the
undertaking to defend, indemnify, pay and hold harmless
set forth in the preceding sentence may be unenforceable
because it is violative of any law or public policy,
Borrower shall contribute the maximum portion that it is
permitted to pay and satisfy under applicable law to the
payment and satisfaction of all Indemnified Liabilities
incurred by the Indemnitees or any of them.
10.4 Set-Off; Security Interest in Deposit Accounts.
In addition to any rights now or hereafter granted
under applicable law and not by way of limitation of any
such rights, upon the occurrence of any Event of Default
each Lender (with the consent of Requisite Lenders) is
hereby authorized by Borrower at any time or from time to
time, without notice to Borrower or to any other Person,
any such notice being hereby expressly waived, to set off
and to appropriate and to apply any and all deposits
(general or special, including, but not limited to, Indebt-
edness evidenced by certificates of deposit, whether
matured or unmatured, but not including trust accounts) and
any other Indebtedness at any time held or owing by that
Lender to or for the credit or the account of Borrower
against and on account of the obligations and liabilities of
Borrower to that Lender under this Agreement, the Letters
of Credit and participations therein and the other Loan
Documents, including, but not limited to, all claims of any
nature or description arising out of or connected with this
Agreement, the Letters of Credit and participations therein
or any other Loan Document, irrespective of whether or not
(i) that Lender shall have made any demand hereunder or
(ii) the principal of or the interest on the Loans or any
amounts in respect of the Letters of Credit or any other
amounts due hereunder shall have become due and payable
pursuant to Section 8 and although said obligations and
liabilities, or any of them, may be contingent or unmatured.
Borrower hereby further grants to Administrative Agent and
each Lender a security interest in all deposits and accounts
maintained with Administrative Agent or such Lender as
security for the Obligations.
10.5 Ratable Sharing.
Lenders hereby agree among themselves that if
any of them shall, whether by voluntary payment, by
realization upon security, through the exercise of any right
of set-off or banker's lien, by counterclaim or cross action
or by the enforcement of any right under the Loan
Documents or otherwise, or as adequate protection of a
deposit treated as cash collateral under the Bankruptcy
Code, receive payment or reduction of a proportion of the
aggregate amount of principal, interest, amounts payable in
respect of Letters of Credit, fees and other amounts then
due and owing to that Lender hereunder or under the other
Loan Documents (collectively, the "Aggregate Amounts
Due" to such Lender) which is greater than the proportion
received by any other Lender in respect of the Aggregate
Amounts Due to such other Lender, then the Lender
receiving such proportionately greater payment shall
(i) notify Administrative Agent and each other Lender of
the receipt of such payment and (ii) apply a portion of such
payment to purchase participations (which it shall be
deemed to have purchased from each seller of a
participation simultaneously upon the receipt by such seller
of its portion of such payment) in the Aggregate Amounts
Due to the other Lenders so that all such recoveries of
Aggregate Amounts Due shall be shared by all Lenders in
proportion to the Aggregate Amounts Due to them;
provided that if all or part of such proportionately greater
payment received by such purchasing Lender is thereafter
recovered from such Lender upon the bankruptcy or
reorganization of Borrower or otherwise, those purchases
shall be rescinded and the purchase prices paid for such
participations shall be returned to such purchasing Lender
ratably to the extent of such recovery. Borrower expressly
consents to the foregoing arrangement and agrees that any
holder of a participation so purchased may exercise any and
all rights of banker's lien, set-off or counterclaim with
respect to any and all monies owing by Borrower to that
holder with respect thereto as fully as if that holder were
owed the amount of the participation held by that holder.
10.6 Amendments and Waivers; Release of Collateral.
A. No amendment, modification, termination or
waiver of any provision of this Agreement, the Notes or
any other Loan Documents, or consent to any departure by
Borrower therefrom, shall in any event be effective without
the written concurrence of Requisite Lenders; provided that
any such amendment, modification, termination, waiver or
consent which: increases the amount of any of the Commit-
ments or reduces the principal amount of any of the Loans;
increases the maximum amount of Letters of Credit;
changes any Lender's Pro Rata Share; changes in any
manner the definition of "Lenders", "Requisite Lenders" or
"Supermajority Lenders"; changes in any manner any
provision of this Agreement which, by its terms, expressly
requires the approval or concurrence of all Lenders;
postpones the scheduled final maturity date of any of the
Loans; postpones the date or reduces the amount of any
scheduled reduction of the Commitments; postpones the
date on which any interest or any fees are payable;
decreases the interest rate borne by any of the Loans (other
than any waiver of any increase in the interest rate
applicable to any of the Loans pursuant to Section 2.2E) or
the amount of any fees payable hereunder; increases the
maximum duration of Interest Periods permitted hereunder;
reduces the amount or postpones the due date of any
amount payable in respect of, or extends the required
expiration date of, any Letter of Credit; changes in any
manner the obligations of Lenders relating to the purchase
of participations in Letters of Credit; or changes in any
manner the provisions contained in Section 8.1(a) or (b) or
this Section 10.6; or changes any of the terms of or
releases the Make-Well Agreement (except in accordance
with Section 2.14 thereof) or the Environmental Indemnities
shall be effective only if evidenced by a writing signed by
or on behalf of all Lenders and; provided, further, that no
provision of this Agreement that, by its terms, expressly
requires approval or action of Supermajority Lenders, may
be amended, modified or waived except with the consent of
Supermajority Lenders; provided further that if there has
been a change in Managing Partner, no amendment to the
performance standard required of Borrower under
Section 7.6A that would increase the amount required to be
paid to fulfill the "Make-Well Obligations" under and as
defined in the Make-Well Agreement, shall be effective to
cause such increase unless Circus shall have received prior
notice of such change. In addition, (i) any material amend-
ment, modification, termination or waiver of any of the
provisions contained in Section 4 shall be effective only if
evidenced by a writing signed by or on behalf of
Administrative Agent and Requisite Lenders, (ii) no
amendment, modification, termination or waiver of any
provision of any Note shall be effective without the written
concurrence of the Lender which is the holder of that Note,
and (iii) no amendment, modification, termination or waiver
of any provision of Section 3 or Section 9 or of any other
provision of this Agreement which, by its terms, expressly
requires the approval or concurrence of Administrative
Agent shall be effective without the written concurrence of
Administrative Agent. Administrative Agent may, but shall
have no obligation to, with the concurrence of any Lender,
execute amendments, modifications, waivers or consents on
behalf of that Lender. Any waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which it was given. No notice to or demand
on Borrower in any case shall entitle Borrower to any other
or further notice or demand in similar or other
circumstances. Any amendment, modification, termination,
waiver or consent effected in accordance with this
Section 10.6 shall be binding upon each Lender at the time
outstanding, each future Lender and, if signed by
Borrower, on Borrower. No amendment, modification,
termination or waiver of Section 7.6A shall be effective
without the written consent of Circus or its successors and
assigns under the Make-Well Agreement.
B. Administrative Agent may release personal
property Collateral without the consent of any Lender to the
extent sold or disposed of by Borrower in a transaction or
series of transactions that do not constitute Asset Sales. In
addition: (i) Administrative Agent may release personal
property Collateral subject to the Security Agreement
having a fair market less than $100,000 with the consent of
Requisite Lenders; and (ii) Administrative Agent shall not
release any personal property Collateral having a fair
market value in excess of $100,000 or any other Collateral
without the consent of all Lenders.
10.7 Independence of Covenants.
All covenants hereunder shall be given
independent effect so that if a particular action or condition
is not permitted by any of such covenants, the fact that it
would be permitted by an exception to, or would otherwise
be within the limitations of, another covenant shall not
avoid the occurrence of an Event of Default or Default if
such action is taken or condition exists.
10.8 Notices.
Unless otherwise specifically provided herein, any
notice or other communication herein required or permitted
to be given shall be in writing and may be personally
served, telexed or sent by telefacsimile or United States
mail or courier service and shall be deemed to have been
given when delivered in person or by courier service, upon
receipt of telefacsimile or telex prior to 5:00 p.m. (Pacific
time) on a Business Day or three Business Days after
depositing it in the United States mail with postage prepaid
and properly addressed; provided that notices to
Administrative Agent and the Lenders from Borrower shall
not be effective until received. For the purposes hereof,
the address of each party hereto shall be as set forth under
such party's name on the signature pages hereof or (i) as to
Borrower and Administrative Agent, such other address as
shall be designated by such Person in a written notice
delivered to the other parties hereto and (ii) as to each other
party, such other address as shall be designated by such
party in a written notice delivered to Administrative Agent.
10.9 Survival of Representations, Warranties and
Agreements.
A. All representations, warranties and agreements
made herein shall survive the execution and delivery of this
Agreement and the making of the Loans and the issuance of
the Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or
implied by law to the contrary, the agreements of Borrower
set forth in Sections 2.6D, 2.7, 3.5A, 3.6, 10.2 and 10.3
and the agreements of Lenders set forth in Sections 9.2C,
9.4 and 10.5 shall survive the payment of the Loans, the
cancellation or expiration of the Letters of Credit and the
reimbursement of any amounts drawn thereunder, and the
termination of this Agreement.
10.10 Failure or Indulgence Not Waiver; Remedies
Cumulative.
No failure or delay on the part of Administrative
Agent or any Lender in the exercise of any power, right or
privilege hereunder or under any other Loan Document
shall impair such power, right or privilege or be construed
to be a waiver of any default or acquiescence therein, nor
shall any single or partial exercise of any such power, right
or privilege preclude other or further exercise thereof or of
any other power, right or privilege. All rights and
remedies existing under this Agreement and the other Loan
Documents are cumulative to, and not exclusive of, any
rights or remedies otherwise available.
10.11 Marshalling; Payments Set Aside.
Neither Administrative Agent nor any Lender
shall be under any obligation to marshal any assets in favor
of Borrower or any other party or against or in payment of
any or all of the Obligations. To the extent that Borrower
makes a payment or payments to Administrative Agent or
Lenders (or to Administrative Agent for the benefit of
Lenders), or Administrative Agent or Lenders enforce any
security interests or exercise their rights of set-off, and such
payment or payments or the proceeds of such enforcement
or set-off or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other
party under any bankruptcy law, any other state or federal
law, common law or any equitable cause, then, to the
extent of such recovery, the obligation or part thereof
originally intended to be satisfied, and all Liens, rights and
remedies therefor or related thereto, shall be revived and
continued in full force and effect as if such payment or
payments had not been made or such enforcement or set-off
had not occurred.
10.12 Severability.
In case any provision in or obligation under this
Agreement or the Notes shall be invalid, illegal or un-
enforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or
of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby.
10.13 Obligations Several; Independent Nature of
Lenders' Rights.
The obligations of Lenders hereunder are several
and no Lender shall be responsible for the obligations or
Commitment of any other Lender hereunder. Nothing
contained herein or in any other Loan Document, and no
action taken by Lenders pursuant hereto or thereto, shall be
deemed to constitute Lenders as a partnership, an
association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Lender shall
be a separate and independent debt, and each Lender shall
be entitled to protect and enforce its rights arising out of
this Agreement and it shall not be necessary for any other
Lender to be joined as an additional party in any
proceeding for such purpose.
10.14 Headings.
Section and Section headings in this Agreement
are included herein for convenience of reference only and
shall not constitute a part of this Agreement for any other
purpose or be given any substantive effect.
10.15 Applicable Law.
THIS AGREEMENT SHALL BE GOVERNED
BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF NEVADA, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES.
10.16 Successors and Assigns.
This Agreement shall be binding upon the parties
hereto and their respective successors and assigns and shall
inure to the benefit of the parties hereto and the successors
and assigns of Lenders (it being understood that Lenders'
rights of assignment are subject to Section 10.1). Neither
Borrower's rights or obligations hereunder nor any interest
therein may be assigned or delegated by Borrower without
the prior written consent of all Lenders.
10.17 Consent to Jurisdiction and Service of Process.
ALL JUDICIAL PROCEEDINGS BROUGHT
AGAINST BORROWER ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT OR ANY OBLIGATION May BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE STATE OF
NEVADA, AND BY EXECUTION AND DELIVERY OF
THIS AGREEMENT BORROWER ACCEPTS FOR
ITSELF AND IN CONNECTION WITH ITS PROPER-
TIES, GENERALLY AND UNCONDITIONALLY, THE
EXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS AND WAIVES ANY DEFENSE OF FORUM
NON CONVENIENS AND IRREVOCABLY AGREES TO
BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH THIS AGREE-
MENT, SUCH OTHER LOAN DOCUMENT OR SUCH
OBLIGATION. Borrower hereby agrees that service of all
process in any such proceeding in any such court may be
made by registered or certified mail, return receipt
requested, to Borrower at its address provided in
Section 10.8, such service being hereby acknowledged by
Borrower to be sufficient for personal jurisdiction in any
action against Borrower in any such court and to be
otherwise effective and binding service in every respect.
Nothing herein shall affect the right to serve process in any
other manner permitted by law.
10.18 Waiver of Jury Trial.
EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY OF
THE OTHER LOAN DOCUMENTS OR ANY
DEALINGS BETWEEN THEM RELATING TO THE
SUBJECT MATTER OF THIS LOAN TRANSACTION
OR THE LENDER/BORROWER RELATIONSHIP THAT
RELATES HERETO. The scope of this waiver is intended
to be all-encompassing of any and all disputes that may be
filed in any court and that relate to the subject matter of
this transaction, including without limitation contract
claims, tort claims, breach of duty claims and all other
common law and statutory claims. Each party hereto
acknowledges that this waiver is a material inducement to
enter into a business relationship, that each has already
relied on this waiver in entering into this Agreement, and
that each will continue to rely on this waiver in their related
future dealings. Each party hereto further warrants and
represents that it has reviewed this waiver with its legal
counsel and that it knowingly and voluntarily waives its
jury trial rights following consultation with legal counsel.
THIS WAIVER IS IRREVOCABLE, MEANING THAT IT
May NOT BE MODIFIED EITHER ORALLY OR IN
WRITING, AND THIS WAIVER SHALL APPLY TO
ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THE LOANS MADE
HEREUNDER. In the event of litigation, this Agreement
may be filed as a written consent to a trial by the court.
10.19 Confidentiality.
Each Lender shall hold all non-public information
obtained pursuant to the requirements of this Agreement
which has been identified as confidential by Borrower in
accordance with such Lender's customary procedures for
handling confidential information of this nature and in
accordance with safe and sound banking practices, it being
understood and agreed by Borrower that in any event a
Lender may make disclosures reasonably required by any
bona fide assignee, transferee or participant in connection
with the contemplated assignment or transfer by such
Lender of any Loans or any participation therein or as
required or requested by any governmental agency or repre-
sentative thereof or pursuant to legal process; provided that,
unless specifically prohibited by applicable law or court
order, each Lender shall notify Borrower of any request by
any governmental agency or representative thereof (other
than any such request in connection with any examination
of the financial condition of such Lender by such
governmental agency) for disclosure of any such non-public
information prior to disclosure of such information; and
provided, further that in no event shall any Lender be
obligated or required to return any materials furnished by
Borrower or any of its Subsidiaries. In addition, Borrower
hereby authorizes each Lender to share any information
delivered to such Lender by Borrower and its Subsidiaries
pursuant to this Agreement or the Loan Documents to
Subsidiaries and Affiliates of that Lender in connection with
the bona fide provision or attempted provision of services
by the Subsidiaries and Affiliates of that Lender to the
Borrower and its Affiliates provided that each such
Subsidiary and Affiliate shall agree to be bound by this
Section.
10.20 Counterparts; Effectiveness.
This Agreement and any amendments, waivers,
consents or supplements hereto or in connection herewith
may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute
but one and the same instrument; signature pages may be
detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are
physically attached to the same document. This Agreement
shall become effective upon the execution of a counterpart
hereof by each of the parties hereto and receipt by
Borrower and Administrative Agent of written or telephonic
notification of such execution and authorization of delivery
thereof.
10.21 Non-Recourse to General Partners.
Notwithstanding any term or provision of the
Loan Documents or of applicable law to the contrary, the
holders of the Obligations shall not have recourse to the
General Partners (or either of them) for payment thereof,
provided that this Section 10.21 shall not limit or impair
(i) recourse to the General Partners (or either of them) by
the holders of the Obligations for any fraud, gross
negligence, or willful misconduct of the General Partners
(or either of them), (ii) any cause of action such holders
may have other than an action to collect the Obligations,
(iii) the exercise or enforcement of rights and remedies in
respect of any Collateral granted under the Loan
Documents, including, without limitation, any collateral
rights granted to Lenders in any claims or causes of action
of Borrower against the General Partners (or either of
them), (iv) the terms and provisions of any Subordinated
Indebtedness issued to General Partners (or either of them)
and (v) the terms of the Environmental Indemnities to
which the General Partners are party.
10.22 Cooperation With Gaming Boards.
Administrative Agent and each Lender agree to
cooperate with all Gaming Boards in connection with the
administration of their regulatory jurisdiction over any Loan
Party, including the provision of such documents or other
information as may be requested by any such Gaming
Board relating to any Loan Party or to the Loan
Documents.
10.23 Principles of Restatement; Assignment by Prior
Agent. This Agreement amends and restates the Existing
Credit Agreement referred to in the recitals in its entirety,
and constitutes the integrated agreement of the parties
hereto, provided that this Agreement shall not result in the
release of any collateral security or guarantees given in
support of the Existing Credit Agreement, the benefits of
which are hereby reserved by the Lenders and regranted by
Borrower. The Prior Agent hereby assigns to the
Administrative Agent, without recourse, representation or
warranty of any kind, all of its interest as Agent under the
Existing Credit Agreement under the Collateral Documents,
to be held by the Administrative Agent for the ratable
benefit of the Lenders hereunder (including Wells Fargo
Bank, N.A.) in accordance with their Pro Rata Shares.
Without limitation on the foregoing provisions of this
Section, it is acknowledged and agreed that the
Administrative Agent and the Lenders shall have the
continuing benefit of the Assignment of General
Contractor's Contract and all assurances provided by the
Architect and the Auditors in connection with this
Agreement and the other Loan Documents.
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed and delivered by
their respective officers thereunto duly authorized as of the
date first written above.
BORROWER:
CIRCUS AND ELDORADO JOINT VENTURE
By: GALLEON, INC.
Its: Managing Partner
By: Glenn Schaeffer
Title: President
Notice Address:
c/o Circus Circus Enterprises, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: General Counsel
By: ELDORADO LIMITED LIABILITY
COMPANY
Its: General Partner
By: ELDORADO RESORTS LLC
Its: Manager
By: Donald Carano
Title: _______________________
Notice Address:
c/o Eldorado Resorts LLC
345 N. Virginia Street
P.O. Box 3399
Reno, Nevada 89508
Attention: General Counsel
EXECUTIVE COMMITTEE
By: Gary Carano
Title: General Manager
By: Bruce Sexton
Title: Director of Finance and Administration
LENDERS:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Administrative
Agent
By: Janice Hammond
Title: Vice President
Notice Address:
555 South Flower Street, 11th Floor
Los Angeles, California 90071
Attention: Janice Hammond, Vice President
Telephone (213) 228-9681
Telecopier (213) 228-2299
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Lender
By: Scott Faber
Title: Vice President
Notice Address:
555 South Flower Street, 11th Floor
Los Angeles, California 90071
Attention: Scott Faber, Vice President
Telephone (213) 228-2768
Telecopier (213) 228-2299
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
WELLS FARGO BANK, N.A., as Prior Agent
and as a Lender
By: Kathleen Stone
Title: Vice President
Address for notices:
3800 Howard Hughes Parkway
Las Vegas, NV 89109
____________________________
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., LOS ANGELES AGENCY
By: Noboru Akahane
Title: Deputy General Manager
Notice Address:
350 South Grand Avenue, Suite 3000
Los Angeles, CA 90071
Attention: Noboru Akahane
SOCIETE GENERALE
By: Donald L. Schubert
Title: Vice President
Notice Address:
2029 Century Park East, Suite 2900
Los Angeles, CA 90067
Attention: Don Schubert
CIBC INC.
By: Cheryl L. Root
Title: Executive Director
Notice Address:
425 Lexington Avenue
New York, New York 10017
Attention: Cheryl Root
With a copy to:
350 S. Grand Avenue, Suite 2600
Los Angeles, CA 90071
Attention: Paul J. Chakmak
CREDIT LYONNAIS LOS ANGELES BRANCH
By: Robert Ivosevich
Title: Senior Vice President
Notice Address:
Credit Lyonnais Los Angeles Branch
515 South Flower Street
Los Angeles, CA 90071
Attention: Glenn Harvey
THE SUMITOMO BANK, LIMITED
By: Bradford E. Chambers
Title: Vice President
By: Frantz Osse
Title: Vice President & Manager
Notice Address:
800 West Sixth Street, Suite 950
Los Angeles, CA 90017
Attention: ____________________
FIRST SECURITY BANK, N.A.
By: David P. Williams
Title: Vice President
Notice Address:
Second Floor
15 East One Hundred South
Salt Lake City, Utah 84111
Attn: David Williams
PNC BANK, NATIONAL ASSOCIATION
By: Denise D. Killen
Title: Vice President
Notice Address:
Two Tower Center
East Brunswick, New Jersey 08816
Attention: Denise D. Killen
U.S. BANK, NATIONAL ASSOCIATION
By: Kurt Imerman
Title: Senior Vice President
Notice Address:
1 East Liberty Street, 2nd Floor
Reno, NV 89501
Attention: Kurt Imerman
CITY NATIONAL BANK
By: George Hayrapetian
Title: Vice President
Notice Address:
400 North Roxbury Drive
3rd Floor
Beverly Hills, CA 90210
Attention: George Hayrapetian
EXHIBIT D
[FORM OF NOTE]
PROMISSORY NOTE
$________________ _________________, 1997
Reno, Nevada
FOR VALUE RECEIVED, CIRCUS AND
ELDORADO JOINT VENTURE, a Nevada general
partnership ("Borrower"), promises to pay to the order of
____________________ ("Payee") or its registered
assigns, on or before the Commitment Termination Date,
the lesser of
(x)________________________________________
($__________) and (y) the unpaid principal amount of all
advances made by Payee to Borrower as Loans under the
Credit Agreement referred to below.
Borrower also promises to pay interest on the
unpaid principal amount hereof, from the date hereof until
paid in full, at the rates and at the times which shall be
determined in accordance with the provisions of that
certain Amended and Restated Credit Agreement (as
amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"), dated as of November
24, 1997 by and among Borrower, BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Administrative Agent ("Agent"), and the financial
institutions listed therein as Lenders. Capitalized terms
used but not otherwise defined herein shall have the
meanings given them in the Credit Agreement.
This Note is one of Borrower's "Notes" in the
aggregate principal amount of $230,000,000 and is issued
pursuant to, and entitled to the benefits of, the Credit
Agreement, to which reference is hereby made for a more
complete statement of the terms and conditions under
which the Loans evidenced hereby were made and are to
be repaid.
All payments of principal and interest in respect of
this Note shall be made in lawful money of the United
States of America in same day funds at the Funding and
Payment Office or at such other place as shall be
designated in writing for such purpose in accordance with
the terms of the Credit Agreement. Unless and until and
Assignment Agreement effecting the assignment or
transfer of this Note shall have been accepted by the
Agent and recorded in the Register as provided in
subsection 10.1B(ii) of the Credit Agreement, Borrower
and Agent shall be entitled to deem and treat Payee as the
owner and holder of this Note and the Loans evidenced
hereby. Payee shall use its best efforts to keep a record
of Loans made by it and payments received by it with
respect to this Note, and, absent manifest error, such
record shall be presumptive evidence of the amounts
owing under this Note.
Whenever any payment on this Note shall be
stated to be due on a day that is not a Business Day, such
payment shall be made on the next succeeding Business
Day and such extension of time shall be included in the
computation of the payment of interest on this Note;
provided, however, that if the day on which any payment
relating to a Eurodollar Rate Loan is due is not a Business
Day but is a day of the month after which no further
Business Day occurs in such month, then the due date
thereof shall be the next preceding Business Day.
The holders of the Obligations do not have
recourse to the General Partners (or either of them) for
payment thereof other than as specifically set forth in the
Credit Agreement.
This Note is subject to mandatory prepayment as
provided in subsection 2.4B(iii) of the Credit Agreement
and to prepayment at the option of Borrower as provided
in subsection 2.4B(i) of the Credit Agreement.
THE CREDIT AGREEMENT AND THIS NOTE
SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF
NEVADA, WITHOUT REGARD TO CONFLICTS OF
LAW PRINCIPLES.
Upon the occurrence of an Event of Default, the
unpaid balance of the principal amount of this Note,
together with all accrued and unpaid interest thereon, may
become, or may be declared to be, due and payable in the
manner, upon the conditions and with the effect provided
in the Credit Agreement.
The terms of this Note are subject to amendment
only in the manner provided in the Credit Agreement.
No reference herein to the Credit Agreement and
no provision of this Note or the Credit Agreement shall
alter or impair the obligations of Borrower, which are
absolute and unconditional, to pay the principal of and
interest on this Note at the place, at the respective times,
and in the currency herein prescribed.
Borrower promises to pay all costs and expenses,
including reasonable attorneys' fees, all as provided in
subsection 10.2 of the Credit Agreement, incurred in the
collection and enforcement of this Note. Borrower and
any endorsers of this Note hereby consent to renewals and
extensions of time at or after the maturity hereof, without
notice, and hereby waive diligence, presentment, protest,
demand and notice of every kind and, to the full extent
permitted by law, the right to plead any statute of
limitations as a defense to any demand hereunder.
IN WITNESS WHEREOF, Borrower has caused
this Note to he duly executed and delivered by an officer
of its Managing Partner duly authorized as of the date and
at the place first written above.
CIRCUS AND ELDORADO JOINT VENTURE
By: GALLEON, INC.
Its: Managing Partner
By:
Title:
By: ELDORADO LIMITED LIABILITY
COMPANY
Its: General Partner
By: ELDORADO RESORTS LLC, a
Nevada limited liability company
Its: Manager
By:
Title:
By: EXECUTIVE COMMITTEE
By:
Title:
By:
Title:
AMENDED AND RESTATED MAKE-WELL
AGREEMENT
This AMENDED AND RESTATED MAKE-
WELL AGREEMENT is entered into as of November 24,
1997 by CIRCUS CIRCUS ENTERPRISES, INC., a
Nevada corporation ("Circus"), in favor of BANK OF
AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, in its capacity as agent for and
representative of (in such capacity herein called
"Administrative Agent") the financial institutions
("Lenders") party to the Credit Agreement (as hereinafter
defined), for the benefit of Administrative Agent and
Lenders, and CIRCUS AND ELDORADO JOINT
VENTURE, a Nevada general partnership ("Borrower")
(as an express third-party beneficiary of this Make-Well
Agreement), and amends and restates the Existing Make-
Well Agreement referred to below in its entirety.
RECITALS
X. Borrower entered into that certain Amended and
Restated Credit Agreement dated as of September 9, 1996,
with the lenders referred to therein, Wells Fargo Bank,
N.A., as Agent, and the Co-Agents and Managing Agents
therein named (as amended, the "Existing Credit
Agreement").
Y. Pursuant to the Existing Credit Agreement, Circus
delivered an Amended and Restated Make-Well
Agreement dated September 9, 1996 to the lenders under
the Existing Credit Agreement (the "Existing Make-Well
Agreement").
Z. Concurrently with the execution hereof, Borrower
has entered into that certain Amended and Restated Credit
Agreement of even date herewith with Lenders and
Administrative Agent to amend and restate the Existing
Credit Agreement in its entirety (said Amended and
Restated Credit Agreement, as it may hereafter be
amended, supplemented or otherwise modified from time
to time, being the "Credit Agreement"; capitalized terms
defined therein and not otherwise defined herein being
used herein as therein defined).
AA. It is a condition precedent to execution and
delivery of the Credit Agreement that the Existing Make-
Well Agreement be amended as set forth herein and that
Circus thereby provide assurance to the Lenders of
Borrower's ability to perform certain of its obligations
thereunder.
AB. Circus is irrevocably and unconditionally willing
to provide such assurance, subject to the right of Circus to
terminate this Agreement in the manner, and upon the
fulfillment of the conditions, set forth in Section 2.14
hereof.
NOW, THEREFORE, based upon the foregoing
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in
order to induce Lenders and Administrative Agent to enter
into the Credit Agreement and to make the Loans
thereunder, Circus hereby agrees as follows:
SECTION 1. DEFINITIONS
1.1 Certain Defined Terms. As used in this
Make-Well Agreement, the following terms shall have the
following meanings unless the context otherwise requires:
"Additional Contributions" has the meaning
assigned to that term in Section 2.1.
"Make-Well Agreement" means, as of any date,
this Amended and Restated Make-Well Agreement as it
may be amended, supplemented or otherwise modified
from time to time through such date.
"Make-Well Coverage Ratio" has the meaning set
forth for that term in the Credit Agreement; provided
that any contribution of cash to Borrower by Circus in
exchange for equity of Borrower or General Partner
Subordinated Debt shall be included, without duplication,
in Net Income for the Fiscal Quarter in which such
contribution is made (or, if made within 25 calendar days
of the end of a Fiscal Quarter, for such Fiscal Quarter
immediately ended if Circus notifies Administrative
Agent in writing at the time of such contribution that
such contribution is to be so credited).
"Make-Well Obligations" has the meaning
assigned to that term in Section 2.1.
"Minimum Coverage Ratio" has the meaning
assigned to that term in Section 2.1.
"Obligations" has the meaning assigned such term
in the Credit Agreement and shall also include, without
limitation, Borrower's performance obligations
thereunder, including without limitation, its obligation to
perform Section 7.6A thereof.
"payment in full", "paid in full" or any similar
term means the indefeasible payment in full of the
Obligations or the Make-Well Obligations, as the case
may be, including, without limitation, all principal,
interest, costs, fees, expenses and indemnities (including,
without limitation, legal fees and expenses) of Lenders
and Administrative Agent as required under the Loan
Documents.
1.2 Interpretation.
a. References to "Sections" shall be to
Sections of this Make-Well Agreement unless otherwise
specifically provided.
b. In the event of any conflict or
inconsistency between the terms, conditions and provisions
of this Make-Well Agreement and the terms, conditions
and provisions of the Credit Agreement, the terms,
conditions and provisions of this Make-Well Agreement
shall prevail.
SECTION 2. MAKE-WELL
2.1 Obligation of Circus. Until the termination
of this Agreement in accordance with Section 2.14 hereof,
Circus shall make Additional Contributions (as defined
below) to Borrower in such amounts as are necessary to
ensure that Borrower maintains a Make-Well Coverage
Ratio of at least 1.05:1.00 ("Minimum Coverage Ratio")
as of the last day of each Fiscal Quarter for the period of
four Fiscal Quarters then ended. If, at any time prior to
the termination of this Agreement in accordance with
Section 2.14 hereof, or the termination of all of the
Commitments, payment in full of all Loans and other
Obligations and the expiration or cancellation of all
Letters of Credit (or the deposit of cash collateral with
respect thereto), Borrower fails to maintain the Minimum
Coverage Ratio, Circus shall make additional contributions
of cash for equity of Borrower or General Partner
Subordinated Debt or both (with the manner in which the
Additional Contributions are so made to be in the
discretion of Circus) in the amount necessary for
Borrower to maintain the Minimum Coverage Ratio (such
additional contributions, "Additional Contributions").
Circus' obligations to make such Additional Contributions
are referred to herein as the "Make-Well Obligations."
Circus shall make such Additional Contributions
no later than 10 Business Days after (i) the date on which
Borrower delivers a Compliance Certificate pursuant to
Section 6.1(iv) of the Credit Agreement demonstrating
Borrower's failure to maintain such Minimum Coverage
Ratio or, (ii) if Borrower fails to deliver a Compliance
Certificate by the date required pursuant to Section 6.1(iv)
of the Credit Agreement, on the date upon which
Administrative Agent determines that the Make-Well
Coverage Ratio was less than the Minimum Coverage
Ratio (which determination shall be presumed correct
unless and until Circus demonstrates the inaccuracy
thereof) and notifies Circus of the same. If Circus fails to
make Additional Contributions on the date required,
interest shall accrue on the amount of Additional
Contributions at a rate per annum equal to the Base Rate
until such Additional Contributions are made to Borrower;
provided that all such interest accrued to the date such
Additional Contributions are made shall be paid to
Borrower together therewith and shall be treated as a cash
contribution to Borrower in exchange for equity of
Borrower or General Partner Subordinated Debt or,
without duplication, both.
In the event that Circus, in its discretion, elects to
make Additional Contributions in the form of General
Partner Subordinated Debt, Borrower hereby agrees that it
will execute and deliver (and Circus agrees that it shall
accept as evidence of such General Partner Subordinated
Debt) the following:
(a) a Loan Agreement, substantially in the form of the
Credit Agreement dated as of May 30, 1995 between
Borrower and Circus, together with a promissory note in
the form contemplated thereby;
(b) a Deed of Trust, substantially in the form of the
Construction Deed of Trust dated May 30, 1995 made by
Borrower for the benefit of Circus; and
(c) a Security Agreement, substantially in the form of
the Security Agreement dated May 30, 1995 made by
Borrower in favor of Circus;
(d) Financing Statements, fixture financing statements
and other instruments, documents and agreements
necessary or desirable to perfect the liens granted by
Borrower to Circus in connection therewith, in each case
substantially in the form delivered on May 30, 1995; and
(e) an Environmental Indemnity, substantially in the
form of the Environmental Indemnity dated May 30,
1995 made by Borrower in favor of Circus.
Circus and Borrower further agree that, concurrently with
the execution and delivery of such agreements, they shall
execute and deliver in favor of the Administrative Agent
and the Lenders a Subordination Agreement, substantially
in the form of Exhibit B hereto.
All changes to the above documents from the forms
delivered as of May 30, 1995 shall be reasonably
acceptable to the Administrative Agent and its legal
counsel, and any and all such agreements shall be
executed and delivered within the time frames set forth
herein for the making of Additional Contributions.
2.2 Liability of Circus Absolute. Circus agrees
that its obligations hereunder are irrevocable, absolute,
independent and unconditional and shall not be affected by
any circumstance which constitutes a legal or equitable
discharge of a guarantor or surety other than payment in
full and prompt and complete performance of the
Obligations, subject, however, to the right of Circus to
terminate this Agreement in the manner, and upon the
fulfillment of the conditions, set forth in Section 2.14
hereof.
In furtherance of the foregoing and without
limiting the generality thereof, Circus agrees as follows:
(a) This Make-Well Agreement is not
conditioned or contingent upon the genuineness, validity,
regularity or enforceability of the Loan Documents or
other instruments relating to the creation or performance
of the Obligations or the pursuit by Administrative Agent
of any remedies that it now has or may hereafter have
with respect thereto under the Loan Documents, at law,
in equity or otherwise.
(b) Administrative Agent may enforce
this Make-Well Agreement upon the occurrence of an
Event of Default or Default under Section 7.6A of the
Credit Agreement even if Borrower, any Loan Party or
any Borrower Parent disputes the existence of such Event
of Default or Default.
(c) The obligations of Circus hereunder
are independent of the obligations of Borrower under the
Loan Documents and the obligations of any other
guarantor of the obligations of Borrower under the Loan
Documents, and a separate action or actions may be
brought and prosecuted against Circus whether or not
any action is brought against Borrower or any of such
other guarantors and whether or not Borrower is joined
in any such action or actions.
(d) Circus' payment of a portion, but not
all, of the Make-Well Obligations shall in no way limit,
affect, modify or abridge Circus' liability for any portion
of the Make-Well Obligations which has not been paid.
Without limiting the generality of the foregoing, if
Administrative Agent is awarded a judgment in any suit
brought to enforce Circus' covenant to pay a portion of
the Make-Well Obligations, such judgment shall not be
deemed to release Circus from its covenant to pay the
portion of the Make-Well Obligations that is not the
subject of such suit.
(e) Administrative Agent, upon such
terms as it deems appropriate, without notice or demand
and without affecting the validity or enforceability of this
Make-Well Agreement or giving rise to any reduction,
limitation, impairment, discharge or termination of
Circus' liability hereunder, from time to time may
(i) renew, extend, accelerate, increase the rate of interest
on, or otherwise change the time, place, manner or
terms of payment or performance of the Obligations
subject to the limitations set forth in the Credit
Agreement; provided that, at any time after Galleon, Inc.
ceases to be Managing Partner, unless Circus has
received prior notice of any such change with respect to
the performance standard required of Borrower under
7.6A of the Credit Agreement that would increase the
amount of the Additional Contributions that would
otherwise have been necessary to fulfill the Make-Well
Obligations, Circus' obligations hereunder shall be
limited to making the amount of Additional Contributions
necessary to fulfill the Make-Well Obligations prior to
such change; (ii) settle, compromise, release or
discharge, or accept or refuse any offer of performance
with respect to, or substitutions for, the Obligations or
the Make-Well Obligations or any agreement relating
thereto and/or subordinate the payment or performance
of the same to the payment or performance of any other
obligations; (iii) request and accept other guaranties of
the Obligations or the performance of Section 7.6A of
the Credit Agreement and take and hold security for the
payment of the Make-Well Obligations or the
Obligations; (iv) release, surrender, exchange, substitute,
compromise, settle, rescind, waive, alter, subordinate or
modify, with or without consideration, any security for
payment or performance of the Obligations, any other
guaranties of the Obligations or the performance of
Section 7.6A of the Credit Agreement, or any other
obligation of any Person with respect to the Obligations
or the performance of Section 7.6A of the Credit
Agreement; (v) enforce and apply any security now or
hereafter held by or for the benefit of Administrative
Agent or any Lender in respect of this Make-Well
Agreement or the performance of the Obligations and
direct the order or manner of sale thereof, or exercise
any other right or remedy that Administrative Agent or
Lenders, or any of them, may have against any such
security, as Administrative Agent in its discretion may
determine consistent with the Credit Agreement and any
applicable security agreement; and (vi) exercise any
other rights available to it under the Loan Documents.
(f) This Make-Well Agreement and the
obligations of Circus hereunder shall be valid and
enforceable and shall not be subject to any reduction,
limitation, impairment, discharge or termination for any
reason (other than payment in full and prompt and
complete performance of the Obligations or, only as to
the portion paid, payment of a portion of the Make-Well
Obligations for any relevant period), including without
limitation the occurrence of any of the following,
whether or not Circus shall have had notice or
knowledge of any of them: (i) any failure or omission to
assert or enforce or agreement or election not to assert
or enforce, or the stay or enjoining, by order of court,
by operation of law or otherwise, of the exercise or
enforcement of, any claim or demand or any right,
power or remedy (whether arising under the Loan
Documents, at law, in equity or otherwise) with respect
to the Obligations, the Make-Well Obligations or any
agreement relating thereto, or with respect to any other
guaranty of or security for the payment of the
Obligations; (ii) any rescission, waiver, amendment or
modification of, or any consent to departure from, any of
the terms or provisions (including without limitation
provisions relating to events of default) of the Credit
Agreement, any of the other Loan Documents or any
agreement or instrument executed pursuant thereto, or of
any other guaranty or security for the Obligations, or of
the obligations encompassed thereby, in each case
whether or not in accordance with the terms of the
Credit Agreement or such Loan Document or any
agreement relating to such other guaranty or security;
(iii) the Obligations, or any agreement relating thereto, at
any time being found to be illegal, invalid or
unenforceable in any respect; (iv) the application of
payments received from any source to the payment of
indebtedness other than the Obligations, even though
Administrative Agent or Lenders, or any of them, might
have elected to apply such payment to any part or all of
the Obligations; (v) any Lender's or Administrative
Agent's consent to the change, reorganization or
termination of the legal structure or existence of
Borrower and to any corresponding restructuring of the
Obligations; (vi) any failure to perfect or continue
perfection of a security interest in any collateral which
secures any of the Obligations; (vii) any defenses, set-
offs or counterclaims which Borrower may allege or
assert against Administrative Agent or any Lender in
respect of the Obligations, including but not limited to
failure of consideration, breach of warranty, payment,
statute of frauds, statute of limitations, accord and
satisfaction and usury; and (viii) any other act or thing or
omission, or delay to do any other act or thing, which
may or might in any manner or to any extent vary the
risk of Circus as an obligor in respect of the Make-Well
Obligations.
2.3 Waivers by Circus. Circus hereby waives,
for the benefit of Lenders and Administrative Agent:
(a) any right to require Administrative
Agent or Lenders, as a condition of payment or
performance by Circus, to (i) proceed against Borrower,
any other guarantor of the Obligations or any other
Person, (ii) proceed against or exhaust any security held
from Borrower, any other guarantor of the Obligations
or any other Person, (iii) proceed against or have resort
to any balance of any deposit account or credit on the
books of Administrative Agent or any Lender in favor of
Borrower or any other Person, or (iv) pursue any other
remedy in the power of Administrative Agent or any
Lender whatsoever;
(b) any defense arising by reason of the
incapacity, lack of authority or any disability or other
defense of Borrower including, without limitation, any
defense based on or arising out of the lack of validity or
the unenforceability of the Obligations or any agreement
or instrument relating thereto or by reason of the
cessation of the liability of Borrower from any cause
other than payment in full of the Obligations;
(c) any defense based upon any statute
or rule of law which provides that the obligation of a
surety must be neither larger in amount nor in other
respects more burdensome than that of the principal;
(d) any defense based upon
Administrative Agent's or any Lender's errors or
omissions in the administration of the Obligations, except
behavior which amounts to willful misconduct;
(e) (i) any principles or provisions of
law, statutory or otherwise, which are or might be in
conflict with the terms of this Make-Well Agreement and
any legal or equitable discharge of Circus' obligations
hereunder, (ii) any rights to set-offs, recoupment and
counterclaims, and (iii) promptness, diligence and any
requirement that Administrative Agent or any Lender
protect, secure, perfect or insure any security interest or
lien or any property subject thereto:
(f) notices, demands, presentments,
protests, notices of protest, notices of dishonor and
notices of any action or inaction, including acceptance of
this Make-Well Agreement, notices of default under the
Credit Agreement or any agreement or instrument related
thereto, notices of any renewal, extension or
modification of the Obligations or any agreement related
thereto, notices of any extension of credit to Borrower
and notices of any of the matters referred to in Section
2.2 and any right to consent to any thereof: and
(g) any defenses or benefits that may be
derived from or afforded by law which limit the liability
of or exonerate guarantors or sureties, or which may
conflict with the terms of this Make-Well Agreement,
including without limitation the provisions of Nevada
Revised Statutes Sections 40.430-40.459, 40.475 and
40.485 as permitted by Nevada Revised Statutes Sections
40.495 (1993), and any successor provisions.
2.4 Circus' Rights of Subrogation,
Contribution, Etc. Circus and Borrower hereby expressly
agree that any Additional Contributions made by Circus
pursuant to this Make-Well Agreement shall be made in
exchange for equity of Borrower or General Partner
Subordinated Debt or, without duplication, both (as
determined by Circus), and Circus shall not be entitled to
any right of subrogation, contribution or reimbursement
from any Person (including without limitation, Borrower,
Administrative Agent, any Lender or any guarantor) with
respect to such Additional Contributions until this Make-
Well Agreement has been terminated pursuant to Section
2.8 hereof; provided that to the extent Circus receives
General Partner Subordinated Debt in exchange for
Additional Contributions, Circus shall be entitled (subject
to Section 2.5 below) to such reimbursement as is
permitted pursuant to the Subordinated Debt Documents;
provided further that such entitlement shall cease upon the
occurrence and during the continuance of an Event of
Default or Default.
2.5 Real Property Security. Circus agrees that,
if all or a portion of the Obligations or any other guaranty
of all or a portion of the Obligations are at any time
secured by a deed of trust or mortgage covering interests
in real property, then, in the event that Additional
Contributions are not made when required pursuant to
Section 2.1, Administrative Agent or its designee, in its
sole discretion, without notice or demand and without
affecting the liability of Circus, may foreclose at any time
thereafter, pursuant to the terms of the Loan Documents
(including Section 7.6A of the Credit Agreement) or
otherwise in accordance with applicable law, on any such
deed of trust or mortgage and the property described
therein by nonjudicial or other sale without affecting the
obligations of Circus hereunder. Without limiting any of
the waivers contained elsewhere herein, Circus hereby
waives any defense to liability arising by reason of the
exercise by Lenders or Administrative Agent or any of
them, of any right or remedy contained in any such deed
of trust or mortgage or any of the other Loan Documents.
Circus hereby authorizes and empowers Administrative
Agent and any Lender to exercise, in its sole discretion,
any rights or remedies, or any combination thereof, which
may then be available, since it is the intent and purpose of
Circus that its obligations hereunder shall be absolute,
independent and unconditional under any and all
circumstances, subject, only, to the right of Circus to
terminate this Agreement in the manner, and upon the
fulfillment of the conditions, set forth in Section 2.14
hereof. Notwithstanding any foreclosure of the lien of
any such deed of trust or mortgage, whether by the
exercise of the power of sale contained therein, by an
action for judicial foreclosure, or by acceptance of a deed
in lieu of foreclosure, Circus shall remain bound under
this Make-Well Agreement; provided the net proceeds of
any such exercise of remedies shall be deducted from the
Obligations to the extent such proceeds are applied to
reduce the Obligations in any calculation of amounts
owing from Circus under the terms of this Make-Well
Agreement.
2.6 Expenses. Circus agrees to pay, or cause
to be paid, on demand, and to save Administrative Agent
and Lenders harmless against liability for, any and all
costs and expenses (including fees and disbursements of
counsel and allocated costs of internal counsel) incurred or
expended by Administrative Agent or any Lender in
connection with the enforcement of or preservation of any
rights under this Make-Well Agreement.
2.7 Continuing Guaranty. This Make-Well
Agreement is a continuing guaranty and, subject to Section
2.14, shall remain in effect until all of the Obligations
shall have been paid in full in cash by Circus, Borrower
or otherwise and promptly and completely performed and
the Commitments shall have terminated and all Letters of
Credit shall have expired or been canceled. Circus'
liability under this Make-Well Agreement shall not be
reduced by virtue of any payment by Borrower of any
amounts due under the Credit Agreement (other than a
payment that increases the actual Make-Well Coverage
Ratio maintained by Borrower) or under any of the Loan
Documents or by Administrative Agent's or Lenders'
recourse to any collateral or security. Circus hereby
irrevocably waives any right to revoke this Make-Well
Agreement as to future transactions giving rise to any
Make-Well Obligations.
2.8 Authority of Circus or Borrower. It is not
necessary for Lenders or Administrative Agent to inquire
into the capacity or powers of Circus or Borrower or the
officers, directors or any Administrative Agents acting or
purporting to act on behalf of any of them.
2.9 Financial Condition of Borrower. Any
Loans may be granted to Borrower or continued from time
to time without notice to or authorization from Circus
regardless of the financial or other condition of Borrower
at the time of any such grant or continuation. Lenders
and Administrative Agent shall have no obligation to
disclose or discuss with Circus their assessment, or
Circus' assessment, of the financial condition of
Borrower; provided that Administrative Agent shall give
notice to Circus of any reduction of Commitments or
change in the final maturity of the Loans; provided,
further, that the failure of Administrative Agent to so
notify Circus shall not affect the obligations of Circus
hereunder. Circus has adequate means to obtain
information from Borrower on a continuing basis
concerning the financial condition of Borrower and its
ability to perform its obligations under the Loan
Documents (including, without limitation, its obligations
to satisfy its financial covenants), and Circus assumes the
responsibility for being and keeping informed of the
financial condition of Borrower and of all circumstances
bearing upon the risk of nonpayment or nonperformance
of the Obligations. Circus hereby waives and relinquishes
any duty on the part of Administrative Agent or any
Lender to disclose any matter, fact or thing relating to the
business, operations or conditions of Borrower now
known or hereafter known by Administrative Agent or any
Lender.
2.10 Rights Cumulative. The rights, powers and
remedies given to Lenders and Administrative Agent by
this Make-Well Agreement are cumulative and shall be in
addition to and independent of all rights, powers and
remedies given to Lenders and Administrative Agent by
virtue of any statute or rule of law or in any of the other
Loan Documents or any agreement between Circus and
Lenders and/or Administrative Agent or between
Borrower and Lenders and/or Administrative Agent. Any
forbearance or failure to exercise, and any delay by any
Lender or Administrative Agent in exercising, any right,
power or remedy hereunder shall not impair any such
right, power or remedy or be construed to be a waiver
thereof, nor shall it preclude the further exercise of any
such right, power or remedy.
2.11 Bankruptcy. So long as any Obligations
remain outstanding, Circus shall not, without the prior
written consent of Administrative Agent in accordance
with the terms of the Credit Agreement, commence or join
with any other Person in commencing any bankruptcy,
reorganization or insolvency proceedings of or against
Borrower. The obligations of Circus under this Make-
Well Agreement shall not be reduced, limited, impaired,
discharged, deferred, suspended or terminated by any
proceeding, voluntary or involuntary, involving the
bankruptcy, insolvency, receivership, reorganization,
liquidation or arrangement of Borrower or by any defense
which Borrower may have by reason of the order, decree
or decision of any court or administrative body resulting
from any such proceeding.
2.12 Notice of Events. As soon as Circus
obtains knowledge thereof, Circus shall give
Administrative Agent written notice of any condition or
event which has resulted in (a) a material adverse change
in the financial condition of Circus or Borrower or (b) a
breach of or noncompliance with any term, condition or
covenant contained herein or in the Circus Loan
Agreement, the Credit Agreement, any other Loan
Document or any other document delivered pursuant
hereto or thereto. Promptly upon Administrative Agent's
receipt of notice thereof, Administrative Agent shall give
Circus written notice of any Event of Default; provided
that the failure of Administrative Agent to so notify Circus
shall not affect any obligation of Circus hereunder.
2.13 Cooperation With Gaming Boards. Circus
agrees that it shall cooperate with Administrative Agent
and Lenders to fulfill the requirements of any Gaming
Board with respect to the rights of Administrative Agent
and Lenders to enforce and apply any security now or
hereafter held by or for the benefit of Administrative
Agent or any Lender in respect of the Obligations, or to
exercise any other right or remedy that Administrative
Agent or Lenders, or any of them, may have against any
such party.
2.14 Termination of Agreement; Conditions.
During the period from December 31, 2000 through
December 31, 2001, Circus shall have the option to elect
to terminate the Make-Well Agreement by written notice
to the Administrative Agent (subject to confirmation of
receipt by Administrative Agent as set forth below),
substantially in the form of Exhibit A hereto, if all the
following conditions have been satisfied:
(i) on the last day of each of the two most
recent Fiscal Quarters for which financial
statements of Borrower have been delivered
pursuant to Section 6.1 of the Credit Agreement,
the Stand-Alone Leverage Ratio is 3.00:1.00 or
less;
(ii) for each of the two most recent Fiscal
Quarters for which financial statements of
Borrower have been delivered pursuant to Section
6.1 of the Credit Agreement, the Stand-Alone
Coverage Ratio for the four consecutive Fiscal
Quarters then ended is not less than 1.25:1.00;
(iii) no Event of Default or Default shall
have occurred and be continuing; and
(iv) Circus shall not be in default in any of
its monetary agreements under this Agreement.
Upon receipt by the Administrative Agent of any
such notice in a form which the Administrative Agent
believes to be proper, the Administrative Agent shall give
notice thereof to the Borrower and the Lenders. In the
event that any Lender believes that the Make-Well
Agreement may not properly be terminated, it shall
provide written notice of its objection to the termination of
the Make-Well Agreement within 10 days of the date of
such notice, which written notice shall state the basis of
the objection. In the absence of any such objection, the
Administrative Agent shall acknowledge receipt of the
request, and terminate the Make-Well Agreement within
14 days of the giving of such notice (or, if any objection
has been served, as promptly as possible following the
resolution of such objection).
The termination of this Agreement in accordance
with this Section shall not result in a termination of the
Environmental Indemnity executed by Circus nor shall it
absolve Circus of any obligation to make payments which
have previously accrued hereunder.
SECTION 3. REPRESENTATIONS AND
WARRANTIES
In order to induce Lenders and Administrative Agent to
accept this Make-Well Agreement and to enter into the
Credit Agreement and to make the Loans thereunder,
Circus hereby represents and warrants to Lenders that the
following statements are true and correct:
3.1 Incorporation of Representations and
Warranties. Each of the representations and warranties set
forth in the Circus Loan Agreement is true, correct and
complete in all material respects as if originally made as
of the date hereof other than Sections 4.2, 4.3, 4.4 and
4.11 thereof.
3.2 Authorization of Borrowing, etc.
(a) Authorization of Borrowing. The
execution, delivery and performance of the Loan
Documents to which it is a party have been duly
authorized by all necessary corporate action on the part
of Circus.
(b) No Conflict. The execution,
delivery and performance by Circus of the Loan
Documents to which it is a party and the consummation
of the transactions contemplated by the Loan Documents
do not and will not (i) violate any provision of any law
or any governmental rule or regulation applicable to
Circus or any of its Subsidiaries, the Certificate of
Incorporation or Bylaws of Circus or any of its
Subsidiaries or any order, judgment or decree of any
court or other agency of government binding on Circus
or any of its Subsidiaries, (ii) conflict with, result in a
breach of or constitute (with due notice or lapse of time
or both) a default under any Contractual Obligation of
Circus or any of its Subsidiaries, (iii) result in or require
the creation or imposition of any Lien upon any of the
properties or assets of Circus or any of its Subsidiaries
(other than any Liens created under any of the Loan
Documents in favor of Administrative Agent on behalf of
Lenders), or (iv) require any approval of stockholders or
any approval or consent of any Person under any
Contractual Obligation of Circus or any of its
Subsidiaries.
(c) Governmental Consents. The
execution, delivery and performance by Circus of the
Loan Documents to which it is a party and the consum-
mation of the transactions contemplated by the Loan
Documents do not and will not require any registration
with, consent or approval of, or notice to, or other
action to, with or by, any federal, state or other
governmental authority or regulatory body.
(d) Binding Obligation. Each of the
Loan Documents to which it is a party has been duly
executed and delivered by Circus and is the legally valid
and binding obligation of Circus, enforceable against
Circus in accordance with its respective terms, except as
such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability.
SECTION 4. AFFIRMATIVE COVENANTS
Circus covenants and agrees that, unless and until
all of the Obligations shall have been paid in full by
Circus, Borrower or otherwise and the Commitments shall
have terminated and all Letters of Credit shall have
expired or been canceled, or until the termination of this
Agreement in accordance with Section 2.14 unless
Requisite Lenders shall otherwise consent in writing:
4.1 Covenants in Circus Loan Agreement.
Circus shall at all times perform all of its obligations set
forth in Article 6 of the Circus Loan Agreement for the
benefit of the financial institutions party thereto.
4.2 Reporting Requirements. As soon as
possible after the same are available to Circus, and in any
event within the time set for such delivery in the Circus
Loan Agreement, Circus will deliver to Lenders copies of
the documents required to be delivered under
Sections 7.1(a), 7.1(c) and 7.2 of the Circus Loan
Agreement as in effect on the Closing Date
notwithstanding any subsequent amendment, modification
or termination thereof. Circus will promptly and in any
event no later than concurrently with delivery of financial
statements pursuant to such Section 7.1(a), deliver to
Lenders written notice of any change in the Debt Rating
(as defined in the Circus Loan Agreement).
4.3 Bankruptcy. Circus agrees that it shall not
commence or join with any other creditor of Borrower to
commence any bankruptcy, insolvency, reorganization or
other similar proceedings against Borrower.
SECTION 5. MISCELLANEOUS
5.1 Survival of Warranties. All agreements,
representations and warranties made herein shall survive
the execution and delivery of this Make-Well Agreement
and the other Loan Documents and any increase in the
Commitments under the Credit Agreement.
5.2 Notices. Any communications between or
among Administrative Agent, Circus and Borrower and
any notices or requests provided herein to be given may
be given by mailing the same, postage prepaid, or by telex
or facsimile transmission prior to 5:00 P.M. (Pacific
Time) on a Business Day to each such party at its address
set forth in the Credit Agreement, on the signature pages
hereof or to such other addresses as each such party may
in writing hereafter indicate. Any notice, request or
demand to or upon Administrative Agent, Borrower or
Lenders or Circus under or relating to this Make-Well
Agreement shall not be effective until received.
5.3 Severability. In case any provision in or
obligation under this Make-Well Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or
obligation in any other jurisdiction, shall not in any way
be affected or impaired thereby.
5.4 Amendments and Waivers. No
amendment, modification, termination or waiver of any
provision of this Make-Well Agreement, or consent to any
departure by Circus therefrom, shall in any event be
effective without the written concurrence of all Lenders
under the Credit Agreement. Any waiver or consent shall
be effective only in the specific instance and for the
specific purpose for which it was given.
5.5 Headings. Section headings in this Make-
Well Agreement are included herein for convenience of
reference only and shall not constitute a part of this Make-
Well Agreement for any other purpose or be given any
substantive effect.
5.6 Applicable Law. THIS MAKE-WELL
AGREEMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF NEVADA, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES.
5.7 Successors and Assigns. This Make-Well
Agreement is a continuing guaranty and shall be binding
upon Circus and its successors and assigns. This Make--
Well Agreement shall inure to the benefit of Borrower,
Lenders, Administrative Agent and their respective
successors and assigns. Circus shall not assign this Make-
Well Agreement or any of the rights or obligations of
Circus hereunder without the prior written consent of all
Lenders. Any Lender may, without notice or consent,
assign its third party beneficiary interest in this Make-
Well Agreement in whole or in part. The terms and
provisions of this Make-Well Agreement shall inure to the
benefit of any transferee or assignee of any Loan, and in
the event of such transfer or assignment the rights and
privileges herein conferred upon Lenders and
Administrative Agent shall automatically extend to and be
vested in such transferee or assignee, all subject to the
terms and conditions hereof.
5.8 Consent to Jurisdiction and Service of
Process. ALL JUDICIAL PROCEEDINGS BROUGHT
AGAINST CIRCUS ARISING OUT OF OR RELATING
TO THIS MAKE-WELL AGREEMENT MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE STATE OF
NEVADA AND BY EXECUTION AND DELIVERY OF
THIS MAKE-WELL AGREEMENT CIRCUS ACCEPTS
FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE EXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND
WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS AND IRREVOCABLY AGREES TO BE
BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH THIS MAKE WELL
AGREEMENT. Circus hereby agrees that service of all
process in any such proceeding in any such court may be
made by registered or certified mail, return receipt
requested, to Circus at its address provided in Section 5.2,
such service being hereby acknowledged by Circus to be
sufficient for personal jurisdiction in any action against
Circus in any such court and to be otherwise effective and
binding service in every respect. Nothing herein shall
affect the right to serve process in any other manner
permitted by law.
5.9 Waiver of Trial by Jury. CIRCUS AND,
BY ITS ACCEPTANCE OF THE BENEFITS HEREOF,
BORROWER AND THE ADMINISTRATIVE AGENT
EACH HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS MAKE-WELL AGREEMENT.
The scope of this waiver is intended to be all-
encompassing of any and all disputes that may be filed in
any court and that relate to the subject matter of this
transaction, including without limitation contract claims,
tort claims, breach of duty claims and all other common
law and statutory claims. Circus and, by its acceptance of
the benefits hereof, Borrower and Administrative Agent
each (i) acknowledges that this waiver is a material
inducement for Circus, Borrower and Administrative
Agent to enter into a business relationship, that Circus,
Borrower and Administrative Agent have already relied on
this waiver in entering into this Make-Well Agreement or
accepting the benefits thereof, as the case may be, and
that each will continue to rely on this waiver in their
related future dealings and (ii) further warrants and
represents that each has reviewed this waiver with its legal
counsel, and that each knowingly and voluntarily waives
its jury trial rights following consultation with legal
counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING, AND
THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS
MAKE-WELL AGREEMENT. In the event of litigation,
this Make-Well Agreement may be filed as a written
consent to a trial by the court.
5.10 No Other Writing. This writing is intended
by Circus, Borrower and Administrative Agent as the final
expression of this Make-Well Agreement and is also
intended as a complete and exclusive statement of the
terms of their agreement with respect to the matters
covered hereby. No course of dealing, course of
performance or trade usage, and no parol evidence of any
nature, shall be used to supplement or modify any terms
of this Make-Well Agreement. There are no conditions to
the full effectiveness of this Make-Well Agreement.
5.11 Further Assurances. At any time or from
time to time, upon the request of Administrative Agent or
Requisite Lenders, Circus or Borrower or both shall
execute and deliver such further documents and do such
other acts and things as Administrative Agent or Requisite
Lenders may reasonably request in order to effect fully the
purposes of this Make-Well Agreement.
5.12 Borrower Third-Party Beneficiary. Circus
and Administrative Agent hereby expressly agree and
acknowledge that Borrower is intended to be an express
third-party beneficiary of this Make-Well Agreement and
Borrower shall be entitled to exercise any and all rights
and remedies afforded third-party beneficiaries under the
laws of the relevant jurisdiction.
5.13 Counterparts. This Make-Well Agreement
may be executed in one or more counterparts and by
different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute
but one and the same instrument; signature pages may be
detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are
physically attached to the same document.
IN WITNESS WHEREOF, Circus has caused this
Make-Well Agreement to be duly executed and delivered
by its officer thereunto duly authorized as of the date first
written above.
CIRCUS CIRCUS ENTERPRISES,
INC.
By Glenn Schaeffer
Title President
Address: 2880 Las Vegas
Boulevard South
Las Vegas, Nevada
89109
Attention: General
Counsel
Accepted by:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
as Administrative Agent on behalf of the Lenders
By Janice Hammond
Title Vice President
Address: 555 South Flower Street, 11th Floor
Los Angeles, California 90071
Attention: Janice Hammond, Vice President
CIRCUS AND ELDORADO
JOINT VENTURE, as express
third-party beneficiary
By: GALLEON, INC.
By: Glenn Schaeffer
Title: President
Address: c/o Circus Circus Enterprises
2880 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: General Counsel
By: ELDORADO LIMITED LIABILITY COMPANY
Its: General Partner
By: ELDORADO RESORTS LLC.
Its: Manager
By: Donald Carano
Title:
Address: c/o Eldorado Hotel Casino
345 North Virginia Street
P.O. Box 3399
Reno, Nevada 89508
Attention: General Counsel
By: EXECUTIVE COMMITTEE
By: Gary Carano
Title: General Manager
By: Bruce Sexton
Title:Director of Finance and Administration
<PAGE>
[Exhibit A to Make-Well Agreement]
________________, 200__
Bank of America National Trust and Savings Association
555 South Flower Street, 11th Floor
Los Angeles, California 90071
Gentlemen:
This letter is delivered with reference to the
Amended and Restated Credit Agreement dated as of
_____________, 1997 among CIRCUS AND
ELDORADO JOINT VENTURE, the Lenders named
therein, and BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Administrative
Agent (said Amended and Restated Credit Agreement, as
it may hereafter be amended, supplemented or otherwise
modified from time to time, being the "Credit
Agreement"; capitalized terms defined therein and not
otherwise defined herein being used herein as therein
defined).
By this notice Circus Circus Enterprises, Inc.
("Circus") hereby requests the termination of the Make-
Well Agreement referred to in the Credit Agreement. In
support of this request, Circus hereby certifies that:
(i) on the last day of each of the two most
recent Fiscal Quarters for which financial
statements of Borrower have been delivered
pursuant to Section 6.1 of the Credit Agreement,
the Stand-Alone Leverage Ratio was 3.00:1.00 or
less;
(ii) for each of the two most recent Fiscal
Quarters for which financial statements of
Borrower have been delivered pursuant to Section
6.1 of the Credit Agreement, the Stand-Alone
Coverage Ratio for the four consecutive Fiscal
Quarters then ended was not less than 1.25:1.00;
(iii) to the best knowledge of Circus, no
Event of Default or Default has occurred and
remains continuing; and
(iv) Circus is not in default in any of its
monetary agreements under the Make-Well
Agreement.
Please promptly execute this request in the space
provided below, whereupon the Make-Well Agreement
shall be deemed terminated.
Very truly yours,
CIRCUS CIRCUS
ENTERPRISES, INC.
By:
___________________________
Title:
________________________
cc. Circus and Eldorado Joint Venture
Attn: Chief Financial Officer
The undersigned acknowledges on behalf of the Lenders
that the Make-Well Agreement has been terminated in
accordance with its terms.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: __________________________
Title: _______________________
AMENDED AND RESTATED CONSTRUCTION
DEED OF TRUST, FIXTURE FILING AND
SECURITY AGREEMENT WITH ASSIGNMENT OF
RENTS
NOTICE: THE OBLIGATIONS SECURED HEREBY
INCLUDE REVOLVING CREDIT OBLIGATIONS
WHICH PERMIT BORROWING, REPAYMENT AND
REBORROWING. INTEREST ON OBLIGATIONS
SECURED HEREBY ACCRUES AT RATES WHICH
MAY FLUCTUATE FROM TIME TO TIME. THIS
INSTRUMENT SECURES FUTURE ADVANCES.
THIS DEED OF TRUST SHALL BE DEEMED TO BE
A CONSTRUCTION MORTGAGE UNDER NEVADA
REVISED STATUTES 104.9313(1)(c) AND UNDER
THE NEVADA UNIFORM COMMERCIAL CODE.
THIS AMENDED AND RESTATED
CONSTRUCTION DEED OF TRUST, FIXTURE
FILING AND SECURITY AGREEMENT WITH
ASSIGNMENT OF RENTS (this "Deed of Trust"),
made as of November 24, 1997, by and among CIRCUS
AND ELDORADO JOINT VENTURE, a Nevada
general partnership, as debtor and trustor ("Trustor"),
FIRST AMERICAN TITLE COMPANY OF
NEVADA, a Nevada corporation, as trustee ("Trustee"),
and BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION , in its capacity as
"Administrative Agent" for the "Lenders" under the
Credit Agreement (defined below), as beneficiary,
assignee and secured party (as defined and described
hereinbelow)("Beneficiary").
Trustor and Beneficiary hereby agree that this
Deed of Trust hereby amends and restates in full that
certain Amended and Restated Construction Deed of
Trust, Fixture Filing and Security Agreement with
Assignment of Rents ("Existing Deed of Trust"), made as
of September 9, 1996, by Trustor, as trustor, assignor and
debtor, in favor of Trustee, as trustee, for the benefit of
Wells Fargo Bank, N.A., as Agent ("Existing
Beneficiary"), as beneficiary, assignee and secured party,
recorded October 4, 1996, in Book ______, Page ___, as
Document No. 2036418 of the Official Records of
Washoe County, Nevada,
Existing Beneficiary has executed an Assignment
of Amended and Restated Construction Deed of Trust,
Fixture Filing and Security Agreement with Assignment of
Rents (the Assignment ) dated as of even date herewith,
in favor of Administrative Agent, pursuant to which
Existing Beneficiary has assigned and transfered over to
Administrative Agent all of its right, title and interest, as
Agent under the Existing Credit Agreement, in to and
under the Existing Deed of Trust,
The Assignment was recorded in the Official
Records of Washoe County, Nevada, on _________, 1997
in Book _______, Page _______, as Instrument
____________.
W I T N E S S E T H:
THAT TRUSTOR HEREBY:
Grants, bargains, sells, transfers, conveys and
assigns the following described real property and related
collateral to Trustee, IN TRUST, WITH POWER OF
SALE, to have and to hold the same unto Trustee and its
successors in interest, for the benefit of and on behalf of
Beneficiary, upon the trusts, covenants and agreements
herein expressed:
DESCRIPTION OF REAL PROPERTY
COLLATERAL
All that certain real property, and the interests of
Trustor therein, situate in the County of Washoe, State of
Nevada, that is more particularly described on Part I of
that certain exhibit marked Exhibit A, affixed hereto and
by this reference incorporated herein and made a part
hereof (the "Land");
Together with all right, title and interest of
Trustor, now owned or hereafter acquired, in and to any
land lying within the right-of-way of any street, open or
proposed, adjoining any of the Land and any and all
sidewalks, bridges, elevated walkways, tunnels, alleys,
strips and gores of land adjacent to, connecting or used in
connection with any of the Land, with appurtenances
("Adjacent Interests");
Together with all buildings, structures and all
other improvements and fixtures that are or may hereafter
be erected or placed on or in the Land and all rights and
interests of Trustor in and to all buildings, structures and
other improvements and fixtures that are or may hereafter
be erected or placed on or in Adjacent Interests
(including, but not limited to, Trustor's rights, title and
interests in and to all buildings, structures and other
improvements and fixtures that are or may hereafter be
erected or placed on or in the easement areas, and leased
areas, or any of them, referred to in Part II of Exhibit A)
(collectively, the "Improvements"), provided, however,
Trustor and Beneficiary acknowledge that the Skyways (as
that term is defined in the "Credit Agreement" described
below) are owned by entities other than Trustor, and that
Trustor's rights, title and interests in and to the Skyways
arise from and under (i) rights of reverter for the air
rights parcels within which the Skyways are located, as
provided in two Grant, Bargain and Sale Deeds executed
by Trustor, one in favor of each of the two entities that
own the Skyways, and (ii) certain Bridge Easements
referred to in Part II of Exhibit A and, while Trustor's
rights, title and interests arising from and under such
Grant, Bargain and Sale Deeds and such Bridge Easements
are hereby bargained, sold, transferred, conveyed and
assigned to Trustee, in trust, with power of sale, for the
benefit of and on behalf of Beneficiary, the term
"Improvements" as used in this Deed of Trust shall not
otherwise include the Skyways;
Together with all and singular the tenements,
hereditaments and appurtenances belonging or in anyway
appertaining to any of the Land, Adjacent Interests,
Improvements or Skyways (including, but not limited to,
the easements and other rights referred to in Part II of
Exhibit A) (collectively, the "Appurtenances");
Together with all rents, issues, products, earnings,
revenues, payments, profits, royalties and other proceeds
and income of or from any of the foregoing or of or from
any of the Leases, as hereinafter defined (collectively, the
"Rents"), subject, however, in the case of Rents, to the
absolute assignment given to Beneficiary in Section 12
hereof, to which Section 12 this grant to the Trustee is
subject and subordinate;
Together with all leasehold estate, right, title and
interest of Trustor in and to all leases, subleases, licenses,
concessions, franchises and other use or occupancy
agreements (excepting, however, agreements made by
Trustor in the ordinary course of business for short-term
use by members of the public of guest rooms and public
rooms, including banquet and meeting facilities, located in
the Improvements), and any amendments, modifications,
extensions or renewals thereof (collectively, "Leases")
covering any of the Land, Adjacent Interests,
Improvements, Skyways or Appurtenances, now or
hereafter existing or entered into, and all right, title and
interest of Trustor thereunder, including, without
limitation, the right to all security deposits, advance
rentals, other deposits, and all payments of similar nature,
relating thereto;
Together with all water rights and rights to the use
of water now or hereafter appurtenant to or used in
connection with any of the Land, Adjacent Interests,
Improvements or Appurtenances ("Water Rights");
Together with any and all other estate, right, title,
interest, property, possession, claim or demand, in law or
in equity, which Trustor now has or may hereafter acquire
in or to any of the Land, Adjacent Interests,
Improvements, Skyways, Appurtenances, Rents, Leases
and Water Rights, or pertaining or appurtenant thereto,
and all reversions and remainders thereof, and all
tenements, hereditaments and appurtenances thereunto
belonging or in any wise appertaining thereto ("Other
Interests") (said Land, Adjacent Interests, Improvements,
Appurtenances, Rents, Leases, Water Rights and Other
Interests may be referred to herein as the "Real
Property"); and
THAT TRUSTOR HEREBY:
Grants a security interest, pursuant to the Nevada
Uniform Commercial Code -- Secured Transactions, to
Beneficiary, on the terms and provisions (by this reference
incorporated herein with respect to the security interest
herein granted and the rights and obligations of the parties
with respect to the Personal Property, as hereinafter
defined, but for no other purpose) set forth in that certain
Amended and Restated Security Agreement of even date
herewith by and between Trustor, as Grantor and Debtor,
and Beneficiary, as Secured Party (the "Security
Agreement"), in all of the following described personal
property, and the interests of Trustor therein, whether
now owned or hereafter acquired (collectively, the
"Personal Property"):
DESCRIPTION OF PERSONAL PROPERTY
COLLATERAL
(c) All present and future chattels, furniture,
furnishings, goods, equipment, fixtures and all other
tangible personal property, of whatever kind and nature,
now or hereafter used in connection with or placed or
located in or on any part of the Real Property (including,
without limitation, any building or structure that is now or
that may hereafter be erected on the Real Property, and
including any of the foregoing owned by Trustor and
placed or located in or on the Skyways), including, but
not limited to, machinery, materials, goods and equipment
now or hereafter used in the construction or operation of
the hotel, casino, restaurant, entertainment and shopping
complex constructed and to be constructed on the Real
Property or portions thereof (the "Project") (including,
without limitation, air conditioning, heating, electrical,
lighting, fire fighting and fire prevention, food and
beverage service, laundry, plumbing, refrigeration,
security, sound, signaling, telephone, television, window
washing and other equipment and fixtures, of whatever
kind or nature, including generators, transformers,
switching gear, boilers, burners, furnaces, piping,
sprinklers, sinks, tubs, valves, compressors, motors, carts,
dumb waiters, elevators and other lifts, floor coverings,
hardware, keys, locks, organs, pianos, planters, railings,
scales, shelving, signs, tools, machinery, molds, dies,
drills, presses, planers, saws, furniture, business fixtures,
trade fixtures, electric, gas and other motor vehicles,
uniforms, vacuum cleaners, hotel furniture, furnishings
and equipment, bathroom furniture and furnishings
(including towels, bathmats, hamperettes, shower curtains
and other bath linens), beds and bedding (including
mattresses, springs, pillows, bed pads, sheets, blankets,
comforters, spreads and other bed linens and furnishings),
bric-a-brac, chairs, chests, vanities, secretaries, bureaus,
chiffonniers, love seats, benches, costumers, smoking
stands, sand jars, desks, dressers, hangings, paintings,
pictures, frames, sculptures, lamps, light bulbs, mirrors,
night stands, ornaments, radios, stereo equipment, sofas,
statuary, tables, telephones, televisions, vases, window
coverings, foodstuffs, beverages (including beer, wine,
liquor and other alcoholic beverages), and other
consumables (including soap, shampoo, cleaning supplies
and paper goods), cutlery, cooking, baking and other
kitchen utensils and apparatus (including crockery, fryers,
grills, kettles, mixers, pots, pans, pails, racks, steamers
and toasters), china and other dishes, flatware, glassware,
hollowware, serving pieces, trays, table linens, washers,
dryers, irons, ironing boards and other ironing equipment,
cables, outlets, plugs, wiring and related apparatus and
fixtures, card readers, cash registers, adding machines,
calculators, computers, keyboards, monitors, printers,
printing equipment, envelopes, stationary, posting
machines, blank forms, typewriters, typewriter stands,
other office and accounting equipment and supplies, time
stamps, time recorders, bookkeeping machines, checking
machines, payroll machines, computer reservations
systems, equipment used in the operation of casinos on the
Real Property (including but not limited to, gaming
devices and associated equipment (as defined in Nevada
Revised Statutes Chapter 463), including but not limited
to, slot machines, cards, poker chips and gaming tables)
and all other goods, equipment, furnishings, apparatus and
fixtures that are now or may hereafter be located at or
used at or in connection with the Real Property, and all
other tangible personal property used or to be used at or
in connection with, or placed or to be placed in, rooms,
halls, lounges, offices, lobbies, lavatories, basements,
cellars, vaults or other portions of the Project or of any
other building or buildings hereafter constructed or erected
thereon, whether herein enumerated or not, and whether
or not contained in any such building, and which are used
or to be used or useful in the operation and maintenance
thereof, or in any bar, casino, hotel, restaurant, store,
health spa, salon or other business conducted thereon,
together with all replacements and substitutions for any
and all personal property in which Trustor has an interest,
including without limitation such goods and equipment as
shall from time to time be located, placed, installed or
used in or upon, or procured for use, or to be used or
useful in connection with the operation of the whole, or
any part of, the Project and all parts thereof and all
accessions thereto;
(d) All present and future goods, including,
without limitation, all consumer goods, inventory,
equipment (excluding, however, any Equipment pledged to
secure "Other Permitted Indebtedness" (as such initially
capitalized term is defined in the Credit Agreement)
incurred to finance the purchase of such Equipment,
pursuant to a pledge in form, scope and substance
satisfactory to Beneficiary), and other supplies, of
whatever kind or nature, and any and all other goods,
wherever located, used or to be used in connection with or
in the conduct of Trustor's business;
(e) All present and future inventory and
merchandise in all of its forms (including, but not limited
to, (i) all goods held by Trustor for sale or lease or to be
furnished under contracts of service or so leased or
furnished, (ii) all raw materials, work in process, finished
goods, and materials used or consumed in the
manufacture, packing, shipping, advertising, selling,
leasing, furnishing or production of such inventory or
otherwise used or consumed in Trustor's business, (iii) all
goods in which Trustor has an interest in mass or a joint
or other interest or right of any kind, (iv) all goods that
are returned to or repossessed by Trustor, and (v) all
packing materials, supplies and containers relating to or
used in connection with any of the foregoing, and all
accessions thereto and products thereof and all negotiable
documents of title (including without limitation warehouse
receipts, dock receipts and bills of lading) issued by any
person covering any of the foregoing;
(f) All present and future accounts, accounts
receivable, rentals, revenues, receipts, payments, and
income of any other nature whatsoever derived from or
received with respect to hotel rooms, banquet facilities,
convention facilities, retail premises, bars, restaurants,
casinos and any other facilities on the Real Property and
any facilities in the Skyways leased by Trustor,
agreements, contracts, leases, contract rights, rights to
payment (including, without limitation, rights to payment
under the Make-Well Agreement, as that term is defined
in the Credit Agreement), instruments, documents, chattel
paper, security agreements, guaranties, undertakings,
surety bonds, insurance policies, condemnation deposits
and awards, notes and drafts, securities, certificates of
deposit and the right to receive all payments thereon or in
respect thereof (whether principal, interest, fees or
otherwise), contract rights (other than rights under
contracts or governmental permits that may not be
transferred by law), including, without limitation, rights to
all deposits from tenants and other users of the Project or
facilities in the Skyways leased by Trustor, rights under
all contracts relating to the construction, renovation or
restoration of any of the improvements now or hereafter
located on the Real Property or the financing thereof and
all rights under payment or performance bonds,
warranties, and guaranties, and all rights to payment from
any credit/charge card organization or entity such as or
similar to, and including, without limitation, the
organizations or entities that sponsor and administer,
respectively, the American Express Card, the Carte
Blanche Card, the Diners Club Card, the Discover Card,
the MasterCard and the Visa Card, books of account, and
principal, interest and payments due on account of goods
sold, services rendered, loans made or credit extended, on
or in connection with the Project and all forms of obliga-
tions owing to and rights of Trustor or in which Trustor
may have any interest, however created or arising;
(g) All present and future general intangibles
(including but not limited to all governmental permits
relating to construction or other activities on the
premises), all tax refunds of every kind and nature to
which Trustor now or hereafter may become entitled,
however arising, all other refunds, and all deposits,
goodwill, choses in action, rights to payment or
performance, gambling debts or gaming debts owed to
Trustor by Trustor's patrons (whether or not evidenced by
a note), judgments taken on any rights or claims included
in the Property (as hereinafter defined), trade secrets,
computer programs, software, customer lists, business
names, trademarks, trade names and service marks
(including, but not limited to: "Silver Legacy Hotel
Casino" and any derivation thereof, including any and all
state and federal applications and registrations thereof),
patents, patent applications, licenses, copyrights,
technology, processes, proprietary information and
insurance proceeds;
(h) All present and future deposit accounts of
Trustor, including, without limitation, the Circus and
Eldorado Joint Venture Account maintained at the office
of Beneficiary, any demand, time, savings, passbook or
like account maintained by Trustor with any bank, savings
and loan association, credit union or like organization, and
all money, cash and cash equivalents of Trustor, whether
or not deposited in any such deposit account;
(i) All present and future books and records,
including, without limitation, books of account and ledgers
of every kind and nature, ledger cards, computer
programs, tapes, disks and other information storage
devices, all related data processing software, and all
electronically recorded data relating to Trustor or its
business or the Project, all receptacles and containers for
such records, and all files and correspondence;
(j) All present and future stocks, bonds,
debentures, securities, subscription rights, options,
warrants, puts, calls, certificates, partnership interests,
joint venture interests, investments, brokerage accounts
and all rights, preferences, privileges, dividends,
distributions, redemption payments and liquidation
payments received or receivable with respect thereto;
(k) All present and future right, title and
interest of Trustor in and to all Leases, whether or not
specifically herein described, that now or may hereafter
pertain to or affect the Real Property or any portion
thereof, or the Skyways, and all amendments to the same,
including, but not limited to, the following: (i) all
payments due and to become due under such Leases,
whether as rent, damages, insurance payments,
condemnation awards, or otherwise; (ii) all claims, rights,
powers, privileges and remedies under such Leases; and
(iii) all rights of the Trustor under such Leases to exercise
any election or option, or to give or receive any notice,
consent, waiver or approval, or to accept any surrender of
the premises or any part thereof, together with full power
and authority in the name of the Trustor, or otherwise, to
demand and receive, enforce, collect, and receipt for any
or all of the foregoing, to endorse or execute any checks
or any instruments or orders, to file any claims, and to
take any other action that Beneficiary may deem necessary
or advisable in connection therewith;
(l) All present and future maps, plans,
specifications, surveys, studies, reports, data and drawings
(including, without limitation, architectural, structural,
mechanical and engineering plans and specifications,
studies, data and drawings) prepared for or relating to the
development of the Project and the Skyways or the
construction, renovation or restoration of any improve-
ments on the Real Property or the extraction of minerals,
sand, gravel or other valuable substances from the Real
Property, together with all amendments and modifications
thereto;
(m) All present and future licenses, permits,
variances, special permits, franchises, certificates, rulings,
certifications, validations, exemptions, filings,
registrations, authorizations, consents, approvals, waivers,
orders, rights and agreements (including options, option
rights and contract rights), other than those (including
non-transferable gaming permits) that may not be
transferred by law, now or hereafter obtained by Trustor
from any governmental authority having or claiming
jurisdiction over the Project, the Real Property or any
other element of the Property or the Skyways or providing
access thereto, or the operation of any business on, at, or
from the Project or the Skyways;
(n) All present and future accessions,
appurtenances, components, repairs, repair parts, spare
parts, replacements, substitutions, additions, issue and
improvements to or of or with respect to any of the
foregoing;
(o) All other fixtures and storage and office
facilities, and all accessions thereto and products thereof
and all water stock relating to the Real Property;
(p) All other tangible and intangible personal
property of Trustor;
(q) All rights, remedies, powers and privileges
of Trustor with respect to any of the foregoing; and
(r) Any and all proceeds, products, rents,
income and profits of any of the foregoing, including,
without limitation, all money, accounts, general
intangibles, deposit accounts, documents, instruments,
chattel paper, goods, insurance proceeds (whether or not
the Beneficiary is the loss payee), and any other tangible
or intangible property received upon the sale or
disposition of any of the foregoing (it being agreed, for
purposes hereof, that the term "proceeds" includes
whatever is receivable or received when any of the
Property is sold, collected, exchanged or otherwise
disposed of, whether such disposition is voluntary or
involuntary). Notwithstanding anything to the contrary
contained herein, Beneficiary acknowledges that it has no
security interest in (x) any cash of Trustor described in
clauses (e), (f) and (h) above, to the extent such a security
interest is prohibited by any Gaming Laws (as defined in
the Credit Agreement), or (y) any deposit account
described in clause (f) above, to the extent such a security
interest is not permitted by applicable law.
(The Real Property, the Personal Property and all
of the other collateral described above may hereinafter be
collectively referred to as the "Property". The parties
intend for this Deed of Trust to create a lien on and
security interest in the Property, and, as provided in
Section 12 hereof, an absolute assignment of the Rents
and the Leases, all in favor of Beneficiary. To the extent
any of the Property, Rents or Leases are not encumbered
by a perfected lien or security interest created above, and
are not absolutely assigned by the assignment set forth in
Section 12, below, it is the intention of the parties that
such Property, Rents and/or Leases shall constitute
"proceeds, product, offspring, rents or profits" (as defined
in and for the purposes of Section 552(b) of the United
States Bankruptcy Code, as such section may be modified
or supplemented) of the Land and Improvements, and/or
"fees, charges, accounts, or other payments for the use or
occupancy of rooms and other public facilities in . . .
lodging properties," as applicable (as such terms are
defined in and for the purpose of Section 552(b) of the
United States Bankruptcy Code, as such Section may be
modified or supplemented).)
FOR THE PURPOSE OF SECURING:
First: Payment when due, whether at stated
maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including payment of
amounts that would become due but for the operation of
the automatic stay under Section 362(a) of the Bankruptcy
Code, 11 U.S.C. 362(a)), of all obligations and liabilities
of every nature of Trustor now or hereafter existing under
or arising out of or in connection with that certain
Amended and Restated Credit Agreement executed
concurrently herewith by Trustor, as Borrower,
Beneficiary, as Administrative Agent, and the Lenders
listed therein as lenders (the "Lenders"), together with
any and all renewals, extensions, amendments,
modifications, rearrangements, replacements,
restatements, substitutions and addendums thereof or
thereto (herein referred to as the "Credit Agreement"), or
the promissory notes issued to the Lenders to evidence
such obligations and liabilities, together with any and all
renewals, extensions, amendments, modifications,
rearrangements, replacements, restatements, substitutions
and addendums thereof or thereto (herein referred to as
the "Notes"), whether for principal in the amount of Two
Hundred Thirty Million Dollars ($230,000,000) or such
principal amount as may be advanced and remain unpaid
or for interest (including, without limitation, interest that,
but for the filing of a petition in bankruptcy with respect
to Trustor, would accrue on such obligations),
reimbursement of amounts drawn under Letters of Credit
(as defined in the Credit Agreement), fees, expenses, and
amounts owing under indemnities or otherwise, whether
voluntary or involuntary, direct or indirect, absolute or
contingent, liquidated or unliquidated, whether or not
jointly owed with others, and whether or not from time to
time decreased or extinguished and later increased, created
or incurred, and all or any portion of such obligations or
liabilities that are paid, to the extent all or any part of
such payment is avoided or recovered directly or
indirectly from Beneficiary or any such Lender as a
preference, fraudulent transfer or otherwise.
Second: Payment and performance of every
obligation, covenant, promise and agreement of Trustor
herein contained (excepting, however, the obligations of
Trustor under Section 5(c) hereof are not secured hereby),
or incorporated herein by reference, including any sums
paid or advanced by Beneficiary or Trustee pursuant to the
terms hereof.
Third: Payment of the expenses and costs
incurred or paid by Beneficiary in the preservation and
enforcement of the rights and remedies of Beneficiary and
the duties and liabilities of Trustor hereunder, including,
but not by way of limitation, reasonable attorneys' fees,
court costs, reasonable witness fees, reasonable expert
witness fees, reasonable collection costs, Trustee's fees
and costs of a Trustee's Sale Guarantee, and costs and
expenses paid by Beneficiary in performing for Trustor's
account any obligation of Trustor.
Fourth: Payment of additional sums and interest
thereon which may hereafter be loaned to Trustor by the
Lenders when evidenced by a promissory note or notes or
other agreement between Trustor and the Lenders that
recites that this Deed of Trust is security therefor.
Fifth: Performance of every obligation, warranty,
representation, covenant, agreement and promise of
Trustor contained in the Credit Agreement.
The foregoing are described herein as the
"Secured Obligations". All persons who may have or
acquire an interest in all or any part of the Property will
be considered to have notice of, and will be bound by, the
terms of the Secured Obligations and each other
agreement or instrument made or entered into in
connection with each of the Secured Obligations. Such
terms include any provisions in the Notes or the Credit
Agreement which permit borrowing, repayment and
reborrowing, or the making of future advances, or which
provide that the interest rate on one or more of the
Secured Obligations may vary from time to time.
It is the intention of Trustor and Beneficiary that
this Deed of Trust is an "instrument" (as defined in NRS
106.330 as amended and recodified from time to time)
which secures "future advances" (as defined in NRS
106.320 as amended and recodified from time to time) and
which is governed by NRS 106.300 through 106.400 as
amended and recodified from time to time. It is the
intention of the parties that the Secured Obligations
include the obligation of Trustor to repay "future
advances" of "principal" (as defined in NRS 106.345 as
amended and recodified from time to time) in an amount
up to the aggregate amount of the Commitments (which is
initially up to $230,000,000.00), and that the lien of this
Deed of Trust secures the obligation of Trustor to repay
all such "future advances" with the priority set forth in
NRS 106.370(1) as amended and recodified from time to
time. Trustor acknowledges and agrees that the obligation
of Lenders to make the Loans pursuant to the Credit
Agreement, and the obligation of Issuing Bank (as defined
in the Credit Agreement) to issue Letters of Credit
pursuant to the Credit Agreement and to honor draws
thereunder are obligatory in nature and not governed by
the provisions of NRS 106.300, et. seq. Notwithstanding
the foregoing, however, in the event that the making of
the Loans, the issuance of the Letters of Credit, or the
honoring of the draws under the Letters of Credit, are
deemed to be optional, then the maximum "principal"
amount of such Advances to be secured hereunder is
initially $230,000,000.00.
Sixth: Payment and performance by Trustor of
each and every obligation of Trustor with respect to
interest rate swap agreements, currency swap agreements,
and similar hedging arrangements, interest rate swaps,
caps and/or collar agreements entered into with any
Lender which is party to the Credit Agreement, (each
such agreement being referred to herein as an "Interest
Rate Agreement"), each covenant, promise and agreement
contained in any Interest Rate Agreement, and the costs
and expenses of enforcement against Trustor of any
Interest Rate Agreements.
THIS DEED OF TRUST FURTHER
WITNESSETH THAT, IN CONNECTION WITH
AND IN FURTHERANCE OF THE FOREGOING
GRANTS, AND THE ENCUMBRANCES, LIENS
AND SECURITY INTERESTS CREATED THEREBY,
TRUSTOR COVENANTS AND AGREES AS
FOLLOWS:
11. Certain Representations and Warranties
of Trustor. Trustor represents, warrants and covenants
that, except as set forth in the Credit Agreement or as
previously disclosed to Beneficiary in a writing making
reference to this Section 1:
(a) Trustor lawfully possesses and holds
fee simple title to all of the Land and Improvements;
(b) Trustor has or will have good title to
all Property other than the Land and Improvements;
(c) Trustor has the full and unlimited
partnership power, right and authority to encumber the
Property and assign the Rents;
(d) This Deed of Trust creates a first
priority deed of trust lien on the Property, subject only
to the Permitted Encumbrances (as defined in the Credit
Agreement);
(e) The Property includes all property
and rights which may be reasonably necessary to
promote the present and any reasonable future beneficial
use and enjoyment of the Land, the Improvements and
the Project;
(f) Trustor owns (or, with respect to any
Personal Property acquired by Trustor after the date
hereof, will own) the Personal Property free and clear of
any security agreements, reservations of title or
conditional sales contracts and there is no financing
statement affecting the Personal Property on file in any
public office other than one filed to perfect the security
interests herein granted; and
(g) Trustor's place of business, or its
chief executive office if it has more than one place of
business, is located at the address of Trustor specified in
the Credit Agreement.
12. Payment of Obligations. Trustor shall pay
when due the principal of and interest on the indebtedness
evidenced by the Notes; all charges, fees and other sums
as provided in the Loan Documents (as defined in the
Credit Agreement); the principal of and interest on any
future advances secured by this Deed of Trust; and the
principal of and interest on any other indebtedness secured
by this Deed of Trust.
13. Compliance with Laws. Trustor shall not
commit, suffer or permit any act to be done, or condition
to exist, on, or with respect to, the Property which
violates or is prohibited by any law, statute, code, act,
ordinance, order, judgment, decree, injunction, rule,
regulation, permit, license, authorization or direction of
any government or subdivision thereof, whether it be
federal, state, county or municipal (collectively, "Legal
Requirements"), which is applicable to the Property, or
any part thereof, now or at any time hereafter, if such
violation or prohibited act or condition could reasonably
be expected to have or cause a Material Adverse Effect
(as defined in the Credit Agreement).
14. Maintenance of Property. Trustor agrees:
(a) properly to care for and keep said Property in good
condition and repair, ordinary wear and tear excepted; (b)
not to remove, demolish or substantially alter any building
on the Real Property, or permit the removal, demolition
or substantial alteration of the Skyways (except as may
otherwise be permitted in the Bridge Easements referred
to in Part II of Exhibit A), except upon the prior written
consent of Beneficiary, provided that neither this clause
(b) nor any other provision of this Deed of Trust shall
alter, modify, supersede or limit the provisions of the
Credit Agreement, or any party's rights and obligations
thereunder, relating to the construction of the Project; (c)
to complete promptly and in a good and workmanlike
manner any building or other improvement which may be
constructed thereon, to restore promptly in like manner
any portion of the Improvements (and to cause the prompt
restoration of the Skyways) which may be damaged or
destroyed from any cause whatsoever (provided that if,
pursuant to Section 7(c) below, Beneficiary is to apply
insurance proceeds to the restoration of the Property but
fails to do so, such failure shall excuse Trustor's
obligation under this clause (c) but only to the extent of
the insurance proceeds withheld by Beneficiary) and to
pay when due all claims for labor performed and materials
furnished therefor (subject to Trustor's right to contest the
validity or amount of such lien in accordance with Section
9 below); (d) to comply (or, with respect to the Skyways,
cause the compliance) with all Legal Requirements and
covenants, conditions and restrictions (including any
which require alteration or improvement thereof) now or
hereafter affecting the Property or any part thereof or the
Skyways if such noncompliance could reasonably be
expected to have or cause a Material Adverse Effect, and
with all requirements of insurance companies insuring the
Property or any portion thereof or the Skyways and of any
bureau or agency which establishes standards of
insurability; (e) not to commit or permit any waste or
deterioration of the Property or the Skyways; (f) to keep
and maintain abutting grounds, sidewalks, roads, parking
and landscaped areas in good and neat order and repair;
(g) not to apply for, willingly suffer or permit any change
in zoning, subdivision, or land use regulations affecting
the Property or the Skyways without the prior written
consent of Beneficiary, other than any such change that is
beneficial to the Property (with the beneficial nature of
any such change to be determined in Beneficiary's
reasonable judgment); (h) not to drill or extract or enter
into any lease for the drilling for or extraction of oil, gas
or other hydrocarbon substances or any mineral of any
kind or character on or from the Property or any part
thereof without the prior written consent of Beneficiary;
and (i) to do (or, with respect to the Skyways, to cause to
be done) all other acts, in a timely and proper manner,
which, from the character or use of the Property or the
Skyways, may be reasonably necessary to maintain and
preserve its value, the specific enumerations herein not
excluding the general. With respect to any matter in this
Section 4 requiring Beneficiary's prior consent, Trustor
shall submit to Beneficiary a written request for such
consent (together with such information and
documentation as appropriate to enable Beneficiary to
make an informed decision regarding such request), and
Beneficiary will have thirty (30) days after receipt thereof
in which to review and respond to such request. If
Beneficiary fails to respond to Trustor's request within
said thirty (30) day period, Trustor may resubmit its
request in writing, stating that Beneficiary failed to
respond to the initial request within said thirty (30) day
period and, if Beneficiary thereafter fails to respond to
such request within five (5) days, Beneficiary shall be
deemed to have consented thereto.
15. Environmental Obligations.
(a) Trustor shall exercise due diligence in order
to comply with any and all Environmental Laws (as
hereinafter defined) regarding the presence or removal of
Hazardous Material on or in the Property, shall pay
immediately, when due, the costs of removal from the
Property and disposal of any Hazardous Material which is
required to be removed pursuant to any Environmental
Laws and shall keep the Property free of any lien which
may arise pursuant to any such Environmental Laws.
Trustor shall not, and shall use its best efforts to not
permit any person or entity to, release, discharge, or
dispose of any Hazardous Material on the Real Property
except in compliance with all Environmental Laws and, if
the same shall exist, Trustor shall immediately remove or
cause to be removed from the Real Property such
Hazardous Material to the extent required to be removed
pursuant to any Environmental Laws.
(b) As used herein, the term "Hazardous
Material" shall means: (i) any chemical, material or
substance at any time defined as or included in the
definition of "hazardous substances", "hazardous
materials", hazardous wastes", "extremely hazardous
waste", "restricted hazardous waste", "infectious waste",
"toxic substances" or any other formulations intended to
define, list or classify substances by reason of deleterious
properties such as ignitability, corrosivity, reactivity,
carcinogenicity, toxicity, reproductive toxicity, "TCLP
toxicity" or "EP toxicity" or words of similar import
under any applicable Environmental Law or publication
promulgated pursuant thereto; (ii) any oil, petroleum,
petroleum fraction or petroleum derived substance; (iii)
any drilling fluid, produced water or other waste
associated with the exploration, development or production
of crude oil, natural gas or geothermal resources; (iv) any
flammable substance or explosive; (v) any radioactive
material; (vi) asbestos in any form; (vii) urea
formaldehyde foam insulation; (viii) electrical equipment
which contains any oil or dielectric fluid containing poly-
chlorinated biphenyls; (ix) any pesticide; (x) all hazardous
substances defined in NRS 40.504 ("NRS" means Nevada
Revised Statutes), and (xi) any other chemical, material or
substance exposure to which is prohibited, limited or
regulated by any Federal, state, local or other
governmental authority or which may or could pose a
hazard to human health or safety or the environment if
released into the workplace or the environment; the term
"Environmental Law" means any statute, ordinance,
order, rule, regulation, plan, policy, decree, permit,
guidance document, or other requirement of any Federal,
state, local or other governmental authority relating to:
(aa) environmental matters, including, without limitation,
those relating to fines, injunctions, penalties, damages,
contribution, cost recovery compensation, losses or
injuries resulting from the Release or threatened Release
of Hazardous Material, (bb) the presence, generation, use,
storage, transportation or disposal of Hazardous Material,
or (cc) occupational safety and health, industrial hygiene,
land use or the protection of human, plant or animal
health or welfare, in any manner applicable to any of the
Property, including, without limitation, the
Comprehensive Environmental Response, Compensation
and Liability Act (42 U.S.C. 9601 et seq.), 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 Federal Water
Pollution Control Act (33 U.S.C. 1251 et seq.), the
Clean Air Act (42 U.S.C. 7401 et seq.), the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C.
136 et seq.), the Occupational Safety and Health Act (29
U.S.C. 651 et seq.) and the Emergency Planning and
Community Right-to-Know Act (42 U.S.C. 11001 et
seq.), each as amended and supplemented, and any
analogous future or present local, state and federal
statutes, ordinances and other laws, and rules and
regulations promulgated pursuant thereto, each as in effect
as of the date of determination; and the term "Release"
means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, dispersal,
dumping, leaching or migration of Hazardous Material
into the indoor or outdoor environment (including, without
limitation, the abandonment or disposal of any barrels,
containers or other closed receptacles containing any
Hazardous Material), or into or out of any of the
Property, including the movement of any Hazardous
Material through the air, soil, surface, water, groundwater
or property.
(c) Trustor hereby agrees to indemnify, hold
harmless and defend (by counsel of Beneficiary's choice)
Beneficiary, its directors, officers, employees, agents,
successors and assigns from and against any and all
claims, losses, damages, demands, liabilities, fines,
penalties, assessments, 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' and
consultants' fees and expenses), arising directly or
indirectly, in whole or in part, out of (i) the presence on
or under the Property (including, but not limited to, the
surrounding streets and sidewalks) of any Hazardous
Material (including, without limitation, the existence in
the aquifer underlying the Property and other portions of
Reno, Nevada, or in soils affecting that aquifer, of PCE
(tetrachloroethylene) and hydrocarbons, or either of them
on or prior to the "Transfer Date" (as such term is defined
in the "Environmental Indemnity" described in Section 45
below), or any Release of any Hazardous Material on,
under or from the Property on or prior to the Transfer
Date, or (b) any activity carried on or undertaken on or
off the Property on or prior to the Transfer Date, whether
by Trustor or any employees, agents, contractors or
subcontractors of Trustor or any third persons occupying
or present on the Property, in connection with the use,
holding, handling, treatment, removal, storage,
decontamination, cleanup, transport, Release, generation,
processing or abatement of any Hazardous Material
located or present in, on or under the Property (including,
but not limited to, the surrounding streets and sidewalks).
The foregoing indemnity shall further apply to any
residual contamination in, on or under the Property
(including, but not limited to, the surrounding streets and
sidewalks), or affecting any natural resources, and to any
contamination of any property or natural resources arising
in connection with the generation, use, holding, handling,
treatment, removal, decontamination, cleanup, storage,
transport, Release, processing or abatement of any such
Hazardous Material on or prior to the Transfer Date, and
irrespective of whether any of such activities are
undertaken in accordance with applicable Environmental
Laws, but shall not include, with respect to any particular
indemnitee and loss, that portion, if any, of that loss
which was caused by the gross negligence or wilful
misconduct of that indemnitee. Trustor hereby
acknowledges and agrees that, notwithstanding any other
provision of this Deed of Trust to the contrary, the
obligations of Trustor under this Section 5(c) shall be
unlimited personal obligations of Trustor, shall not be
secured by this Deed of Trust and shall survive any
foreclosure under this Deed of Trust, any transfer in lieu
thereof, and any satisfaction of the Secured Obligations.
16. Insurance.
(a) Types and Amounts Required. During
the continuance of this Trust, Trustor shall at all times
provide, maintain and keep in force, at no expense to
Trustee or Beneficiary, for the benefit of Trustor and
Beneficiary, as their respective interests may appear, the
following policies of insurance:
(i) During the course of any
construction or repair of Improvements on the
Property, (x) builder's completed value risk
insurance against "all risks of physical loss"
(including fire and extended coverage, and
endorsements extending coverage for vandalism
and malicious mischief, collapse and property in
transit, offsite storage, delay of opening (business
interruption), demolition and debris removal,
flood, and, if reasonably available, earthquake), in
non-reporting form, covering 100% of the
anticipated construction cost, including "soft
costs," with not more than $250,000 deductible
from the loss payable for any casualty and no more
than fourteen (14) days for delay of opening; said
policy to contain a "permission to occupy upon
completion of work or occupancy" endorsement
and waiver of subrogation endorsement acceptable
to Beneficiary, and replacement cost coverage in
an agreed amount, and (y) an "owner/contractor
protective liability" policy, providing separate
liability coverage for Trustor and Beneficiary, with
a limit of not less than $10,000,000;
(ii) Insurance against loss or damage
to the Improvements and Personal Property by fire
and any of the other risks covered by insurance of
the type now known as "all risks of physical loss"
(including flood, and, if reasonably available,
earthquake coverage) in an amount not less than
100% of the then replacement cost of the
Improvements and Personal Property (exclusive of
the cost of excavations, pilings, foundations,
footings and other underground improvements
lying below the lowest basement level) without
deduction for physical depreciation; with an
Agreed Amount endorsement (waiving co-
insurance), a Replacement Cost Valuation
endorsement, a waiver of subrogation
endorsement, coverage for the cost of removing
damaged property, and, if Beneficiary shall so
require, coverage for demolition and increased cost
of construction occasioned by operation of any law
or ordinance regulating the construction, use or
repair of the Improvements; and with not more
than $250,000 deductible per occurrence and
$1,000,000 for the perils of flood and earthquake,
if a sub-deductible applies (and Trustor shall cause
similar casualty insurance to be carried by the
owners of the Skyways in accordance with the
provisions of the Bridge Easements referred to in
Part II of Exhibit A);
(iii) Mechanical breakdown insurance
(also known as "boiler and machinery" insurance)
covering pressure vessels, air tanks, boilers,
machinery, pressure piping, heating, air
conditioning and elevator equipment and escalator
equipment, if the Improvements contain equipment
of such nature, and insurance against loss of
occupancy or use arising from any such
breakdown, written on a comprehensive form with
a combined direct and indirect limit of
$50,000,000; the policy shall include an Agreed
Amount endorsement (waiving co-insurance), a
Replacement Cost Valuation endorsement, and
coverage for increased cost of construction
occasioned by operation of any law or ordinance
regulating the construction, use or repair of the
Improvements; the policy may contain deductibles
of no greater than $250,000 for direct damage and
forty-eight (48) hours for indirect loss;
(iv) Comprehensive general liability
insurance (1973 Form), written on an "occurrence
basis," against claims for death, bodily injury,
personal injury and property damage occurring in,
on or about the Real Property or the adjoining
streets, sidewalks and passageways (including,
without limitation, the Skyways), or arising from
or connected with the use, conduct or operation of
Trustor's business or interest (including, without
limitation, products liability coverage; blanket
contractual liability coverage, including both oral
and written contracts; broad form property damage
coverage; coverage against liability for injury or
property damage arising out of the use, by or on
behalf of the Trustor or any other person or
organization, of any owned, non-owned, leased or
hired automotive equipment in the conduct of any
and all operations of Trustor; coverage for "liquor
legal liability," "innkeepers legal liability," "safe
deposit legal liability," and "employee benefits
legal liability;" coverage for all professional
liability exposures associated with the operation of
the health spa; coverage for those hazards
commonly known in the insurance industry as
explosion, collapse and underground property
damage; and owners' and contractors' protective
coverage), such insurance to afford combined
single limit protection of not less than $1,000,000
per occurrence; if such policy contains a self-
insured retention, (A) such self-insured retention
shall be no greater than $100,000 per occurrence,
with an aggregate of $1,500,000 for all losses
(including expenses) within the self-insured
retention, and (B) Trustor shall be solely
responsible for the payment of all amounts due
within said self-insured retention, and the
indemnification provisions contained in this Deed
of Trust shall include all liability associated with
said self-insured retention;
(v) Comprehensive business
automobile liability insurance, written under
Coverage Symbol "1," covering all owned, non-
owned and hired or borrowed vehicles of Trustor
used in connection with any of the construction,
maintenance and operation of the Improvements,
naming Trustor as the named insured and covering
Beneficiary as additional insured, insuring against
liability for bodily injury and death and/or for
property damage in an amount not less than
$1,000,000 combined single limit per accident; (if
the policy contains a self-insured retention, (A)
such self-insured retention shall be no greater than
$100,000 per occurrence, with an aggregate limit
of $1,500,000 for all losses (including expenses)
within the self-insured retention, and (B) Trustor
shall be solely responsible for the payment of all
amounts due within said self-insured retention, and
the indemnification provisions contained in this
Deed of Trust shall include all liability associated
with said self-insured retention); in addition to said
automobile liability insurance, Trustor must
provide, maintain and keep in effect (x) garage
liability insurance, providing $1,000,000 combined
single limit for bodily injury and property damage
for the parking garage operation, and (y)
garagekeepers legal liability insurance, providing
$1,000,000 limit for comprehensive and collision
coverages for physical damage to vehicles in
Trustor's care, custody and control, with a
deductible no greater than $2,500 for each
automobile and $25,000 for each loss;
(vi) A standard Worker's
Compensation policy covering the State of Nevada
and Employer's Liability coverage subject to a
limit of no less than $500,000 for each employee,
$500,000 for each accident, and a $500,000 policy
limit, which policy shall include endorsements for
Voluntary Compensation and Employer's Liability
Coverage and Stop Gap Liability; if Trustor elects
to self-insure Worker's Compensation coverage in
the State of Nevada, Beneficiary must be furnished
with a copy of the certificate from the state
permitting self insurance and evidence of a stop
loss Excess Worker's Compensation policy with a
specific retention of no greater than $300,000.
(vii) An Umbrella Liability policy
with a limit of no less than $75,000,000 providing
excess coverage over all limits and coverages set
forth in paragraphs (iv), (v) and (vi) above, which
limits can be obtained by a combination of Primary
and Excess Umbrella policies, provided that all
layers follow form with the underlying policies set
forth in paragraphs (iv), (v) and (vi) and are
written on an "occurrence form;"
(viii) Business interruption
insurance/extra expense and loss of "rental value"
insurance, including coverage for off-premises
power losses and an extended period of indemnity
endorsement for at least 180 days, in an amount
representing not less than 100% percent of the
annual net profit plus continuing expenses
(including debt service) for the Project, as such net
profit and continuing expenses are reasonably
projected by Trustor and consented to by
Beneficiary (or, in the absence of such a
projection, as reasonably projected by Beneficiary),
with a deductible of no greater than seventy-two
(72) hours, or $250,000 if a separate deductible
applies ($1,000,000 for the perils of flood and
earthquake);
(ix) If the Property is located in an
area identified by the Secretary of Housing and
Urban Development as a flood hazard area and in
which flood insurance has been made available
under the National Flood Insurance Act of 1968,
flood insurance covering the Improvements, in an
amount, available under the Act, satisfactory to
Beneficiary;
(x) A comprehensive crime policy,
including the following coverages: (A) Employee
Dishonesty: $5,000,000; (B) Money & Securities
(inside): $2,000,000; (C) Money & Securities
(outside): $2,000,000; (D) Depositors Forgery:
$2,500,000; and (E) Computer Fraud: $2,500,000;
such policy shall be amended so that the term
"money" is defined therein to include "chips," the
policy may contain deductibles of no more than
$500,000 for Employee Dishonesty and $250,000
for all other agreements listed above; and
(xi) Such other insurance and in such
amounts, and such additional amounts of the
foregoing insurance, as may reasonably be
required by Beneficiary, from time to time, due
consideration being given to standard practices in
the industry and to the risks involved in Trustor's
business, operations or interest.
(b) Uniform Policy Requirements. All
policies of insurance required by the terms of this Deed of
Trust:
(i) shall be issued by insurance
companies licensed and admitted to do business in
the State of Nevada, and rated no lower than
A:XII in the most recent edition of A.M. Best's
and AA in the most recent edition of Standard &
Poor's, and in such form and amounts as are
reasonably satisfactory to Beneficiary from time to
time;
(ii) shall contain an endorsement or
agreement by the insurer that any loss shall be
payable in accordance with the terms of such
policy notwithstanding any act, failure to act,
negligence or breach of representation or warranty
of Trustor, or of any party holding under Trustor,
which might otherwise result in forfeiture of said
insurance;
(iii) shall contain a waiver by the
insurer of all rights of setoff, counterclaim and
deduction against Trustor;
(iv) shall contain a waiver of
subrogation by the insurer in favor of Beneficiary
and a clause providing that the policy is primary
and that any other insurance of Beneficiary with
respect to the matters covered by such policy shall
be excess and non-contributing;
(v) shall, in the case of policies
affording liability insurance coverage, name
Beneficiary (and Beneficiary's officers, directors,
employees, agents and representatives) as
additional insured by an endorsement satisfactory
to Beneficiary and contain cross-liability and
severability of interest clauses satisfactory to
Beneficiary, and, in the case of other policies,
shall name Beneficiary as a loss payee and have
attached thereto a lender's loss payable
endorsement, for the benefit of Beneficiary, in
form satisfactory to Beneficiary (Form 438 BFU,
unless otherwise specified by Beneficiary); and
(vi) shall contain a provision that,
notwithstanding any contrary agreement between
Trustor and insurance company, such policies will
not be canceled, fail to be renewed or materially
amended (which term shall include any reduction
in the type, scope or limits of coverage) without at
least thirty (30) days prior written notice to
Beneficiary.
(c) Blanket and Umbrella Policies. If
Beneficiary consents, Trustor may provide any of the
required insurance through an umbrella policy or policies
or through blanket policies carried by Trustor and
covering more than one location, or by policies procured
by a tenant or other party holding under Trustor;
provided, however, that the amount of the total insurance
allocated to the Real Property and available with respect
to occurrences required to be insured against shall be such
as to furnish protection the equivalent of separate policies
in the amounts herein required, and provided further, that,
in all other respects, any such policy or policies shall
comply with all of the other provisions of this Deed of
Trust.
(d) Evidence of Insurance. At
Beneficiary's option, Trustor shall furnish Beneficiary
with an original of all policies of insurance required under
this Section or with a certificate of insurance for each
required policy setting forth the coverage, the limits of
liability, the deductibles, if any, the name of the carrier,
the policy number, and the period of coverage, which
certificates shall be executed by authorized officials of the
companies issuing such insurance, or by agents or
attorneys-in-fact authorized to issue said certificates (in
which event each such certificate shall be accompanied by
a notarized affidavit, agency agreement or power of
attorney evidencing the authority of the signatory to issue
such certificate on behalf of the insurer named therein).
Trustor shall furnish to Beneficiary annually, within ten
days after the date hereof, or more often if Beneficiary
shall reasonably request, a certificate of Trustor specifying
all insurance policies with respect to the Property and all
other policies required hereby then outstanding and in
force, and stating whether or not such insurance complies
with the requirements of this Section and, if it does not,
the manner in which it does not comply. At least ten (10)
days prior to the expiration of each required policy,
Trustor shall deliver to Beneficiary evidence satisfactory
to Beneficiary of the payment of premium and the renewal
or replacement of such policy continuing insurance in
force as required by this Deed of Trust.
(e) Procurement by Beneficiary. If
Trustor fails to provide, maintain, keep in force or deliver
to Beneficiary the policies of insurance required by this
Deed of Trust, Beneficiary may (but shall have no
obligation to) procure such insurance, or single interest
insurance for such risks covering Beneficiary's interests,
and Trustor will pay all premiums therefor promptly upon
demand by Beneficiary; and until such payment is made
by Trustor, the amount of all such premiums, together
with interest thereon at an annual rate equal to the rate
specified in Section 2.2 E. (Post-Maturity Interest) of the
Credit Agreement (or if such provision is hereafter
replaced or renumbered, the equivalent section) (the
"Agreed Rate"), shall be secured by this Deed of Trust.
(f) Reserve Fund. Upon request by
Beneficiary following an Event of Default (as defined in
Section 23 hereof) relating to the payment of money, or
following and during the continuance of any other Event
of Default, Trustor shall pay to Beneficiary an initial cash
reserve in an amount adequate to pay all insurance
premiums due within the next succeeding twelve calendar
months on all policies of insurance required by this Deed
of Trust (or such lesser amount as may then be specified
by Beneficiary), and shall thereafter deposit with
Beneficiary each month, commencing with the first month
after such request by Beneficiary and continuing until all
sums secured hereby are paid in full or Beneficiary
notifies Trustor to cease making such deposits, an amount
equal to one-twelfth of the aggregate annual insurance
premiums on all policies of insurance required by this
Deed of Trust, as reasonably estimated by Beneficiary. In
such event Trustor further agrees to cause all bills,
statements or other documents relating to the foregoing
insurance premiums to be sent or mailed directly to
Beneficiary. Upon receipt of such bills, statements or
other documents evidencing that a premium for a required
policy is then payable, and providing Trustor has
deposited sufficient funds with Beneficiary pursuant to this
Section, Beneficiary shall pay such amounts as may be
due thereunder out of the funds so deposited with
Beneficiary. If at any time and for any reason the funds
deposited with Beneficiary are or will be insufficient to
pay such amounts as may be then or subsequently due,
Beneficiary may notify Trustor and Trustor shall
immediately deposit an amount equal to such deficiency
with Beneficiary. Notwithstanding the foregoing, nothing
contained herein shall cause Beneficiary to be deemed a
trustee of said funds or to be obligated to pay any amounts
in excess of the amount of funds deposited with
Beneficiary pursuant to this Section, nor shall anything
contained herein modify the obligation of Trustor to
maintain and keep in force at all times such insurance as
is required by this Deed of Trust. Beneficiary may
commingle said reserve with its own funds and Trustor
shall be entitled to no interest thereon.
(g) Replacement Cost. Whenever
Beneficiary requires insurance with full replacement cost
protection, such full replacement cost shall be determined
annually (except in the event of substantial changes,
alterations or additions to the Improvements or in the
event of new construction undertaken by the Trustor, in
which event such full replacement cost shall be determined
from time to time as required to assure full replacement
cost coverage). Such determination of full replacement
cost shall be made by written agreement of the insurance
carrier and Trustor, subject to the reasonable approval of
Beneficiary. If they cannot agree or the value shall not be
approved by Beneficiary within thirty (30) days after such
request, such full replacement cost shall be determined by
an appraiser, architect or contractor who shall be
reasonably acceptable to Beneficiary. No omission on the
part of Beneficiary to request any such determination shall
relieve Trustor of its obligations hereunder, and any such
determination to the contrary notwithstanding, Beneficiary
may require Trustor to obtain additional insurance as
provided in this Section.
(h) Separate Insurance. Trustor shall not
take out separate insurance concurrent in form or
contributing in the event of loss with that required by this
Section to be furnished by Trustor unless Beneficiary is a
named insured therein, with loss payable as provided
herein. Trustor shall immediately notify Beneficiary of
the taking out of any such separate insurance and shall
cause the original policies in respect thereof or certificates
therefor to be delivered to Beneficiary.
(i)
Compliance with Insurance Requirements. Trustor shall
observe and comply with the requirements of all policies
of insurance required to be maintained in accordance with
this Deed of Trust and shall cause the requirements of the
companies writing such policies to be so performed and
satisfied that at all times companies of good standing
satisfactory to Beneficiary shall be willing to write and to
continue such insurance. Notwithstanding any approval,
disapproval, acceptance or acquiescence by Beneficiary
with respect to such insurance, or Beneficiary's obtaining
or failure to obtain any insurance, Beneficiary shall incur
no liability as to the form or legal sufficiency of insurance
contracts, the solvency of any insurer or the payment of
any loss, and Trustor hereby expressly assumes full
responsibility therefor.
(j)
Assignment of Policies upon Foreclosure. In the event
of foreclosure of this Deed of Trust or other transfer of
title or assignment of any of the Property in
extinguishment, in whole or in part, of the debt secured
hereby, all right, title and interest of Trustor in and to all
policies of insurance required by this Section with respect
to such Property and any unearned premiums paid thereon
shall, without further act, be assigned to and shall inure to
the benefit of and pass to the successor in interest to
Trustor or the purchaser or grantee of the Property, and
Trustor hereby appoints Beneficiary its lawful attorney-in-
fact to execute an assignment thereof and any other
document necessary to effect such transfer.
(k) Waiver of Subrogation. Trustor
waives any and all right to claim or recover against
Beneficiary, its directors, officers, employees, agents and
representatives, for loss of or damage to Trustor, the
Property, any other property of Trustor, or any property
of others under Trustor's control, from any cause insured
against or required to be insured against by the provisions
of this Deed of Trust.
(l) Requirements Supplemental. The
requirements of this Deed of Trust with respect to
insurance and maintenance of the Property shall be
supplemental to and not exclusive of the requirements of
the Credit Agreement and the Security Agreement relating
thereto.
17. Casualties; Insurance Proceeds.
(a) Notice of Casualties. Trustor shall
give prompt written notice thereof to Beneficiary after the
happening of any material casualty to or in connection
with the Property or any part thereof, whether or not such
casualty is covered by insurance.
(b) Payment of Proceeds. Prior to any
Event of Default, proceeds of insurance in an amount not
greater than $1,000,000 payable in connection with any
casualty affecting all or any portion of the Property shall
be payable to Trustor. Proceeds in any greater amount
and, after an Event of Default, all proceeds, payable in
connection with any casualty affecting all or any portion
of the Property shall be payable to Beneficiary. Trustor
hereby authorizes and directs any affected insurance
company to make payment of such proceeds directly to
Beneficiary. If Trustor receives any proceeds of insurance
resulting from a casualty which, pursuant to this Deed of
Trust, are to be paid to Beneficiary, Trustor shall
promptly pay over such proceeds to Beneficiary. Trustor
shall not settle, adjust or compromise any claims for loss,
damage or destruction of the Property or any part thereof
under any policy or policies of insurance in connection
with a loss in an amount of $1,000,000 or more without
the prior written consent of Beneficiary to such settlement,
adjustment or compromise; and, after an Event of Default
hereunder, Beneficiary shall have the sole and exclusive
right, and Trustor hereby authorizes and empowers
Beneficiary, to settle, adjust or compromise any such
claims.
(c) Use in Restoration. In the event of
any damage to or destruction of the Property, and
provided that (i) at the time of such damage or destruction
or thereafter, an Event of Default does not exist
hereunder, and (ii) application of insurance proceeds to
restoration of the Property will not, in Beneficiary's sole
judgment, materially impair Beneficiary's security for the
obligations secured hereby, insurance proceeds payable in
connection with such damage or destruction shall be
applied, first, toward reimbursement of all of
Beneficiary's reasonable costs and expenses of recovering
the proceeds, including reasonable attorneys' fees; then, to
payment of all sums advanced by Beneficiary to protect
the Property or the security of the Secured Obligations;
then, to payment of installments of principal and interest
then due and payable under the Notes; then, to restoration
of the Property, upon conditions which are substantially
similar to the disbursement provisions and conditions set
forth in the Credit Agreement, and all other conditions
and provisions established by Beneficiary which are
similar to conditions and provisions then used by
Beneficiary for disbursements of a construction loan
(including, without limitation: delivery to Beneficiary by
Trustor of detailed plans and specifications providing for
restoration in accordance with all applicable Legal
Requirements of all governmental authorities having
jurisdiction over the Project, together with a detailed
estimate of the cost of the work and schedule therefor and
a construction contract satisfactory to Beneficiary, with a
contractor satisfactory to Beneficiary, for performance of
the work within the budgeted amount, and within the
scheduled time for completion; proof that the insurance
required hereby is in force; proof that an amount equal to
the sum which Beneficiary is requested to disburse has
theretofore been paid by Trustor, or is then due and
payable, for materials theretofore installed or work
theretofore performed upon the Property and properly
includable in the cost of repair, reconstruction or
restoration thereof; proof that, after repair or
reconstruction, the Property will be at least as valuable as
it was immediately before the damage or condemnation
occurred; and proof that the insurance proceeds available
for repair or restoration are sufficient, in Beneficiary's
determination, to pay for the total cost of repair or recon-
struction, including all associated development costs and
interest projected to be payable on the Secured Obligations
until the repair or reconstruction is complete, or Trustor
must provide its own funds in an amount equal to the
difference between the proceeds available for repair or
restoration and a reasonable estimate, made by Trustor
and found acceptable by Beneficiary, of the total cost of
repair or reconstruction); and, upon completion of the
work of restoration and payment of the cost thereof, any
balance of such proceeds shall be applied to the
indebtedness secured hereby, in such order as Beneficiary,
in its sole discretion, shall determine; and, if any then
remains, it shall be paid over to Trustor.
(d) Application by Beneficiary. If (i) at
the time of such damage or destruction or thereafter, an
Event of Default exists hereunder, or (ii) application of
insurance proceeds to restoration will, in Beneficiary's
sole judgment, materially impair Beneficiary's security for
the obligations secured hereby, Beneficiary shall have the
option, in its sole and absolute discretion, (1) to apply all
or any portion of such proceeds to any indebtedness or
other obligation secured hereby and in such order as
Beneficiary may determine, notwithstanding that said
indebtedness or the performance of said obligation may
not be due according to the terms thereof, or (2) to apply
all or any portion of such proceeds to the restoration of
the Property, subject to such conditions as Beneficiary
shall determine, or (3) to deliver all or any portion such
proceeds to Trustor, subject to such conditions as
Beneficiary may determine.
(e) Duty to Restore. Nothing in this Deed
of Trust shall be deemed to excuse Trustor from restoring,
repairing and maintaining the Property, as herein provided
(other than Beneficiary's failure to apply insurance
proceeds to the restoration of the Property as and to the
extent required by Section 7(c) above, which failure shall
excuse Trustor only to the extent of the insurance
proceeds so withheld by Beneficiary), regardless of
whether or not insurance proceeds are available for
restoration, whether or not any such proceeds are
sufficient in amount, or whether or not the Property can
be restored to the same condition and character as existed
prior to such damage or destruction.
18. Taxes and Impositions.
(a) Payment by Trustor. Subject to the
provisions of Section 8(d) below, Trustor shall pay, or
cause to be paid, at least ten (10) days prior to
delinquency, all real property taxes and assessments,
general and special, and all other taxes and assessments of
any kind or nature whatsoever, including, without
limitation, non-governmental levies or assessments such as
maintenance charges, owner association dues or charges
or fees, levies or charges resulting from covenants,
conditions or restrictions affecting the Property or the
Skyways, which are assessed or imposed upon the
Property or the Skyways, or become due and payable, and
which create, may create or appear to create a lien upon
the Property, or any part thereof, or the Skyways, or upon
any personal property, equipment or other facility used in
the operation or maintenance thereof (all of which taxes,
assessments and charges, together with any and all other
taxes, and charges of a similar kind or nature are
collectively referred to hereinafter as "Impositions");
provided, however, that if, by law, any such Imposition is
payable, or may at the option of the taxpayer be paid, in
installments, Trustor may pay the same or cause it to be
paid, together with any accrued interest on the unpaid
balance of such Imposition, in installments as the same
become due and before any fine, penalty, interest or cost
may be added thereto for the nonpayment of any such
installment and interest.
(b) New Impositions. If at any time after
the date hereof there shall be assessed or imposed (i) a tax
or assessment on the Property in lieu of or in addition to
the Impositions payable by Trustor pursuant to Subsection
(a) of this Section, or (ii) a license fee, tax or assessment
imposed on Beneficiary and measured by or based in
whole or in part upon the amount of the Notes or other
obligations secured hereby, then all such taxes,
assessments or fees shall be deemed to be included within
the term "Impositions" as defined in Subsection (a) of this
Section, and Trustor shall pay and discharge the same as
herein provided with respect to the payment of
Impositions, if Trustor is permitted by law to pay the
same. If Trustor is prohibited by law from paying such
Impositions, then, at the option of Beneficiary, all
obligations secured hereby, together with all accrued
interest thereon, shall immediately become due and
payable. Anything to the contrary herein notwithstanding,
Trustor shall have no obligation to pay any franchise,
estate, inheritance, income, excess profits or similar tax
levied on Beneficiary or on the obligations secured
hereby.
(c) Proof of Payment. Subject to the
provisions of Subsection (d) of this Section, Trustor shall
deliver to Beneficiary, within seven (7) days after the date
upon which any Imposition is due and payable by Trustor
in accordance with this Deed of Trust, official receipts of
the appropriate taxing authority, or other proof
satisfactory to Beneficiary, evidencing the payment
thereof.
(d) Contest of Assessments. Trustor shall
have the right before any delinquency occurs to contest or
object to the amount or validity or amount of any such
Imposition by appropriate legal proceedings, but this shall
not be deemed or construed in any way as relieving,
modifying or extending Trustor's covenant to pay any
such Imposition at the time and in the manner provided in
this Section unless Trustor has given prior written notice
to Beneficiary of Trustor's intent so to contest or object to
an Imposition, and unless, at Beneficiary's sole option,
(i) Trustor shall demonstrate to Beneficiary's satisfaction
that the legal proceedings shall conclusively operate to
prevent the sale of the Property, or any part thereof, to
satisfy such Imposition prior to final determination of such
proceedings; or (ii) Trustor shall furnish a good and
sufficient bond or surety as requested by and satisfactory
to Beneficiary; or (iii) Trustor shall demonstrate to
Beneficiary's satisfaction that Trustor has provided a good
and sufficient undertaking as required or permitted by law
to accomplish a stay of any such sale.
(e) Reserve Fund. Upon request by
Beneficiary following an Event of Default relating to the
payment of money, or following and during the
continuance of any other Event of Default, Trustor shall
pay to Beneficiary an initial cash reserve in an amount
adequate to pay all Impositions for the ensuing tax fiscal
year (or such lesser amount as may then be specified by
Beneficiary), and shall thereafter deposit with Beneficiary
each month, commencing with the first month after such
request by Beneficiary and continuing until all sums
secured hereby are paid in full or Beneficiary gives notice
to Trustor to cease making such deposits, an amount equal
to one-twelfth of the sum of the annual Impositions, as
reasonably estimated by Beneficiary. In such event,
Trustor further agrees to cause all bills, statements or
other documents relating to Impositions to be sent or
mailed directly to Beneficiary. Upon receipt of such bills,
statements or other documents evidencing that Impositions
are then payable, and providing Trustor has deposited
sufficient funds with Beneficiary pursuant to this Section,
Beneficiary shall pay such amounts as may be due
thereunder out of the funds so deposited with Beneficiary.
If at any time and for any reason the funds deposited with
Beneficiary are or will be insufficient to pay such amounts
as may then or subsequently be due, Beneficiary may
notify Trustor and upon such notice Trustor shall
immediately deposit an amount equal to such deficiency
with Beneficiary. Notwithstanding the foregoing, nothing
contained herein shall cause Beneficiary to be deemed a
trustee of said funds or to be obligated to pay any amounts
in excess of the amount of funds deposited with
Beneficiary pursuant to this Section, nor shall anything
contained herein modify the obligation of Trustor to pay,
or cause to be paid, all Impositions. Beneficiary may
commingle said reserve with its own funds and Trustor
shall be entitled to no interest thereon. Beneficiary may
impound or reserve for future payment of Impositions
such portion of such payments as Beneficiary may in its
absolute discretion deem proper, applying the balance
upon any indebtedness or obligation secured hereby in
such order as Beneficiary may determine, notwithstanding
that said indebtedness or the performance of said
obligation may not yet be due according to the terms
thereof. Should Trustor fail to deposit with Beneficiary
(exclusive of that portion of said payments which has been
applied by Beneficiary upon any indebtedness or
obligation secured hereby) sums sufficient to fully pay
such Impositions at least thirty (30) days before
delinquency thereof, Beneficiary may, at Beneficiary's
election, but without any obligation so to do, advance any
amounts required to make up the deficiency, which
advances, if any, together with interest thereon at an
annual rate equal to the Agreed Rate, shall be secured
hereby and shall be repayable to Beneficiary upon
demand; or, at the option of Beneficiary, Beneficiary may,
without making any advance whatever, apply any sums
held by it upon any indebtedness or obligation secured
hereby, in such order as Beneficiary may determine,
notwithstanding that said indebtedness or the performance
of said obligation may not yet be due according to the
terms thereof.
(f) Joint Assessment. Trustor shall not
initiate, and, to the maximum extent permitted by law,
shall not suffer or permit the joint assessment of any real
and personal property which may constitute all or a
portion of the Property or any other procedure whereby
the lien of real property taxes and the lien of personal
property taxes shall be assessed, levied or charged to the
Property as a single lien.
(g) Tax Service. Trustor shall cause to be
furnished to Beneficiary a tax reporting service, covering
the Property, of the type and duration, and with a
company, satisfactory to Beneficiary.
19. Liens. Trustor shall pay and promptly
discharge, at Trustor's cost and expense, all liens, encum-
brances and charges upon the Property, or any part
thereof or interest therein; provided that Trustor shall have
the right to contest in good faith the validity or amount of
any such lien, encumbrance or charge in accordance with
the provisions of the Credit Agreement, and provided
further that Trustor will not be required to pay or
discharge Permitted Encumbrances. If Trustor shall fail
to remove and discharge any such lien, encumbrance or
charge when due (or, if being contested in accordance
with the Credit Agreement, promptly upon final
determination of such contest proceedings), then, in
addition to any other right or remedy of Beneficiary,
Beneficiary may, but shall not be obligated to, discharge
the same, either by paying the amount claimed to be due,
or by procuring the discharge of such lien, encumbrance
or charge by depositing in a court a bond or the amount
claimed or otherwise giving security for such claim, or by
procuring such discharge in such manner as is or may be
prescribed by law. Trustor shall, immediately upon
demand therefor by Beneficiary, pay to Beneficiary an
amount equal to all costs and expenses incurred by Benefi-
ciary in connection with the exercise by Beneficiary of the
foregoing right to discharge any such lien, encumbrance
or charge, together with interest thereon from the date of
such expenditure at an annual rate equal to the Agreed
Rate.
20. Easements and Leaseholds. If a
leasehold estate or an easement or other incorporeal right
constitutes a portion of the Real Property, Trustor agrees
not to amend, change or modify (other than any such
amendment, change or modification that is beneficial to
the Real Property, with the beneficial nature thereof to be
determined in Beneficiary's reasonable judgment) or
terminate such leasehold estate, easement or other right or
interest, or any right thereto or interest therein, without
the prior written consent of Beneficiary. Consent to one
amendment, change, agreement or modification shall not
be deemed to be a waiver of the right to require consent
to other, future or successive amendments, changes,
agreements or modifications. Trustor shall submit to
Beneficiary any such request for consent in writing (which
request shall include such information and documentation
as appropriate to enable Beneficiary to make an informed
decision regarding such request), and Beneficiary will
have thirty (30) days after receipt thereof in which to
review and respond to such request. If Beneficiary fails to
respond to Trustor's request within said thirty (30) day
period, Trustor may resubmit its request in writing,
stating that Beneficiary failed to respond to the initial
request within said thirty (30) day period and, if
Beneficiary thereafter fails to respond to such request
within five (5) days, Beneficiary shall be deemed to have
consented thereto. Trustor agrees to perform all
obligations and agreements with respect to said leasehold,
easement or other right or interest and shall not take any
action or omit to take any action which would effect or
permit the termination thereof. Trustor agrees to
promptly notify Beneficiary in writing with respect to any
default or alleged default by any party thereto and to
deliver to Beneficiary copies of all notices, demands,
complaints or other communications received or given by
Trustor with respect to any such default or alleged default.
Beneficiary shall have the option to cure any such default
and to perform any or all of Trustor's obligations
thereunder or with respect thereto. All sums expended by
Beneficiary in curing any such default shall be secured
hereby and shall be immediately due and payable without
demand or notice and shall bear interest from date of
expenditure at an annual rate equal to the Agreed Rate.
21. Further Acts. Trustor shall do and
perform all acts necessary to keep valid and effective the
charges and lien hereof, to carry into effect its object and
purposes, to protect the lawful owners of the Notes and
other obligations secured hereby; shall execute and deliver
to Beneficiary at any time, upon request of Beneficiary,
all other and further instruments in writing necessary to
vest in and secure to Trustee each and every part of the
Real Property and to Beneficiary the Rents therefrom and
rights and interest of Beneficiary therein or with respect
thereto; and, upon request by the Beneficiary, shall supply
evidence of fulfillment of each of the covenants herein
contained concerning which a request for such evidence
has been made.
22. Assignment of Rents.
(a) Assignment to Beneficiary; Trustor's
Limited License to Collect Prior to Default.
Notwithstanding any language contained herein, or in any
other document, to the contrary, Trustor hereby
irrevocably and absolutely assigns and transfers to
Beneficiary, without having to first take possession of the
Property, all Rents, including all present and future
Leases and other rental agreements, reserving unto
Trustor a license to collect such Rents prior to the
occurrence of any Event of Default. Upon the occurrence
of an Event of Default, such license reserved to Trustor
shall be immediately revoked without further demand or
notice, and any Rents, including those past due, unpaid or
undetermined, may be collected by Beneficiary or its
agent, and any amount so collected shall be applied, less
costs and expenses of operation and collection, including
reasonable attorneys' fees, to any indebtedness and/or
obligations secured hereby, and in such order as
Beneficiary shall determine, provided that, upon Trustor's
cure of any Event of Default not relating to the payment
of money, Beneficiary will reinstate Trustor's license to
collect such Rents. The collection of such Rents, and the
application thereof as aforesaid, shall not cure or
constitute a waiver of any default or notice of default
hereunder or invalidate any act done pursuant to such
notice. Trustor and Beneficiary intend that this
assignment shall be a present, absolute and unconditional
assignment, not an assignment for additional security only,
and shall, immediately upon the execution hereof, subject
to the license granted above, give Beneficiary, and its
agent, the right to collect the Rents and to apply them as
aforesaid. Nothing contained herein, nor any collection of
Rents by Beneficiary, or its agent or a receiver, shall be
construed to make Beneficiary (i) a "Mortgagee-in-
Possession" of the Property so long as Beneficiary has not
itself entered into actual possession of the Property; (ii)
responsible for performing any of the obligations of the
lessor under any Lease; (iii) responsible for any waste
committed by lessees or any other parties, any dangerous
or defective condition of the Property, or any negligence
in the management, upkeep, repair or control of the
Property; or (iv) liable in any manner for the Property or
the use, occupancy, enjoyment or operation of all or any
part of it (provided that this clause (iv) shall not act to
relieve Beneficiary from liability resulting from the gross
negligence or willful misconduct of Beneficiary).
(b) No Other Assignments. Trustor
hereby represents to Beneficiary that there is no
assignment or pledge of any Leases of, or Rent from, the
Property now in effect, and covenants that, until the Notes
are fully paid, the Letters of Credit (as defined in the
Credit Agreement) have expired or been canceled, and the
other Secured Obligations are fully satisfied and the
Commitments (as defined in the Credit Agreement) are
terminated, Trustor will not make any such assignment or
pledge to anyone other than Beneficiary nor will it accept
any periodic payments which are to be made pursuant to
such Leases or Rents more than thirty (30) days in
advance of the date on which such payments are due.
23. Actions Affecting Property. Trustor
shall give Beneficiary and Trustee prompt written notice
of the assertion of any claim with respect to, or the filing
of any action or proceeding affecting or purporting to
affect, the Property or Skyways, or title thereto or any
right of possession thereof, or this Deed of Trust or the
security hereof or the rights or powers of Beneficiary or
Trustee hereunder. Trustor shall appear in and contest
any such action or proceeding at Trustor's sole expense;
and shall pay all costs and expenses, including cost of
evidence of title and reasonable attorneys' fees, in any
such action or proceeding in which Beneficiary or Trustee
may appear.
24. Eminent Domain. If any proceeding
or action be commenced for the taking of the Property, or
any part thereof or interest therein, for public or quasi-
public use under the power of eminent domain,
condemnation or otherwise, or if the same be taken or
damaged by reason of any public improvement or
condemnation proceeding, or in any other manner, or
should Trustor receive any notice or other information
regarding such proceeding, action, taking or damage
(including, without limitation, a proposal to purchase the
Property or some portion thereof in lieu of condemnation),
Trustor shall give prompt written notice thereof to
Beneficiary. Beneficiary shall be entitled, at its option,
without regard to the adequacy of its security, to
investigate and negotiate with the condemnor concerning
the proposed taking, to commence, appear in and
prosecute in its own name any such action or proceeding,
and, if the amount of the Award (defined below) is an
amount greater than $1,000,000, or if an Event of Default
then exists hereunder, to make any compromise or
settlement in connection with such taking or damage.
Trustor shall not compromise or settle any such action or
proceeding or agree to any sale in lieu of condemnation if
the amount of the Award is an amount greater than
$1,000,000 without the prior written consent of
Beneficiary. All compensation, awards, damages, rights
of action and proceeds awarded to Trustor by reason of
any such taking, transfer or damage (the "Award") are
hereby assigned to Beneficiary and Trustor agrees to
execute such further assignments of the Award as
Beneficiary or Trustee may require. After deducting
therefrom all costs and expenses (regardless of the
particular nature thereof and whether incurred with or
without suit), including reasonable attorneys' fees,
incurred by it in connection with any such negotiations,
action or proceeding (whether or not prosecuted to
judgment), Beneficiary shall, if (i) an Event of Default
does not then exist hereunder, and (ii) if application of the
Award to restoration of the Property will not, in
Beneficiary's sole judgment, materially impair
Beneficiary's security for the obligations secured hereby,
apply the Award to the restoration of the Property, upon
conditions substantially similar to the disbursement
provisions and conditions set forth in the Credit
Agreement, and all other conditions and provisions
established by Beneficiary which are similar to conditions
and provisions then used by Beneficiary for disbursements
of a construction loan (it being expressly understood and
agreed that Beneficiary may condition disbursement of
such proceeds for restoration upon proof that an amount
equal to the sum which Beneficiary is requested to
disburse has theretofore been paid by Trustor without
reimbursement therefor, or is then due and payable, for
materials theretofore installed or work theretofore
performed upon the Property and properly includable in
the cost of repair, reconstruction or restoration thereof).
If, at the time of receipt by Beneficiary of such proceeds,
(i) an Event of Default then exists hereunder, or (ii)
application of the Award to restoration will, in
Beneficiary's sole judgment, materially impair
Beneficiary's security for the obligations secured hereby,
Beneficiary shall have the option, in its sole and absolute
discretion, (1) to apply all or any portion of the Award
upon any indebtedness or other obligation secured hereby
and in such order as Beneficiary may determine,
notwithstanding that said indebtedness or the performance
of said obligation may not be due according to the terms
thereof, or (2) to apply all or any portion of the Award to
the restoration of the Property, subject to such conditions
as Beneficiary may determine, or (3) to deliver all or any
portion of the Award, after such deductions, to Trustor,
subject to such conditions as Beneficiary may determine
(and, if the Award is not sufficient to satisfy the Secured
Obligations in full, Trustor shall immediately pay any re-
maining balance, together with all accrued interest
thereon). Nothing herein contained shall be deemed to
excuse Trustor from restoring, repairing and maintaining
the Property, as herein provided (other than Beneficiary's
failure to apply the Award to the restoration of the
Property as and to the extent required by the provisions of
this Section 14, which failure shall excuse Trustor only to
the extent of the Award so withheld by Beneficiary),
regardless of whether or not the Award is available for
restoration, whether or not any such Award is sufficient in
amount, or whether or not the Property can be restored to
the same condition and character as existed prior to such
damage or partial taking. Trustor hereby specifically,
unconditionally and irrevocably waives all rights of a
property owner under all laws, including NRS 37.115, as
amended or recodified from time to time, which provide
for allocation of condemnation proceeds between a
property owner and a lienholder.
25. Due on Sale. Except as otherwise
permitted in the Credit Agreement, or this Deed of Trust,
if the Trustor shall sell or convey, or create or permit to
exist any mortgage, pledge, security interest or other
encumbrance on, or in any other manner alienate or
otherwise "transfer" the Real Property hereby encumbered
or any part thereof or any interest therein, or shall enter
into any agreement for the same that is not expressly
conditioned on Beneficiary's approval, or shall be divested
of its title in any manner or way, whether voluntary or
involuntary or by merger, without the written consent of
Beneficiary being first had and obtained, any indebtedness
or obligation secured hereby, irrespective of the maturity
dates expressed in the Notes or any other notes,
instruments or documents evidencing the same, at the
option of Beneficiary, and without demand or notice, shall
immediately become due and payable. Consent to one
such transaction shall not be deemed to be a waiver of the
right to require consent to future or successive
transactions. Beneficiary may grant or deny such consent
in its sole discretion and, if consent should be given, any
such transfer shall be subject to this Deed of Trust, and
any such transferee shall assume all obligations hereunder
and agree to be bound by all provisions contained herein.
Such assumption shall not, however, release Trustor or
any maker or guarantor of any Secured Obligation from
any liability with respect thereto without the prior written
consent of Beneficiary. As used herein, "transfer"
includes the direct or indirect sale, agreement to sell,
transfer, conveyance, pledge, collateral assignment or
hypothecation of the Real Property, or any portion thereof
or interest therein, whether voluntary, involuntary, by
operation of law or otherwise, the execution of any
installment land sale contract or similar instrument
affecting all or a portion of the Real Property, or the lease
of all or substantially all of the Real Property. The term
"transfer" shall also include the direct or indirect
transfer, assignment, hypothecation or conveyance of legal
or beneficial ownership of (i) any partnership interest in
Trustor, (ii) any partnership or other interest in any
general partner in Trustor, or in any partner or member in
or other constituent of any general partner of Trustor, that
is a partnership or limited liability company or similar
entity, or (iii) any stock in any general partner in Trustor,
or in any constituent of any general partner or Trustor,
that is a corporation.
26. Partial or Late Payments. By
accepting payment of any indebtedness secured hereby
after its due date, Beneficiary does not waive its right
either to require prompt payment, when due, of all other
indebtedness so secured or to declare default, as herein
provided, for failure to so pay.
27. Reconveyance By Trustee. Upon
receipt of written request from Beneficiary reciting that all
sums secured hereby have been paid, and the Letters of
Credit have expired or been canceled and the
Commitments have terminated, and upon surrender of this
Deed of Trust and the Notes secured hereby to Trustee for
cancellation and retention, or such other disposition as
Trustee, in its sole discretion, may choose, and upon
payment of its fees, the Trustee shall reconvey, without
warranty or recourse, the Property then held hereunder.
The recitals in such reconveyance of any matters of fact
shall be conclusive proof of the truth thereof. The grantee
in such reconveyance may be described in general terms
as "the person or persons legally entitled thereto".
28. Right of Beneficiary and Trustee to
Appear. If, during the existence of the trust created
hereby, there be commenced or pending any suit or action
materially and adversely affecting the Property, or any
part thereof, or the title thereto, or if any adverse claim
for or against the Property, or any part thereof, be made
or asserted, the Trustee or Beneficiary may appear or
intervene in the suit or action and retain counsel therein
and, unless such suit or action is being diligently contested
in good faith by Trustor and Trustor shall have established
and maintained adequate reserves with Beneficiary for the
full payment and satisfaction of such suit or action if
determined adversely to Trustor, may defend same, or
otherwise take such action therein as the Trustee or
Beneficiary may be advised and may pay and expend such
sums of money as the Trustee or Beneficiary may deem to
be necessary and Trustor shall pay all reasonable costs and
expenses of Trustee and Beneficiary incurred in
connection therewith.
29. Performance by Trustee or
Beneficiary. If Trustor fails to make any payment or
perform any act as and in the manner provided in any of
the Loan Documents, then the Trustee or Beneficiary, at
the election of either of them and without any obligation
to do so, after the giving of reasonable notice to the
Trustor, or any successor in interest of the Trustor, or any
of them and without releasing Trustor from any obligation
hereunder, may make such payment or perform such act
and incur any liability, or expend whatever amounts, in its
absolute discretion, it may deem necessary therefor. In
connection therewith (without limiting their general and
other powers, whether conferred herein, in another Loan
Document or by law), Beneficiary and Trustee, and each
of them, shall have and are hereby given the right, but not
the obligation, (i) to enter upon and take possession of the
Property; (ii) to make additions, alterations, repairs and
improvements to the Property which they or either of
them may consider necessary or proper to keep the
Property in good condition and repair; (iii) to appear and
participate in any action or proceeding affecting or which
may affect the security hereof or the rights or powers of
Beneficiary or Trustee; (iv) to pay, purchase, contest or
compromise any encumbrance, claim, charge, lien or debt
which in the judgment of either may affect or appears to
affect the security of this Deed of Trust or to be prior or
superior hereto; and (v) in exercising such powers, to pay
necessary expenses, including employment of counsel and
other necessary or desirable consultants. All sums
incurred or expended by the Trustee or Beneficiary, under
the terms hereof (including, without limiting the generality
of the foregoing, costs of evidence of title, court costs,
appraisals, surveys, and receiver's, Trustee's and
reasonable attorneys' fees, costs and expenses (including,
without limitation, the reasonable fees and expenses of
attorneys for Trustee), whether or not an action is actually
commenced in connection therewith), shall become due
and payable by the Trustor to the Trustee or Beneficiary,
as the case may be, on the next interest or installment
payment date under the Notes secured hereby and shall
bear interest until paid at an annual percentage rate equal
to the Agreed Rate. In no event shall payment by Trustee
or Beneficiary be construed as a waiver of the default
occasioned by Trustor's failure to make such payment or
payments.
30. Inspections. Beneficiary, or its agents,
representatives or workers, are authorized to enter at any
reasonable time upon or in any part of the Property for
the purpose of inspecting the same and for the purpose of
performing any of the acts it is authorized to perform
hereunder or under the terms of any of the Loan
Documents.
31. Invalidity of Lien. If the lien of this
Deed of Trust is invalid or unenforceable as to any part of
the "Obligations" or the "Indebtedness" (as those
capitalized terms are defined in the Credit Agreement) of
Trustor under the Loan Documents, or if the lien is
invalid or unenforceable as to any part of the Property,
the unsecured or partially secured portion of such
Obligations and Indebtedness shall be completely paid
prior to the payment of the remaining and secured or
partially secured portion of such Obligations and
Indebtedness, and all payments made on such Obligations
and Indebtedness, whether voluntary or under foreclosure
or other enforcement action or procedure, shall be
considered to have been first paid on and applied to the
full payment of that portion of such Obligations and
Indebtedness which is not secured or is not fully secured
by the lien of this Deed of Trust.
32. Subrogation. To the extent that
proceeds of the Notes or other sums advanced by
Beneficiary are used to pay any outstanding lien, charge
or prior encumbrance against the Property, such proceeds
shall be deemed to have been advanced by Beneficiary at
Trustor's request and Beneficiary shall be subrogated to
any and all rights and liens held by any owner or holder
of such outstanding liens, charges and prior
encumbrances, regardless of whether said liens, charges or
encumbrances are released.
33. Events of Default. Trustor will be in
default under this Deed of Trust upon the occurrence of
any one or more of the following events (some or all
collectively, "Events of Default"; any one singly, an
"Event of Default"):
(a) Failure to Pay. Any amount due
under any of the Notes, the Credit Agreement, this Deed
of Trust or any other Loan Document, or any other
amount the payment of which is secured hereby, is not
paid when due; or
(b) Other Breaches Hereof. A breach by
Trustor of any representation, warranty or covenant in this
Deed of Trust which is not cured within fifteen (15) days
after receipt by Trustor of notice of such breach; or
(c) Future Advances. Trustor or any
other "borrower" (as that term is defined in NRS 106.310,
as amended or recodified from time to time) who may
send a notice pursuant to NRS 106.380(1), as amended or
recodified from time to time with respect to this Deed of
Trust, (i) delivers, sends by mail or otherwise gives, or
purports to deliver, send by mail or otherwise give, to
Beneficiary, (A) any notice of an election to terminate the
operation of this Deed of Trust as security for any
Secured Obligation, including any obligation to repay any
"future advance" (as defined in NRS 106.320, as amended
or recodified from time to time) of "principal" (as defined
in NRS 106.345, as amended or recodified from time to
time), or (B) any other notice pursuant to NRS
106.380(1), as amended or recodified from time to time,
(ii) records a statement pursuant to NRS 106.380(3), as
amended or recodified from time to time, or (iii) causes
this Deed of Trust, any Secured Obligation, or Beneficiary
to be subject to NRS 106.380(2), 106.380(3) or 106.400,
each as amended or recodified from time to time; or
(d) Defaults Under Other Loan
Documents. The occurrence under any of the Loan
Documents of an "Event of Default" (as defined therein).
34. Remedies. At any time after an Event
of Default, Beneficiary and Trustee will be entitled to
invoke any and all of the following rights and remedies,
all of which will be cumulative, and the exercise of any
one or more of which shall not constitute an election of
remedies:
(a) Acceleration. Beneficiary may declare
any or all of the Secured Obligations to be due and
payable immediately, without presentment, demand,
protest or notice of any kind.
(b) Receiver. Beneficiary may apply to
any court of competent jurisdiction for, and obtain
appointment of, a receiver for the Property or any part
thereof, without notice to Trustor or anyone claiming
under Trustor, and without regard to the then value of the
Property or the adequacy of any security for the Secured
Obligations, and Trustor hereby irrevocably consents to
such appointment and waives notice of any application
therefor. Any such receiver or receivers shall have all the
usual powers and duties of receivers in like or similar
cases and all the powers and duties of Beneficiary in case
of entry as provided herein and in the Credit Agreement
and shall continue as such and exercise all such powers
until the later of (i) the date of confirmation of sale of all
of the Property; (ii) the disbursement of all proceeds of
the Property collected by such receiver and the payment of
all expenses incurred in connection therewith; or (iii) the
termination of such receivership with the consent of
Beneficiary or pursuant to an order of a court of
competent jurisdiction. Beneficiary may also request, in
connection with any foreclosure proceeding hereunder,
that the Nevada Gaming Commission petition a District
Court of the State of Nevada for the appointment of a
supervisor to conduct the normal gaming activities on the
Property following such foreclosure proceeding.
(c) Entry. Beneficiary, in person, by
agent or by court-appointed receiver, may enter, take
possession of, manage and operate all or any part of the
Property, subject to applicable Gaming Laws, and may
also do any and all other things in connection with those
actions that Beneficiary may, in its sole discretion,
consider necessary and appropriate to protect the security
of this Deed of Trust. Such other things may include,
among other things, any of the following: taking and
possessing all of Trustor's or the then owner's books and
records; entering into, enforcing, modifying, or canceling
Leases on such terms and conditions as Beneficiary may
consider proper; obtaining and evicting tenants; fixing or
modifying Rents; collecting and receiving any payment of
money owing to Trustor; completing construction; and
contracting for and making repairs and alterations. If
Beneficiary so requests, Trustor shall assemble all of the
Property that has been removed from the Real Property in
violation of the Loan Documents and make all of it
available to Beneficiary at the site of the Real Property.
Trustor hereby irrevocably constitutes and appoints
Beneficiary as Trustor's attorney-in-fact to perform such
acts and execute such documents as Beneficiary in its sole
discretion may consider to be appropriate in connection
with taking these measures, including endorsement of
Trustor's name on any instruments. Regardless of any
provision of this Deed of Trust or the Credit Agreement,
Beneficiary shall not be considered to have accepted any
property other than cash or immediately available funds in
satisfaction of any obligation of Trustor to Beneficiary,
unless Beneficiary has given express written notice of
Beneficiary's election of that remedy in accordance with
the Nevada Uniform Commercial Code, as it may be
amended or recodified from time to time.
(d) Cure; Protection of Security. Either
Beneficiary or Trustee may cure any breach or default of
Trustor, and if it chooses to do so in connection with any
such cure, Beneficiary or Trustee may also enter the
Property and, whether or not Beneficiary or Trustee enter
the Property, do any and all other things which it, in its
sole discretion, may consider necessary and appropriate to
protect the security of this Deed of Trust, including,
without limitation, the right to complete the
Improvements. Such other things may include: appearing
in and/or defending any action or proceeding which
purports to affect the security of, or the rights or powers
of Beneficiary or Trustee under, this Deed of Trust;
paying, purchasing, contesting or compromising any
encumbrance, charge, lien or claim of lien which in
Beneficiary's or Trustee's sole judgment is or may be
senior in priority to this Deed of Trust, such judgment of
Beneficiary or Trustee to be conclusive as among the
parties to this Deed of Trust; obtaining insurance and/or
paying any premiums or charges for insurance required to
be carried under this Deed of Trust; otherwise caring for
and protecting any and all of the Property; and employing
counsel, accountants, contractors and other appropriate
persons to assist Beneficiary or Trustee. Beneficiary and
Trustee may take any of the actions permitted under this
Subsection either with or without giving notice to any
person.
(e) Uniform Commercial Code Remedies.
With respect to Personal Property, Beneficiary may
exercise any or all of the remedies granted to a secured
party under NRS Article 104.9101 et seq. (the Nevada
enactment of the Uniform Commercial Code), together
with any and all other rights and remedies provided in the
Security Agreement.
(f) Judicial Action. Beneficiary may
bring an action in any court of competent jurisdiction to
foreclose this Deed of Trust or to obtain specific
enforcement of any of the covenants or agreements of this
Deed of Trust or for any other remedy provided herein, in
the Credit Agreement, in any Loan Document or
otherwise provided by law or in equity.
(g) Power of Sale. Under the power of
sale herein granted, Beneficiary shall have the
discretionary right to cause some or all of the Property,
including any Property which constitutes personal
property, to be sold or otherwise disposed of in any
combination and in any manner permitted by applicable
law.
(i) Sales of Personal Property.
(A) For purposes of the power
of sale herein granted, Beneficiary may elect
to treat as personal property any Property
which is intangible or which can be severed
from the Land or Improvements without
causing structural damage. If Beneficiary
chooses to do so, Beneficiary may dispose of
any personal property separately from the sale
of real property, in any manner permitted by
or under the NRS, including any public or
private sale, or in any manner permitted by
any other applicable law.
(B) The following provision
shall apply in the absence of any specific
statutory requirement which permits or
requires a different notice period: In
connection with any sale or other disposition
of such Property, Trustor agrees that the
following procedures constitute a
commercially reasonable sale: Beneficiary
shall mail written notice of the sale to Trustor
not later than ten (10) days prior to such sale.
Upon receipt of any written request,
Beneficiary will, to the extent reasonably
practicable, make the Property available to
any bona fide prospective purchaser for
inspection during reasonable business hours
prior to the sale. Notwithstanding any
provision to the contrary, Beneficiary shall be
under no obligation to consummate a sale if,
in its judgment, none of the offers received by
it equals the fair value of the Property offered
for sale. The foregoing procedures do not
constitute the only procedures that may be
commercially reasonable.
(ii) Trustee's Sales of Real
Property or Mixed Collateral.
(A) Beneficiary may choose to
dispose of some or all of the Property which
consists solely of real property in any manner
then permitted by applicable law. In its
discretion, Beneficiary may also or
alternatively choose to dispose of some or all
of the Property, in any combination consisting
of both real and personal property, together in
one sale to be held in accordance with the law
and procedures applicable to real property.
Trustor agrees that any sale of personal
property together with real property
constitutes a commercially reasonable sale of
the personal property. For purposes of this
power of sale, either a sale of real property
alone, or a sale of both real and personal
property together in accordance with law, will
sometimes be referred to as a "Trustee's
Sale."
(B) Before any Trustee's Sale,
Beneficiary or Trustee shall give and record
such notice of default and election to sell as
may then be required by law. When all time
periods then legally mandated have expired,
and after such notice of sale as may then be
legally required has been given, Trustee shall
sell the property being sold at a public auction
to be held at the time and place specified in
the notice of sale. Neither Trustee nor
Beneficiary shall have any obligation to make
demand on Trustor before any Trustee's Sale.
From time to time, in accordance with then
applicable law, Trustee may, and in any event
at Beneficiary's request shall, postpone any
Trustee's sale by public announcement at the
time and place noticed for that sale, or may,
in its discretion, give a new notice of sale.
(C) At any Trustee's Sale,
Trustee shall sell to the highest bidder at
public auction for cash in lawful money of the
United States. Trustee shall execute and
deliver to the purchaser(s) a deed or deeds
conveying the property being sold without any
covenant or warranty whatsoever, express or
implied. The recitals in any such deed of any
matters or facts, including any facts bearing
upon the regularity or validity of any
Trustee's Sale, shall be conclusive proof of
their truthfulness. Any such deed shall be
conclusive against all persons as to the facts
recited in it.
(h) Single or Multiple Foreclosure Sales.
If the Property at the time of sale or other disposition
consists of more than one lot, parcel or item of property,
Beneficiary may:
(i) Designate the order in which the
lots, parcels or items shall be sold or disposed
of or offered for sale or disposition; and
(ii) Elect to dispose of the lots,
parcels or items through a single consolidated
sale or disposition to be held or made under
the power of sale herein granted, or in
connection with judicial proceedings, or by
virtue of a judgment and decree of foreclosure
and sale; or through two or more such sales
or dispositions; or in any other manner that
Beneficiary may deem to be in its best
interests (any such sale or disposition, a
"Foreclosure Sale;" any two or more,
"Foreclosure Sales").
If Beneficiary chooses to have more than one Foreclosure
Sale, Beneficiary at its option may cause the Foreclosure
Sales to be held simultaneously or successively, on the
same day, or on such different days and at such different
times and in such order as Beneficiary may deem to be in
its best interests. No Foreclosure Sale shall terminate or
affect the liens of this Deed of Trust on any part of the
Property which has not been sold, until all of the Secured
Obligations have been paid in full.
35. Costs of Enforcement. If an
installment of principal or interest on the Notes is not paid
when due or if any other Event of Default occurs,
Beneficiary and Trustee, and each of them, may employ
an attorney or attorneys to protect their rights hereunder.
Trustor promises to pay to Beneficiary, on demand, the
reasonable fees and expenses of such attorneys and all
other costs of enforcing the obligations secured hereby,
including but not limited to, recording fees, the expense of
a Trustee's Sale Guarantee, Trustee's fees and expenses,
receivers' fees and expenses, and all other expenses, of
whatever kind or nature, incurred by Beneficiary and
Trustee, and each of them, in connection with the
enforcement of the obligations secured hereby, whether or
not such enforcement includes the filing of a lawsuit.
Until paid, such sums shall be secured hereby and shall
bear interest, from date of expenditure, at an annual rate
equal to the Agreed Rate.
36. Remedies Cumulative and Not
Exclusive. Trustee and Beneficiary, and each of them,
shall be entitled to enforce payment and performance of
any indebtedness or obligations secured hereby and to
exercise all rights and powers under this Deed of Trust or
under any Loan Document or other agreement or any laws
now or hereafter in force, notwithstanding some or all of
the said indebtedness and obligations secured hereby may
now or hereafter be otherwise secured, whether by
mortgage, deed of trust, pledge, lien, assignment or
otherwise. Neither the acceptance of this Deed of Trust
nor its enforcement whether by court action or pursuant to
the power of sale or other powers herein contained, shall
prejudice or in any manner affect Trustee's or
Beneficiary's right to realize upon or enforce any other
security now or hereafter held by Trustee or Beneficiary,
it being agreed that Trustee and Beneficiary, and each of
them, shall be entitled to enforce this Deed of Trust and
any other security now or hereafter held by Beneficiary or
Trustee in such order and manner as they or either of
them may in their absolute discretion determine. No
remedy herein conferred upon or reserved to Trustee or
Beneficiary is intended to be exclusive of any other
remedy herein or by law provided or permitted, but each
shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at
law or in equity or by statute. Every power or remedy
given by any of the Loan Documents to Trustee or
Beneficiary or to which either of them may be otherwise
entitled, may be exercised, concurrently or independently,
from time to time and as often as may be deemed
expedient by Trustee or Beneficiary and either of them
may pursue inconsistent remedies.
37. Credit Bids. At any Foreclosure Sale,
any person, including Trustor, Trustee or Beneficiary,
may bid for and acquire the Property or any part thereof
to the extent permitted by then applicable law. Instead of
paying cash for such property, Beneficiary may settle
therefor by crediting such portion of the following
obligations against the sales price of the property as is
necessary to equal such price:
(a) First, the portion of the Secured
Obligations attributable to the expenses of sale, costs of
any action and any other sums for which Trustor is
obligated to pay or reimburse Beneficiary or Trustee
hereunder or under any other Loan Document; and
(b) Second, any of the other Secured
Obligations, in any order and proportion as Beneficiary, in
its sole discretion, may elect.
38. Application of Foreclosure Sale
Proceeds. Beneficiary and Trustee shall apply the
proceeds of any Foreclosure Sale in the following manner:
(a) First, to pay the portion of the Secured
Obligations attributable to the expenses of sale, costs of
any action and any other sums for which Trustor is
obligated to reimburse Beneficiary or Trustee hereunder or
under any other Loan Document;
(b) Second, to pay the portion of the
Secured Obligations attributable to any sums expended or
advanced by Beneficiary or Trustee under the terms of this
Deed of Trust which then remain unpaid;
(c) Third, to pay any and all other Secured
Obligations, in any order and proportion as Beneficiary, in
its sole discretion, may elect; and
(d) Fourth, the remainder, if any, shall be
remitted to the person or persons entitled to it.
39. Application of Rents and Other
Sums. Beneficiary shall apply any and all Rents collected
by it, and any and all sums, other than proceeds of a
Foreclosure Sale, which Beneficiary may receive or
collect, in the following manner:
(a) First, to pay the portion of the Secured
Obligations attributable to the costs and expenses of
operation and collection that may be incurred by Trustee,
Beneficiary or any receiver;
(b) Second, to pay any and all other
Secured Obligations in any order and proportion as
Beneficiary, in its sole discretion, may elect; and
(c) Third, the remainder, if any, shall be
remitted to the person or persons entitled to it.
Beneficiary shall have no liability for any funds which it
does not actually receive.
40. Incorporation of Certain Nevada
Covenants. The following covenants, Nos. 1, 3, 4 (at the
Agreed Rate), 6, 7 (reasonable percentage), 8 and 9 of
NRS 107.030, where not in conflict with the provisions of
the Loan Documents, are hereby adopted and made a part
of this Deed of Trust. Upon any Event of Default by
Trustor hereunder, Beneficiary may (a) declare all sums
secured immediately due and payable without demand or
notice or (b) have a receiver appointed as a matter of right
without regard to the sufficiency of said property or any
other security or guaranty and without any showing as
required by NRS 107.100. All remedies provided in this
Deed of Trust are distinct and cumulative to any other
right or remedy under this Deed of Trust or afforded by
law or equity and may be exercised concurrently,
independently or successively. The sale of said property
conducted pursuant to Covenants Nos. 6, 7 and 8 of NRS
107.030 may be conducted either as to the whole of said
property or in separate parcels and in such order as
Trustee may determine.
41. Substitution of Trustee. Beneficiary
or assigns may, from time to time, by a written instrument
executed and acknowledged by Beneficiary, recorded in
the county in which the Real Property is located and
otherwise complying with applicable law, appoint a
successor trustee or trustees to any Trustee named herein
or acting hereunder, to execute the trust created by the
Deed of Trust or other conveyance in trust. Upon the
recording of such instrument, the new trustee or trustees
shall, without conveyance from the predecessor trustee, be
vested with all the title, estate, interest, rights, powers,
duties and trusts in the premises vested in or conferred
upon the predecessor trustee. If there be more than one
trustee, either may act alone and execute the trusts upon
the request of the Beneficiary, and all his acts thereunder
shall be deemed to be the acts of all trustees, and the
recital in any conveyance executed by such sole trustee of
such request shall be conclusive evidence thereof, and of
the authority of such sole trustee to act.
42. Binding Nature. This Deed of Trust
applies to, inures to the benefit of and binds Trustor and
the heirs, legatees, devisees, administrators, personal
representatives, executors and the successors and assigns
thereof, Trustee and Beneficiary. As used herein, the
term "Beneficiary" shall include the owners and holders of
the Notes and other Secured Obligations from time to
time, whether or not named as Beneficiary herein (it being
expressly agreed, however, that Beneficiary may act
through an agent; that only the signature of such agent is
required on any amendment hereof or any consent,
approval or other action hereunder; and that Wells Fargo
Bank, N.A., is the initial such agent hereunder); the term
"Trustee" shall mean the trustee appointed hereunder from
time to time, whether or not notice of such appointment is
given; and the term "Trustor" shall mean the Trustor
named herein and the successors-in-interest, if any, of said
named Trustor, in and to the Property or any part thereof.
If there be more than one Trustor hereunder, their
obligations hereunder shall be joint and several. It is
expressly agreed that the Trust created hereby is
irrevocable by Trustor.
43. Acceptance of Trust; Resignation by
Trustee. Trustee accepts this trust when this Deed of
Trust, duly executed and acknowledged, is made a public
record as provided by law, reserving, however, unto the
Trustee, the right to resign from the duties and obligations
imposed herein whenever Trustee, in its sole discretion,
deems such resignation to be in the best interest of the
Trustee. Written notice of such resignation shall be given
to Trustor and Beneficiary.
44. Full Performance Required; Survival
of Warranties. All representations, warranties and
covenants of Trustor contained in any loan application or
made to Beneficiary in connection with the loan secured
hereby or contained in any of the Loan Documents or
incorporated by reference therein, shall survive the
execution and delivery of this Deed of Trust and shall re-
main continuing obligations, warranties and
representations of Trustor so long as any portion of the
obligations secured by this Deed of Trust remains
outstanding.
45. Waiver of Certain Rights By Trustor.
Trustor waives, to the extent permitted by law, (i) the
benefit of all laws now existing or that may hereafter be
enacted providing for any appraisement before sale of any
portion of the Property, (ii) all rights of redemption,
valuation, appraisement, stay of execution, notice of
election to mature or declare due the whole of the secured
indebtedness and marshaling in the event of foreclosure of
the liens hereby created, and (iii) all rights and remedies
which Trustor may have or be able to assert by reason of
the laws of the State of Nevada pertaining to the rights
and remedies of sureties. Without limiting the generality
of the foregoing, Trustor waives, to the extent permitted
by law, all rights (including any rights provided by NRS
100.040 and 100.050) to direct the order in which any of
the Property shall be sold in the event of any sale or sales
pursuant hereto and to have any of the Property or any
other property now or hereafter constituting security for
the indebtedness secured hereby marshaled upon any
foreclosure of this Deed of Trust or of any other security
for any of such indebtedness.
46. Construction. The language in all
parts of this Deed of Trust shall be in all cases construed
simply according to its fair meaning and not strictly for or
against any of the parties hereto. Headings at the
beginning of Sections, Subsections, paragraphs and
subparagraphs of this Deed of Trust are solely for the
convenience of the parties, are not a part hereof and shall
not be used in construing this Deed of Trust. The
preamble, any recitals and all exhibits and schedules to
this Deed of Trust are part of this Deed of Trust and are
incorporated herein by this reference. When required by
the context: whenever the singular number is used in this
Deed of Trust, the same shall include the plural, and the
plural shall include the singular; and the masculine gender
shall include the feminine and neuter genders and vice
versa. Unless otherwise required by the context (or
otherwise provided herein): the words "herein", "hereof"
and "hereunder" and similar words shall refer to this
Deed of Trust generally and not merely to the provision in
which such term is used; the word "person" shall include
individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust,
unincorporated association, joint venture, governmental
authority and other entity of whatever nature; the words
"including", "include" or "includes" shall be interpreted
in a non-exclusive manner as though the words "but [is]
not limited to" or "but without limiting the generality of
the foregoing" or "without limitation" immediately
followed the same; the word "month" shall mean calendar
month; and the term "business day" shall mean any day
other than a Saturday, Sunday or legal holiday under the
laws of the State of Nevada. If the day on which
performance of any act or the occurrence of any event
hereunder is due is not a business day, the time when such
performance or occurrence shall be due shall be the first
business day occurring after the day on which
performance or occurrence would otherwise be due
hereunder. All times provided in this Deed of Trust for
the performance of any act will be strictly construed, time
being of the essence hereof.
47. Priority. This Deed of Trust is
intended to have, and retain, priority over all other liens
and encumbrances upon the Real Property, excepting
only: (i) such Impositions as, at the date hereof, have, or,
by law, gain, priority over the lien created hereby; (ii)
covenants, conditions, restrictions, easements, rights of
way and Leases which are of record or are disclosed of
record and which, on the date hereof, affect the Real
Property and are superior in right to or have priority over
this Deed of Trust and (iii) Leases, liens, encumbrances
and other matters as to which Beneficiary hereafter
expressly subordinates the lien of this Deed of Trust by
written instrument in recordable form. Under no
circumstances shall Beneficiary be obligated or required to
subordinate the lien hereof to any lien, encumbrance,
covenant or other matter affecting the Real Property or
any portion thereof. Beneficiary may, however, at
Beneficiary's option, exercisable in its sole and absolute
discretion, subordinate the lien of this Deed of Trust, in
whole or in part, to any or all Leases, liens,
encumbrances or other matters affecting all or any portion
of the Real Property, by executing and recording, in the
Office of the County Recorder of the county or counties in
which the Real Property is located, a unilateral declaration
of such subordination specifying the Lease, lien,
encumbrance or other matter or matters to which this
Deed of Trust shall thereafter be subordinate.
48. Amendments. This Deed of Trust
cannot be waived, changed, discharged or terminated
orally, but only by an instrument in writing signed by the
party against whom enforcement of any waiver, change,
discharge or termination is sought.
49. Financing Statement. Portions of the
Personal Property (and portions of the Real Property) are
goods which are or are to become fixtures on or relating
to the Real Property. This Deed of Trust constitutes a
financing statement filed as a fixture filing, under NRS
104.9402(6) of the Nevada Uniform Commercial Code, in
the Official Records of the County Recorder of the County
in which the Real Property is located with respect to any
and all fixtures included within the term "Property" as
used herein and with respect to any goods or other
Personal Property that may now be or hereafter become
such fixtures. The address of Beneficiary, the secured
party, from which information concerning the security
interest granted hereunder may be obtained, is set forth in
Section 48, below, and the address of Trustor, the debtor,
is set forth in Section 48, below.
50. Attorney-in-Fact. Trustor hereby
appoints Beneficiary the attorney-in-fact of Trustor to
prepare, sign, file and record one or more financing
statements; any documents of title or registration, or like
papers, and to take any other action deemed necessary,
useful or desirable by Beneficiary to perfect and preserve
Beneficiary's security interest against the rights or
interests of third persons.
51. Releases, Extensions, Modifications
and Additional Security.
(a) From time to time, Beneficiary may
perform any of the following acts without incurring any
liability or giving notice to any person, and without
affecting the personal liability of any person for the
payment of the Secured Obligations (except as provided
below), and without affecting the security hereof for the
full amount of the Secured Obligations on all Property
remaining subject hereto, and without the necessity that
any sum representing the value of any portion of the
Property affected by the Beneficiary's action be credited
on the Secured Obligations:
(i) Release any person liable for
payment of any Secured Obligation;
(ii) Extend the time for payment, or
otherwise alter the terms of payment, of any
Secured Obligation;
(iii) Accept additional real or
personal property of any kind as security for any
Secured Obligation, whether evidenced by deeds of
trust, mortgages, security agreements or any other
instruments of security; or
(iv) Alter, substitute or release any
property securing the Secured Obligations.
(b) From time to time when requested to
do so by Beneficiary in writing, Trustee may perform any
of the following acts without incurring any liability or
giving notice to any person:
(i) Consent in writing to the making
of any plat or map of the Property or any part of
it;
(ii) Join in granting any easement or
creating any restriction affecting the Property;
(iii) Join in any subordination or
other agreement affecting this Deed of Trust or the
lien of it or other agreement or instrument relating
hereto or to the Property or any portion thereof; or
(iv) Reconvey the Property or any
part of it without any warranty.
52. Exculpation and Indemnification.
(a) Beneficiary shall not be directly or
indirectly liable to Trustor or any other person as a
consequence of any of the following:
(i) Beneficiary's exercise of or
failure to exercise any rights, remedies or powers
granted to Beneficiary in this Deed of Trust;
(ii) Beneficiary's failure or refusal to
perform or discharge any obligation or liability of
Trustor under any agreement related to the
Property or under this Deed of Trust; or
(iii) Any loss sustained by Trustor or
any third party resulting from Beneficiary's failure
to lease the Property, or from any other act or
omission of Beneficiary in managing the Property,
after an Event of Default, unless the loss is caused
by the willful misconduct, gross negligence or bad
faith of Beneficiary.
To the extent permitted by applicable law, Trustor hereby
expressly waives and releases all liability of the types
described above, and agrees that no such liability shall be
asserted against or imposed upon Beneficiary.
(b) Except for losses caused by the willful
misconduct, gross negligence or bad faith of Trustee or
Beneficiary, Trustor agrees to indemnify Trustee and
Beneficiary against and hold them harmless from all
losses, damages, liabilities, claims, causes of action,
judgments, court costs, reasonable attorneys' fees and
other reasonable legal expenses, cost of evidence of title,
cost of evidence of value, and other reasonable costs and
expenses which either may suffer or incur:
(i) In performing any act required
or permitted by this Deed of Trust or any of the
other Loan Documents or by law;
(ii) Because of any failure of Trustor
to perform any of Trustor's obligations; or
(iii) Because of any alleged obligation
of or undertaking by Beneficiary to perform or
discharge any of the representations, warranties,
conditions, covenants or other obligations in any
document relating to the Property other than the
Loan Documents.
This agreement by Trustor to indemnify Trustee and
Beneficiary shall survive the release and cancellation of
any or all of the Secured Obligations and the full or
partial release and/or reconveyance of this Deed of Trust.
(c) Trustor shall pay all amounts arising
under the indemnity obligations of this Deed of Trust
immediately upon demand by Trustee or Beneficiary.
53. Relationship to Credit Agreement.
This Deed of Trust has been executed pursuant to and is
subject to the terms of the Credit Agreement executed
concurrently herewith and Trustor agrees to observe and
perform all provisions contained therein. If and to the
extent of any conflict between the provisions of the Credit
Agreement and the provisions of this Deed of Trust, the
provisions of this Deed of Trust shall control.
54. Relationship to Security Agreement.
Concurrently herewith, Trustor is entering into the
Security Agreement with Beneficiary with respect to the
Personal Property. As provided above, the terms of said
Security Agreement shall, with respect to the Personal
Property and the security interest therein granted hereby,
supplement the terms of this Deed of Trust and, if and to
the extent of any conflict with the terms hereof applicable
to said security interest and Personal Property, shall, to
the extent enforceable, control. Nothing in this Section 44
shall be deemed or construed, however, to impair the
rights of Beneficiary to conduct one or more Trustee's
Sales at which real and personal property are sold together
pursuant to the laws applicable to the sale of real
property.
55. Relationship to Environmental
Indemnity. Trustor has executed an agreement entitled
"Environmental Indemnity" dated as of May 30, 1995, for
the benefit of the Lenders. Trustor hereby acknowledges
and agrees that, notwithstanding any other provision of
this Deed of Trust to the contrary, the obligations of
Trustor under such "Environmental Indemnity" agreement
shall be unlimited personal obligations of Trustor, the
obligations of Trustor under such instrument shall not be
secured by this Deed of Trust and shall survive
foreclosure under this Deed of Trust, any transfer in lieu
thereof, and any satisfaction of the Secured Obligations.
56. Severability. If any provision in or
obligation under this Deed of Trust shall be invalid, illegal
or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired
thereby.
57. Loan Statement Fees. Trustor shall
pay the amount demanded by Beneficiary or its authorized
loan servicing agent for any statement requested by
Trustor regarding the obligations secured hereby;
provided, however, that such amount may not exceed the
maximum amount allowed by law at the time request for
the statement is made.
58. Notices.
(a) Methods; Addresses. All notices,
requests and demands to be made hereunder to the parties
hereto shall be in writing and shall be given by any of the
following means: (i) personal service; (ii) electronic
communication, whether by telex, telegram or telecopying
(if confirmed in writing sent by registered or certified,
first class mail, return receipt requested); or
(iii) registered or certified, first class mail, return receipt
requested. Such addresses may be changed by notice to
the other parties given in the same manner as provided
above. Any notice, demand or request sent pursuant to
clause (i) of this Section shall be deemed received upon
such personal service, and if sent pursuant to clause (ii) of
this Section shall be deemed received upon receipt if sent
prior to 5:00 p.m. on a business day, and otherwise shall
be deemed received on the next succeeding business day,
and, if sent pursuant to clause (iii) of this Section shall be
deemed received three (3) days following deposit in the
mail.
To Beneficiary: Bank of America National Trust
and Savings Association
555 South Flower Street
11th Floor
Los Angeles,
California 90071
Attention: Janice
Hammond, Vice President
With a copy to: Sheppard, Mullin, Richter &
Hampton
333 South Hope Street,
48th Floor
Los Angeles, California
90071
Attn: William M. Scott
IV
To Trustor: Circus and Eldorado Joint
Venture
430 North Virginia Street
Reno, Nevada 89503
Attn: General Manager
To Trustee: First American Title Company of
Nevada
241 Ridge Street
Reno, Nevada 89504
Attn: Gene T. Turk
(b) Reliance on Faxes. Each party hereto
(a "Recipient") who receives from another party hereto (a
"Sender") by electronic facsimile transmission (telecopier
or fax) any writing which appears to be signed by an
authorized signatory of that Sender is authorized to rely
and act upon that writing in the same manner as if the
original signed writing was in the possession of the
Recipient upon oral confirmation of that Sender to the
Recipient that the writing was signed by an authorized
signatory of that Sender and is intended by that Sender to
be relied upon by the Recipient. Each party transmitting
any writing to any other party by electronic facsimile
transmission agrees to forward immediately to that
Recipient, by expedited means (for next day delivery, if
possible), or by first class mail if the Recipient so agrees,
the signed hard copy of that writing, unless the Recipient
expressly agrees to some other disposition of the original
by the Sender.
59. Governing Law. THIS DEED OF
TRUST SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF NEVADA, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES, EXCEPT TO
THE EXTENT THAT APPLICABLE LAW
PROVIDES THAT THE VALIDITY OR
PERFECTION OF THE SECURITY INTEREST
HEREUNDER, OR REMEDIES HEREUNDER, IN
RESPECT OF ANY PARTICULAR COLLATERAL
ARE GOVERNED BY THE LAWS OF A
JURISDICTION OTHER THAN THE STATE OF
NEVADA.
60. Consent to Jurisdiction and Service of
Process. ALL JUDICIAL PROCEEDINGS
BROUGHT AGAINST TRUSTOR ARISING OUT OF
OR RELATING TO THIS DEED OF TRUST MAY
BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN THE
STATE OF NEVADA, AND BY EXECUTION AND
DELIVERY OF THIS DEED OF TRUST TRUSTOR
ACCEPTS FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE EXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS
AND WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS AND IRREVOCABLY AGREES TO
BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH THIS DEED OF
TRUST. Trustor hereby agrees that service of all process
in any such proceeding in any such court may be made by
registered or certified mail, return receipt requested, to
Trustor at its address provided in the Credit Agreement,
such service being hereby acknowledged by Trustor to be
sufficient for personal jurisdiction in any action against
Trustor in any such court and to be otherwise effective
and binding service in every respect. Nothing herein shall
affect the right to serve process in any other manner
permitted by law.
61. Waiver of Jury Trial. TRUSTOR
AND BENEFICIARY HEREBY AGREE TO WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF THIS DEED OF
TRUST. The scope of this waiver is intended to be all-
encompassing of any and all disputes that may be filed in
any court and that relate to the subject matter of this
transaction, including without limitation contract claims,
tort claims, breach of duty claims, and all other common
law and statutory claims. Trustor and Beneficiary each
acknowledge that this waiver is a material inducement for
Trustor and Beneficiary to enter into a business
relationship, that Trustor and Beneficiary have already
relied on this waiver in entering into this Deed of Trust
and that each will continue to rely on this waiver in their
related future dealings. Trustor and Beneficiary further
warrant and represent that each has reviewed this waiver
with its legal counsel, and that each knowingly and
voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT
BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS
DEED OF TRUST. In the event of litigation, this Deed
of Trust may be filed as a written consent to a trial by the
court.
62. Nonforeign Entity. Section 1445 of
the Internal Revenue Code of 1986, as amended (the
"Code") provides that a transferee of a U.S. real property
interest must withhold tax if the transferor is a foreign
person. To inform Beneficiary that the withholding of tax
will not be required in the event of the disposition of the
Property pursuant to the terms of this Deed of Trust,
Trustor hereby certifies, under penalty of perjury, that:
(a) Trustor is not a foreign corporation,
foreign partnership, foreign trust or foreign estate, as
those terms are defined in the Code and the regulations
promulgated thereunder; and
(b) Trustor's U.S. employer identification
number is 88-0310787; and
(c) Trustor's principal place of business is
430 North Virginia Street, Reno, Nevada 89503.
It is understood that Beneficiary may disclose the contents
of this certification to the Internal Revenue Service and
that any false statement contained herein could be
punished by fine, imprisonment or both. Trustor
covenants and agrees to execute such further certificates,
which shall be signed under penalty of perjury, as
Beneficiary shall reasonably require. The covenant set
forth herein shall survive the foreclosure of the lien of this
Deed of Trust or acceptance of a deed in lieu thereof.
63. Counterparts. This Deed of Trust
may be executed in any number of counterparts, each of
which shall be deemed an original and all of which shall
constitute one and the same document with the same effect
as if all parties had signed the same signature page. Any
signature page and acknowledgment page of this Deed of
Trust may be detached from any counterpart of this Deed
of Trust and reattached to any other counterpart of this
Deed of Trust identical in form hereto but having attached
to it one or more additional signature and acknowledgment
pages.
[SIGNATURES ON NEXT PAGE]<PAGE>
IN WITNESS WHEREOF, Trustor has
executed this instrument as of the day and year first above
written.
TRUSTOR:
CIRCUS AND ELDORADO JOINT VENTURE,
a Nevada general partnership
By: GALLEON, INC.
Its: Managing Partner
By: Glenn Schaeffer
Title: President
By: ELDORADO LIMITED LIABILITY COMPANY
Its: General Partner
By: ELDORADO RESORTS LLC
Its: Manager
By: Donald Carano
Title:
By: EXECUTIVE COMMITTEE
By: Gary Carano
Title: General Manager
By: Bruce Sexton
Title: Director of Finance and Administration
EXHIBIT A
Legal Description
THE LAND REFERRED TO HEREIN IS
SITUATED IN THE COUNTY OF WASHOE,
STATE OF NEVADA, AND IS DESCRIBED AS
FOLLOWS:
PARCEL 1:
Beginning at the intersection of the Southern line of
West Fifth Street with the Western line of North
Virginia Street; thence Southerly along said Western
line of North Virginia Street, 88.00 feet; thence
Westerly parallel with the Northern line of West
Fourth Street 140.00 feet to the Eastern line of alley;
thence Northerly along the last mentioned line 88.00
feet to said Southern line of West Fifth Street; thence
Easterly along said Southern line of West Fifth
Street, 140.00 feet to the point of beginning.
PARCEL 2:
Beginning at the intersection of the West line of
North Virginia Street with the North line of Lot 10
in Block "B" of ORIGINAL TOWN, NOW CITY
OF RENO, according to the map thereof, filed in the
office of the County Recorder of Washoe County,
State of Nevada, on June 27, 1871; thence
Northerly along the Westerly line of North Virginia
Street, 12 feet, more or less, to the Southeast corner
of the parcel of land described in the deed to Ivanhoe
Corporation of record in Book 453, File No.
278019, Deed Records; thence Westerly along the
Southern line of said Ivanhoe Corporation parcel 140
feet to the Easterly line of an alley; thence Southerly
along the last mentioned line, 12 feet, more or less,
to the Northwest corner of said Lot 10; thence
Easterly to the point of beginning.
PARCEL 3:
Lots 10, 11, 12 and the North 13 feet of Lot 13 in
Block "B" of ORIGINAL TOWN, NOW CITY OF
RENO, according to the map thereof, filed in the
office of the County Recorder of Washoe County,
State of Nevada, on June 27, 1871.
PARCEL 4:
The Northerly 9.25 feet of Lot 3 and all of Lots 4,
5, 6, 7 and 8 in Block "B" of ORIGINAL TOWN,
NOW CITY OF RENO, according to the map
thereof, filed in the office of the County Recorder of
Washoe County, State of Nevada, on June 27, 1871.
ALSO a parcel of land bounded on the South by the
Southern line of the 40 foot alley as laid out on the
map of the Town, now City of Reno, in said Block
"B", bounded on the West by the Eastern line of
North Sierra Street, bounded on the North by the
Southern line of West Fifth Street and bounded on
the East by the Western line of the 20 foot alley
running Northerly and Southerly through said Block
"B".
PARCEL 5:
The South 37 feet of Lot 13 in Block "B" of the
"ORIGINAL TOWN, NOW CITY OF RENO",
according to the official map thereof, filed in the
office of the County Recorder of Washoe County,
State of Nevada, on June 27, 1871.
PARCEL 6:
Lot 14 in Block B of ORIGINAL TOWN, NOW
CITY OF RENO, according to the map thereof, filed
in the office of the County Recorder of Washoe
County, State of Nevada, on June 27, 1871.
PARCEL 7:
The West forty (40) feet of Lot Fifteen (15) in Block
"B" fronting forty (40) feet on the North line of
Fourth Street, as designated on the official map of
said City of Reno, Nevada, on file and of record in
the office of the County Recorder in and for the said
County of Washoe; the property hereby conveyed
being the same property described in a Deed from
May J. A. Nadon and others to Dale V. Clanton,
dated November 18, 1920, and filed for record on
the 29th day of November, 1920, in the office of
the County Recorder in and for the County of
Washoe, and therein recorded in Book 56 of Deeds,
at Page 440.
PARCEL 8:
The East 100 feet of Lot 15 in Block B of original
town, now City of Reno, according to the map
thereof, filed in the office of the County Recorder of
Washoe County, State of Nevada, on June 27, 1871.
PARCEL 9:
All of Lots 1 and 2, and the South 40.75 feet of Lot
3 in Block B of the ORIGINAL TOWN, NOW
CITY OF RENO, according to the map thereof, filed
in the office of the County Recorder of Washoe
County, State of Nevada, on June 27, 1871.
PARCEL 10:
The South 20 feet of Lot 10, and all of Lots 11, 12,
13, 14, 15 and 16, in Block A, of ORIGINAL
TOWN, NOW CITY OF RENO, according to the
map thereof, filed in the office of the County
Recorder of Washoe County, State of Nevada, on
June 27, 1871.
TOGETHER WITH the East 1/2 of the North-South
alley running through said Block A, immediately
adjoining Lots 11, 12, 13, 14, 15 and 16 on the
West, and more particularly described in those
certain Orders of Abandonment recorded January 19,
1977 in Book 1044, Page 521 as Document No.
445058, and recorded November 14, 1985 in Book
2251, Page 933 as Document No. 1034253 of
Official Records.
PARCEL 11:
The East 78 feet of Lot 9 and the East 78 feet of the
North 30 feet of Lot 10 in Block A of the
ORIGINAL TOWN, NOW CITY OF RENO,
according to the Official Map thereof, filed in the
office of the County Recorder of Washoe County,
State of Nevada, on June 27, 1871.
Together with that portion of the vacated alley lying
Southerly of the Southerly line of West Fifth Street
and Westerly of the Westerly line of North Sierra
Street adjoining said Lot 9 at its most Northeasterly
corner.
PARCEL 12:
A portion of the Southwest 1/4 of the Northeast 1/4
of Section 11, Township 19 North, Range 19 East,
M.D.B&M., lying and being in the City of Reno,
County of Washoe, State of Nevada, and more
particularly described as follows:
The Westerly 74 feet of Lot 9 and the Westerly 74
feet of the North 30 feet of Lot 10, all in Block A of
the ORIGINAL TOWN, NOW CITY OF RENO,
according to the official map thereof, filed in the
office of the County Recorder of Washoe County,
State of Nevada, on June 27, 1871.
PARCEL 13:
BEGINNING at the Northeast corner of Lot 8, Block
A, as shown on the official plat of the town, now
City of Reno, Nevada, filed in the office of the
County Recorder of Washoe County, Nevada, on
June 27, 1871; thence Southerly along the Easterly
lines of Lots 8 and 7 of said Block A to the
Southeast corner of Lot 7; thence Westerly along the
Southerly line of Lot 7 and the Southerly line of Lot
7 projected to its intersection with the Easterly line
of West Street; thence Northerly along the Easterly
line of West Street to the Southerly line of West
Fifth Street; thence Easterly along the Southerly line
of West Fifth Street to the point of beginning.
PARCEL 14:
Lots 1, 2, 3, 4, 5, 6, in Block A, of ORIGINAL
TOWN, NOW CITY OF RENO, according to the
map thereof, filed in the office of the County
Recorder of Washoe County, State of Nevada, on
June 27, 1871, together with that parcel immediately
adjoining Lots 5 and 6 on the West, that is more
particularly described as follows:
BEGINNING at the Northeasterly corner of Lot 6, in
Block A of ORIGINAL TOWN, NOW CITY OF
RENO, according to the map thereof, filed in the
office of the County Recorder of Washoe County,
State of Nevada, on June 27, 1871; thence Southerly
along the Easterly line of said Lots 5 and 6, in
Block A, 100 feet to the Southeasterly corner
thereof; thence Westerly along the Southerly line of
said Lot 5 and the Southerly line of Lot 5 extended
Westerly to the Easterly line of West Street, as now
located in the City of Reno, a distance of 140 feet;
thence Northerly along the Easterly line of West
Street 100 feet to a point which would be intersected
by a line extended Westerly from the Northeasterly
corner of said Lot 6 and along the Northerly line of
said Lot 6; thence Easterly and along said line and
the Northerly line of said Lot 6, a distance of 140
feet to the Northeasterly corner of said Lot 6, the
point of beginning; said premises being Lots 5 and 6
in Block A of the TOWN OF RENO, according to
the map above mentioned, and that portion of the 40
foot alley around the Town of Reno, according to the
map above mentioned, lying Westerly of Lots 5 and
6 and East of the East line of West Street, as now
located and between the Northerly and Southerly line
of said Lots 5 and 6 if said lines were extended
Westerly to the Easterly line of West Street as now
located.
TOGETHER WITH the West one-half of the
North-South alley running through said Block A,
immediately adjoining said LOTS 1, 2, 3, 4, 5 and 6
on the East, and more particularly described in those
certain Orders of Abandonment recorded January 19,
1977 in Book 1044, Page 521 as Document No.
445058, and recorded on November 14, 1985 in
Book 2251, Page 533 as Document No. 1034253,
Official Records, Washoe County, State of Nevada.
PARCEL 15:
All that certain 20.0 ft. wide alley connecting West
Fourth Street with West Fifth Street, Reno, Nevada,
lying within Block B of the original Town, now City
of Reno, according to the map thereof, filed in the
Office of the Washoe County Recorder on June 27,
1871, and within Block B of the Evans North
Addition, according to the map thereof, filed in the
office of the Washoe County Recorder on December
16, 1879.
PARCEL 16:
All that certain 20.0 ft. wide alley lying between
Lots 7, 8, 9 and 10 of Block A of the Original
Town, now City of Reno, according to the map
thereof, filed in the office of the Washoe County
Recorder on June 27, 1871.
PARCEL 17: (Air Rights Only)
All that certain piece or parcel of land located within
a portion of the Northeast 1/4 of Section 11,
Township 19 North, Range 19 East, M.D.B.&M.
more particularly described as follows:
That certain air space located above Sierra Street
commencing at an elevation of 4,521 and extending
vertically 32 feet to an elevation of 4,553 feet, which
height is measured from the finished floor elevation
of the Silver Legacy Casino at 4,503 feet, and
located directly over that certain parcel of real
property described as follows:
Commencing at the Southwest corner of Block B
Reno Townsite as shown on Record-of-Survey 2665,
recorded January 27, 1994,
thence North 13degrees 48'48" West 97.13 feet to the True
Point of Beginning
thence North 13 degrees 48'48" West 223.17 feet
thence South 76 degrees 11'12" West 80.00 feet
thence South 13 degrees 48'48" East 223.17 feet
thence North 76 degrees 11'12" East 80.00 feet to the True
Point of Beginning
PARCEL 18: (Subterranean Rights Only)
All that certain piece or parcel of land located within
a portion of the Northeast 1/4 of Section 11,
Township 19 North, Range 19 East, M.D.B.&M.
more particularly described as follows:
That certain subterranean space located beneath
Sierra Street commencing at an elevation of 4,480
and extending vertically 20 feet to an elevation of
4,500 feet, which height is measured from the
finished floor elevation of the Silver Legacy Casino
at 4,503 feet, and located directly below that certain
parcel of real property described as follows:
Commencing at the Southwest corner of Block B
Reno Townsite as shown on Record-of -Survey
2665, recorded January 27, 1994,
thence North 13 degrees 48'48" West 181.05 feet to the
True Point of Beginning
thence North 13 degrees 48'48" West 24.33 feet
thence South 76 degrees 11'12" West 80.00 feet
thence South 13 degrees 48'48" East 24.33 feet
thence North 76 degrees 11'12" East 80.00 feet to the True
Point of Beginning
EXCEPTING THEREFROM the above Parcels 1
through 18, all those certain parcels as conveyed to
THE CITY OF RENO, a Nevada municipal
corporation, by Deed of Dedication recorded March
9, 1995 in Book 4259, Page 956 as Document No.
1876631 of Official Records, and as amended by
Deed of Dedication recorded May 5, 1995 in Book
4297, Page 667 as Document No. 1891266 of
Official Records.
Part II:
PARCEL 19:
Together with the reciprocal easement rights, as
contained in those certain Bridge Easements dated
May ___, 1995 by and between CIRCUS AND
ELDORADO JOINT VENTURE, a Nevada general
partnership and CIRCUS CIRCUS CASINO, INC.,
a Nevada corporation and ELDORADO HOTEL
ASSOCIATES LIMITED PARTNERSHIP, a
Nevada limited partnership, recorded May __ 1995
as Document Numbers _________________ and
_________________ Official Records, Washoe
County, Nevada.
Exhibit 10(a)
OPERATING AGREEMENT
OF
DETROIT ENTERTAINMENT, L.L.C.
A MICHIGAN LIMITED LIABILITY COMPANY
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS. . . . . . . . . . . 1
ARTICLE II ORGANIZATION . . . . . . . . . .1
2.01 Formation. . . . . . . . . . . . .1
2.02 Name.. . . . . . . . . . . . . . .1
2.03 Registered Office; Registered Agent; Other Offices.2
2.04 Business; Purposes.. . . . . . . .2
2.05 Articles; Foreign Qualification. .2
2.06 Term.. . . . . . . . . . . . . . .2
2.07 Initial Members. . . . . . . . . .3
ARTICLE III MANAGEMENT OF THE COMPANY . . .3
3.01 Generally. . . . . . . . . . . . .3
3.02 Management Committee.. . . . . . .3
3.03 Management Committee Meetings. . .3
3.04 Matters Requiring Approval of the Management Committee.4
3.05 Matters Requiring Supermajority Approval of the Management
Committee. . . . . . . . . . . . . . . . . .5
3.06 Matters Requiring Direct Vote of Members.6
3.07 Deadlock-Breaking Authority. . . .6
3.08 No Authority of Individual Members or Committee Members.7
3.09 Other Businesses.. . . . . . . . .7
3.10 Liability of the Members and Committee Members.8
3.11 Indemnity. . . . . . . . . . . . .8
ARTICLE IV DEVELOPMENT AND MANAGEMENT OF THE
PROJECT. . . . . . . . . . . . . . . . . . .9
4.01 Generally. . . . . . . . . . . . .9
4.02 Design, Development and Construction.9
4.03 Governmental Approvals.. . . . . 10
4.04 Project Financing. . . . . . . . 10
(a) Circus Capital Contributions.10
(b) Project Financing. . . . . . 10
(c) Additional Project Costs.. . 11
(d) Refinancing. . . . . . . . . 11
4.05 Compensation; Reimbursement. . . 12
(a) Predevelopment Advances. . . 12
(b) Project Costs and Operating Costs.12
(c) Circus Management Personnel. 12
(d) Management Fee.. . . . . . . 12
(e) Certain Payments to ACG. . . 12
(f) Other Compensation.. . . . . 13
4.06 Intellectual Property. . . . . . 13
4.07 Retail Space.. . . . . . . . . . 13
ARTICLE V CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS;
MEMBER LOANS . . . . . . . . . . . . . . . 14
5.01 Initial Capital Contributions. . 14
(a) ACG. . . . . . . . . . . . . 14
(b) Circus.. . . . . . . . . . . 14
5.02 Additional Capital Contributions - Circus.14
5.03 Additional Capital Contributions - Circus and ACG.14
5.04 Temporary Casino Loan. . . . . . 14
5.05 Advances by Members. . . . . . . 15
5.06 Capital Accounts.. . . . . . . . 15
5.07 No Withdrawal. . . . . . . . . . 18
5.08 Member Failure to Advance. . . . 18
5.09 Default Loans. . . . . . . . . . 20
5.10 Status as Defaulting Member. . . 20
5.11 No Third Party Beneficiaries.. . 21
ARTICLE VI SHARING RATIO; CASH DISTRIBUTIONS;
ALLOCATIONS OF PROFIT AND LOSS . . . . . . 21
6.01 Sharing Ratios . . . . . . . . . 21
6.02 Periodic Determination of Distributable Cash21
6.03 Distribution of Distributable Cash22
6.04 Determination and Allocation of Profits and Losses23
6.05 Tax Regulatory Provisions. . . . 24
6.06 Taxable Year and Accounting Method.25
6.07 Tax Elections. . . . . . . . . . 25
6.08 Tax Matters Partner. . . . . . . 25
6.09 Tax Returns. . . . . . . . . . . 26
ARTICLE VII INFORMATION AND TRADE SECRETS 26
7.01 Information. . . . . . . . . . . 26
7.02 Trade Secrets. . . . . . . . . . 26
ARTICLE VIII BOOKS, RECORDS, REPORTS, AND BANK
ACCOUNTS . . . . . . . . . . . . . . . . . 27
8.01 Maintenance of Books; Financial Statements; Annual Audits.27
8.02 Reports. . . . . . . . . . . . . 27
8.03 Accounts.. . . . . . . . . . . . 27
8.04 Required Records.. . . . . . . . 27
8.05 Access to Required Records.. . . 28
ARTICLE IX ASSIGNEES; SUBSTITUTE MEMBERS; ADDITIONAL
MEMBERS; WITHDRAWAL. . . . . . . . . . . . 28
9.01 Rights of Assignees. . . . . . . 28
9.02 Admission of Substitute Members. 28
9.03 Admission of Additional Members. 29
9.04 Withdrawal.. . . . . . . . . . . 29
9.05 Rights of Withdrawing Member.. . 29
9.06 Circus Limited Right to Withdraw.29
ARTICLE X LOSS OF LICENSE . . . . . . . . 30
10.01 Loss of License.. . . . . . . . 30
10.02 Buy-Out Provisions Relating to Loss of License.31
ARTICLE XI BANKRUPT MEMBER. . . . . . . . 32
11.01 Membership Interest.. . . . . . 32
ARTICLE XII DISPOSITIONS OF INTERESTS . . 33
12.01 Restrictions on the Disposition of a Membership Interest.33
12.02 Conditions to Disposition.. . . 34
12.03 Rights of First Refusal.. . . . 35
ARTICLE XIII DISSOLUTION, LIQUIDATION, AND
TERMINATION. . . . . . . . . . . . . . . . 36
13.01 Dissolution.. . . . . . . . . . 36
13.02 Liquidation and Termination.. . 36
13.03 Termination.. . . . . . . . . . 37
ARTICLE XIV REPRESENTATIONS AND WARRANTIES38
ARTICLE XV GENERAL PROVISIONS . . . . . . 39
15.01 Offset. . . . . . . . . . . . . 39
15.02 Notices.. . . . . . . . . . . . 40
15.03 Entire Agreement; Supersedure.. 41
15.04 Effect of Waiver or Consent.. . 41
15.05 Amendment or Modification.. . . 42
15.06 Binding Effect. . . . . . . . . 42
15.07 Governing Law; Severability.. . 42
15.08 Further Assurances. . . . . . . 42
15.09 Counterparts. . . . . . . . . . 42
15.10 Third Party Beneficiaries.. . . 42
15.11 Relationship of Agreement to Default Rules.43
15.12 Arbitration.. . . . . . . . . . 43
15.13 Supplemental Provisions.. . . . 43
APPENDIX A DEFINITIONS
OPERATING AGREEMENT
OF
DETROIT ENTERTAINMENT, L.L.C.
A MICHIGAN LIMITED LIABILITY COMPANY
THIS OPERATING AGREEMENT is made and entered
into as of October 7, 1997, by and between CIRCUS CIRCUS
MICHIGAN, INC., a Michigan corporation ( Circus ) and
ATWATER CASINO GROUP, L.L.C., a Michigan limited
liability company ( ACG ). CIRCUS CIRCUS ENTERPRISES,
INC., a Nevada corporation ( CCEI ), the parent of Circus, and
ATWATER ENTERTAINMENT ASSOCIATES, L.L.C., a
Michigan limited liability company ( AEA ) and ZRX, L.L.C.,
a Michigan limited liability company ( ZRX ), the Members of
ACG, join in the execution of this Agreement for the limited
purposes set forth at the end of this Agreement.
FOR AND IN CONSIDERATION OF the mutual
covenants, agreements, rights, and obligations set forth in this
Agreement, the benefits to be derived from them, and other good
and valuable consideration, the receipt and the sufficiency of which
each Member acknowledges and confesses, the Members agree as
follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, Capitalized Terms shall have
the meanings ascribed to them in Appendix A attached hereto and
incorporated herein by this reference.
ARTICLE II
ORGANIZATION
2.01 Formation.
Effective with the filing of the Articles with the
Department, the Persons executing this Agreement form a limited
liability company (the Company ) for the purposes set forth in
this Agreement.
2.02 Name.
The name of the Company is Detroit Entertainment,
L.L.C. and all Company business must be conducted in that name
or such other names that comply with applicable law as the
Operator may select from time to time.
2.03 Registered Office; Registered Agent; Other
Offices.
The registered office of the Company in the State shall be
at 1000 Michigan National Tower, Lansing, Michigan 48933,
Attention: Robert W. Stocker II, or such other place as the
Management Committee may designate from time to time. The
registered agent for service of process on the Company in the State
or any other jurisdiction shall be such Person or Persons as the
Management Committee may designate from time to time. The
initial registered agent in the State shall be Robert W. Stocker II,
c/o Fraser Trebilcock Davis & Foster, P.C., 1000 Michigan
National Tower, Lansing, Michigan 48933. The Company may
have such other offices as the Management Committee may
designate from time to time. The initial principal place of business
of the Company shall be at 2211 Woodward Avenue, Fox Center
Building - 10th Floor, Detroit, MI 48201, Attention: Michael
Malik; with a copy to Seyburn, Kahn, Ginn, Bess, Deitch and
Serlin, 2000 Town Center, Suite 1500, Southfield, Michigan,
48075, Attention: Laurence B. Deitch.
2.04 Business; Purposes.
The business and purposes of the Company are to acquire,
design, develop, construct, finance, own and operate the Project
(and if applicable, the Temporary Casino). The Company shall
have all the powers necessary or convenient to effect any purpose
for which it is formed, including all powers granted by the Act.
Except as otherwise provided in this Agreement, the Company
shall not engage in any other activities or businesses not
reasonably related to the foregoing.
2.05 Articles; Foreign Qualification.
The Articles have been executed and filed with the
Department containing information required by the Act. The
Management Committee shall cause such amendments to the
Articles to be filed with the appropriate offices within the State and
in such other places as may be required from time to time by
applicable law. Prior to the Company s conducting business in
any jurisdiction other than the State, the Management Committee
shall cause the Company to comply, to the extent those matters are
reasonably within the control of the Management Committee, with
all requirements necessary to qualify the Company as a foreign
limited liability company in that jurisdiction. At the request of the
Management Committee, each Member shall execute,
acknowledge, swear to, and deliver all certificates and other
instruments conforming with this Agreement that are necessary or
appropriate to form, qualify, continue, and terminate the Company
as a limited liability company under the law of the State and to
qualify, continue, and terminate the Company as a foreign limited
liability company in all other jurisdictions in which the Company
may conduct business.
2.06 Term.
The Company shall commence on the date the Articles were
first properly filed with the Department and shall perpetually
continue in existence unless and until its business and affairs are
wound up and dissolved in accordance with Article XIII hereof.
2.07 Initial Members.
The initial Members of the Company are ACG and Circus,
each of which is admitted to the Company as a Member, effective
with the commencement of the Company.
ARTICLE III
MANAGEMENT OF THE COMPANY
3.01 Generally.
Except as otherwise provided in Section 3.07 and
Article IV, the business and affairs of the Company shall be
managed by the Members, which authority and responsibility shall
be exercised solely through the Management Committee. Any
Person dealing with the Company, other than a Member or a
Member s Affiliate, may rely on the authority of the Management
Committee or the Operator in taking any action in the name of the
Company without inquiry into the provisions of this Agreement or
compliance with it, regardless of whether that action actually is
taken in accordance with the provisions of this Agreement.
3.02 Management Committee.
The Management Committee shall consist of twelve (12)
Committee Members. Six (6) of the Committee Members will be
appointed by Circus and six (6) Committee Members will be
appointed by ACG (of which three (3) Committee Members will
be appointed by each of ZRX and AEA, unless otherwise provided
in the operating agreement or other governing documents of
ACG). Each Member may appoint one or more alternates for the
Committee Members appointed by it. An alternate shall have all
the powers of the Committee Member in his absence or inability
to serve. Each Committee Member may vote by delivering his
proxy to another Committee Member. Each Member shall have
the power to remove any Committee Member appointed by it by
delivering written notice of such removal to such Committee
Member and to the other Committee Members. Vacancies on the
Management Committee shall be filled by the Member which
appointed the Committee Member previously holding the position
which is then vacant.
3.03 Management Committee Meetings.
(a) The Management Committee shall meet at
least once each quarter at the offices of the Company in Detroit,
Michigan, or such other times or places as the Management
Committee shall determine (unless such meeting shall be waived
by all Committee Members) or on the call of any six (6)
Committee Members upon two (2) business days notice to all
Committee Members by telephone or facsimile for a meeting by
telephone or (ii) five (5) business days notice by telephone or
facsimile for a meeting in person. An agenda for each meeting
shall be prepared in advance by the secretary of the Committee
and circulated to the Committee Members. Eight (8) Members of
the Management Committee shall constitute a quorum; provided,
however, that Approval of the Management Committee shall
require a Majority of the Committee Members, and not just a
majority of the quorum. The Management Committee may act
without a meeting if (i) the action taken is Approved in advance in
writing by the number of Committee Members necessary to take
such action and (ii) written notice of such action is given to the
Committee Members who did not provide such written consent.
Written minutes of all meetings shall be maintained, and the
minutes for each meeting shall be approved at a subsequent
meeting of the Management Committee.
(b) The Management Committee may adopt
whatever rules and procedures relating to its activities as it may
deem appropriate, provided that such rules and procedures shall
not be inconsistent with or violate the provisions of this
Agreement, and provided that such rules and regulations shall
permit meetings by telephone, video conferencing or the like, and
shall permit Committee Members to participate in meetings by
telephone or video conference or the like or by written proxy, and
such participation shall be deemed attendance for purposes of
determining whether a quorum is present.
(c) The Management Committee may by written
resolution delegate its powers, but not its responsibilities, to
employees of either Member or of both Members or to any other
Person. Such delegation of powers may include the authority to
execute and deliver any notes, mortgage, evidence of indebtedness,
contract, certificate, statement, conveyance or other instrument in
writing, and any assignment or endorsement thereof.
(d) Subject to Article IV, the Management
Committee may by resolution appoint officers of the Company
(which may include a president, a treasurer, a secretary and one
or more vice presidents, assistant treasurers and assistant
secretaries), which officers shall be vested with such powers and
duties, shall hold their offices for such terms, and shall be entitled
to such compensation, as shall be determined from time to time by
the Management Committee.
(e) Anything in this Agreement to the contrary
notwithstanding, the Committee Members appointed by any
Member who is a Defaulting Member shall not be entitled to
attend, participate in meetings of, or vote on any matters coming
before the Management Committee for so long as such Member
shall be and remain a Defaulting Member, and, for such period of
time, the Management Committee shall be deemed to have been
reduced in size for all purposes (including, without limitation,
determination of quorum and required votes to act) by the number
of Committee Members which the Defaulting Member would
otherwise be entitled to appoint to the Management Committee.
For so long as any Member shall be a Defaulting Member, any
action taken by the remaining Committee Members shall be fully
binding on all Members (including, without limitation, the
Defaulting Member). Notwithstanding the foregoing, if Circus is
the Defaulting Member, unless and until all of the Membership
Interest of Circus shall have been purchased pursuant to Section
5.08(d), Circus shall, at its option, remain as Operator of the
Project pursuant to Article IV.
3.04 Matters Requiring Approval of the Management
Committee.
Subject to Sections 3.05, 3.06, 3.07, 4.01 and 4.02,
Approval of the Management Committee shall be required for the
following decisions:
(a) The initial design (including exterior design,
overall layout and theme) of the Project (based on Circus
recommendations) and any fundamental changes in such design;
(b) The total amount of the Project Budget
(which is currently estimated to be approximately $700 million)
and any increases in the approved Project Budget resulting from
Additional Project Costs other than increases due to Cost
Overruns;
(c) The selection of the contractor and local
architect for the Project;
(d) The adoption of any affirmative action
programs or commitments to make charitable contributions or to
undertake civic involvement (which programs, commitments,
and/or undertakings shall be based on the recommendations of a
subcommittee a majority of whose members shall be Committee
Members representing AEA);
(e) The annual Operating Budget for the Project
(including Reserves and capital expenditures anticipated to be made
during the period covered by such Operating Budget) (which shall
be based on Circus s recommendations);
(f) The Development Agreement, if any;
(g) The incurrence of any indebtedness on behalf
of the Company other than (i) the Construction Financing and
Permanent Financing for the Project , (ii) gaming equipment
financing (including equipment leasing) in the ordinary course of
business and (iii) trade payables in the ordinary course of business;
and
(h) The determination to proceed with the
development and operation of a Temporary Casino.
3.05 Matters Requiring Supermajority Approval of the
Management Committee.
The following matters shall require the approval of a
Supermajority of the Management Committee:
(a) Any sale, lease, assignment, transfer or other
conveyance (exclusive of financing requirements) of all or
substantially all of the assets of the Company;
(b) Any merger, consolidation, dissolution,
divestiture or winding-up of the Company (except as provided in
Sections 3.06 and 3.07);
(c) Any amendment or restatement of this
Agreement;
(d) Any transaction involving the payment of
compensation by the Company to a Member or an Affiliate of the
Member, (including for purposes of this sentence, any members,
shareholders, employees, agents, officers or directors of any
Member or their respective members or equity participants),
except as provided in Section 4.05;
(e) Any material change in the character of the
business and affairs of the Company;
(f) The commission of any act which would
make it impossible for the Company to carry on its ordinary
business and affairs (except as provided in Sections 3.06 and
3.07);
(g) The commission of any act that would
contravene any provision of this Agreement or the Act; and
(h) The selection of independent certified public
accountants for the Company; or
(i) The admission of new or Substitute Members
to the Company, except as otherwise provided in Section 9.02.
3.06 Matters Requiring Direct Vote of Members.
It is the intention of the Members that except as otherwise
expressly provided in subsections (a) and (b) below and/or except
as otherwise expressly required by the Act or other applicable law,
all matters requiring the consent, approval or other action of the
Members be considered, voted upon and decided by the
Management Committee (through the vote of the Committee
Members) and that to the greatest extent permitted by the Act or
other applicable law, the Members expressly waive the right to
vote directly on such matters. Notwithstanding the foregoing:
(a) Any increase in the Project Budget in excess
of $700 million (other than increases due to Cost Overruns) which
would require the Members to make Additional Capital
Contributions, or any capital expenditure after opening of the
Project, which would require the Members to make Additional
Capital Contributions, shall require the affirmative vote of both
Members.
(b) With respect to the matters described in
Sections 3.05(b), 3.07(a)(iv) and 13.01(a), after the Approval of
the Management Committee or a Deadlock-breaking vote by
Circus, as the case may be, such matters shall be referred for a
direct vote by the Members, unless the Company s legal counsel
determines that such direct vote is not required by the Act or other
applicable law.
3.07 Deadlock-Breaking Authority.
(a) Notwithstanding anything to the contrary contained
in this Agreement (including without limitation, Section 3.04 and
all of the provisions of Section 3.05 other than Section 3.05(d)
hereof), so long as Circus or an Affiliate is providing any Credit
Support to the Project, Circus, after consultation with ACG, will
have Deadlock-breaking authority for decisions relating to the
following:
(i) The Development Agreement;
(ii) Decisions regarding the construction of the
Project (including choice of contractor and local architect);
(iii) Approval or amendment of the annual
Operating Budget; and
(iv) The dissolution, recapitalization or
bankruptcy of the Company.
(b) So long as Circus or an Affiliate is providing Credit
Support to the Project, ACG hereby grants to Circus an
irrevocable proxy to vote ACG s Membership Interest with respect
to a vote relating to the dissolution of the Company or other
matters described in Section 3.07(a) requiring the vote of the
Members pursuant to the Act or other applicable law.
3.08 No Authority of Individual Members or
Committee Members.
Neither Member nor any Committee Member, acting
individually, nor any of their respective Affiliates or constituent
members, has the power or authority to bind the Company or any
Member or to authorize any action to be taken by the Company,
or to act as agent for the Company or any other Member, unless
that power or authority has been specifically delegated by the
Management Committee or is expressly provided for in this
Agreement. Except as otherwise provided in this Agreement, no
Member or Committee Member is authorized to incur any
expenditures on behalf of the Company without the Approval of
the Management Committee.
3.09 Other Businesses.
Each party recognizes that the Members, and their
Affiliates, have or may have other business interests, activities and
investments, some of which may now or hereafter be in conflict or
competition with the business of the Company, and that each
Member and its respective Affiliates are entitled to carry on such
other business activities, interests and investments without any
accountability therefor to the Company or any other Member. No
Member, and no Affiliate of any Member, shall be obligated to
devote all or any particular part of its time and effort to the
Company or its business affairs except such reasonable amount of
time as may be necessary in order to fulfill their respective duties
and obligations hereunder. Each Member, and each Affiliate of
each Member, may engage in or possess an interest in any other
business or venture of any kind, independently or with others,
including, without being limited to, owning, financing, acquiring,
leasing, promoting, developing, improving, constructing, operating
or managing other real or personal properties (including real and
personal properties devoted, in whole or in part, to the business of
gaming or which are activities in support of gaming operations) on
its own behalf or on behalf of other entities with which it is
affiliated or associated, and any Member and each Affiliate of any
Member may engage in any activities, whether or not competitive
to the Company, without any obligation to offer any interest in
such activities to the Company or to any Member or to any
Affiliate of any Member. Neither the Company nor any Member
nor any Affiliate of any Member shall have any right by virtue of
this Agreement or by virtue of the relationship between the
Members as Members in or to such other activities, or to the
income or profits derived therefrom, and the pursuit of such
activities, even if competitive with the business of the Company,
shall not be deemed wrongful or improper or a breach of any
Company or fiduciary duties owed by one party to the other, or
entitle either party to any interest in or sharing in the profits or
losses from any such other activities.
3.10 Liability of the Members and Committee
Members.
So long as each Member (whether in its capacity as a
Member, or if applicable, as Operator or other expressly
authorized agent of the Company) and Committee Member acts in
good faith with respect to the conduct of the business and affairs
of the Company, and in the manner in which it reasonably believes
to be in the best interests of the Company or otherwise in
accordance with the provisions of this Agreement, neither Member
nor any such Committee Member shall be liable or accountable to
the Company or to any of the Members in damages or otherwise
for any error of judgment, for any mistake of fact or of law, or for
any other act or thing which it may do or refrain from doing or
suffer to be done in connection with the business and affairs of the
Company, except in the case of (i) such Person s willful
misconduct or gross negligence, (ii) actions taken by any such
Person in violation of this Agreement, (iii) the receipt by any such
Person of a financial benefit to which it is not entitled pursuant to
this Agreement or (iv) any vote by such Person to approve a
distribution to the Members of funds of the Company in violation
of this Agreement or the Act.
3.11 Indemnity.
The Company shall indemnify, defend and hold each
Member, and each officer, director, stockholder, member,
employee, agent, affiliate, subsidiary or assignee of each Member
(including any such Person in its capacity as an agent or
Committee Member) provided any such Person is properly acting
in its capacity as a Member, Committee Member, officer, director,
stockholder, member, employee or agent, and within the express
authority granted herein (collectively, the Indemnities ) free and
harmless of, from and against any expenses, losses, claims, costs,
damages and liabilities, including without limitation, judgments,
fines, amounts paid in settlement and expenses (including without
limitation, attorneys fees and expenses, court costs, investigation
costs and litigation costs) incurred by any Indemnitee in any civil,
criminal or investigative proceeding in which it is involved or
threatened to be involved by reason of the Member being a
Member in the Company or such Person being a Committee
Member, provided that the Member or such Person acted in good
faith, within what it reasonably believed to be the scope of its
authority and for a purpose which it reasonably believed to be in
the best interests of the Company and the Members or otherwise
in compliance with the provisions of this Agreement; provided,
however (i) that the Company shall not be required to indemnify
any Indemnitee, and any such Indemnitee shall be liable, for any
loss, expense or damage which the Company may suffer as a result
of (A) such Indemnitee s willful misconduct, gross negligence or
bad faith in failing to perform its duties hereunder; (B) actions
taken by such Indemnitee in violation of this Agreement, (C) the
receipt by such Indemnitee of any financial benefits to which it is
not entitled pursuant to this Agreement or (D) the vote by such
Indemnitee for a distribution of funds of the Company in violation
of this Agreement or the Act; (ii) the Company shall not be
required to indemnify any Indemnitee for any breach of the
provisions of this Agreement, or for any loss, expense or damage
which it may suffer as a result of the breach of this Agreement by
the Member to which the Indemnitee is related; and (iii) any
liability hereunder shall be limited solely to the assets and
properties of the Company, and no Member (or any Affiliate of
any Member) shall have any liability or obligation hereunder.
ARTICLE IV
DEVELOPMENT AND MANAGEMENT OF THE
PROJECT
4.01 Generally.
Subject only to any express limitations set forth in Sections
3.04, 3.05 and 3.06, Circus, as Operator, shall have, and is
hereby expressly granted, the responsibility and authority for
conducting the day-to-day operations of the Project, including the
following:
(a) Notwithstanding anything to the contrary contained
herein (including without limitation, Section 3.04(a) above),
Operator 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.
(b) Prepare for submission to the Management
Committee, appropriate Project and Operating Budgets for the
development, construction, opening, repair, improvement and
operation of the Project and if applicable, the Temporary Casino.
(c) Contract on behalf of the Company for the services of
independent contractors, including attorneys, accountants and
financial advisers.
(d) Subject to Section 8.03, establish, maintain and
supervise the deposit of funds and securities of the Company with
federally insured banking institutions; and the Operator is
authorized to sign on behalf of the Company on all accounts with
such banking institutions.
(e) Subject to the approved Project Budget and
Operating Budgets, acquire by purchase, lease or otherwise such
personal property as may be necessary, convenient or incidental to
the accomplishment of the purposes of the Company.
(f) Procure on behalf of the Company, such general
liability, casualty, comprehensive, workers compensation, fidelity,
errors and omissions, business interruption and other insurance as
is adequate to protect the Company.
(g) Subject to Sections 3.04, 3.05, 3.06 and 3.07, execute
and deliver on behalf of the Company any and all agreements,
documents, certificates and instruments necessary or convenient in
connection with the performance of its duties hereunder.
4.02 Design, Development and Construction.
Operator shall have the responsibility and authority for
supervising the design, development and construction of the
Project. Operator shall prepare or cause to be prepared as
promptly as practicable after the date of this Agreement and Initial
Licensing, all necessary preliminary plans and architectural,
engineering, design and construction drawings and other
construction documents for the Project. Subject to Sections 3.04,
3.05(d) and 3.07 above, Operator shall engage on behalf of the
Company, reputable and qualified contractors, architects,
engineers, designers or other professionals for the design,
development and construction of the Project. Operator shall keep
the Management Committee fully advised on a regular basis with
respect to the status of such design, development and construction
activities.
4.03 Governmental Approvals.
Operator shall have the responsibility and authority for
preparing, filing and processing all applications to obtain all
governmental licenses (including Licenses for the Company and
the Project, but not including any Licenses for the individual
Members), approvals, permits and entitlements on behalf of the
Company necessary or appropriate for the design, development,
construction, ownership and operation of the Project, the costs of
which shall be borne by the Company. Each Member shall be
responsible for preparing, submitting and processing its own
License applications and the applications of any party required to
submit an application due to its affiliation with a Member. The
Members shall (and shall cause their respective constituent
members and Affiliates to) act in good faith, cooperate with each
other and furnish all documents and other information necessary
to obtain the Licenses and such other licenses, approvals, permits
and entitlements.
4.04 Project Financing.
(a) Circus Capital Contributions.
Circus shall contribute to the capital of the Company
an amount equal to twenty percent (20%) of the approved Project
Budget, but not to exceed twenty percent (20%) of the first $700
million of Project Cost (for the initial development and
construction of the Project) as provided in Sections 5.01(b) and
5.02 hereof.
(b) Project Financing.
The Company intends to finance approximately 80%
of the approved Project Budget (estimated financing of $560
million) with Construction Financing. Circus shall use its good
faith best efforts to secure such Construction Financing for the
Project to the extent possible on commercially reasonable terms
through bank financing and to the extent bank financing is not
available on commercially reasonable terms for some or all of such
debt, Circus shall use its good faith best efforts to secure the
balance of such debt through subordinated debt in the high yield
market. Circus shall use its good faith best efforts to obtain non-
recourse bank Construction Financing in the bank market at the
lowest available cost (taking into consideration all of the material
terms and conditions of such financing). If Circus deems it
necessary or advisable to finance a portion of the Project Cost
through subordinated debt financing, Circus may elect to provide
such financing to the Company on terms below commercially
available market terms. Notwithstanding anything to the contrary
contained herein, in no event shall Circus be required to provide
any financing from its available bank credit agreement or other
debt sources. Circus shall have the authority to approve, after
consultation with ACG, the terms of any Construction and/or
Permanent Financing for the Project. Notwithstanding anything to
the contrary contained herein, the terms of this Agreement and any
other agreement between the Members shall be subject to the terms
of any such Construction and/or Permanent Financing; provided
however, that any such financing (i) shall not require the Members
to adjust their respective Sharing Ratios in the Company and (ii)
shall not be acceptable unless it permits the Company to make
periodic Tax Distributions to the Members as contemplated in
Section 6.03. Unless otherwise Approved by the Management
Committee, neither Member shall have any personal liability for
repayment of such Construction Financing. Circus shall use its
good faith best efforts to secure Permanent Financing for the
Project.
(c) Additional Project Costs.
The Operator, on behalf of the Company, will use
its good faith best efforts to obtain third party financing to cover
any Additional Project Costs. If in the opinion of the Operator,
such third party financing is unavailable or if additional equity is
required, then Circus shall make an Additional Capital
Contribution in an amount equal to 20% of such Additional Project
Costs (but not to exceed the difference between $140 million and
the amounts contributed or to be contributed by Circus pursuant to
Section 4.04(a) above), and the balance of such Additional Project
Costs will be contributed by Circus and ACG as Additional Capital
Contributions to the Company pursuant to Section 5.03, in
proportion to their respective Sharing Ratios in the Company.
Additional Project Costs (other than Cost Overruns) which would
increase the Project Budget to an amount in excess of $700 million
and which would require the Members to make Additional Capital
Contributions pursuant to Section 5.03, shall require the
affirmative vote of both Members pursuant to Section 3.06. Cost
Overruns shall only require the approval of the Operator. Any
other Additional Project Costs shall require the Approval of the
Management Committee.
(d) Refinancing.
If at any time the Company or the Project is
encumbered with financing for which Credit Support is being
provided by Circus or an Affiliate of Circus, the Company may,
upon the affirmative vote of fifty percent (50%) or more of the
Management Committee, cause such financing to be replaced (and
such Credit Support to be fully released and extinguished) with
new financing Approved by the Management Committee. Circus
agrees that it will direct the Committee Members appointed by
Circus to not unreasonably withhold their approval of such new
financing provided that the terms and provisions of such new
financing do not materially adversely affect the Company or the
Project. In the event of a Deadlock within the Management
Committee as to whether any such proposed new financing will
materially adversely affect the Company or the Project, such
Deadlock shall be resolved by arbitration pursuant to Section
15.12.
4.05 Compensation; Reimbursement.
(a) Predevelopment Advances.
Any Project Costs incurred after May 1, 1997 and
prior to Initial Licensing and Approved by the Management
Committee, shall be borne 45% by Circus and 55% by ACG.
Upon Initial Licensing, all such costs and expenses Approved by
the Management Committee and borne by the Members shall be
included in the Project Budget and shall be promptly reimbursed
to the respective Members.
(b) Project Costs and Operating Costs.
The Company shall pay all costs to develop and
operate the Project, as set forth in the approved Project Budget and
Operating Budgets, as amended from time to time. After Initial
Licensing, any such Project Costs and Operating Costs incurred by
a Member or its Affiliates and included in the approved Project
Budget or an approved Operating Budget, shall be promptly paid
or reimbursed to such Member or its applicable Affiliates.
(c) Circus Management Personnel.
Circus may appoint from time to time, certain
employees of Circus or its Affiliates to devote essentially full time
to the day-to-day management and operation of the Project and
may retain such employees on Circus payroll. In such event, the
Company shall reimburse Circus for the out-of-pocket
compensation (including salary, bonus, direct cost of health and
retirement benefit plans but excluding stock options and other
incentive compensation unless Approved by the Management
Committee) paid to or on behalf of such employee for performing
services to the Company on a full time basis. However, the
Company shall not reimburse Circus for any time or expense
associated with Circus personnel who do not perform full-time
services on behalf of Company.
(d) Management Fee.
During the first ten (10) years following Completion
of Construction, Circus shall receive an annual Management Fee
equal to 1.5 % of the first $700 million of approved Project Cost.
The Management Fee shall be payable in monthly estimated
installments in arrears, on or about the tenth day of each calendar
month, subject to annual adjustment within thirty (30) days after
the end of each Fiscal Year.
(e) Certain Payments to ACG.
(i) Pursuant to the Assignment
Agrteement, Circus shall pay the sum of $5 million to ACG in
respect of the assignment to Circus of an undivided interest of
99.99% in the Preference Rights, upon the earlier of (A) receipt
by Circus of an opinion of legal counsel satisfactory to Circus that
payment of such amount to ACG will not violate any present or
proposed Legal Requirements relating to gaming or other activities
to be conducted by the Company or its Members; or (B) a final
non-appealable determination by the applicable Gaming Authorities
that the Company will not obtain licensing in Michigan for reasons
beyond the control of the Members.
(ii) Pursuant to the Assignment
Agreement, upon Initial Licensing, but subject to compliance with
all Legal Requirements including, if applicable, the issuance (at the
cost of ACG) of a fairness opinion as contemplated in the proposed
regulations of the Michigan Gaming Control Board, Circus shall
pay the sum of $8 million to ACG, in respect of the assignment to
the Circus of the Preference Rights.
(f) Other Compensation.
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 the Management Committee; provided however,
that any increase in the Management Fee payable to Circus
pursuant to Section 4.05(d) or any extension of its duration shall
require Supermajority approval of the Management Committee.
4.06 Intellectual Property.
So long as Circus maintains a Membership Interest in the
Company and the Company maintains an ownership interest in the
Project, Circus will grant a royalty-free license to the Project to
use the Circus Intellectual Property in connection with the
operation of the Project; provided, however, if Circus is not the
Operator of the Project but still maintains a Membership Interest
in the Company and the Company still maintains an ownership
interest in the Project, then Circus will enter into a royalty-free
license agreement (upon and subject to customary terms and
conditions) with the Company for the use of such proprietary
items.
4.07 Retail Space.
It is intended that a portion of the Project be dedicated to
retail use for operation of shops offering for sale at retail items
typically offered for sale in similar first class casino and hotel
complexes. In the event that the Management Committee elects to
have such retail space competitively offered for lease to qualified
operators of retail establishments that meet criteria established by
the Management Committee, then, and in that event, ACG and its
members will be given the opportunity to compete to be among the
operators of such retail space.
ARTICLE V
CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS;
MEMBER LOANS
5.01 Initial Capital Contributions.
(a) ACG.
ACG shall as its Initial Capital Contribution
contribute to the Company ACG s interest in the Preference
Rights, for which ACG shall receive a credit to its Capital Account
of $100. In addition, ACG shall provide certain valuable services
and cooperate with the Company in obtaining the License for the
Project.
(b) Circus.
Circus shall as its Initial Capital Contribution
contribute to the Company Circus interest in the Preference
Rights, for which Circus shall receive a credit to its Capital
Account as follows: (i) $5 million upon full execution and
delivery of this Agreement and satisfaction of the conditions set
forth in Section 4.05(e)(i); and (ii) $8 million payable upon Initial
Licensing and satisfaction of the conditions set forth in Section
4.05(e)(ii).
5.02 Additional Capital Contributions - Circus.
Circus shall make Additional Capital Contributions to or for
the benefit of the Company in cash in an aggregate amount equal
to twenty percent (20%) of the approved Project Budget (up to the
first $700 million of approved Project Costs), less the amounts
contributed or to be contributed pursuant to Section 5.01(b) above,
from time to time after Initial Licensing, as needed to pay the
Project Costs or at such later times as are determined by the
Management Committee, but in no event shall such contributions
be made later than the time advances are required under the terms
of the Construction Financing.
5.03 Additional Capital Contributions - Circus and
ACG.
If additional funds are required by the Company to pay
Additional Project Costs and such funds are not available through
third party financing or Circus Additional Capital Contributions as
contemplated in Section 4.04(c), or if additional equity in the
Company is otherwise necessary and has been approved by the
Members if and to the extent such approval is required pursuant to
Section 3.06(a), then each Member shall make Additional Capital
Contributions in cash, in proportion to the Members respective
Sharing Ratios, at such times and in such amounts as specified in
written notices from the Management Committee to the Members.
5.04 Temporary Casino Loan.
If the Management Committee Approves and elects to
proceed with a Temporary Casino, Circus shall make or cause to
be made to the Company, loans in an aggregate amount equal to
the Temporary Casino Cost (the Temporary Casino Loans ),
which Loans (i) shall be advanced from time to time as needed to
pay the Temporary Casino Costs, (ii) shall bear interest from the
dates of advance until repaid at the Loan Rate, and (iii) shall be
repaid in monthly installments beginning upon the opening of the
Temporary Casino, equal to the sum of principal amortized over
the estimated number of months of operation of the temporary
casino, plus accrued but unpaid interest. Such monthly
installments shall be paid or reserved for payment from first
available cash of the Company (after payment or reservation for
payment of the Tax Distributions pursuant to Sections 6.03(a)(i)
and 6.03 (b)(i), but prior to the calculation and distribution of
Distributable Cash pursuant to Sections 6.03(a)(ii) and 6.03(b)(iii).
5.05 Advances by Members.
If the Company does not have sufficient cash to pay its
obligations, a Member, with the Approval of the Management
Committee, may advance all or part of the needed funds to or on
behalf of the Company, provided that the Management Committee
shall grant to each other Member the right to advance a
proportionate part (based upon the relative Sharing Ratios of each
Member desiring to make an advance) of any funds described in
this Section 5.05. Payment by any Member on account of liability
as a matter of law for Company obligations is deemed to be an
advance under this Section 5.05. An advance described in this
Section 5.05 (i) constitutes a Member Loan from the Member
making the advance to the Company, (ii) bears interest at the Loan
Rate or such other interest rate as may be Approved by the
Management Committee, from the date of the advance until the
date of payment, (iii) is not a Capital Contribution, and (iv) shall
be repaid or reserved for repayment from the first available cash
of the Company in any Fiscal Year, after payment of principal and
interest in respect of all Temporary Casino Loans and after
payment or reservation for payment of Tax Distributions to the
Members pursuant to Sections 6.03(a)(i) and 6.03(b)(i) and
payment of the Management Fee pursuant to Section 6.03(b)(ii),
but prior to any other distribution to the Members of Distributable
Cash with respect to such Fiscal Year.
5.06 Capital Accounts.
(a) The Company shall establish an individual
Capital Account for each Member. The Company shall determine
and maintain each Member s Capital Account in accordance with
Regulations Section 1.704-1(b)(2)(iv). The Capital Account of
each Member shall be equal to the aggregate amount of cash
contributed by such Member to the Company, increased by (i) the
Agreed Value of property contributed by such Member to the
Company (other than a promissory note by such Member who is
the maker of such note), net of liabilities secured by such property
that the Company assumes or takes the property subject to, (ii) the
amount of any Company liabilities assumed by such Member other
than liabilities secured by property distributed to such Member,
(iii) such Member's distributive share of Profits of the Company
and (iv) any items in the nature of income and gain which are
excluded from the definitions of Profits and Losses and allocated
to such Member, and reduced by (i) such Member's distributive
share of Losses, (ii) the amount of any distributions of cash to
such Member, (iii) the amount of liabilities of such Member
assumed by the Company, other than liabilities secured by
property contributed by such Member, (iv) the Agreed Value of
property (net of liabilities assumed by such Member and liabilities
to which such distributed property is subject) distributed to such
Member, and (v) any items in the nature of deductions or losses
which are excluded from the definitions of Profits and Losses and
allocated to such Member.
(b) For purposes of computing the amount of any
item of income, gain, loss or deduction to be reflected in the
Members Capital Accounts, the determination, recognition and
classification of any such item shall be the same as its
determination, recognition and classification for federal income tax
purposes (including, without limitation, any method of
depreciation, cost recovery or amortization used for that purpose),
provided, that:
(i) Except as otherwise provided in
Regulations Section 1.7041(b)(2)(iv)(m), the computation of all
items of income, gain, loss and deduction shall be made without
regard to any election under section 754 of the Code which may
be made by the Company and, as to those items described in
section 705(a)(1)(B) or 705(a)(2)(B) of the Code, without regard
to the fact that such items are not includable in gross income or
are neither currently deductible nor capitalized for federal income
tax purposes.
(ii) Any income, gain or loss attributable
to the taxable disposition of any Company property shall be
determined as if the adjusted basis of such property as of such date
of disposition were equal in amount to the Company s Carrying
Value with respect to such property as of such date.
(iii) In accordance with the requirements
of section 704(b) of the Code, any deductions for depreciation,
cost recovery or amortization attributable to any Contributed
Property shall be determined as if the adjusted tax basis of such
property on the date it was acquired by the Company were equal
to the Agreed Value of such property. Upon an adjustment
pursuant to Section 5.06(d) to the Carrying Value of any Company
property subject to depreciation, cost recovery or amortization, any
further deductions for such depreciation, cost recovery or
amortization attributable to such property shall be determined (A)
as if the adjusted tax basis of such property were equal to the
Carrying Value of such property immediately following such
adjustment and (B) using a rate of depreciation, cost recovery or
amortization derived from the same method and useful life (or, if
applicable, the remaining useful life) as is applied for federal
income tax purposes; provided, however, that if the asset has a
zero adjusted basis for federal income tax purposes, depreciation,
cost recovery or amortization deductions shall be determined using
any reasonable method that the Management Committee may
adopt.
(c) A transferee of a Membership Interest shall
succeed to a pro rata portion of the Capital Account of the
transferor relating to the Membership Interest so transferred;
provided, however, that, if the transfer causes a termination of the
Company under section 708(b)(1)(B) of the Code, the Company s
properties shall be deemed to have been distributed in liquidation
of the Company to the Members (including any transferee of a
Membership Interest that is a party to the transfer causing such
termination) pursuant to Section 13.02 and recontributed by such
Members in reconstitution of the Company. Any such deemed
distribution shall be treated as an actual distribution for purposes
of this Section 5.06. In such event, immediately prior to such
deemed distribution the Carrying Values of the Company
properties shall be adjusted pursuant to Section 5.06(d)(ii) and such
Carrying Values shall then constitute the Agreed Values of such
properties upon such deemed contribution to the reconstituted
Company. The Capital Accounts of such reconstituted Company
shall be maintained in accordance with the principles of this
Section 5.06.
(d) The Carrying Value of Company property
and the Capital Accounts of the Members shall be adjusted in the
following circumstances:
(i) Consistent with the provisions of
Regulations Section 1.701-l(b)(2)(iv)(f), on an issuance of
additional Membership Interests for cash or Contributed Property
(other than contributions by the Members pursuant to Sections
5.01, 5.02 and 5.03) the Capital Accounts of all Members and the
Carrying Value of each Company property immediately prior to
such issuance shall be adjusted upward or downward to reflect any
Unrealized Gain or Unrealized Loss attributable to such Company
property, as if such Unrealized Gain or Unrealized Loss had been
recognized on an actual sale of each such property immediately
prior to such issuance and had been allocated to the Members at
such time pursuant to Section 6.04. In determining such
Unrealized Gain or Unrealized Loss, the aggregate fair market
value of all Company assets (including, without limitation, cash or
cash equivalents) immediately prior to the issuance of additional
Membership Interests shall be determined by the Management
Committee using such reasonable method of valuation as it may
adopt. The Management Committee shall allocate such aggregate
value among the assets of the Company (in such manner as it
determines in its sole discretion to be reasonable) to arrive at a fair
market value for individual properties.
(ii) In accordance with Regulations
Section 1.704-1(b)(2)(iv)(f), immediately prior to any actual or
deemed distribution to a Member of any Company property (other
than a distribution solely of cash that is not in redemption or
retirement of a Membership Interest), the Capital Accounts of all
Members and the Carrying Value of such Company property shall
be adjusted upward or downward to reflect any Unrealized Gain
or Unrealized Loss attributable to such Company property, as if
such Unrealized Gain or Unrealized Loss had been recognized in
a sale of such property immediately prior to such distribution for
an amount equal to its fair market value, and had been allocated
to the Members, at such time, pursuant to Section 6.04. In
determining such Unrealized Gain or Unrealized Loss the
aggregate fair market value of all Company assets (including,
without limitation, cash or cash equivalents) immediately prior to
a distribution shall be determined and allocated by the Management
Committee or the liquidator, as appropriate, using such reasonable
method of valuation as it may adopt.
(e) Capital Accounts shall be adjusted, in a
manner consistent with this Section 5.06, to reflect any
adjustments in items of the Company s income, gain, loss or
deduction that result from amended returns filed by the Company
or pursuant to a binding agreement by the Company with the
Internal Revenue Service or a final court decision.
(f) The foregoing provisions and the other
provisions of this Agreement relating to the maintenance of Capital
Accounts are intended to comply with Regulations Sections 1.704-
1(b) and 1.704-2 and shall be interpreted and applied in a manner
consistent with such Regulations.
5.07 No Withdrawal.
The Company shall not be obligated to redeem or
repurchase the Membership Interest of any Member. No Member
shall be entitled to withdraw any part of its Additional Capital
Contribution, except as provided in Section 5.08(a), or to receive
any distributions from the Company except as expressly provided
herein or by law. In no event shall any Member have the right to
redeem or receive any assets of the Company other than cash. A
Member shall not be entitled to receive any additional withdrawal
distribution under Section 305 of the Act except as provided in this
Agreement.
5.08 Member Failure to Advance.
In the event a Member fails to advance to the Company the
full amount of a Capital Contribution which such Member is
obligated to advance in accordance with the provisions of Sections
5.01, 5.02 or 5.03 (a Defaulting Member ), then the other
Member, provided it is a Non-Defaulting Member, shall have the
right (but shall not be obligated), exercisable upon at least thirty
(30) days prior written notice to the Defaulting Member at any
time following the date (the Funding Date ) the Members were
required to fund such Capital Contributions, but only so long as
the Defaulting Member shall continue to be a Defaulting Member
hereunder, to elect any of the following remedies, any of which
may be instituted by the Non-Defaulting Member for its own
account, or on behalf of the Company, as appropriate; provided
however, that if Circus is the Defaulting Member and such default
consists of the failure of Circus to duly and timely make its Initial
Capital Contributions and Additional Capital Contributions
pursuant to Sections 5.01(b) and 5.02, then the sole and exclusive
remedies of the Non-Defaulting Member shall be as set forth in
Section 5.08(b), Section 5.08(c) (but only to make Member Loans
and not to make Additional Capital Contributions or to otherwise
take any action which might have the effect of diluting Circus
Sharing Ratio in the Company) and Section 5.08(d):
(a) To cause the Company to return to the Non-
Defaulting Member the full amount of the Additional Capital
Contribution under Section 5.03 previously advanced to the
Company by the Non-Defaulting Member with respect to the
relevant Funding Date, such refund to be made immediately upon
written demand therefor from the Non-Defaulting Member; or
(b) In lieu of the provisions of subsection (a)
above, cause the Company to institute and prosecute appropriate
arbitration proceedings pursuant to Section 15.12 hereof, to compel
the Defaulting Member to make the full Capital Contribution
required hereunder. The Defaulting Member shall indemnify and
hold harmless the other Members and the Company from and
against any and all costs and expenses (including legal fees and
disbursements) incurred in instituting and prosecuting any such
proceeding, and the amount thereof may be recovered by the
Company and the Non-Defaulting Member as part of the judgment
entered in the proceedings brought to enforce the obligation of the
Defaulting Member. The amount which may be recovered by the
Company in connection with any such proceedings shall be the
amount of the Additional Capital Contribution as to which the
Defaulting Member is in default together with interest at the
Default Rate from the due date thereof until recovery, such interest
to inure to the benefit of the Non-Defaulting Member as liquidated
damages and not as a penalty; or
(c) Whether or not arbitration proceedings are
instituted pursuant to subsection (b) above, but in lieu of the
provisions of subsection (a) above, the Non-Defaulting Member
may (but shall not be obligated to) advance to the Company an
additional sum equal to (but not less than) the difference between
the full amount of the Additional Capital Contribution which the
Defaulting Member was required to advance to the Company and
the actual amount thereof, if any, so advanced by the Defaulting
Member (said difference being herein referred to as the Unfunded
Balance ). If the Non-Defaulting Member elects to advance an
additional amount equal to the Unfunded Balance to the Company,
it shall, concurrently therewith, elect, by notice in writing to the
Company and the Defaulting Member, to treat the additional
advance either as a Default Loan (as described in Section 5.09) or
as an Additional Capital Contribution to the Company, or any
combination of Default Loan and Additional Capital Contribution.
If the Non-Defaulting Member elects to treat all or part of the
additional advance as an Additional Capital Contribution to the
Company, then (i) the amount of such advance which is treated as
an Additional Capital Contribution shall be credited to the Capital
Account of the Non-Defaulting Member; and (ii) the Sharing
Ratios of the Members shall be adjusted (provided, however, that
the adjustment shall not affect the Capital Accounts of the
Members), effective as of the date of the additional advance made
by the Non-Defaulting Member, as follows:
(i) The Sharing Ratio of the Non-
Defaulting Member shall be equal to the percentage determined by
dividing the sum of all Additional Capital Contributions made by
the Non-Defaulting Member pursuant to Section 5.03 plus one
hundred fifty percent (150%) of all Additional Capital
Contributions then and theretofore made by the Non-Defaulting
Member pursuant to this Section 5.08(c) (including, but not limited
to, the Additional Capital Contribution made hereunder with
respect to the Funding Date in question) by the sum total of all
Additional Capital Contributions to the Company made by all
Members pursuant to Section 5.03 and pursuant to this Section
5.08(c), provided, however in no event shall the Sharing Ratio of
the Non-Defaulting Member exceed ninety-nine percent (99%);
(ii) The Sharing Ratio of the Defaulting
Member shall be an amount equal to one hundred percent (100%)
less the Sharing Ratio of the Non-Defaulting Member, as adjusted
pursuant to clause (i) above; or
(d) Whether or not arbitration proceedings are
instituted pursuant to subsection (b) above but in lieu of the
provisions of subsections (a) and (c) above, the Non-Defaulting
Member may (but shall not be obligated to) purchase the entire
Membership Interest of the Defaulting Member for a Buy-Out
Price equal to the sum of (i) eighty percent (80%) of the Adjusted
Capital Contribution Account of the Defaulting Member and (ii)
one hundred percent (100%) of the outstanding balance of principal
and accrued interest due to the Defaulting Member in respect of
any Member Loans. If ACG is the Defaulting Member, the Buy-
Out Price shall be payable in cash within ninety days (90) after the
election of Circus to purchase ACG s Membership Interest. If
Circus is the Defaulting Member, the Buy-Out Price shall be
payable pursuant to a promissory note executed by ACG, bearing
interest at the Loan Rate, payable in sixty (60) equal monthly
installments of principal plus accrued but unpaid interest beginning
on the first day of the calendar month next following the date of
closing. In addition, and as a condition precedent to such purchase
if ACG is purchasing Circus Membership Interest, ACG shall
cause Circus and its Affiliates to be released from and relieved of
all personal guaranties, personal liability and other Credit Support
relating to any then-outstanding Construction Financing or
Permanent Financing relating to the Project or the Temporary
Casino. The closing of the purchase transaction shall take place
within ninety (90) days after written notice from the Non-
Defaulting Member to the Defaulting Member.
5.09 Default Loans.
(a) If the Non-Defaulting Member shall elect to
advance a Default Loan as contemplated by Section 5.08 (the
Default Loans ), the amount of such advance shall be made to
the Company but shall, for all purposes, be deemed a loan made
to and on behalf of the Defaulting Member to enable the
Defaulting Member to make its required Additional Capital
Contribution. Default Loans shall bear interest at the Default Rate,
and, if not sooner paid, the outstanding principal amount thereof,
together with accrued and unpaid interest thereon, shall be due and
payable in full on the Liquidation Date in accordance with the
priorities set forth in Article XIII. In order to secure the payment
of the Default Loans, and interest thereon, the Defaulting Member
shall be deemed to have granted to the Non-Defaulting Member a
security interest in the Membership Interest of the Defaulting
Member and shall be deemed to have constituted and appointed the
Non-Defaulting Member, or any officer, agent, employee, or
Affiliate of the Non-Defaulting Member designated by the Non-
Defaulting Member, as the true and lawful agent and
attorney-in-fact for the Defaulting Member with full power of
substitution and with the full right, power and authority to execute
such financing statements, continuation statements and other
similar instruments and documents reasonably necessary in order
to perfect the security interest herein granted.
(b) The making of a Default Loan by the Non-
Defaulting Member shall not relieve the Defaulting Member of its
obligation to make the Additional Capital Contribution, or the
portion thereof as to which it is in default. The Non-Defaulting
Member shall have the right at any time that a Default Loan is
outstanding, to elect the remedies set forth in Section 5.08(b), in
which event the recovery shall first be applied in payment of
outstanding Default Loans and interest thereon. In addition, the
Non-Defaulting Member shall have the right, at its election and
without further action of the Management Committee, to contribute
to the Company, at any time or from time to time, an amount not
to exceed the principal amount of the Default Loans outstanding,
together with any accrued and unpaid interest thereon, the amount
thereof to be treated as though an Additional Capital Contribution
had been made to the Company pursuant to Section 5.08(c) with
an adjustment to the Sharing Ratios of the Members with respect
to the amount so contributed as contemplated by Section 5.08(c),
in which event, however, the Default Loan, and all accrued and
unpaid interest thereon, shall be deemed to have been paid in full.
5.10 Status as Defaulting Member.
A Defaulting Member shall cease to be such on the earlier
to occur of (i) payment of the required Capital Contribution, and
any required interest in full prior to any funding on behalf of the
Defaulting Member by the Non-Defaulting Member; (ii) if a
Default Loan has not been advanced by the Non-Defaulting
Member, an election by the Non-Defaulting Member to treat its
contribution on behalf of the Defaulting Member as an Additional
Capital Contribution to the Company and to adjust the Sharing
Ratios accordingly; and (iii) if a Default Loan has been advanced
by the Non-Defaulting Member, upon payment thereof, and
interest thereon in full, or upon deemed payment thereof by
contribution of the amount thereof to the capital of the Company
by the Non-Defaulting Member. Notwithstanding the foregoing,
and except as otherwise expressly approved in writing by the Non-
Defaulting Member, a Defaulting Member shall not be entitled to
cure its default and to be reinstated as a Member in good standing
in the Company if the Non-Defaulting Member has delivered a
written notice of exercise of the right to purchase the Defaulting
Member s Membership Interest pursuant to Section 5.08(d) and
such default has not been cured within ten (10) days after delivery
of such written notice.
5.11 No Third Party Beneficiaries.
The right or obligation of any Member to make any Capital
Contribution or any Default Loan, or otherwise to do, perform,
satisfy or discharge any liability or obligation of any Member
hereunder, or to pursue any other right or remedy hereunder or as
provided at law or in equity, shall not confer any right or claim
upon or otherwise inure to the benefit of any creditor or other
third party having dealings with the Company or any Member, it
being understood and agreed that the provisions of this Agreement
shall be solely for the benefit of, and may be enforced solely by,
the parties hereto and their respective successors and assigns. The
rights or obligations of the Members herein set forth, including,
without limitation, the obligation or right to make Capital
Contributions or the right to make Default Loans shall not be
deemed an asset of the Company, may not be sold, transferred or
assigned by the Company in connection with any sale or transfer
of a Membership Interest made in accordance with the provisions
of this Agreement, and may not be pledged or encumbered to
secure any debt or other obligation of the Company or of the
Members.
ARTICLE VI
SHARING RATIO; CASH DISTRIBUTIONS;
ALLOCATIONS OF PROFIT AND LOSS
6.01 Sharing Ratios
The Members shall have the following initial Sharing Ratios
in the Company:
ACG 55%
Circus 45%
6.02 Periodic Determination of Distributable Cash
(a) The Management Committee shall review on
a monthly basis the cash flow of the Company and, consistent with
prudent business practices, shall determine the amounts, if any, of
funds available for designation and distribution as Distributable
Cash.
(b) All such distributions shall be made only to
the Persons who, according to the books and records of the
Company, are the holders of record of the Membership Interests
in respect of which such distributions are made on the actual date
of distribution. To the greatest extent permitted by law, neither
the Company nor any Committee Member shall incur any liability
for making distributions in accordance with this Article VI.
(c) In determining Distributable Cash From
Temporary Casino with respect to each Fiscal Year, the
Management Committee shall set aside as a reserve to be used by
the Company to reduce the Construction Financing for the Project,
an amount equal to a specified percentage of funds in excess of the
Tax Distribution with respect to such Fiscal Year, that would
otherwise be available as Distributable Cash From Temporary
Casino. Such specified percentage shall be Approved by the
Management Committee at the time it elects to proceed with
development of a Temporary Casino.
(d) A Member, regardless of the nature of the
Member s Capital Contribution, has no right to demand and
receive any distribution from the Company in any form other than
cash. No Member may be compelled to accept from the Company
a distribution of any asset in kind in lieu of a proportionate
distribution of money being made to other Members. Except upon
a dissolution and the winding up of the Company, no Member may
be compelled to accept a distribution of any asset in kind.
6.03 Distribution of Distributable Cash
(a) Distributable Cash From Temporary Casino
with respect to each Fiscal Year shall be distributed to the
Members in the following order of priority:
(i) First, to each Member an amount
equal to (or in proportion to if less than) such Member s Tax
Distribution with respect to such Fiscal Year; and
(ii) Second to the Members in accordance
with their respective Sharing Ratios.
(b) Distributable Cash From Operations with
respect to each Fiscal Year shall be distributed to the Members in
the following order of priority:
(i) First, to each Member an amount
equal to (or in proportion to if less than) such Member s Tax
Distribution with respect to such Fiscal Year, but without
duplication of any amounts distributed pursuant to Section
6.03(a)(i) with respect to such Fiscal Year;
(ii) Second, to Circus, an amount equal
to its Management Fee with respect to such Fiscal Year and the
accrued but unpaid portion of its Management Fee with respect to
any prior Fiscal Year; and
(iii) Third, to the Members in accordance
with their respective Sharing Ratios.
6.04 Determination and Allocation of Profits and
Losses
(a) Losses of the Company for each Fiscal Year
shall be allocated to the Members in the following order of
priority:
(i) First, to each Member, an amount
equal to (or in proportion to if less than) the excess, if any of the
cumulative amount of Profits previously allocated to such Member
pursuant to Section 6.04(b)(vi) over the cumulative amount of
Losses previously allocated to such Member pursuant to this
Section 6.04(a)(i);
(ii) Second, to each Member, an amount
equal to (or in proportion to if less than) the excess, if any of the
cumulative amount of Profits previously allocated to such Member
pursuant to Section 6.04(b)(v) over the cumulative amount of
Losses previously allocated to such Member pursuant to this
Section 6.04(a)(ii);
(iii) Third, Circus, an amount equal to the
excess, if any of the cumulative amount of Profits previously
allocated to Circus pursuant to Section 6.04(b)(iv) over the
cumulative amount of Losses previously allocated to Circus
pursuant to this Section 6.04(a)(iii);
(iv) Fourth, to each Member, an amount
equal to (or in proportion to if less than), in the case of ACG , its
positive Capital Account balance and, in the case of Circus, the
excess, if any, of its positive Capital Account balance over the
aggregate amount of its Capital Contributions pursuant to Sections
5.01 and 5.02, in each case after adjustment of such Member s
Capital Account for any Losses allocated to such Member pursuant
to Sections 6.04(a)(i), (ii) and (iii);
(v) Fifth, to each Member, an amount
equal to (or in proportion to if less than) such Member s positive
Capital Account balance, after adjustment of such Member s
Capital Account for any Losses allocated to such Member pursuant
to Sections 6.04(a)(i), (ii), (iii) and (iv); and
(vi) Sixth, to the Members, pro rata in
accordance with their respective Sharing Ratios.
(b) Profits of the Company for each Fiscal Year
shall be allocated to the Members in the following order of
priority:
(i) First, to each Member, an amount
equal to (or in proportion to if less than) the excess, if any of the
cumulative amount of Losses previously allocated to such Member
pursuant to Section 6.04(a)(vi) over the cumulative amount of
Profits previously allocated to such Member pursuant to this
Section 6.04(b)(i);
(ii) Second, to each Member, an amount
equal to (or in proportion to if less than) the excess, if any of the
cumulative amount of Losses previously allocated to such Member
pursuant to Section 6.04(a)(v) over the cumulative amount of
Profits previously allocated to such Member pursuant to this
Section 6.04(b)(ii);
(iii) Third, to each Member, an amount
equal to (or in proportion to if less than) the excess, if any of the
cumulative amount of Losses previously allocated to such Member
pursuant to Section 6.04(a)(iv) over the cumulative amount of
Profits previously allocated to such Member pursuant to this
Section 6.04(b)(iii);
(iv) Fourth, to Circus, an amount equal to
(or in proportion to if less than) the excess, if any of the
cumulative amount of the Management Fee Allocation with respect
to such Fiscal Year and all prior Fiscal Years over the cumulative
amount of Profits previously allocated to Circus pursuant to this
Section 6.04(b)(iv);
(v) Fifth, to each Member, an amount
equal to (or in proportion to if less than) the excess, if any of the
cumulative amount of Distributable Cash distributed to such
Member pursuant to Section 6.03 with respect to such Fiscal Year
and all prior Fiscal Years over the cumulative amount of Profits
previously allocated to such Member pursuant to Section
6.04(b)(iv) and this Section 6.04(b)(v); and
(vi) Sixth, to the Members, pro rata in
accordance with their respective Sharing Ratios.
6.05 Tax Regulatory Provisions
(a) Notwithstanding the provisions of Section
6.04(a), in no event shall any allocation of Losses (or any other
loss, deduction or Section 705(a)(2)(B) Expenditure) to any
Member cause such Member to have or increase a deficit balance
in its Adjusted Capital Account.
(b) If a Member receives an adjustment,
allocation or distribution described in Regulations Section 1.704-
1(b)(2)(ii)(d)(4), (5) or (6) which creates or increases a deficit
balance (taking into account distributions, other than distributions
in liquidation of the Company, reasonably expected to be made) in
such Member s Adjusted Capital Account (as provided in
Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6)), the
Company shall allocate items of income or gain (as those terms are
used in Regulations Section 1.704-1(b)(2)(ii)(d)) to such Member
in an amount and manner to eliminate the Member s Capital
Account deficit attributable to such adjustment, allocation or
distribution as quickly as possible.
(c) If there is a net decrease in the Company s
Minimum Gain during any Fiscal Year, each Member shall be
allocated items of income and gain for such Fiscal Year equal to
such Member s share of the net decrease in Minimum Gain during
such Fiscal Year in accordance with Regulations Sections 1.704-
2(f) and (g).
(d) Any item of Company loss, deduction or
Section 705(a)(2)(B) Expenditure that is attributable to Member
Nonrecourse Debt shall be allocated to the Member or Members
that bear the economic risk of loss with respect to such Member
Nonrecourse Debt in accordance with Regulations Section 1.704-
2(i). If there is a net decrease during any Fiscal Year in the
minimum gain attributable to a Member Nonrecourse Debt (within
the meaning of Regulations Section 1.704-2(i)(3)), then any
Member with a share of the minimum gain attributable to such
Member Nonrecourse Debt at the beginning of such Fiscal Year
shall be allocated items of Company income and gain for such
Fiscal Year (and, if necessary, for subsequent Fiscal Years) equal
to such Member s share of the net decrease in Member
Nonrecourse Debt Minimum Gain as provided in Regulations
Section 1.704-2(i)(4).
(e) In accordance with Section 704(c) of the
Code and Regulations Section 1.704-1(b)(2)(iv)(d), income, gain,
loss and deduction with respect to any property contributed to the
capital of the Company shall, solely for tax purposes, be allocated
among the Members so as to take account of any variation between
adjusted basis of such property to the Company and its initial
Gross Asset Value. In the event the Gross Asset Value of any
Company property is adjusted (other than for Depreciation)
subsequent allocations of income, gain, loss and deduction with
respect to such property shall take account of any variation
between the adjusted basis of such property and its Gross Asset
Value in the same manner as under Section 704(c) and the
Regulations thereunder. Any elections or other decisions relating
to such allocation shall be made by the Members in a manner that
reasonably reflects the purpose and intention of this Agreement.
(f) Recapture Income shall be apportioned
among the Members, to the extent of Profits allocated to the
Members, pro rata in accordance with the prior allocation of
deductions to which such Recapture Income is attributable.
(g) If there is a Liquidation of the Company, the
Capital Accounts of the Members shall be adjusted to reflect the
actual or anticipated Profits or Losses allocable among the
Members shall be adjusted in accordance with, or as if there had
been, an actual disposition of the Company s property at its fair
market value.
6.06 Taxable Year and Accounting Method.
Except as otherwise required by the Code or the
Regulations, the Company s taxable year shall be the calendar
year. The Company shall use the accrual method of accounting
for federal income tax purposes.
6.07 Tax Elections.
Circus shall have the authority to make any election or
other determination on behalf of the Company provided for under
the Code or any provision of state or local tax law. In making
such elections, Circus shall consider the interests of both Members
as well as that of the Company.
6.08 Tax Matters Partner.
The Tax Matters Partner (within the meaning of Section
6231(a)(7) of the Code) of the Company shall be Circus. In the
event of an administrative or judicial proceeding, the Tax Matters
Partner shall regularly consult with ACG regarding all significant
decisions affecting such proceeding. The Tax Matters Partner
shall have the right to determine whether to challenge a final
partnership administrative adjustment by initiating an action in the
Tax Court or, if advised by counsel to do so and with the consent
of ACG, in the United States District Court or the Claims Court.
6.09 Tax Returns.
Circus shall, at the cost of the Company, cause to be
prepared and filed all necessary federal and state income tax
returns for the Company. Each Member shall furnish to the
Company all pertinent information in its possession relating to
Company operations that is necessary to enable the Company s
income tax returns to be prepared and filed.
ARTICLE VII
INFORMATION AND TRADE SECRETS
7.01 Information.
In addition to the other rights set forth in this Agreement,
each Member is entitled to all information to which that Member
is entitled to have access under applicable law.
7.02 Trade Secrets.
Each Member acknowledges that, from time to time, it may
receive information from or regarding the Company in the nature
of trade secrets or that otherwise is confidential, the release of
which may be damaging to the Company or Persons with which it
does business or to other Members or their respective Affiliates.
Each Member shall hold in strict confidence and not use (except
for matters involving the Company) any confidential information
such Member receives regarding the Company and may not
disclose it to any Person other than another Member, except for
disclosures (a) compelled by law (but the Member must notify the
Management Committee promptly of any request for that
information, before disclosing it if practicable), (b) to advisers or
representatives of the Member or Persons to which that Member s
Membership Interest may be Disposed as permitted by this
Agreement, but only if the recipients have agreed to be bound by
the provisions of this Section 7.02, or (c) of information that
Member also has received from a source independent of the
Company that the Member reasonably believes obtained that
information without breach of any obligation of confidentiality.
The Members acknowledge that breach of the provisions of this
Section 7.02 may cause irreparable injury to the Company for
which monetary damages are inadequate, difficult to compute, or
both. Accordingly, the Members agree that the provisions of this
Section 7.02 may be enforced by specific performance.
ARTICLE VIII
BOOKS, RECORDS, REPORTS, AND BANK ACCOUNTS
8.01 Maintenance of Books; Financial Statements;
Annual Audits.
The books of account for the Company shall be maintained
on an accrual basis in accordance with GAAP and the terms of this
Agreement, except that the Capital Accounts of the Members shall
be maintained in accordance with Section 5.06. The accounting
year of the Company shall be the calendar year. The Company
shall cause its financial statements to be audited annually by a big
six firm of certified public accountants approved by a
Supermajority of the Management Committee.
8.02 Reports.
The Company shall cause to be prepared or delivered such
reports as the Management Committee shall from time to time
deem appropriate. Financial reports shall be sent to the Members
upon request, in accordance with the provisions of the Act. The
Company shall bear the costs of all these reports.
8.03 Accounts.
The Company shall establish and maintain one or more
separate bank and investment accounts and arrangements for
Company funds in the Company name with financial institutions
and firms that the Management Committee determines. The
Company s funds shall not be commingled with the funds of any
Member.
8.04 Required Records.
The Company will maintain at its principal place or
business the following records:
(a) A current list of the full name and last
known address of each Member and each Management Committee
Member;
(b) A copy of the Articles, together with any
amendments to the Articles;
(c) A copy of this Agreement as executed by the
Members, together with all amendments to this Agreement and all
records of the admission of Members, the Disposition of
Membership Interests, and the admission of Substitute Members;
(d) Copies of the Company s federal, state and
local income tax returns and reports, if any, for the three (3) most
recent calendar years;
(e) Copies of any financial statements of the
Company for the three (3) most recent calendar years;
(f) Records (including minutes and written
consents) evidencing authorization of Company action; and
(g) Copies of records that would enable a
member to determine each Member s relative Capital Contribution,
Membership Interest and Sharing Ratios.
8.05 Access to Required Records.
(a) After giving reasonable advance notice to the
Company, any Member may inspect and review the Required
Records and may, at the Member s sole cost and expense, having
the Company make copies of any portion or all of the records.
(b) Unless the Company agrees otherwise, all
Member access to the Required Records must take place during the
Company s regular business hours. The Company may impose
additional reasonable conditions and restrictions on Members
access to the Required Records, including specifying the amount
of advance notice a Member must give and the charges imposed
for copying.
ARTICLE IX
ASSIGNEES; SUBSTITUTE MEMBERS;
ADDITIONAL MEMBERS; WITHDRAWAL
9.01 Rights of Assignees.
The Assignee of a portion of an initial Member s
Membership Interest has no right to appoint Committee Members
to the Management Committee or to otherwise participate in the
management of the business and affairs of the Company or to
become a Member. Such Assignee is not entitled to vote, consent
to or approve any matter for which this Agreement provides such
right to a Member (such right being reserved to the assigning
Member until the Assignee has been admitted as a Substitute
Member) and is entitled to receive only those distributions to
which the assigning Member would have been entitled, and to be
allocated the Profits and Losses attributable to the Membership
Interest assigned to it.
9.02 Admission of Substitute Members.
Subject to Article XII, an Assignee (and any subsequent
Assignee) of all of an initial Member s Membership Interest shall
be admitted as a Substitute Member and substituted to all of the
rights of the assigning Member upon written request to (but
without the necessity for approval of) the Management Committee.
An Assignee (and any subsequent Assignee) of a portion of an
initial Member s Membership Interest may be admitted as a
Substitute Member and substituted to all of the rights of the
assigning Member with respect to the Membership Interest so
assigned, but only with Supermajority approval of the Management
Committee, which approval may be granted or withheld in its sole
and absolute discretion. In either event, if so admitted, the
Substitute Member has all the rights and powers and is subject to
all the restrictions and liabilities of the assigning Member. The
assignment of all or a portion of a Membership Interest or the
admission of a Substitute Member, unless otherwise approved by
a Supermajority of the Management Committee, shall not release
the Member assigning the Membership Interest from any liability
to the Company that may exist prior to the approval.
9.03 Admission of Additional Members.
The Management Committee, may permit the admission of
Additional Members upon such terms and conditions as shall be
approved by a Supermajority of the Management Committee.
9.04 Withdrawal.
No Member shall have the right to withdraw from the
Company or to demand a return of its Capital Contribution at any
time except as provided in Sections 5.08(a) or 9.06, or upon
termination and dissolution of the Company, without the written
consent of the other Member. However, a Person shall cease to
be a Member upon the happening of any of the following events:
(a) the withdrawal of a Member with the consent
of the other Member.
(b) a Member becoming a Bankrupt Member or
a Dissolved Member;
(c) a Member assigning its entire Membership
Interest to a Substitute Member pursuant to Section 9.02.
9.05 Rights of Withdrawing Member.
In the event any Member withdraws prior to the dissolution
and winding up of the Company, the withdrawing Member (or its
liquidator, trustee or receiver, as the case may be) shall thereafter
hold the Membership Interest as an Assignee and shall not be
entitled to receive any additional withdrawing distribution under
Section 305 of the Act.
9.06 Circus Limited Right to Withdraw.
(a) The Members acknowledge that, as of the
date of this Agreement, the Michigan Gaming Control Board has
proposed regulations containing certain provisions which, if
adopted in their present form, would materially adversely affect
the business and affairs of the Company, Circus, CCEI and their
Affiliates. Circus has used, and will continue to use, its good faith
best efforts to urge the Michigan Gaming Control Board to
eliminate or substantially modify such adverse provisions in the
final regulations.
(b) Notwithstanding anything to the contrary
contained in this Agreement, if Circus determines, in its
reasonable judgment, that the initial final rules issued by the
Michigan Gaming Control Board are likely to materially adversely
affect the conduct of the business and affairs of a publicly-traded
company which conducts gaming operations in Nevada and other
jurisdictions in the United States, Circus shall have the absolute
right, upon written notice to ACG within thirty days (30) after the
promulgation of such initial final rules, to withdraw from the
Company. In such event, ACG shall be entitled to retain the $5
million paid by Circus to ACG pursuant to Section 4.05(e)(i), but
neither Circus, CCEI nor any of their respective Affiliates shall
have any other or further liability or obligation of any nature
whatsoever under or with respect to this Agreement or the subject
matter hereof except the payment of its proportionate share of
approved expenses incurred to the date of Circus notification of
intent to withdraw. At the request of ACG, Circus shall execute
and deliver such instruments as may be reasonably necessary to
transfer its Membership Interest in the Company, without recourse
or liability, to ACG or its designees. If at the time of Circus
withdrawal, the Company, Circus or CCEI own any work product
or other property which was generated or acquired in whole or in
part with funds contributed or advanced by Circus or CCEI in
connection with the Project, and if ACG or an Affiliate intends to
proceed with the development of the Project, either alone or in
concert with others, and such work product or other property will
be used or useful by ACG or its successors in connection with the
development and operation of the Project, such property shall
become or remain the property of the Company or ACG or its
designees upon the payment by Company or ACG of ACG s
proportionate share of outside vendor costs in respect of such work
product or other property within sixty days (60) after written
demand. In the event Circus withdraws pursuant to this Section
9.06, neither CCEI nor any of its Affiliates (which for purposes
hereof shall mean an entity in which at least 25% of the voting
interest is owned and controlled by CCEI) shall acquire any
interest in a casino licensed under the Michigan Gaming Control
and Revenue Act or within fifty (50) miles of the Project for a
period of five (5) years after such withdrawal.
ARTICLE X
LOSS OF LICENSE
10.01 Loss of License.
A Loss of License shall mean any denial, failure to be found
suitable or qualified, revocation, suspension (for a period in excess
of three (3) days) or non-renewal of any License, or threat of any
of the foregoing, whether resulting from any judicial or
administrative proceeding, or otherwise, and which results,
directly or indirectly, from any act or omission of any Member,
or any Affiliate of a Member (including, for purposes of this
Section, the members, shareholders, employees, agents, officers
or directors of any of the Members, or their respective members
or equity participants or any person or entity with whom such
party has had business or other dealings), including, the
commission of any crime or other act deemed inconsistent with the
holding of a License, or the association or affiliation with
unsuitable persons or entities, whether or not the allegations with
respect thereto are true in fact, or the failure of any such Member
or Affiliate to cooperate with the Gaming Authorities to the
satisfaction of such Gaming Authorities. No Loss of License shall
be deemed to have occurred so long as proceedings with respect
thereto are being contested with due diligence and in good faith by
the Company, or the person or entity affected thereby, provided
that, during the pendency of such proceedings, the Company is
able to continue gaming operations on an uninterrupted basis and
without additional restrictions with respect thereto. A Loss of
License, however, shall be deemed to have occurred
notwithstanding that additional rights of appeal or contest may be
available if, as a result of any such action, gaming operations by
the Company or by Circus or its Affiliates are prohibited or
materially restrained, limited or restricted. For purposes of the
below provisions of this Article X, the Responsible Member
shall mean the Member (either Circus or ACG, as applicable)
which is, or whose Affiliate is, responsible for the Loss of License
and the Non-Responsible Member shall mean the other Member.
If the Loss of License results from the acts or omissions of one or
more Affiliates of both Members, then each Member shall be a
Responsible Member with respect to the Affiliate whose acts or
omissions were responsible for the Loss of License, and each
Member shall also be deemed a Non-Responsible Member with
respect to the same act or omission, and each shall separately have
the right to invoke the provisions hereinafter set forth.
10.02 Buy-Out Provisions Relating to Loss of License.
(a) If a Loss of License shall occur, then, within
thirty (30) days after written notice from the Company or the Non-
Responsible Member, or such lesser period as required by any
applicable Gaming Authorities, the Responsible Member shall,
subject to approval of any applicable Gaming Authorities, transfer
its Membership Interest to one of its constituent members or to an
Affiliate of such Member or constituent member, who is qualified
to obtain and hold a License. If such transfer does not occur
within said cure period, the Responsible Member shall transfer its
Membership Interest to the Company (or, at the written direction
of the Company, directly to a designee of the Non-Responsible
Member). In the event of such transfer to the Company or such
designee, the Buy-Out Price payable to the Responsible Member
for its Membership Interest shall be the lesser of (i) the amount
approved by the Gaming Authorities or (ii) an amount determined
as follows:
(i) If ACG is the Responsible Member,
the Buy-Out Price shall be an amount equal to the sum of (A)
100% of the Net Book Value of ACG s Membership Interest, and
(B) the outstanding balance of principal and accrued interest due
to ACG in respect of any Member Loans, payable in cash at the
closing.
(ii) If Circus is the Responsible Member,
the Buy-Out Price shall be a principal amount equal to the sum of
(A) Circus Adjusted Capital Contribution Account, determined as
of the last day of the month preceding the date of closing, and (B)
the outstanding balance of principal and accrued interest due to
Circus or its Affiliates in respect of any Member Loans. The Buy-
Out Price shall be payable pursuant to a promissory note executed
by the Company and the Non-Responsible Member, bearing
interest at the Loan Rate, payable in sixty (60) equal monthly
installments of principal plus accrued but unpaid interest beginning
on the first day of the calendar month next following the date of
closing. In addition, and as a condition precedent to such buy-out,
the Company and the Non-Responsible Member shall cause Circus
and its Affiliates to be released from and relieved of all personal
guarantees, personal liability and other Credit Support relating to
any then-outstanding Construction Financing or replacement
financing relating to the Project or the Temporary Casino.
(b) The closing of the buy-out transaction shall take
place within thirty (30) days after notice from the Company. Each
Member shall execute and deliver all documents and take all
actions as either Member may deem reasonably necessary or
advisable (consistent with the provisions of this Agreement), to
effect such buy-out transaction.
ARTICLE XI
BANKRUPT MEMBER
11.01 Membership Interest.
(a) If any Member becomes a Bankrupt Member,
the Company shall have the option, exercisable by notice from the
Company to the Bankrupt Member (or its representative) at any
time prior to the 180th day after receipt of notice of the occurrence
of the event causing it to become a Bankrupt Member, to buy, and
on the exercise of this option the Bankrupt Member or its
representative shall sell, its Membership Interest.
(b) The purchase price shall be the lesser of (i)
the amount approved by the applicable Gaming Authorities or (ii)
an amount equal to the Fair Market Value of the Membership
Interest, taking into account any sums owed to the Bankrupt
Member by the Company or by the Bankrupt Member to the
Company. The Bankrupt Member and the Company each shall
pay one-half of the costs of the appraisal. The Company shall pay
the Fair Market Value as so determined in eight (8) equal quarterly
cash installments, the first due on the first day of the calendar
quarter next following the closing, and the remainder (together
with accumulated interest on the amount unpaid at the Loan Rate)
shall be due on the first day of each calendar quarter thereafter
until paid in full.
(c) The payment to be made to the Bankrupt
Member or its representative under this Section 11.01 is in
complete liquidation and satisfaction of all the rights and interest
of the Bankrupt Member and its representative (and of all Persons
claiming by, through, or under the Bankrupt Member and its
representative) in and in respect of the Company, including,
without limitation, any Membership Interest, any rights in specific
Company property, and any rights against the Company and
(insofar as the affairs of the Company are concerned) against the
Members.
(d) If an event requiring a winding up of the
Company occurs before the purchase price for the Company is
determined under Section 11.01(b), then the purchase and sale
shall not occur. Instead, the Bankrupt Member or its successor
shall be entitled to receive in the liquidation of the Company the
same amount that Person would have received had the Bankrupt
Member continued to be a Member or not become a Bankrupt
Member.
ARTICLE XII
DISPOSITIONS OF INTERESTS
12.01 Restrictions on the Disposition of a Membership
Interest.
(a) Except as otherwise expressly provided
herein, no Member may Dispose of all or any portion of its
Membership Interest, nor may ZRX or AEA Dispose of all or any
portion of its membership interest in ACG, nor may the beneficial
owners of ZRX or AEA Dispose of any of their respective
ownership interests in ZRX or AEA, without complying with the
provisions of Sections 12.02 and 12.03 hereof. For purposes of
this Article XII, but for no other purposes, (i) ZRX and AEA and
their respective constituent members shall be treated as
Members, (ii) the membership interests of ZRX and AEA in
ACG shall be treated as Membership Interests, and (iii) the
membership interests in ZRX and AEA shall be treated as
Membership Interests. In the event ZRX or AEA (or a
constituent member of such entity) is the transferring Member
pursuant to Section 12.03 and Circus elects to purchase all or a
portion of the Offered Interest, Circus shall not acquire a
membership interest in ACG or such other entity, but in such
event, ACG s Sharing Ratio shall be proportionately reduced and
Circus Sharing Ratio shall be appropriately increased, and (ii) the
number of Management Committee Members to be appointed by
ACG shall be decreased, and the number of Management
Committee Members to be appointed by Circus shall be increased,
by one (1) seat for each additional ten percent (10%) of Sharing
Ratio acquired by Circus. (For example: Assume (i) AEA is the
transferring Member , (ii) ZRX declines to acquire any of AEA s
interest, (iii) Circus elects to acquire all of AEA s interest, and
(iv) at the date of transfer AEA s beneficial ownership interest in
ACG is 36.36%, which equates to a 20% Sharing Ratio in the
Company [.3636 x .55 = .20]. In such event, this Agreement
shall be deemed amended so that (i) the Sharing Ratio of Circus
shall be increased from 45% to 65% and the Sharing Ratio of
ACG shall be reduced from 55% to 35% and (ii) the number of
Committee Members appointed to the Management Committee by
Circus and ACG shall be 8 and 4, respectively.)
(b) Notwithstanding anything to the contrary
contained herein, for purposes of this Article XII, a Disposition
shall not include (and the provisions of Sections 12.02 and 12.03
shall not apply to) (i) a transfer by Circus to its parent or any
wholly-owned Affiliate of its parent or in connection with the sale
or transfer of substantially all of the assets of Circus or its parent
(including without limitation, any transfer by merger,
consolidation, stock sale, or the like); (ii) a transfer by ACG to an
entity that is beneficially owned by the same Persons who
presently own ACG and in the same percentage as are presently
owned by such Persons; (iii) a transfer of any ownership interest
in ZRX or AEA (A) to another Person owning an interest in such
entity as of the date hereof, (B) to a trust (or similar vehicle) for
the benefit of the family of the transferor, (C) to the beneficiaries
or devisees upon the death of a transferor, (D) in connection with
the entry of a divorce decree for or against a transferor, (E) to a
corporation, partnership, limited liability company, trust or other
entity, the ownership or beneficiaries of which are comprised
wholly of and limited to the transferors and/or their
legal/beneficial owners, (F) as a result of the death or permanent
disability of a transferor, or (G) to the beneficial owners of
entities
who are members upon the dissolution of the entity; (iv) or a
transfer of the ownership interest in a Member if such transfer is
incident to a transfer by the ultimate parent corporation of such
Member of substantially all of its gaming assets; or (v) a transfer
to create a security interest, or the acquisition by an institutional
investor (as defined in Regulation 16.010 of the Nevada Gaming
Control Act) pursuant to the exercise of rights under a bona fide
security interest; provided that such Member shall give notice to
the Company and the other Members upon completion of such
transaction and shall provide to the Company and the other
Members, to the extent requested, as a condition to the transferee
being admitted as a Substitute Member, and in compliance with
Section 9.02, an opinion of counsel to the effect that such transfer
shall not result in the Company being characterized for federal
income tax purposes as an association taxable as a corporation.
(c) Except as contemplated by Articles X and
XI, the Company shall not recognize for any purpose any
purported Disposition of all or part of a Membership Interest
unless and until the other applicable provisions of this
Section 12.01 and the provisions of Sections 12.02 and 12.03 have
been satisfied.
(d) For the right of a Member to Dispose of all
or any portion of a Membership Interest or of any Person to be
admitted to the Company in connection with such a Disposition to
exist or (subject to the other provisions of this Article XII) be
exercised, (i) either (A) such Membership Interest subject to the
Disposition or admission must be registered under any applicable
federal or state securities laws or (B) the Disposition or admission
must be exempt from registration under those laws and (ii) the
Disposition or admission, when added to the total of all other
sales, assignments, or other Dispositions within the preceding 12
months, must not result in the Company s being considered to have
terminated within the meaning of section 708(b) of the Code. The
Management Committee, however, may waive the requirements of
this Section 12.01(d).
(e) The Member effecting a Disposition and any
Person admitted to the Company in connection with that
Disposition shall pay, or reimburse the Company for, all costs
incurred by the Company in connection with the Disposition or
admission.
(f) The provisions of this Article XII shall
supersede any conflicting provisions in the operating agreements
or other applicable governing documents of ACG, AEA and ZRX.
(g) Unless otherwise approved by ACG, or
permitted pursuant to Section 12.01(b), Circus shall not have the
right to transfer its Membership Interest until six (6) months after
the initial opening of the Project for business to the public.
12.02 Conditions to Disposition.
As a condition precedent to any Disposition of a Member s
Membership Interest, such Member shall obtain the prior written
consent of the non-transferring Members and shall evidence
compliance with the following:
(a) Such Disposition, alone or when combined
with other prior transactions, would not result in a termination of
the Company within the meaning of Section 708 of the Code;
(b) An opinion of counsel satisfactory to counsel
to the Company, to the effect that such Disposition (i) is subject to
an effective registration under, or exempt from the registration
requirements of, the applicable state and federal securities laws;
(ii) shall not result in the Company being characterized for federal
income tax purposes as an association taxable as a corporation; and
(iii) is not to a tax-exempt entity as such term is defined in
Section 168(j) of the Code;
(c) Such Disposition is not in violation of any
provisions of any of the loan documents, or other similar
documents relating to any Construction Financing or other
financing obtained by the Company, or in violation of any other
instrument, document or agreement to which the Company is, at
the time of the proposed Disposition, a party or is otherwise
bound;
(d) The consent, approval or waiver of all
applicable Gaming Authorities has been obtained and such
Disposition is not in violation of any other applicable Legal
Requirements; provided however, that in any event, all
Dispositions shall only be made in accordance with the transfer of
ownership rules of the Michigan Gaming Control Board.
(e) Unless and until the Company receives from
the Assignee the information and agreements that counsel to the
Company may reasonably require, including, but not limited to,
any social security or taxpayer identification number, the
Disposition shall not be recognized by the Company; and
(f) Unless and until the Company receives from
the Assignee, in writing, an agreement wherein such Assignee
expressly assumes and agrees to be bound by all of the terms and
conditions of this Agreement and agrees to be responsible for all
reasonable costs and expenses incurred by the Company in
connection with the Disposition of the Membership Interest to the
Assignee and, if applicable, the admission of such assignee as a
Substitute Member, the Disposition shall not be recognized by the
Company.
12.03 Rights of First Refusal.
Each time a Member proposes to Dispose of all or any part
of such Member s Membership Interest (or is required by
operation of law or other involuntary transfer to do so), such
Member shall first offer such Membership Interest (the Offered
Interest ) to the non-transferring Members in accordance with the
following provisions:
(a) Such Member shall deliver a written notice
to the non-transferring Members (the Disposition Notice ) stating
(i) such Member s bona fide intention to Dispose of the Offered
Interest, (ii) the name and address of the proposed transferee, (iii)
the Sharing Ratio of the Offered Interest, (iv) the purchase price
(which must be entirely in cash) for which the Member proposes
to Dispose of the Offered Interest, and (v) all other pertinent terms
and conditions of such proposed bona fide Disposition.
(b) Within sixty (60) days after receipt of the
Disposition Notice (the First Refusal Period ), the non-
transferring Members shall have the first right to purchase all but
not less than all of such Offered Interest upon the cash purchase
price designated in such Disposition Notice and if they so elect,
shall notify the Management Committee in writing (an
Acceptance Notice ) of such election to purchase all or a portion
of the Offered Interest. The failure of a non-transferring Member
to submit an Acceptance Notice within the applicable period shall
constitute an election on the part of that Member not to purchase
any of the Offered Interest. If more than one non-transferring
Member elects to purchase (the Electing Members ), each
Electing Member shall purchase a portion of the Offered Interest
equal to a fraction, the numerator of which is the Electing
Member s Sharing Ratio and the denominator of which is the total
of all Electing Members Sharing Ratios; provided however, that
the Electing Members may agree to purchase the Offered Interest
in some other proportion. If the non-transferring Members elect
to purchase the Offered Interest under this Section 12.03, such
purchase shall be consummated within 10 business days after the
end of the First Refusal Period. At the closing of such purchase,
the transferring Member shall transfer the Offered Interest to the
Electing Members, free and clear of all liens, claims and other
encumbrances against payment of the applicable cash purchase
price.
(c) If the non-transferring Members do not elect
to purchase all of the Offered Interest, then the transferring
Member may transfer the Offered Interest to the proposed
transferee, provided such transfer (i) is completed within 30 days
after the expiration of the First Refusal Period, (ii) is made on
terms no less favorable to the transferring Member than as
designated in such Notice, and (iii) the requirements of Sections
12.01 and 12.02 relating to consent of Members, securities and tax
requirements hereof are met. If such Offered Interest is not so
transferred, the transferring Member must give notice in
accordance with this Section prior to any other or subsequent
transfer of all or any portion of its Membership Interest.
ARTICLE XIII
DISSOLUTION, LIQUIDATION, AND TERMINATION
13.01 Dissolution.
The Company shall dissolve and its business and affairs
shall be wound up on the first to occur of the following:
(a) the written Approval of a Supermajority of
the Management Committee and ratification thereof by the
Members pursuant to Section 3.06; or
(b) any other event causing dissolution as
described in section 801 of the Act.
13.02 Liquidation and Termination.
On dissolution of the Company, the Management
Committee shall act as liquidator or may appoint one or more
other Persons as liquidator. The liquidator shall proceed diligently
to wind up the affairs of the Company and make final distributions
as provided in this Agreement. The costs of liquidation shall be
borne as a Company expense. Until final distribution, the
liquidator shall continue to operate the Company with all of the
power and authority of the Management Committee. The steps to
be accomplished by the liquidator are as follows:
(a) As promptly as practicable after dissolution
and again after final liquidation, the liquidator shall cause a proper
accounting to be made by a recognized firm of certified public
accountants of the Company s assets, liabilities, and operations
through the last day of the calendar month in which the dissolution
occurs or the final liquidation is completed, as applicable;
(b) The liquidator shall pay from Company funds
all of the debts and liabilities of the Company (including all
expenses incurred in liquidation and any outstanding Member
Loans) or otherwise make adequate provision for them (including,
without limitation, the establishment of a cash escrow fund for
contingent liabilities in such amount and for such term as the
liquidator may reasonably determine);
(c) The liquidator shall sell all Company
property, including to Members; and
(d) All remaining assets of the Company shall be
distributed to the Members in accordance with, and to the extent
of, the positive balances in their respective Capital Accounts, as
determined after taking into account all Capital Account
adjustments, including, but not limited to, adjustments reflecting
any revaluation of Company property pursuant to Section 5.06 and
any other adjustments (other than those reflecting the distributions
made by reason of this Section 13.02(d)) for the taxable year of
the Company during which the liquidation of the Company occurs
(with the date of such occurrence being determined pursuant to
Regulations Section 1.703-1(b)(2)(ii)(g)); and such distribution
shall be made by the end of such taxable year (or, if later, within
90 days after said date of such occurrence).
The distribution of cash to a Member in accordance with
the provisions of this Section 13.02 constitutes a complete return
to the Member of its Capital Contributions and a complete
distribution to the Member of its Membership Interest and all the
Company s property. To the extent that a Member returns funds
to the Company, it has no claim against any other Member for
those funds.
13.03 Termination.
On completion of the distribution of Company assets as
provided in this Agreement, the Company is terminated, and the
Management Committee (or such other Person or Persons as the
Act may require or permit) shall cause the cancellation of the
Articles and any filings made as provided in Section 2.05 and shall
take such other actions as may be necessary to terminate the
Company.
ARTICLE XIV
REPRESENTATIONS AND WARRANTIES
14.01 Each of Circus, AEA and ZRX hereby represents
and warrants to the others and to the Company as follows:
(a) Such Person has all requisite power to
execute, deliver and perform this Agreement and to consummate
the transactions contemplated hereunder; the consummation of the
transactions contemplated hereunder will not result in a breach or
a violation of, or a default under, any agreement or instrument by
which such Person or any of such Person s properties is bound or
any statute, rule, regulation, order or other law to which it is
subject, nor require the obtaining of any consent, approval, permit
or license from or filing with, any Governmental Authority or
other person by such Person in connection with the execution,
delivery and performance by such Person of this Agreement, other
than the Licenses and other governmental approvals which may be
required in connection with the development, ownership and
operation of the Project (and if applicable, the Temporary Casino).
(b) This Agreement constitutes (assuming its due
authorization and execution by the other Persons) such Person s
legal, valid and binding obligation. If such Person is a corporation
or a limited liability company, all corporate and other proceedings
required to be taken by such Person to authorize the execution,
delivery and performance of this Agreement have been taken.
(c) As of the date hereof, such Person has no
actual knowledge of any facts or circumstances that are likely to
adversely affect the ability of such Person (or any Affiliate or
other Person having an interest in such Person) or the Company to
receive all Licenses and other governmental approvals necessary
or advisable for the construction, completion, operation, ownership
and use of the Project as a gaming facility or which would
otherwise adversely affect such Person s ability to be found
suitable by any Gaming Authority. Notwithstanding anything to
the contrary contained herein, AEA shall indemnify and hold
Circus and ZRX harmless from and against any and all loss, cost,
liability, damage or expense incurred or suffered by Circus or
ZRX as a consequence of the existence of any disputes concerning
ownership interests in AEA.
(d) Such Person is acquiring its direct or indirect
Membership Interest for investment solely for such Person s own
account and not for distribution, transfer or sale to others in
connection with any distribution or public offering.
(e) Such Person is financially able to bear the
economic risk of an investment in the Company and has no need
for liquidity in this investment. Furthermore, the financial
capacity of such Person is of such a proportion that the total costs
of such Person s investment in the Company is not material when
compared with such Person s total financial capacity.
(f) Such Person has such knowledge, experience
and skill in financial and business matters in general and with
respect to investments of a nature similar to an investment in the
Company so as to be capable of evaluating the merits and risks of,
and making an informed business decision with regard to, this
investment. Such Person acknowledges and understands that the
purchase of its direct or indirect Membership Interest involves an
investment in a new business that has no previous operating
experience, and, therefore, this is a speculative investment with no
assurance of success.
(g) Such Person (i) has received all information
that such Person deems necessary to make an informed investment
decision with respect to an investment in the Company and (ii) has
had the unrestricted opportunity to make such investigation as such
Person desires pertaining to the Company and an investment
therein and to verify any information furnished to such Person.
(h) Such Person understands that such Person
must bear the economic risk of an investment in the Company for
an indefinite period of time because (i) the Membership Interests
have not been registered under the Securities Act of 1933 and
applicable state securities laws and (ii) the Membership Interests
may not be sold, transferred, pledged or otherwise disposed of
except in accordance with this Agreement and then only if they are
subsequently registered in accordance with the provisions of the
Securities Act and applicable state securities laws or registration
under the Securities Act or any applicable state securities laws is
not required.
(i) Such Person understands that the Company
is not obligated to register the Membership Interests for resale
under any applicable federal or state securities laws and that the
Company is not obligated to supply such Person with information
or assistance in complying with any exemption under any
applicable federal or state securities laws.
(j) Such Person if it is a limited liability
company, is duly organized and validly existing under the laws of
its jurisdiction of formation and has all power and authority
necessary to carry on its business as it is now being conducted.
14.02 Each of Circus, AEA and ZRX shall indemnify and
hold the others harmless from and against any and all loss, cost,
damage, liability or expense of whatsoever nature, incurred or
suffered by the others resulting from a breach of any the foregoing
representations and warranties by such indemnifying Person.
ARTICLE XV
GENERAL PROVISIONS
15.01 Offset.
Whenever the Company is to pay any sum to any Member,
any amounts that Member owes the Company may be deducted
from that sum before payment.
15.02 Notices.
All notices or other communications required or permitted
to be given under this Agreement shall be sufficiently given if in
writing and personally delivered, mailed by prepaid registered or
certified mail, return receipt requested, sent by receipted overnight
courier service or sent by facsimile transmission. Notices and
other communications shall be effective upon receipt by the Person
to be notified and shall be addressed as follows (provided that any
Person may change its address for notice purposes upon at least
thirty (30) days prior written notice given pursuant to this Section
14.02):
If to the Company:
Detroit Entertainment, L.L.C.
2211 Woodward Avenue
Fox Center Building, 10th Floor
Detroit, Michigan 48201
Attn: Michael Malik
If to Circus:
c/o Circus Circus Enterprises, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attn: General Counsel
Phone: (702) 734-0410
Fax: (702) 794-3810
If to ACG:
Atwater Casino Group, L.L.C.
c/o Thomas Celani
35601 Veronica Street
Livonia, Michigan 48150
with a copy to:
Dykema Gossett PLLC
800 Michigan National Tower
Lansing, Michigan 48933
Attn: Richard McLellan, Esq.
If to AEA:
Atwater Entertainment Associates, L.L.C.
300 River Place, Suite 6600
Detroit, Michigan 48207
Attn: Herbert J. Strather
with a copy to:
Seyburn, Kahn, Ginn, Bess, Howard & Deitch, P.C.
2000 Town Center, Suite 1500
Southfield, Michigan 48075
Attn: Laurence B. Deitch
If to ZRX:
ZRX, L.L.C.
c/o Thomas Celani
35601 Veronica Street
Livonia, Michigan 48150
with a copy to:
Dykema Gossett PLLC
800 Michigan National Tower
Lansing, Michigan 48933
Attn: Richard McLellan, Esq.
15.03 Entire Agreement; Supersedure.
This Agreement, sets forth the entire understanding and
agreement of the Members relating to the Company and supersedes
and replaces any prior understanding, agreement or statement
(written or oral) of intent with respect to the Company.
15.04 Effect of Waiver or Consent.
A waiver or consent, express or implied, to or of any
breach or default by any Person in the performance by that Person
of its obligations hereunder is not a consent or waiver to or of any
other breach or default in the performance by that Person of the
same or any other obligations of that Person hereunder. Failure
on the part of a Person to complain of any act of any Person or to
declare any Person in default hereunder, irrespective of how long
that failure continues, does not constitute a waiver by that Person
of its rights with respect to that default until the applicable statute-
of-limitations period has run.
15.05 Amendment or Modification.
This Agreement may be amended or modified from time to
time only by a written instrument executed by the Members, as
Approved by the Management Committee; provided however, that
with respect to any provision of this Agreement which requires
Supermajority approval of the Management Committee, an
amendment to such provision shall require Supermajority approval
of the Management Committee.
15.06 Binding Effect.
Subject to the restrictions on Dispositions set forth in this
Agreement, this Agreement is binding on and inures to the benefit
of the Members and their respective legal representatives,
successors, and assigns.
15.07 Governing Law; Severability.
THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF
THE STATE OF MICHIGAN WITHOUT GIVING EFFECT TO
ANY CHOICE OR CONFLICT OF LAW PROVISION OR
RULE (WHETHER OF THE STATE OF MICHIGAN OR ANY
OTHER JURISDICTION) THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION
OTHER THAN THE STATE OF MICHIGAN. In the event any
one or more of the provisions contained in this Agreement should
be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired
thereby.
15.08 Further Assurances.
In connection with this Agreement and the transactions
contemplated by it, each Member shall execute and deliver any
additional documents and instruments and perform any additional
acts that may be necessary or appropriate to effectuate and perform
the provisions of this Agreement and those transactions.
15.09 Counterparts.
This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of
which together shall constitute a single instrument.
15.10 Third Party Beneficiaries.
None of the provisions of this Agreement, including
without limitation, the limited joinder of CCEI as provided at the
end of this Agreement, shall be for the benefit of or enforceable
by any third party, including, without limitation, any creditor of
the Company or any Member. No such third party shall obtain
any right under any provision of this Agreement (including without
limitation, such limited joinder), or shall by reason of any such
provision make any claim in respect of any debt, liability, or
obligation (or otherwise) against the Company, any Member or
CCEI.
15.11 Relationship of Agreement to Default Rules.
If any provision of this Agreement conflicts with a Default
Rule, the provisions of this Agreement shall control and the
Default Rule shall be modified or overridden accordingly.
15.12 Arbitration.
Any controversy arising from or relating to this Agreement
shall be resolved by binding arbitration in Cleveland, Ohio,
according to the Commercial Arbitration Rules of the American
Arbitration Association. The Federal Arbitration Act (9 U.S.C.
1 et seq.) shall apply, and discovery shall be permitted as
provided in the Federal Rules of Civil Procedure. There shall be
a single arbitrator, who shall be a retired state or federal appellate
judge. Any award or other determination rendered shall be final
and conclusive upon the parties and a judgment thereon may be
entered in the highest court of the forum, state or federal, having
jurisdiction. The expenses of the arbitration shall be borne equally
by the parties to the arbitration, but each party shall pay for the
cost of its own counsel, witnesses and other related expenses. In
making the award or other determination, the arbitrator shall be
required to adhere to the terms of this Agreement and to applicable
laws of the State, including the provisions of the Act.
15.13 Supplemental Provisions.
This Agreement shall be governed by the Rules of Usage
and the Supplemental Provisions.
IN WITNESS WHEREOF, the undersigned have executed
the Agreement as of the date first set forth above.
ATWATER CASINO GROUP, L.L.C.,
a Michigan limited liability company
By: Atwater Management Corporation,
a Michigan corporation, its Manager
By:Thomas Celani
Thomas Celani, President
By: Herbert J. Strather
Herbert J. Strather,
Chairman
CIRCUS CIRCUS MICHIGAN, INC.,
a Michigan corporation
By: Glenn Schaeffer
Name: Glenn Schaeffer
Title: President
LIMITED JOINDER
CIRCUS CIRCUS ENTERPRISES, INC., hereby joins in
the execution of the foregoing Operating Agreement, solely for the
purpose of assuring to the Company that Circus will (i) make the
Capital Contributions to the Company as specified in Sections
5.01(b) and 5.02 above, (ii) use its good faith best efforts to secure
Construction Financing and Permanent Financing as contemplated
in Section 4.04 above, and (iii) cause a license for the use of
certain Circus Intellectual Property to be granted to the Company
as contemplated in Section 4.06 above.
CIRCUS CIRCUS ENTERPRISES, INC.,
a Nevada corporation
By:
Name:
Title:
ATWATER ENTERTAINMENT ASSOCIATES, L.L.C.
a Michigan limited liability company and ZRX, L.L.C., a
Michigan limited liability company hereby join in the execution of
the foregoing Operating Agreement, solely for the purposes of (i)
making the representations and warranties set forth in Article XIV
above and (ii) acknowledging that they have read, understand and
agree to be bound by, the terms, covenants and provisions of the
foregoing Operating Agreement.
ATWATER ENTERTAINMENT
ASSOCIATES, L.L.C., a Michigan limited
liability company
By: Herbert J. Strather
Herbert J. Strather, Manager
By: Nellie M. Varner
Nellie M. Varner, Manager
By: Lawrence P. Doss
Lawrence P. Doss, Manager
ZRX, L.L.C., a Michigan limited liability
company
By: Z.L.M. CORPORATION, a
Michigan Corporation, its Manager
By: Thomas Celani
Thomas Celani, President
By: Michael Malik
Michael Malik, Member
By: Marian Ilitch
Marian Ilitch, Member
By: Thomas Celani
Thomas Celani, Member
APPENDIX A
DEFINITIONS
As used in the Operating Agreement (the Agreement ) to
which this is Appendix A is attached, the following terms have the
meanings set forth below. Unless otherwise expressly stated,
references to Article and Section numbers shall mean the Article
and Section numbers in the Agreement, and references to herein
or hereof or words of like effect shall refer to the Agreement.
Act means the Michigan Limited Liability Company Act,
450.4101 et seq., MSA 21.198 (4101) et seq., and any
successor statute, as amended from time to time.
Acceptance Notice has the meaning set forth in Section
12.03.
Additional Capital Contribution means a Capital
Contribution made pursuant to Sections 5.02 or 5.03.
Additional Member means a new Member admitted to
the Company pursuant to Article IX, other than a Substitute
Member.
Additional Project Cost means the amount, if any, by
which the actual Project Cost exceeds the amount of the Project
Budget initially Approved by the Management Committee.
Adjusted Capital Account of a Member means the
Capital Account maintained for such Member as of the end of each
Fiscal Year of the Company (a) increased by (i) any amount such
Member is obligated to restore to its Capital Account under
Regulations Section 1.704-1(b)(2)(ii)(c), (ii) an amount equal to the
sum of such Member s allocable share of the Company s Minimum
Gain attributable to Company Nonrecourse Liabilities and such
Member s allocable share of the Company s Minimum Gain
attributable to Member Nonrecourse Debt, in each case as
computed on the last day of such Fiscal Year in accordance with
applicable Regulations and (iii) the amount of Company liabilities
allocable to such Member under section 752 of the Code with
respect to which such Member bears the Economic Risk of Loss
to the extent such liabilities do not constitute partner nonrecourse
debt under Regulations Section 1.752-2 and (b) reduced (but not
below zero) by (i) all distributions to such Member pursuant to
Sections 6.03 and 4.05(d) hereof and (ii) all other reasonably
expected adjustments, allocations and distributions described in
Regulations Sections 1.704-l(b)(2)(ii)(d)(4), (5) and (6).
Adjusted Capital Contribution Account means for a
Member, as of the date of calculation, the amount of such
Member s Initial Capital Contributions (a) increased by the amount
of any Additional Capital Contributions contributed by such
Member under Article V and (b) reduced (but not below zero) by
the aggregate amount of all distributions to such Member pursuant
to Sections 6.03(a)(ii) and (iii), 6.03(b)(ii) and (iii) and 13.02(d)
hereof.
Adjusted Property means any property the Carrying
Value of which has been adjusted pursuant to Section 5.05(d). If
an Adjusted Property is deemed distributed by, and recontributed
to the Company for federal income tax purposes upon a
termination thereof pursuant to section 708(b)(1)(B) of the Code,
such property shall thereafter constitute a Contributed Property
until the Carrying Value of such property is subsequently adjusted
pursuant to Section 5.05(d).
ACG means Atwater Casino Group, L.L.C., a Michigan
limited liability company (formerly known as X.R.N., L.L.C.),
whose sole members are ZRX and AEA, and whose manager is
AMC.
AEA means Atwater Entertainment Associates, L.L.C.,
a Michigan limited liability company, which is a member of ACG.
Affiliate means, with respect to any Person, any Person
directly or indirectly controlling, controlled by or under common
control with such Person. For the purposes of the preceding
sentence, the term control means the possession, directly or
indirectly, through one or more intermediaries, of the following:
(a) in the case of a corporation, more than 50% of the outstanding
voting securities thereof; (b) in the case of a limited liability
company, partnership, limited partnership or venture, the right to
more than 50% of the distributions therefrom (including liquidating
distributions); (c) in the case of a trust or estate, more than 50%
of the beneficial interest therein; or (d) in the case of any other
Person, more than 50% of the economic or beneficial interest
therein.
Agreed Value of any Contributed Property means the
fair market value of such Contributed Property at the time of
contribution as determined by agreement of the Management
Committee and the contributing Member; provided, however, that
the Agreed Value of any property deemed contributed to the
Company for federal income tax purposes upon termination and
reconstitution thereof pursuant to section 708(b)(1)(B) of the Code
shall be determined in accordance with Section 5.06(c). Subject
to Section 5.06(c), the Management Committee shall, in its sole
discretion, use such method as it deems reasonable and appropriate
to allocate the aggregate Agreed Value of Contributed Properties
contributed to the Company in a single or integrated transaction
among each separate property on a basis proportional to the fair
market value of each Contributed Property.
Agreement means this Operating Agreement, as
amended from time to time.
AMC means Atwater Management Corporation, a
Michigan corporation, which is the manager of ACG.
Approval of the Management Committee or words of
like effect, means, unless otherwise expressly stated, the approval
of a Majority of the Management Committee.
Articles means the Articles of Organization of the
Company, as amended or restated, which are filed with the
Department.
Assignee means a transferee of a Membership Interest
who has not been admitted as a Substitute Member.
Assignment Agreement means the Assignment
Agreement between ACG and Circus by which ACG has
transferred a 99.9% interest in the Preference Right to Circus.
Bankrupt Member means any Member with respect to
which a petition shall have been filed by or against such Member
as a debtor and the adjudication of such Member as a bankrupt
under the provisions of the bankruptcy laws of the United States
of America shall have commenced, or that such Member shall
made an assignment for the benefit of its creditors generally or a
receiver shall have been appointed for substantially all of the
property and assets of such Member (and the terms Bankruptcy
and Bankrupt shall have correlative meanings).
Business Day means a day of the year, other than a
Saturday or Sunday, on which commercial banks in the city in
which the principal office of the Company is located, are not
required or authorized to remain closed and on which The New
York Stock Exchange is not closed.
Buy-Out Price means, with respect to Sections 5.08(d),
9.04 or 10.02(a), the consideration payable to the Defaulting
Member, the Responsible Member or the withdrawing Member, as
the case may be, for its Membership Interest.
CCEI means Circus Circus Enterprises, Inc., a Nevada
corporation, which is the parent of Circus.
Capital Account means the capital account maintained
for a Member pursuant to Section 5.06.
Capital Contribution means the sum of the of amount
of cash and the Net Agreed Value of property contributed by a
Member to the capital of the Company.
Carrying Value means (a) with respect to a Contributed
Property, the Agreed Value of such property reduced (but not
below zero) by all depreciation, amortization and cost recovery
deductions charged to the Members Capital Accounts in respect
of such Contributed Property, (b) with respect to an Adjusted
Property, the amount determined pursuant to Section 6.05(d)(i) or
(ii), as appropriate, reduced (but not below zero) by all
depreciation, amortization and cost recovery charged to the
Members Capital Accounts in respect of such Adjusted Property,
and (c) with respect to any other Company property, the adjusted
basis of such property for federal income tax purposes, all as of
the time of determination. The Carrying Value of any property
shall be adjusted from time to time in accordance with Sections
6.05(d) and to reflect changes, additions or other adjustments to
the Carrying Value for dispositions and acquisitions of Company
properties, as deemed appropriate by the Management Committee.
Circus means Circus Circus Michigan, Inc., a Michigan
corporation.
Circus Intellectual Property means (i) the trade names,
trademarks, logos, trade dress and related trade and service marks
of Circus or any Affiliate under which the Project will operate,
and (ii) any proprietary databases created by or for Circus or any
Affiliate in connection with the operation of the Project.
Code means the Internal Revenue Code of 1986 and any
successor statute, as amended from time to time.
Committee Member means a Person appointed to the
Management Committee by a Member pursuant to Section 3.02.
Company means the limited liability company known as
Detroit Entertainment, L.L.C. created by the filing of the
Articles and governed pursuant to this Agreement and the Act.
Company Nonrecourse Deductions means, with respect
to Company Nonrecourse Liabilities, the amount of deductions,
losses and expenses equal to the net increase during the year in
Minimum Gain attributable to Company Nonrecourse Liabilities,
reduced (but not below zero) by the proceeds, if any, of such
Company Nonrecourse Liabilities distributed during the year, as
determined in accordance with applicable Regulations.
Company Nonrecourse Liabilities means nonrecourse
liabilities (or portions thereof) of the Company for which no
Member bears the Economic Risk of Loss.
Completion of Construction means the substantial
completion of construction of the Project (excluding the Temporary
Casino) and the satisfaction of all Legal Requirements and other
conditions precedent to the opening of the Project (excluding the
Temporary Casino) for business to the public.
Construction Financing mean debt financing, which
may be unsecured or collateralized by a lien on the Project or any
portion thereof (including purchase money financing collateralized
by furniture, furnishings, fixtures, machinery or equipment), to be
obtained by the Company from one or more lenders (including
vendors or the Members or Affiliates) for the purpose of funding
Project Costs and which, except as otherwise provided in Section
4.04(b), is non-recourse to the Members and their Affiliates and
does not require the Members or any Affiliates to provide a
personal guaranty.
Contributed Property means each property or other
asset, in such form as may be permitted by the Act, but excluding
cash, contributed to the Company (or deemed contributed to the
Company on termination and reconstitution thereof pursuant to
section 708 of the Code). Once the Carrying Value of a
Contributed Property is adjusted pursuant to Section 5.06(d), such
property shall no longer constitute a Contributed Property, but
shall be deemed an Adjusted Property.
Cost Overrun means any Additional Project Cost not
resulting from a change in the scope of the Project or from the
gross negligence or willful misconduct of the Operator.
Credit Support by any Person means any obligation,
contingent or otherwise, of such Person directly or indirectly
guaranteeing or acting as surety for any indebtedness, obligation
or liability of any other Person and, without limiting the generality
of the foregoing, any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such indebtedness,
obligation or liability (whether arising by virtue of partnership,
joint venture or similar arrangements, by agreement to keep-well,
to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise) or (ii)
entered into for the purpose of assuring in any other manner the
obligee of such indebtedness, obligation or liability of the payment
thereof or to protect such obligee against loss in respect thereof (in
whole or in part).
Deadlock means, with respect to a matter provided under
Section 3.07(a) requiring the approval of a Majority or
Supermajority of the Management Committee, the failure of a
Majority or Supermajority of the Committee Members, as the case
may be, to approve such matter.
Default Interest Rate means the Prime Rate plus five
percent (5%).
Default Rule means a rule stated in the Act which (i)
structures, defines or regulates aspects of a limited liability
company organized under the Act and (ii) applies except to the
extent it is modified or overridden through the provisions of a
limited liability company s articles of organization or operating
agreement.
Defaulting Member has the meaning set forth in Section
5.08.
Department means the Michigan Department of
Consumer and Industry Services, Corporation, Securities and Land
Development Bureau.
Development Agreement means an agreement between
the Company and the City of Detroit or other Governmental
Authorities, relating to the development of the Project.
Dispose, Disposing or Disposition means a sale,
assignment, alienation, gift, transfer, exchange, mortgage, pledge,
grant of a security interest, or other disposition or encumbrance,
whether voluntary or involuntary, or the acts of the foregoing.
For purposes of Article XII, Disposition shall also include, in
the case of ACG, AEA and ZRX, transfers of ownership interest
among members resulting from the exercise of dilution provisions
in their respective operating agreements or other applicable
governing documents.
Disposition Notice has the meaning set forth in Section
12.03.
Dissolution Event means an event, the occurrence of
which will result in the dissolution of the Company under Article
XIII.
Dissolved Member means any Member with respect to
which any of the following events has occurred (and the terms
Dissolution and Dissolved, when used in connection with a
Member, shall have correlative meanings): (a) in the case of a
Member that is a corporation, the filing of a certificate of
dissolution, or its equivalent, for the corporation or the revocation
of its charter and the expiration of 90 days after the date of notice
to the corporation of revocation without a reinstatement of its
charter; and (b) in the case of a Member that is a partnership,
limited partnership, limited liability company or similar entity, the
dissolution and commencement of winding up of such entity.
Distributable Cash means Distributable Cash From
Temporary Casino and Distributable Cash From Operations.
Distributable Cash From Operations mean the gross
revenues from Company operations (including any sales and
dispositions of Company property, but excluding Distributable
Cash From Temporary Casino), which the Management Committee
deems available for distribution to the Members, taking into
account all expenses, debts, liabilities, payments, capital
improvements, replacements, contingencies and other obligations
of the Company (including Member Loans and other obligations
to Members or their Affiliates but excluding the Management Fee)
then due and amounts which the Management Committee deems
necessary to place into Reserves.
Distributable Cash From Temporary Casino means the
gross revenues from the operations and disposition of the
Temporary Casino, which the Management Committee deems
available for distribution to the Members, taking into account all
expenses, debts, liabilities, payments, capital improvements,
replacements, contingencies and other obligations of the Company
(including principal and interest in respect of any Temporary
Casino Loans made by Members and any indebtedness to third
parties but excluding the Management Fee) then due and amounts
which the Management Committee deems necessary to place into
Reserves.
Economic Risk of Loss has the meaning set forth in
Regulations Section 1.752-2(a).
Escrow means an escrow established by the Company
for the purposes of holding and investing the Initial Capital
Contribution made by Circus pursuant to Section 5.01(b)(i), and
disbursing such amount pursuant to Section 4.05(e)(i).
Electing Members has the meaning set forth in Section
12.03.
Fair Market Value means, as to any Membership
Interest or other property, the price at which a willing seller would
sell and a willing buyer would buy such Membership Interest or
other property having full knowledge of the facts, in an arms-
length transaction without time constraints, and without being
under any compulsion to buy or sell. If and to the extent a
determination of the Fair Market Value of any Membership
Interest or other property requires an appraisal of the value of the
Project, such appraisal shall assume that the Project is free and
clear of all liens and encumbrances and shall take into account the
then-current condition, use, zoning and income of the Project,
including the value of any Licenses and similar intangible assets of
the Company, but (unless Circus is the owner of the Membership
Interest in question) excluding any good will attributable to the
Circus Intellectual Property, or Circus business operations. Such
Fair Market Value shall be determined by mutual agreement of the
Members (or their representatives, as the case may be), or if they
are unable to mutually agree within 30 days after request by either
Member, then by appraisal by a reputable disinterested appraiser
who is experienced in the appraisal of casino properties, and who
shall be instructed to complete and deliver the appraisal report
within 30 days after engagement. For purposes of Section 11.01,
the appraiser shall be selected by the non-Bankrupt Member.
First Refusal Period has the meaning set forth in
Section 12.03.
Fiscal Year means the taxable year of the Company.
Funding Date has the meaning set forth in Section 5.08.
GAAP means generally accepted accounting principles,
consistently applied.
Gaming Authorities means the Michigan Gaming
Control Board, the City of Detroit and/or any other Governmental
Authorities possessing and exercising jurisdiction over the Project,
the Company, any Member, any of their respective Affiliates or
constituent members, or any officers or directors of any of the
foregoing, with respect to gaming activities.
Governmental Authorities means any federal, state,
municipal or other governmental department, commission, board,
bureau, agency or instrumentality of the United States of America
or any state thereof, or any government or governmental,
supranational or state agency or regulatory body of any foreign
country, including any Gaming Authorities.
Indebtedness for Borrowed Money means
(i) obligations for borrowed money (whether secured or
unsecured), (ii) obligations representing the deferred purchase
price of property or services other than accounts payable arising
in the ordinary course of business, (iii) obligations in respect of
operating or capital leases entered into other than in the ordinary
course of business, whether or not such obligations would be
required to be shown as a liability on a balance sheet under
GAAP, and (iv) any guarantee or other obligations having the
economic effect of a guarantee in respect of any obligations
referred to in clauses (i), (ii) or (iii) above.
Initial Capital Contribution means a Capital
Contribution made pursuant to Section 5.01.
Initial Licensing means the issuance of a Certificate of
Suitability (as defined in the rules promulgated under the Michigan
Gaming Control and Revenue Act), or comparable certification or
licensing for the initial development, construction and operation of
the Project as a hotel/casino.
Initial Members means Circus and ACG.
Legal Requirements means any and all applicable (a)
federal, state, local and foreign laws (statutory, judicial or
otherwise), ordinances and regulations, (b) nonappealable
judgments and (c) consent decrees and similar arrangements.
License means any license, permit, authorization,
consent, approval, finding of suitability or qualification issued or
made by any Gaming Authority, and required in order to conduct
a gaming business, either alone or in combination with any one or
more other businesses, including any said license, permit,
authorization, consent, approval, finding of suitability or
qualification issued or made by the State or any local
Governmental Authority in the State, or any other State or local
Governmental Authority in connection with the operation of the
business of the Company, or by any other jurisdiction, domestic
or foreign, necessary in order to conduct the business of any
Member or any of the Affiliates of any Member, in any such other
jurisdiction.
Loan Rate means an interest rate of seven percent (7%)
per annum.
Loss of License has the meaning set forth in Section
10.01.
Losses means the taxable income or loss for federal
income tax purposes of the Company for each Fiscal Year, plus
income and gain exempt from federal income tax for such Fiscal
Year, and minus Section 705(a)(2)(B) Expenditures for such Fiscal
Year, if such amount results in a loss. The items of income, gain,
loss, deduction and Section 705(a)(2)(B) Expenditure included in
the calculation of Losses shall be determined in accordance with
Section 5.06(b) and shall not include any items specially allocated
under Section 6.5(a), (b), (c) or (d) for such Fiscal Year.
Majority means the affirmative vote or consent of a
majority in number of Committee Members of the Management
Committee.
Management Committee means the Management
Committee provided for in Section 3.02.
Management Fee means the management fee payable to
Circus pursuant to Section 4.05(d).
Management Fee Allocation means, for each fiscal
year, an amount based on a schedule to be prepared by the
Company s investment banker, which schedule shall be reasonably
approved by Circus and attached as an addendum to this
Agreement.
Member means any Person executing this Agreement as
of the date of this Agreement as a member or subsequently
admitted to the Company as a member as provided in this
Agreement, but does not include any Person who has ceased to be
a member in the Company.
Member Loans means any loans to or for the benefit of
the Company pursuant to Sections 5.04, 5.05 or 5.09.
Member Nonrecourse Debt means any nonrecourse debt
of the Company for which any Member bears the Economic Risk
of Loss.
Member Nonrecourse Deductions means, with respect
to a Member Nonrecourse Debt, the amount of deductions, losses
and expenses equal to the net increase during the year in Minimum
Gain attributable to Member Nonrecourse Debt, reduced (but not
below zero) by the proceeds, if any, of such Member Nonrecourse
Debt distributed during the year to the Members who bear the
Economic Risk of Loss for such debt, as determined in accordance
with applicable Regulations.
Membership Interest means the interest of a Member in
the Company, including, without limitation, rights to distributions
(liquidating or otherwise), allocations, information, and to consent
or approve.
Minimum Gain means (a) with respect to Company
Nonrecourse Liabilities, the amount of gain that would be realized
by the Company if it disposed of (in a taxable transaction) all
Company properties that are subject to Company Nonrecourse
Liabilities in full satisfaction of such liabilities, computed in
accordance with applicable Regulations or (b) with respect to each
Member Nonrecourse Debt, the amount of gain that would be
realized by the Company if it disposed of (in a taxable transaction)
the Company property that is subject to such Member Nonrecourse
Debt in full satisfaction of such debt, computed in accordance with
applicable Regulations.
Net Agreed Value means (a) in the case of any
Contributed Property, the Agreed Value of such property reduced
by any liabilities either assumed by the Company upon such
contribution or to which such property is subject when contributed,
and (b) in the case of any property distributed to a Member by the
Company, the Company s Carrying Value of such property (as
adjusted pursuant to Section 5.06(d)) at the time such property is
distributed, reduced by any indebtedness either assumed by such
Member upon such distribution or to which such property is
subject at the time of distribution, in either case, as determined
under section 752 of the Code.
Net Book Value means, in the case of a Member s
Membership Interest, the amount, determined as of the last day of
the full calendar quarter immediately preceding the date of
occurrence of the event giving rise to the calculation, which would
be distributed to such Member in liquidation of the Company
pursuant to Article XIII, if (i) all of the Company s assets were
sold for their book value determined by the Company s financial
statements as of the end of the preceding Fiscal Year (but
excluding any value attributable to goodwill or to Circus
Intellectual Property), (b) the Company paid its accrued but unpaid
liabilities (including liabilities to Members or their Affiliates) and
established Reserves for the payment of reasonably anticipated
contingent or unknown liabilities, and (c) the Company distributed
the remaining proceeds to the Members in liquidation. Such Net
Book Value shall be determined from the Company s books and
records, without audit or certification, by the Company s regular
accounting firm. Such determination shall be deemed final and
binding in the absence of a showing of gross negligence or willful
misconduct.
Non-Defaulting Member means, for purposes of Section
5.08, a Member who is not in default in the payment or
performance of its obligations under this Agreement and has
advanced (or is otherwise ready, willing and able to advance) (i)
in the case of Circus, the full amount of its Capital Contributions
required to be made to date pursuant to Sections 5.01, 5.02 and
5.03 and (ii) in the case of ACG, the full amount of its Additional
Capital Contributions required to be made to date pursuant to
Section 5.03.
Non-Responsible Member has the meaning set forth in
Section 10.01.
Offered Interest has the meaning set forth in Section
12.03.
Operating Budget means the annual operating and
capital budget of the Company, as amended form time to time.
Operating Costs means the costs and expenses incurred
in connection with the ownership, operation, management,
maintenance and repair of the Project after Completion of
Construction, including capital improvements and Reserves.
Operator means Circus or an Affiliate of Circus, or any
successor, in its capacity as operator and manager of the Project
(and if applicable, the Temporary Casino) pursuant to Article IV.
Permanent Financing means debt financing, which may
be unsecured or collateralized by a lien on the Project or any
portion thereof (including purchase money financing collateralized
by furniture, furnishings, fixtures, machinery or equipment), to be
obtained by the Company from one or more lenders (including
vendors) for the purpose of retiring the Construction Financing and
which is non-recourse to the Members and their Affiliates and does
not require the Members or any Affiliates to provide a personal
guaranty.
Person means a natural person, trust, estate, partnership,
limited liability company or any incorporated or unincorporated
organization.
Preference Rights means the preferential rights of ACG
and any of its Affiliates under subsection (b) Section 6 of the
Michigan Gaming Control and Revenue Act (MCLA 432.201, et
seq.) as a result of the passage of Proposal B in the City of Detroit
primary election held on August 2, 1994.
Prime Rate means a rate of interest per annum equal to
the varying rate publicly quoted by Chase Manhattan Bank from
time to time as its prime commercial or similar reference interest
rate, with adjustments in that varying rate to be made on the same
date as any change in that rate.
Profits means the taxable income or loss for federal
income tax purposes of the Company for each Fiscal Year, plus
income and gain exempt from federal income tax for such Fiscal
Year, and minus Section 705(a)(2)(B) Expenditures for such Fiscal
Year, if such amount results in a profit. The items of income,
gain, loss, deduction and Section 705(a)(2)(B) Expenditure
included in the calculation of Losses shall be determined in
accordance with Section 5.06(b) and shall not include any items
specially allocated under Section 6.5(a), (b), (c) or (d) for such
Fiscal Year.
Project means the assembling and acquiring of real
property in Detroit, Michigan and the development, construction
and operation thereon of a hotel/casino and related parking, retail
stores, restaurants, entertainment venues and additional compatible
facilities, including all furniture, furnishings, machinery,
equipment and other tangible personal property to be owned or
leased by the Company, located therein and used in connection
therewith. Unless otherwise expressly provided, the term
Project shall not include the Temporary Casino.
Project Budget means the budget of Project Cost, as
amended form time to time.
Project Cost means 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 the Company
and to the extent Approved by the Management Committee, in
obtaining Initial Licensing), design, construction, equipping and
opening of the Project, including all costs related thereto such as
labor, materials, supplies, furniture, furnishings, fixtures,
machinery, equipment, construction management, architectural,
engineering and design fees, legal and accounting fees, on-and-off
site work, utility installation and hook-up fees, construction
permits, certificates and bonds, pre-opening expenses, gaming tax
deposits, license fees, initial gaming bankroll and interest and fees
on the Construction Financing, but excluding (i) the cost of the
Temporary Casino, except and to the extent that the Temporary
Casino or any portion or component thereof is to be integrated into
and become a permanent part of the Project (in which event such
portion or component may be included in Project Cost); and (ii)
the costs and expenses incurred in the formation of the individual
Members and their respective Affiliates.
Recapture Income means any gain recognized by the
Company (computed without regard to any adjustment required by
section 734 or 743 of the Code) upon the Disposition of any
property or asset of the Company, which gain is characterized as
ordinary income under the Code because it represents the recapture
of deductions previously taken with respect to such property or
asset.
Regulations , except where the context indicates
otherwise, means the permanent, temporary, proposed, or
proposed and temporary regulations of the Department of the
Treasury under the Code as such regulations may be lawfully
changed from time to time.
Related Person means a person having a relationship to
a Member as described in Section 1.752-4(b) of the Regulations.
Required Records means those records that the
Company is required to maintain under Section 9.1 of the Act.
Reserves means funds Approved by the Management
Committee to be maintained as reasonable reserves for working
capital, contingencies, operating expenses, capital improvements
and replacements of the Company or its property.
Responsible Member has the meaning set forth in
Section 10.01.
Rules of Usage means, with respect to a document that
states in substance that it is governed thereby, that, except as
expressly provided therein:
(i) A reference in such document to
a Person includes, unless the context otherwise requires,
its predecessors in interest and its permitted assigns.
(ii) The term or shall be
interpreted as and/or.
(iii) A reference in such document to
a law includes any amendment, modification or
replacement to such law.
(iv) Accounting terms used in such
document shall have the meanings assigned to them by
GAAP applied on a consistent basis by the accounting
entity to which they refer.
(v) References to any document,
instrument or agreement (a) shall be deemed to include
all appendices, exhibits, schedules and other attachments
thereto and all documents, instruments or agreements
issued or executed in replacement thereof, and (b) shall
mean such document, instrument or agreement, or
replacement thereto, as amended, modified and
supplemented from time to time in accordance with its
terms and as the same is in effect at any given time.
(vi) Unless otherwise specified, the
words hereof, herein and hereunder and words of
similar import when used in such document shall refer
to such document as a whole and not to any particular
provision of such document.
(vii) The words include and
including and words of similar import when used in
such document are not limiting and shall be construed to
be followed by the words without limitation , whether
or not they are in fact followed by such words.
(viii) The word during when used in
such document with respect to a period of time shall be
construed to mean commencing at the beginning of such
period and continuing until the end of such period.
(ix) All time explicitly or implicitly
referenced in such document shall be deemed to be local
time in Detroit, Michigan.
(x) Any reference in such document
to an Article, Section or subsection or other provision
shall refer to such provision in such document unless
otherwise specified.
Section 705(a)(2)(B) Expenditure means any expenditure of
the Company described in section 705(a)(2)(B) of the Code or treated as
such pursuant to Regulations Section 1.704-1(b)(2)(iv)(i).
Sharing Ratio means the percentage interest of each Member
as set forth in Section 6.01, as the same may be adjusted from time to
time pursuant to Sections 5.08(d) or 12.01(a).
State means the State of Michigan.
Subsidiary means, with respect to any specified Person, any
other Person, as to which such specified Person owns, of record or
beneficially, directly or indirectly (x) more than 50% of the voting power
and (y) (A) if such other Person is a corporation, more than 50% of the
outstanding capital stock or issued share capital and (B) if such other
Person is not a corporation, more than 50% of the equity and profits
interests at the time any determination thereof is made, in each case,
other than director s qualifying shares.
Substitute Member means a transferee of a Membership
Interest who is admitted as a Member in the Company pursuant to
Article IX.
Supermajority means the affirmative vote or consent of at
least (i) four (4) of the six (6) Committee Members representing Circus,
(ii) two (2) of the three (3) Committee Members representing ZRX and
(iii) two (2) of the three (3) Committee Members representing AEA.
Supplemental Provisions means, with respect to a document
that states in substance that it is governed thereby, that, except as
expressly provided therein:
(i) All amounts required to be paid
by any party to such document to any other party
thereunder shall, unless otherwise specified in such
document, be paid in U.S. dollars by wire transfer to an
account as such party may specify by notice to the
paying party, or by other acceptable method of payment
of immediately available funds.
(ii) If any payment under such
document is required to be made on a day other than a
Business Day, the date of payment shall be extended to
the next Business Day.
(iii) Except as otherwise specifically
provided in such document, each party thereto shall, at
its own cost and expense, obey and comply with all
applicable laws, as they may pertain to each party s
performance of its obligations under such document.
(iv) The parties to such document
shall execute and deliver all further documents and
perform all further acts that may be reasonably necessary
to consummate the transactions contemplated by such
document.
Tax Distribution when used with respect to a Member means
with respect to each Fiscal Year an amount equal to 43% of such
Members distributive share of Profits of the Company for such Fiscal
Year, and when used with respect to the Company means with respect
to each Fiscal Year an amount equal to the sum of all of the Members
Tax Distributions with respect to such Fiscal Year.
Temporary Casino means a temporary casino facility operated
by the Company in Detroit, Michigan during the construction, and prior
to the commencement of operations, of the Project.
Temporary Casino Cost means the total cost of acquiring or
leasing, renovating, equipping and operating the Temporary Casino.
Temporary Casino Loans means the loans described in
Section 5.04.
Unfunded Balance has the meaning set forth in Section
5.08(c).
Unrealized Gain attributable to any item of Company property
means, as of any date of determination, the excess, if any, of (a) the fair
market value of such property as of such date (as determined under
Section 5.06(d)) over (b) the Carrying Value of such property as of such
date (prior to any adjustment to be made pursuant to Section 5.06(d) as
of such date).
Unrealized Loss attributable to any item of Company property
means, as of any date of determination, the excess, if any, of (a) the
Carrying Value of such property as of such date (prior to any adjustment
to be made pursuant to Section 5.06(d) as of such date) over (b) the fair
market value of such property as of such date (as determined under
Section 5.06(d)).
ZRX means ZRX L.L.C., a Michigan limited liability
company which is a member of ACG.
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> JAN-31-1998
<PERIOD-END> OCT-31-1997
<CASH> 75,287
<SECURITIES> 0
<RECEIVABLES> 16,222
<ALLOWANCES> 0
<INVENTORY> 21,361
<CURRENT-ASSETS> 146,206
<PP&E> 2,926,302
<DEPRECIATION> 597,912
<TOTAL-ASSETS> 3,158,650
<CURRENT-LIABILITIES> 161,567
<BONDS> 1,710,574
0
0
<COMMON> 1,893
<OTHER-SE> 1,119,658
<TOTAL-LIABILITY-AND-EQUITY> 3,158,650
<SALES> 1,029,242
<TOTAL-REVENUES> 1,029,242
<CGS> 0
<TOTAL-COSTS> 800,879
<OTHER-EXPENSES> 23,328
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 63,731
<INCOME-PRETAX> 141,304
<INCOME-TAX> 52,104
<INCOME-CONTINUING> 89,200
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 89,200
<EPS-PRIMARY> .94
<EPS-DILUTED> .94
</TABLE>
