SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) February 24, 1998
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RIO HOTEL & CASINO, INC.
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(Exact name of Registrant as specified in its charter)
Nevada
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(State or other jurisdiction of incorporation)
1-11569 95-3671082
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(Commission File (IRS Employee
Number) Identification No.)
3700 West Flamingo Road, Las Vegas, Nevada 89103
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (702) 252-7733
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Not Applicable
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(Former name or former address, if changed since last report)
THIS DOCUMENT CONSISTS OF 215 PAGES. THE EXHIBIT INDEX IS ON PAGE 4.
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Item 5. Other Events.
On July 15, 1993, Rio Hotel & Casino, Inc. (the "Company")
originally entered into a revolving credit facility (the
"Rio Bank Loan") in the amount of $65 million with a
syndicate of banks led by Bank of America National Trust and
Savings Association ("Bank of America NT&SA"). On February
24, 1998, the Company amended and restated the Rio Bank Loan
with the Amended and Restated Credit Agreement (the "Amended
Bank Loan") among Rio Properties, Inc. ("Rio Properties")
and Rio Leasing, Inc. ("Rio Leasing"), both Rio Properties
and Rio Leasing are wholly owned subsidiaries of the
Company, and Bank of America NT&SA as Agent and the other
financial institutions party thereto. The Amended Bank Loan
amended and restated the Rio Bank Loan increasing the funds
available under the revolving credit facility to $275
million, providing a mechanism whereby the Company may
borrow an additional $25 million above and beyond the $275
million, and extending the maturity date to December 31,
2003. The Amended Loan Agreement is collateralized by a
first deed of trust on the real property, equipment and
improvements of Rio Leasing, Rio Properties and Rio
Properties' subsidiaries and is guaranteed by the Company.
The Amended Bank Loan is a secured reducing revolving credit
facility to be used for making allowed capital expenditures,
funding working capital needs, and paying for general
corporate purposes.
The Amended Bank Loan bears interest adjusted by the "LIBOR
Margin" of 0.75% to 2.25%, or the "Base Rate Margin" of 0%
to 1.25%, which in turn are based upon a schedule determined
with reference to the "Total Leverage Ratio" (as defined in
the Amended Bank Loan). The "LIBOR Margin" is the amount in
excess of the applicable LIBOR rate which is the London
Interbank Offered Rate established in the London interbank
market. The "Base Rate Margin" is the amount in excess of
the applicable base rate, which is the rate per annum equal
to the higher of the reference rate as it is publicly
announced from time to time by Bank of America NT&SA or
0.50% per annum above the latest Federal Funds rate. The
Amended Bank Loan also provides for an unused facility fee
ranging from 22.5 basis points to 45.0 basis points
depending upon the same Total Leverage Ratio schedule
utilized for the interest rate. The Amended Bank Loan
requires periodic payments of interest and will require
scheduled reductions of the maximum amount available
commencing with scheduled reductions of $60 million at
December 31, 2000, 2001 and 2002 and maturity at December
31, 2003.
The Amended Bank Loan includes certain covenants that, among
other things, restrict the ability of the Loan Parties (as
defined in the Amended Bank Loan) to pay dividends and make
certain other restricted payments; incur additional
indebtedness; grant liens, other than permitted liens; and
sell material assets. The Amended Bank Loan also requires
the Loan Parties to maintain certain financial ratios,
including interest coverage and leverage ratios, and not to
exceed certain fixed ratios of Senior Indebtedness (as
defined in the Amended Bank Loan) to earnings before
interest expense, income taxes, depreciation and
amortization and extraordinary items.
The revolving credit features of the Amended Bank Loan allow
for the Loan Parties to pay down and reborrow principal
under the revolving credit facility as the Loan Parties
deems appropriate. The Company had $251 million available
under the Amended Bank Loan at February 24, 1998.
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Item 7. Financial Statements and Exhibits.
(a) Financial Statements of Businesses Acquired.
Not Applicable.
(b) Pro Forma Financial Information.
Not Applicable.
(c) Exhibits.
4.1 Amended and Restated Credit Agreement dated as of
February 24, 1998 among Rio Properties, Inc. and
Rio Leasing, Inc. and Bank of America National
Trust and Savings Association as Agent and the
other financial institutions party hereto.
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 hereunto duly authorized.
RIO HOTEL & CASINO, INC.
(Registrant)
Date: March 10, 1998 By: /s/ I. Scott Bogatz
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I. Scott Bogatz
Vice President, Secretary
and General Counsel
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EXHIBIT INDEX
Exhibit Description Page
Number
4.1 Amended and Restated Credit Agreement dated as of 5
February 24, 1998 among Rio Properties, Inc. and
Rio Leasing, Inc. and Bank of America National
Trust and Savings Association as Agent and the
other financial institutions party hereto.
4
WORKING COPY
______________________________________________________________
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of February 24, 1998
among
RIO PROPERTIES, INC.
and
RIO LEASING, INC.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
as Agent
and
THE OTHER FINANCIAL INSTITUTIONS
PARTY HERETO
______________________________________________________________
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS 1
1.01 Defined Terms 1
1.02 Other Interpretive Provisions 26
1.03 Accounting Principles 27
ARTICLE 2 THE CREDIT 28
2.01 Amounts and Terms of Commitment 28
2.02 Notes 28
2.03 Procedure for Borrowing 29
2.04 Conversion and Continuation Elections 30
2.06 Voluntary Termination or Reduction of Aggregate
Commitment 33
2.07 Optional Prepayments 33
2.08 Mandatory Commitment Reductions; Mandatory
Prepayments of Loans 34
2.09 Repayment 34
2.10 Interest 34
2.11 Fees 35
2.12 Computation of Fees and Interest 36
2.13 Payments by the Borrowers 37
2.14 Payments by the Banks to the Ageny 38
2.15 Sharing of Payments, Etc 38
2.16 Security and Guarantees 39
2.17 Swing Line 39
ARTICLE 3 TAXES, YIELD PROTECTION AND ILLEGALITY 42
3.01 Taxes 42
3.02 Illegality 45
3.03 Increased Costs and Reduction of Return 45
3.04 Funding Losses 46
3.05 Inability to Determine Rates 47
3.06 Certificates of Banks 47
3.07 Survival 47
ARTICLE 4 CONDITIONS PRECEDENT 48
4.01 Conditions of Initial Loans 48
4.02 Conditions to All Borrowings 52
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ARTICLE 5 REPRESENTATIONS AND WARRANTIES 53
5.01 Corporate Existence and Power 53
5.02 Corporate Authorization; No Contravention 53
5.03 Governmental Authorization 54
5.04 Binding Effect 54
5.05 Litigation 54
5.06 No Default 55
5.07 ERISA Compliance 55
5.08 Use of Proceeds; Margin Regulations 57
5.09 Title to Properties 57
5.10 Taxes 57
5.11 Financial Condition/Material Adverse Effect 57
5.12 Environmental Matters 58
5.13 Collateral Documents 59
5.14 Regulated Entities 60
5.15 No Burdensome Restrictions 60
5.16 Solvency 60
5.17 Labor Relations 60
5.18 Copyrights, Patents, Trademarks and
Licenses, etc 60
5.19 Subsidiaries and Other Investments 61
5.20 Insurance 61
5.21 Full Disclosure 61
5.22 Projections 61
5.23 Gaming Laws 61
5.24 Management Agreement 62
ARTICLE 6 AFFIRMATIVE COVENANTS 62
6.01 Financial Statements 62
6.02 Certificates; Other Information 63
6.03 Notices 64
6.04 Preservation of Corporate Existence, Etc 66
6.05 Maintenance of Property 66
6.06 Insurance 67
6.07 Payment of Obligations 67
6.08 Compliance with Laws 67
6.09 Inspection of Property and Books and Records 68
6.10 Environmental Laws 68
6.11 Use of Proceeds 68
6.12 Solvency 68
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6.13 New Subsidiaries 68
6.14 Additional Collateral 69
6.15 Requirements of Law 69
6.16 Permits, Licenses and Approvals 69
6.17 Purchase of Materials; Conditional Sales
Contracts 69
6.18 Site Visits; Right to Stop Work 70
6.19 Protection Against Lien Claims 71
6.20 Signs and Publicity 71
6.21 Leases of Company Premises 71
6.22 Further Assurances 71
ARTICLE 7 NEGATIVE COVENANTS 72
7.01 Limitation on Liens 72
7.02 Disposition of Assets 74
7.03 Consolidations and Mergers 74
7.04 Loans and Investments 75
7.05 Limitation on Indebtedness 76
7.06 Transactions with Affiliates 77
7.07 Use of Proceeds 77
7.08 Contingent Obligations 77
7.09 Joint Ventures 78
7.10 Compliance with ERISA 78
7.11 Lease Obligations 78
7.12 Restricted Payments 79
7.13 Capital Expenditures 79
7.14 Interest Coverage Ratio 79
7.15 Maximum Total Leverage Ratio 80
7.16 Maximum Senior Leverage Ratio 80
7.17 Change in Business 80
7.18 Change in Structure 80
7.19 Accounting Changes 80
7.20 Other Contracts 81
7.21 Management Agreement 81
7.22 Improvement District 81
ARTICLE 8 EVENTS OF DEFAULT 81
8.01 Event of Default 81
8.02 Remedies 86
8.03 Rights Not Exclusive 87
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ARTICLE 9 THE AGENT 87
9.01 Appointment and Authorization 87
9.02 Delegation of Duties 87
9.03 Liability of Agent 88
9.04 Reliance by Agent 88
9.05 Notice of Default 89
9.06 Credit Decision 89
9.07 Indemnification 90
9.08 Agent in Individual Capacity 90
9.09 Successor Agent 91
9.10 Collateral Matters 91
ARTICLE 10 MISCELLANEOUS 92
10.01 Amendments and Waivers 92
10.02 Notices 93
10.03 No Waiver; Cumulative Remedies 94
10.04 Costs and Expenses 94
10.05 Indemnity 95
10.06 Marshaling; Payments Set Aside 96
10.07 Successors and Assigns 96
10.08 Assignments, Participations, etc. 96
10.09 Setoff 99
10.10 Notification of Addresses, Lending
Offices, Etc 100
10.11 Counterparts 100
10.12 Severability 100
10.13 No Third Parties Benefited 100
10.14 Time 100
10.15 Governing Law and Jurisdiction 100
10.16 Waiver of Jury Trial 101
10.17 Notice of Claims; Claims Bar 101
10.18 Entire Agreement 102
10.19 Interpretation 102
10.20 Guarantor and Suretyship Provisions 102
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SCHEDULES
Schedule 1.01A Real Property Description
Schedule 1.01B Cinderlane Real Property Description
Schedule 1.01C Proposed Rio Expansion Description
Schedule 2.01 Commitments of the Banks
Schedule 5.05 Litigation
Schedule 5.07 ERISA
Schedule 5.11 Indebtedness Not Shown on Financial Statements
Schedule 5.12 Environmental Matters
Schedule 5.19 Subsidiaries and Equity Investments
Schedule 6.26 Existing Leases
Schedule 7.01 Permitted Liens
Schedule 7.05 Permitted Indebtedness
Schedule 7.08 Contingent Obligations
EXHIBITS
Exhibit A Note
Exhibit B Notice of Borrowing
Exhibit C Notice of Continuation/Conversion
Exhibit D Compliance Certificate
Exhibit E Assignment and Acceptance Agreement
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AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT (as the
same may be amended, supplemented or otherwise modified from
time to time, this "Agreement") amends and restates in its
entirety the Credit Agreement dated as of July 15, 1993, among
Rio Properties, Inc., a Nevada corporation (the "COMPANY"), Rio
Leasing, Inc., a Nevada corporation ("RIO LEASING; the Company
and Rio Leasing, each a "BORROWER" and collectively, the
"BORROWERS"), the several financial institutions party to this
Agreement, and Bank of America National Trust and Savings
Association, as agent for the Banks, as heretofore amended. In
consideration of the mutual agreements, provisions and
covenants contained herein, the parties agree as follows:
ARTICLE 1
DEFINITIONS
1.01 DEFINED TERMS. In addition to the terms defined
elsewhere in this Agreement, the following terms have the
following meanings:
"ACQUISITION" means any transaction or series of
related transactions entered into by the Borrowers or any of
their Subsidiaries for the purpose of or resulting in (a) the
acquisition, directly or indirectly, of all or substantially
all of the assets of a Person, or of any business or division
of a Person, (b) the acquisition, directly or indirectly, of in
excess of 50% of the capital stock, partnership interests or
equity of any Person or otherwise causing any Person to become
a Subsidiary of a Borrower, or (c) a merger or consolidation or
any other combination with another Person (other than a Person
that is a Subsidiary of a Borrower) provided that a Borrower or
a Borrower's Subsidiary is the surviving entity.
"AFFILIATE" means, as to any Person, any other Person
which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. A Person
shall be deemed to control another Person if the controlling
Person possesses, directly or indirectly, the power to direct
or cause the direction of the management and policies of the
other Person, whether through the ownership of voting
securities, by contract or otherwise. Without limitation, any
director, executive officer or beneficial owner of 10% or more
of the equity of a Person shall for the purposes of this
Agreement, be deemed to control the other Person. In no event
shall any Bank be deemed an "Affiliate" of a Borrower) or of
any Subsidiary of a Borrower.
"AGENT" means BofA in its capacity as agent for the
Banks hereunder, and any successor agent.
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"AGENT RELATED PERSONS" means BofA and any successor
agent arising under Section 9.09, together with their
respective Affiliates, and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.
"AGENT'S PAYMENT OFFICE" means the address for
payments set forth on the signature page hereto in relation to
the Agent or such other address as the Agent may from time to
time specify in accordance with Section 10.02.
"AGGREGATE COMMITMENT" means the combined Commitments
of the Banks, in the initial amount of $275,000,000, as such
amount may be increased pursuant to Section 2.05 or reduced
from time to time pursuant to this Agreement.
"AGREEMENT" means this Amended and Restated Credit
Agreement, as it may from time to time be supplemented,
modified, amended, renewed, or extended.
"APPLICABLE MARGIN" means, for each Pricing Period,
the following margins, expressed in basis points, over the Base
Rate and the Eurodollar Rate, as applicable, and the following
commitment fee rate per annum, in each case for the relevant
periods when the Total Leverage Ratio for such Pricing Period
is as follows:
<TABLE>
<CAPTION>
APPLICABLE MARGIN
(In basis points per annum)
Total Leverage Ratio Eurodollar Base Rate Commitment
Rate Margin Margin Fee
<S> <C> <C> <C>
Greater than 4:75:1.00 2.250 1.250 0.450
Equal to or less than 4.75:1.00, but 2.000 1.00 0.450
greater than 4.00:1.00
Equal to or less than 4.00:1.00, but 1.750 0.75 0.375
greater than 3.25:1.00
Equal to or less than 3.25:1.00, but 1.500 0.50 0.375
greater than 2.75:1.00
Equal to or less than 2.75:1.00, but 1.250 0.250 0.250
but greater than 2.25:1.00
Equal to or less than 2.25:1.00 0.750 0.000 0.225
</TABLE>
"APPRAISAL" means a real estate appraisal conducted
in accordance with the Uniform Standards of Professional
Appraisal Practice (as promulgated by the Appraisal
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Standards Board of the Appraisal Foundation) and all
Requirements of Law applicable to the Banks, and applicable
internal policies of the Agent, undertaken by an independent
appraisal firm satisfactory to the Agent and the Majority
Banks, and providing an assessment of fair market value of a
parcel of property, and taking into account any and all
Estimated Remediation Costs.
"APPRAISAL VALUE" means the appraised "as is" market
value of the Real Property, as evidenced by a certificate of an
independent appraiser selected by the Agent and determined by
an Appraisal that in the opinion of such appraiser and Majority
Banks conforms to the Agent's guidelines regarding appraisal
procedures and applicable regulations issued thereunder all as
the same may be amended, modified or superseded from time to
time.
"ASSIGNEE" has the meaning specified in Section
10.08(a).
"ASSIGNMENT AND ACCEPTANCE" has the meaning specified
in Section 10.08(a).
"ATTORNEY COSTS" means and includes all reasonable
fees and disbursements of any law firm or other external
counsel, the allocated cost of internal legal services and all
disbursements of internal counsel.
"AVAILABLE COMMITMENT" with respect to each Bank,
means an amount equal to such Bank's Commitment Percentage of
the unused portion of the Aggregate Commitment.
"BANK" means the financial institutions party to the
Agreement from time to time, whether as parties to the
Agreement as originally signed, as parties by joinder or
amendment to the Agreement or as parties by assignment pursuant
to Section 10.08 and shall mean and include the Swing Line
Bank, (collectively, "Banks").
"BANK AFFILIATE" means a Person engaged primarily in
the business of commercial banking and that is a Subsidiary of
a Bank or of a Person of which a Bank is a Subsidiary.
"BANKRUPTCY CODE" means the Federal Bankruptcy Reform
Act of 1978 (11 U.S.C. Section 101, ET SEQ.).
"BASE RATE" means the higher of:
(a) the rate of interest publicly announced
from time to time by BofA in San Francisco, California, as its
"reference rate." It is a rate set by BofA based upon various
factors including BofA'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; and
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(b) 0.50% per annum above the latest Federal
Funds Rate.
Any change in the reference rate announced by BofA
shall take effect at the opening of business on the day
specified in the public announcement of such change.
"BASE RATE LOAN" means a Loan that bears interest
based on the Base Rate.
"BOFA" means Bank of America National Trust and
Savings Association, a national banking association.
"BORROWER" means the Company or Rio Leasing
(collectively, the "Borrowers").
"BORROWERS SECURITY AGREEMENT" means the Amended and
Restated Pledge and Security Agreement executed by the Company
and Rio Leasing on the Closing Date, as it may from time to
time be supplemented, modified, amended, renewed, or extended.
"BORROWING" means a borrowing hereunder consisting of
Loans made to a Borrower on the same day by the Banks pursuant
to Article II.
"BUSINESS DAY" means any day other than a Saturday,
Sunday or other day on which commercial banks in New York City,
San Francisco, or Las Vegas, Nevada are authorized or required
by law to close and, if the applicable Business Day relates to
any Eurodollar Rate Loan, means such a day on which dealings
are carried on in the London offshore dollar interbank market.
"CAPITAL ADEQUACY REGULATION" means any guideline,
request or directive of any central bank or other Governmental
Authority, or any other law, rule or regulation, whether or not
having the force of law, in each case, regarding capital
adequacy of any bank or of any corporation controlling a bank.
"CAPITAL EXPENDITURES" means, for any period and with
respect to any Person, all expenditures by such Person and its
Subsidiaries for the acquisition or leasing of fixed or capital
assets or additions to equipment (including replacements,
capitalized repairs and improvements during such period and
including any amount which is required to be treated as an
asset subject to a Capital Lease) which should be capitalized
under GAAP on a consolidated balance sheet of such Person and
its Subsidiaries. For the purpose of this definition, the
purchase price of equipment which is purchased simultaneously
with the trade-in of existing equipment owned by such Person or
any of its Subsidiaries or with insurance proceeds shall be
included in Capital Expenditures only to the extent of the
gross amount of such purchase price less the credit granted by
the seller of such equipment for such equipment being traded in
at such time, or the amount of such proceeds, as the case may
be.
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"CAPITAL LEASE" has the meaning specified in the
definition of Capital Lease Obligations.
"CAPITAL LEASE OBLIGATIONS" means all monetary
obligations of a Borrower or any of its Subsidiaries under any
leasing or similar arrangement which, in accordance with GAAP,
is classified as a capital lease ("CAPITAL LEASE").
"CASH EQUIVALENTS" means:
(a) securities issued or fully guaranteed or
insured by the United States Government or any agency thereof
and backed by the full faith and credit of the United States
having maturities of not more than six months from the date of
acquisition;
(b) certificates of deposit, time deposits,
Eurodollar time deposits, repurchase agreements, reverse
repurchase agreements, or bankers' acceptances, having in each
case a tenor of not more than six months, issued by any Bank,
or by any U.S. commercial bank or any branch or agency of a non-
U.S. bank licensed to conduct business in the U.S. having
combined capital and surplus of not less than $100,000,000
whose short term securities are rated at least A1 by Standard &
Poor's Corporation and P1 by Moody's Investors Service, Inc.;
(c) commercial paper of an issuer rated at
least A1 by Standard & Poor's Corporation or P1 by Moody's
Investors Service Inc. and in either case having a tenor of not
more than three months.
"CERCLA" has the meaning specified in the definition
of "Environmental Laws."
"CINDERLANE" means Cinderlane, Inc., a Nevada
corporation.
"CINDERLANE PROPERTY" means that certain real
property located adjacent to the Rio Hotel and Casino described
on Schedule 1.01B, which real property is owned by Cinderlane
as of the Closing Date.
"CLOSING DATE" means the date on which all conditions
precedent set forth in Section 4.01 are satisfied or waived by
all Banks.
"CODE" means the Internal Revenue Code of 1986, as
amended from time to time and regulations promulgated
thereunder.
"COLLATERAL" means all Property and interests in
Property and proceeds thereof now owned or hereafter acquired
by any Borrower or any of its Subsidiaries in or upon which a
Lien now or hereafter exists in favor of the Banks, or the
Agent on behalf of the Banks,
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whether under this Agreement or under any other documents
executed by any such persons and delivered to the Agent or the
Banks.
"COLLATERAL DOCUMENTS" means, collectively, (i) the
Borrowers Security Agreement, the Mortgages, and all other
security agreements, pledge agreements, mortgages, deeds of
trust, patent and trademark assignments, lease assignments,
guarantees and other similar agreements between any Borrower or
any of its Subsidiaries and the Banks or the Agent for the
benefit of the Banks now or hereafter delivered to the Banks or
the Agent pursuant to or in connection with the transactions
contemplated hereby, and all financing statements (or
comparable documents now or hereafter filed in accordance with
the UCC or comparable law) against any Borrower or any of its
Subsidiaries as debtor in favor of the Banks or the Agent for
the benefit of the Banks as secured party and (ii) any
amendments, supplements, modifications, renewals, replacements,
consolidations, substitutions and extensions of any of the
foregoing.
"COMMITMENT" means, as to each Bank, the amount set
forth opposite the Bank's name in Schedule 2.01 under the
heading "Commitment" (such amount as the same may increased (at
the sole discretion of such Bank) pursuant to Section 2.05,
reduced pursuant to Sections 2.06 or 2.08 or as a result of one
or more assignments pursuant to Section 10.08).
"COMMITMENT PERCENTAGE" means, as to any Bank, the
percentage which is equal to such Bank's Commitment divided by
the Aggregate Commitment.
"COMPLETION" means, with respect to the Rio Expansion
Project, that (a) a temporary certificate of occupancy has
been issued by the Clark County Building Department; (b) a
Notice of Completion has been duly recorded; (c) all
materialmen's claims, mechanics, liens or other Liens or claims
for Liens directly related thereto (other than those created
pursuant to the Loan Documents) have been paid or satisfactory
provisions have been made for such payment; (d) certificates
have been delivered, by the project architect and project
manager and by a Responsible Officer of the Company, to the
Agent and the Banks certifying that the Rio Expansion Project
has been substantially completed in accordance with the
construction plans therefor and all applicable building laws,
ordinances and regulations; and (e) the Rio Expansion Project
is in a condition (including installation of fixtures,
furnishings and equipment) to receive customers and fully
engage in its operations in the ordinary course of business.
For the purposes of the preceding sentence, satisfactory
provision for payment of claims, Liens and claims for Liens
shall be deemed to have been made if a bond, escrow or trust
account for payment has been established with an independent
third party satisfactory to the Agent in an amount at least
equal to the total of such outstanding claims, Liens and claims
for Liens.
"COMPLIANCE CERTIFICATE" means a Certificate
substantially in the form of Exhibit D hereto.
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"COMPLETION GUARANTY" means a Guaranty Obligation
given by any Borrower or any of its Subsidiaries to a holder of
Indebtedness of, or an obligee of, any Person which obligates
any Borrower or any of its Subsidiaries (a) to cause the
completion of construction of any Person, (b) to provide
funding for all or a portion of any construction cost overruns
with respect thereto, and/or (c) to cause the Person to perform
any of its Contractual Obligations (OTHER than in respect of
the repayment of any Indebtedness or other monetary obligation
of the Person) to an obligee of the Person.
"CONSENTING BANK" has the meaning specified in
Section 2.05(c).
"CONTINGENT OBLIGATION" means, as to any Person, (a)
any Guaranty Obligation of that Person; and (b) any direct or
indirect obligation or liability, contingent or otherwise, of
that Person, (i) in respect of any letter of credit or similar
instrument issued for the account of that Person or as to which
that Person is otherwise liable for reimbursement of drawings,
(ii) to purchase any materials, supplies or other property
from, or to obtain the services of, another Person if the
relevant contract or other related document or obligation
requires that payment for such materials, supplies or other
property, or for such services, shall be made regardless of
whether delivery of such materials, supplies or other property
is ever made or tendered, or such services are ever performed
or tendered, or (iii) in respect of any Rate Contract that is
not entered into in connection with a bona fide hedging
operation that provides offsetting benefits to such Person.
The amount of any Contingent Obligation shall (subject, in the
case of Guaranty Obligations, to the last sentence of the
definition of "Guaranty Obligation") be deemed equal to the
maximum reasonably anticipated liability in respect thereof,
and shall, with respect to item (b)(iii) of this definition, be
marked to market on a current basis.
"CONTRACTUAL OBLIGATIONS" means, as to any Person,
any provision of any security issued by such Person or of any
agreement, undertaking, contract, indenture, mortgage, deed of
trust or other instrument, document or agreement to which such
Person is a party or by which it or any of its property is
bound.
"CONTROLLED GROUP" means the Company and all Persons
(whether or not incorporated) under common control or treated
as a single employer with the Company pursuant to Section
414(b), (c), (m) or (o) of the Code.
"CONVERSION DATE" means any date on which a Borrower
elects to convert a Base Rate Loan to an Eurodollar Rate Loan;
or an Eurodollar Rate Loan to a Base Rate Loan.
"DEED OF TRUST" means one or more deeds of trust
covering the Real Property, as any such deed of trust may be
modified, supplemented, amended, renewed or extended from time
to time.
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"DEFAULT" means any event or circumstance which, with
the giving of notice, the lapse of time, or both, would (if not
cured or otherwise remedied during such time) constitute an
Event of Default.
"DISPOSITION" means (i) the sale, lease, conveyance
or other disposition of Property, other than sales or other
dispositions expressly permitted under Section 7.02(a) or
7.02(b), and (ii) the sale or transfer by any Borrower or any
of its Subsidiaries of any equity securities issued by any
Subsidiary of a Borrower and held by such transferor Person.
"DOLLARS", "DOLLARS" and "$" each mean lawful money
of the United States.
"DOMESTIC LENDING OFFICE" means, with respect to each
Bank, the office of that Bank designated as such in the
signature pages hereto or such other office of the Bank as it
may from time to time specify to the Company and the Agent.
"EBITDA" means, for any period, for the Borrowers and
their respective Restricted Subsidiaries on a combined basis,
determined in accordance with GAAP, the sum of (a) the net
income (or net loss) PLUS (b) all amounts treated as expenses
for depreciation and interest and the amortization of
intangibles of any kind to the extent included in the
determination of such net income (or loss), PLUS (c) all
accrued taxes on or measured by income to the extent included
in the determination of such net income (or loss) , adjusted by
adding thereto any Pre-Opening Expenses attributable to any New
Venture; PROVIDED, HOWEVER, that net income (or loss) shall be
computed for these purposes without giving effect to
extraordinary losses or extraordinary gains.
"ELIGIBLE ASSIGNEE" means (i) a commercial bank
organized under the laws of the United States, or any state
thereof, and having a combined capital and surplus of at least
$100,000,000; (ii) a commercial bank organized under the laws
of any other country which is a member of the Organization for
Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such country, and having a
combined capital and surplus of at least $100,000,000, provided
that such bank is acting through a branch or agency located in
the United States; and (iii) any Bank Affiliate.
"ENVIRONMENTAL CLAIMS" means all claims, however
asserted, by any Governmental Authority or other Person
alleging potential liability or responsibility for violation of
any Environmental Law or for release or injury to the
environment or threat to public health, personal injury
(including sickness, disease or death), property damage,
natural resources damage, or otherwise alleging liability or
responsibility for damages (punitive or otherwise), cleanup,
removal, remedial or response costs, restitution, civil or
criminal penalties, injunctive relief, or other type of relief,
resulting from or based upon (a) the presence, placement,
discharge, emission or release (including intentional and
unintentional, negligent and non-negligent, sudden or non-
sudden, accidental or non-accidental placement, spills, leaks,
discharges, emissions or releases) of any Hazardous Material
at, in, or from
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<PAGE>
Property, whether or not owned by a Borrower, or (b) any other
circumstances forming the basis of any violation, or alleged
violation, of any Environmental Law.
"ENVIRONMENTAL LAWS" means all federal, state or
local laws, statutes, common law duties, rules, regulations,
ordinances and codes, together with all administrative orders,
directed duties, requests, licenses, authorizations and permits
of, and agreements with, any Governmental Authorities, in each
case relating to environmental, health, safety and land use
matters; including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"), the Clean
Air Act, the Federal Water Pollution Control Act of 1972, the
Solid Waste Disposal Act, the Federal Resource Conservation and
Recovery Act, the Toxic Substances Control Act, the Emergency
Planning and Community Right to Know Act, the Endangered
Species Act, and any applicable law of the State of Nevada, and
the rules regulations and ordinances of Clark County, Nevada.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and regulations
promulgated thereunder.
"ERISA AFFILIATE" means any trade or business
(whether or not incorporated) under common control with the
Company within the meaning of Section 414(b), 414(c) or 414(m)
of the Code.
"ERISA EVENT" means (a) a Reportable Event with
respect to a Qualified Plan or a Multiemployer Plan; (b) a
withdrawal by the Company or any ERISA Affiliate from a
Qualified Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA); (c) a complete or partial
withdrawal by the Company or any ERISA Affiliate from a
Multiemployer Plan; (d) the filing of a notice of intent to
terminate, the treatment of a plan amendment as a termination
under Section 4041 or 4041A of ERISA or the commencement of
proceedings by the PBGC to terminate a Qualified Plan or
Multiemployer Plan subject to Title IV of ERISA; (e) a failure
by the Company or any member of the Controlled Group to make
required contributions to a Qualified Plan or Multiemployer
Plan; (f) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to
administer, any Qualified Plan or Multiemployer Plan; (g) the
imposition of any liability under Title IV of ERISA, other than
PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon the Company or any ERISA Affiliate; (h) an
application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code with
respect to any Plan; (i) a non-exempt prohibited transaction
occurs with respect to any Plan for which the Company or any
Subsidiary of the Company may be directly or indirectly liable;
or (j) a violation of the applicable requirements of Section
404 or 405 of ERISA or the exclusive benefit rule under Section
401(a) of the Code by any fiduciary or disqualified person with
respect to any Plan for which the Company or any member of the
Controlled Group may be directly or indirectly liable.
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"ESTIMATED REMEDIATION COST" means all costs
associated with performing work to remediate contamination of
real property or groundwater, including engineering and other
professional fees and expenses, costs to remove, transport and
dispose of contaminated soil, costs to "cap" or otherwise
contain contaminated soil, and costs to pump and treat water
and monitor water quality.
"EURODOLLAR LENDING OFFICE" means with respect to
each Bank, the Office of such Bank designated as such in the
signature pages hereto or such other office of such Bank as
such bank may from time to time specify to the Company and the
Agent.
"EURODOLLAR RATE" means, for each Interest Period in
respect of Eurodollar Rate Loans comprising part of the same
Borrowing, an interest rate per annum (rounded upward to the
nearest 1/16th of 1%) determined pursuant to the following
formula:
Eurodollar Rate = LIBOR
1.00 MINUS Eurodollar Reserve Percentage
The Eurodollar Rate shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve
Percentage.
"EURODOLLAR RATE LOAN" means a Loan that bears
interest based on the Eurodollar Rate.
"EURODOLLAR RESERVE PERCENTAGE" means the maximum
reserve percentage (expressed as a decimal, rounded upward to
the nearest 1/100th of 1%) in effect on the date LIBOR for such
Interest Period is determined (whether or not applicable to any
Bank) under regulations issued from time to time by the Federal
Reserve Board for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding
(currently referred to as "Eurocurrency liabilities") having a
term comparable to such Interest Period; and
"EVENT OF DEFAULT" means any of the events or
circumstances specified in Section 8.01.
"EVENT OF LOSS" means, with respect to any Property,
any of the following: (a) any loss, destruction or damage of
such Property; (b) any pending or threatened institution of any
proceedings for the condemnation or seizure of such Property or
for the exercise of any right of eminent domain; or (c) any
actual condemnation, seizure or taking, by exercise of the
power of eminent domain or otherwise, of such Property, or
confiscation of such Property or the requisition of the use of
such Property.
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"EXCHANGE ACT" means the Securities and Exchange Act
of 1934, and regulations promulgated thereunder.
"EXISTING CREDIT AGREEMENT" means the Credit
Agreement dated as of July 15, 1993 referred to in the preamble
hereto, as amended through the date of this Agreement.
"FEDERAL FUNDS RATE" means, for any period, the rate
set forth in the weekly statistical release designated as
H.15(519), or any successor publication, published by the
Federal Reserve Board (including any such successor,
"H.15(519)") for such day opposite the caption "Federal Funds
(Effective)". If on any relevant day such rate is not yet
published in H.15(519), the rate for such day will be the rate
set forth in the daily statistical release designated as the
Composite 3:30 p.m. Quotations for U.S. Government Securities,
or any successor publication, published by the Federal Reserve
Bank of New York (including any such successor, the "Composite
3:30 p.m. Quotation") for such day under the caption "Federal
Funds Effective Rate". If on any relevant day the appropriate
rate for such previous day is not yet published in either
H.15(519) or the Composite 3:30 p.m. Quotations, the rate for
such day will be the arithmetic mean of the rates for the last
transaction in overnight Federal funds arranged prior to 9:00
a.m. (New York time) on that day by each of three leading
brokers of Federal funds transactions in New York City selected
by the Agent.
"FEDERAL RESERVE BOARD" means the Board of Governors
of the Federal Reserve System, or any successor thereto.
"FUNDED DEBT" means, as of any date of determination,
without duplication, the sum of (a) all principal Indebtedness
of the Borrowers and their respective Restricted Subsidiaries
on a combined basis for borrowed money (including debt
securities issued by any Borrower or any of its Restricted
Subsidiaries) on that date, PROVIDED, HOWEVER, that the
Company's obligations under the Guaranty Obligations permitted
under Section 7.08(f) shall not be included in this definition
unless and until a demand is made under such Guaranty
Obligations by a Person entitled to make demand thereunder,
PLUS (b) the aggregate amount of all monetary obligations of
the Borrowers and their respective Restricted Subsidiaries on a
combined basis in respect of Capital Leases on that date, PLUS
(c) the aggregate undrawn face amount of all letters of credit
(other than letters of credit supporting workers compensation
obligations and permitted pursuant to Section 7.08(d)) for
which any Borrower or any of its Restricted Subsidiaries is the
account party but which have not been drawn as of the date of
determination, PLUS the aggregate amounts on which a drawing
has been received or paid by an issuing bank under any such
letter of credit which drawing or payment has not been
reimbursed to the issuing bank by any Borrower or any of its
Restricted Subsidiaries as of the date of determination, all as
determined in accordance with GAAP.
"GAAP" means generally accepted accounting principles
set forth from time to time in the opinions and pronouncements
of the Accounting Principles Board and the American Institute
of Certified Public Accountants and statements and
pronouncements of the
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<PAGE>
Financial Accounting Standards Board (or agencies with similar
functions of comparable stature and authority within the
accounting profession), or in such other statements by such
other entity as may be in general use by significant segments
of the U.S. accounting profession, which are applicable to the
circumstances as of the date of determination.
"GAMING AUTHORITIES" means, without limitation, the
Nevada Gaming Commission, the Nevada State Gaming Control
Board, the Clark County Liquor and Gaming Licensing Board and
any other applicable governmental or administrative state or
local agency, authority, board, bureau, commission, department
or instrumentality of any nature whatsoever involved in the
supervision or regulation of casinos or gaming and gaming
activities in the County of Clark, Nevada and State of Nevada.
"GAMING LAWS" means all Requirements of Law pursuant
to which a Gaming Authority possesses licensing or permit
authority over gambling, gaming, or casino activities conducted
by a Borrower within its jurisdiction.
"GOVERNMENTAL AUTHORITY" means any nation or
government, any state or other political subdivision thereof,
any central bank (or similar monetary or regulatory authority)
thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity
owned or controlled, through stock or capital ownership or
otherwise, by any of the foregoing.
"GUARANTOR" means the Parent, each Subsidiary of
Parent (other than the Unrestricted Subsidiaries) and any other
Person that hereafter delivers a Guaranty (collectively
"Guarantors").
"GUARANTY" means the Parent Guaranty, the Subsidiary
Guaranties executed by HLG, Inc. and Cinderlane on the Closing
Date, and any other any guaranty of all or any part of the
Obligations delivered by any Subsidiary of a Borrower or by any
other Person, as such document may from time to time be
supplemented, modified, amended, renewed, or extended
(collectively the "Guaranties").
"GUARANTY OBLIGATION" means, as applied to any
Person, any direct or indirect liability of that Person with
respect to any Indebtedness, lease, dividend, letter of credit
or other obligation (the "primary obligations") of another
Person (the "primary obligor"), including any obligation of
that Person, whether or not contingent, (a) to purchase,
repurchase or otherwise acquire such primary obligations or any
property constituting direct or indirect security therefor, or
(b) to advance or provide funds (i) for the payment or
discharge of any such primary obligation, or (ii) to maintain
working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency or any balance
sheet item, level of income or financial condition of the
primary obligor, or (c) to purchase property, securities or
services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor
to make payment of such primary obligation, or (d) otherwise to
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assure or hold harmless the holder of any such primary
obligation against loss in respect thereof. The amount of any
Guaranty Obligation shall be deemed equal to the stated or
determinable amount of the primary obligation in respect of
which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in
respect thereof. The amount of any Guaranty Obligation
consisting of a Completion Guaranty shall be deemed to be zero
unless and until any Borrower or any of its Subsidiaries has
determined, or in good faith should determine based on all
information then available to it, that performance by any
Borrower or any of its Subsidiaries of its obligations under
the Completion Guaranty is at least reasonably possible (within
the meaning of such term under Financial Accounting Standards
Board Statement No. 5) and, notwithstanding the preceding
sentence, if such performance is at least reasonably possible
the amount thereof shall, if not stated or determinable, be
deemed the reasonably anticipated liability in respect thereof
as determined by any Borrower or any of its Subsidiaries in
good faith.
"HAZARDOUS MATERIALS" means all those substances
which are regulated by, or which may form the basis of
liability under, any Environmental Law, including all
substances identified under any Environmental Law as a
pollutant, contaminant, hazardous waste, hazardous constituent,
special waste, hazardous substance, hazardous material, or
toxic substance, or petroleum or petroleum derived substance or
waste.
"HLG" means HLG, Inc., a Nevada corporation, a
wholly-owned Subsidiary of the Parent.
"INDEBTEDNESS" of any Person means, without
duplication, (a) all indebtedness for borrowed money; (b) all
obligations issued, undertaken or assumed as the deferred
purchase price of property or services (other than trade
payables entered into in the ordinary course of business
pursuant to ordinary terms); (c) all reimbursement obligations
with respect to surety bonds, letters of credit, bankers'
acceptances and similar instruments (in each case, to the
extent material or non-contingent); (d) all obligations
evidenced by notes, bonds, debentures or similar instruments,
including obligations so evidenced incurred in connection with
the acquisition of property, assets or businesses; (e) all
indebtedness created or arising under any conditional sale or
other title retention agreement, or incurred as financing, in
either case with respect to Property acquired by the Person
(even though the rights and remedies of the seller or bank
under such agreement in the event of default are limited to
repossession or sale of such property); (f) all Capital Lease
Obligations; (g) all net obligations with respect to Rate
Contracts; (h) all indebtedness referred to in clauses (a)
through (g) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to
be secured by) any Lien upon or in Property (including accounts
and contracts rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such
Indebtedness; and (i) all Guaranty Obligations in respect of
indebtedness or obligations of others of the kinds referred to
in clauses (a) through (g) above.
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<PAGE>
"INDEMNIFIED LIABILITIES" has the meaning specified
in Section 10.05(a).
"INDEMNIFIED PERSON" has the meaning specified in
Section 10.05(a).
"INSOLVENCY PROCEEDING" means (a) any case, action or
proceeding before any court or other Governmental Authority
relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief of
debtors, or (b) any general assignment for the benefit of
creditors, composition, marshaling of assets for creditors or
other, similar arrangement in respect of its creditors
generally or any substantial portion of its creditors; in each
case (a) and (b) undertaken under U.S. Federal, State or
foreign law, including the Bankruptcy Code.
"INTANGIBLE ASSETS" means assets that are considered
intangible assets under GAAP, including customer lists,
goodwill, computer software, copyrights, trade names,
trademarks and patents.
"INTEREST COVERAGE RATIO" means, as of the last day
of each fiscal quarter, the ratio of (a) EBITDA for the fiscal
period consisting of that fiscal quarter and the three
immediately prior fiscal quarters less the sum of (i)
Maintenance Capital Expenditures made by the Borrowers and
their respective Restricted Subsidiaries during such fiscal
period, and (ii) cash payments of federal, state (if any) or
local income taxes (and including all payments of alternative
minimum tax) made by the Borrowers and their respective
Restricted Subsidiaries during such fiscal period TO (b) cash
Interest Expense, including capitalized Interest Expense during
such period.
"INTEREST EXPENSE" means, for any period, the sum of
(a) gross interest expense for the period (including all
commissions, discounts, fees and other charges in connection
with standby letters of credit and similar instruments) for the
Borrowers and their respective Restricted Subsidiaries and for
the Parent with respect to the Parent Senior Subordinated
Notes, PROVIDED, HOWEVER, that the Company's obligations under
the Guaranty Obligations permitted under Section 7.08(f) shall
not be included in this definition unless and until a demand is
made under such Guaranty Obligations by a Person entitled to
make demand thereunder, PLUS (b) the portion of the upfront
costs and expenses for Rate Contracts (to the extent not
included in gross interest expense) fairly allocated to such
Rate Contracts as expenses for such period, PLUS (c) the
portions of rent payable with respect to that fiscal period
under Capital Leases that should be treated as interest in
accordance with GAAP LESS interest income for that period and
Rate Contracts payments received as determined in accordance
with GAAP.
"INTEREST PAYMENT DATE" means, with respect to any
Eurodollar Rate Loan, the last day of each Interest Period
applicable to such Loan and, with respect to Base Rate Loans,
the last Business Day of each calendar month and each date a
Base Rate Loan is converted into an Eurodollar Rate Loan;
PROVIDED, HOWEVER, that if any Interest Period for an
Eurodollar
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Rate Loan exceeds three months, interest shall also be paid on
the date which falls three months after the beginning of such
Interest Period.
"INTEREST PERIOD" means, with respect to any
Eurodollar Rate Loan, the period commencing on the Business Day
the Loan is disbursed or continued or on the Conversion Date on
which the Loan is converted to the Eurodollar Rate Loan and
ending on the date one, two, three or six months thereafter, as
selected by a Borrower in its Notice of Borrowing or Notice of
Conversion/Continuation;
PROVIDED THAT:
(i) if any Interest Period pertaining to an
Eurodollar Rate Loan would otherwise end on a day which is not
a Business Day, that Interest Period shall be extended to the
next succeeding Business Day unless, in the case of an
Eurodollar Rate Loan, the result of such extension would be to
carry such Interest Period into another calendar month, in
which event such Interest Period shall end on the immediately
preceding Business Day;
(ii) any Interest Period pertaining to an
Eurodollar Rate Loan 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 end on the last Business Day of the
calendar month at the end of such Interest Period;
(iii) no Interest Period shall extend beyond any
Reduction Date unless, giving effect to the Loan for which that
Interest Period has been requested, the aggregate principal
amount of the Loans having Interest Periods ending prior to
such Reduction Date will not exceed the Aggregate Commitment
(after giving effect to the reduction therein on such Reduction
Date); and
(iv) no Interest Period for any Loan shall
extend beyond the Maturity Date.
"JOINT VENTURE" means a partnership, joint venture or
other legal arrangement (whether created pursuant to contract
or conducted through a separate legal entity) now or hereafter
formed by any Borrower or any of its Subsidiaries with another
Person in order to conduct a common venture or enterprise with
such Person.
"LENDING OFFICE" means, with respect to any Bank, the
office or offices of the Bank specified as its "Lending Office"
or "Domestic Lending Office" or "Eurodollar Lending Office", as
the case may be, opposite its name on the applicable signature
page hereto, or such other office or offices of the Bank as it
may from time to time notify the Company and the Agent.
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"LIBOR" means the rate of interest per annum
determined by the Agent to be the rate of interest at which
dollar deposits in the approximate amount of BofA's pro rata
share of the Loan to be made or continued as, or converted
into, a Eurodollar Rate Loan and having a maturity comparable
to such Interest Period would be offered by BofA's London
Branch to major banks in the London interbank market at their
request at or about 11:00 a.m. (London time) on the second
Business Day prior to the commencement of such Interest Period.
"LICENSE REVOCATION" means the revocation of, or
failure to renew, a casino, gambling or gaming license issued
by any Gaming Authority to any Borrower or any of its
Subsidiaries.
"LIEN" means any mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other) or preference, priority
or other security interest or preferential arrangement of any
kind or nature whatsoever (including those created by, arising
under or evidenced by any conditional sale or other title
retention agreement, the interest of a lessor under a Capital
Lease Obligation, any financing lease having substantially the
same economic effect as any of the foregoing, or the filing of
any financing statement naming the owner of the asset to which
such lien relates as debtor, under the UCC or any comparable
law) and any contingent or other agreement to provide any of
the foregoing, but not including the interest of a lessor under
an Operating Lease.
"LOAN" means the extensions of credit to be made by
each Bank described in Section 2.01.
"LOAN" means an extension of credit by a Bank to a
Borrower pursuant to Article II, and may be a Base Rate Loan or
an Eurodollar Rate Loan.
"LOAN DOCUMENTS" means the Agreement, the Notes, the
Collateral Documents, the Parent Guaranty, any Subsidiary
Guaranties, the Parent Collateral Documents, the Subsidiary
Collateral Documents, the Swing Line Documents, any Notice of
Borrowing and all certificates, agreements or documents of any
type or nature heretofore or hereafter delivered to the Agent
in connection therewith and all Rate Contracts between a
Borrower and any of the Banks.
"LOAN PARTIES" means the Parent, each Borrower,
Cinderlane and any other Affiliate or Subsidiary of any of the
foregoing executing and delivering any Loan Document from time
to time (individually, a "Loan Party").
"MAINTENANCE CAPITAL EXPENDITURES" means a Capital
Expenditure for the maintenance, repair, restoration or
refurbishment of any component of the Rio Hotel and Casino
(including after completion thereof, the Rio Expansion
Project), but
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EXCLUDING any Capital Expenditure which adds to or further
improves any such property.
"MAJORITY BANKS" means at any time Banks then holding
at least 66 2/3% of the then aggregate unpaid principal amount
of the Loans, or, if no such principal amount is then
outstanding, Banks then having at least 66 2/3% of the
Aggregate Commitment.
"MARGIN STOCK" means "margin stock" as such term is
defined in Regulation G, T, U or X of the Federal Reserve
Board.
"MATERIAL ADVERSE EFFECT" means (a) a material
adverse change in, or a material adverse effect upon, the
operations, business, properties, condition (financial or
otherwise) or prospects of a Borrower or the Borrowers and
their respective Subsidiaries taken as a whole; (b) a material
impairment of the ability of a Borrower or the Parent to
perform under any Loan Document and avoid any Event of Default;
or (c) a material adverse effect upon (i) the legality,
validity, binding effect or enforceability of any Loan
Document, or (ii) the perfection or priority of any Lien
granted to the Banks or to the Agent for the benefit of the
Banks under any of the Collateral Documents, the Parent
Collateral Documents or the Subsidiary Collateral Documents.
"MATURITY DATE" means December 31, 2003 or such
earlier date upon which the Aggregate Commitment shall
terminate in accordance with the provisions of this Agreement.
"MORTGAGE" means the Deed of Trust and any other deed
of trust, mortgage or other document creating a Lien on the
Real Property or any interest in the Real Property.
"MULTIEMPLOYER PLAN" means a "multiemployer plan"
(within the meaning of Section 4001(a)(3) of ERISA) and to
which any member of the Controlled Group makes, is making, or
is obligated to make contributions or, during the preceding
three calendar years, has made, or been obligated to make,
contributions.
"NEGATIVE PLEDGE" means any covenant binding on a
Person that prohibits the creation of Liens on any Property
thereof, except a covenant contained in an instrument creating
a Permitted Lien or Permitted Right of Others on Property that
prohibits the creation of other Liens on that Property and no
other Property of such Person.
"NET INCOME" means, with respect to any fiscal
period, the combined net income of the Borrowers and their
respective Subsidiaries for that period, determined in
accordance with GAAP.
"NEW VENTURE" means a casino, hotel, casino/hotel,
resort, casino/resort, riverboat casino, dockside casino, golf
course, entertainment center or similar facility (or any
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site or proposed site for any of the foregoing) directly or
indirectly owned or to be owned by the Parent or any of its
Subsidiaries.
"NEW PROJECT ENTITIES" means one or more Persons
formed by Parent or any of its Subsidiaries following the
Closing Date for the exclusive purpose of developing all or any
portion of the Cinderlane Property. A New Project Entity may
be designated by Borrowers as an Unrestricted Subsidiary at the
time of its acquisition or formation in accordance with Section
6.13.
"NOTE" means a promissory note of a Borrower payable
to the order of a Bank in substantially the form of Exhibit A,
evidencing the aggregate indebtedness of such Borrower to such
Bank resulting from Loans made by such Bank.
"NOTICE OF BORROWING" means a notice given by a
Borrower to the Agent pursuant to Section 2.03, in
substantially the form of Exhibit B.
"NOTICE OF CONVERSION/CONTINUATION" means a notice
given by a Borrower to the Agent pursuant to Section 2.04, in
substantially the form of Exhibit C.
"NOTICE OF LIEN" means any "notice of lien" or
similar document intended to be filed or recorded with any
court, registry, recorder's office, central filing office or
other Governmental Authority for the purpose of evidencing,
creating, perfecting or preserving the priority of a Lien
securing obligations owing to a Governmental Authority.
"OBLIGATIONS" means all Loans, and other
Indebtedness, advances, debts, liabilities, obligations,
covenants and duties owing by the Loan Parties to the Banks,
the Swing Line Bank, the Agent, or any other Person required to
be indemnified under any Loan Document, of any kind or nature,
present or future, whether or not evidenced by any note,
guaranty or other instrument, arising under this Agreement,
under any other Loan Document, or in respect of any Rate
Contract, whether or not for the payment of money, whether
arising by reason of an extension of credit, loan, guaranty,
indemnification or in any other manner, whether direct or
indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter
arising and however acquired, including any interest which
arises after the commencement of any proceeding under the
United States federal Bankruptcy Reform Act of 1986 or any
similar statute providing for debtor relief with respect to any
Loan Party.
"OPERATING LEASE" means, as applied to any Person,
any lease of Property which is not a Capital Lease.
"ORDINARY COURSE OF BUSINESS" means, in respect of
any transaction involving any Borrower or any of its respective
Subsidiaries, the ordinary course of such Person's business, as
conducted by any such Person in accordance with casino industry
practice in Las
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Vegas, Nevada, undertaken by such Person in good faith and not
for purposes of evading any covenant or restriction in any Loan
Document.
"ORGANIZATION DOCUMENTS" means, for any corporation,
the certificate or articles of incorporation, the bylaws, any
certificate of determination or instrument relating to the
rights of preferred shareholders of such corporation, and all
applicable resolutions of the board of directors (or any
committee thereof) of such corporation.
"OTHER TAXES" has the meaning specified in Section
3.01(b).
"PARENT" means Rio Hotel and Casino, Inc., a Nevada
corporation.
"PARENT COLLATERAL" means all Property and interests
in Property and proceeds thereof now owned or hereafter
acquired by the Parent in or upon which a Lien now or hereafter
exists in favor of the Banks, or the Agent on behalf of the
Banks, whether under this Agreement or under any other
documents executed by any such persons and delivered to the
Agent or the Banks.
"PARENT COLLATERAL DOCUMENTS" means, collectively,
(i) the Parent Security Agreement, and all other security
agreements, pledge agreements, mortgages, deeds of trust,
patent and trademark assignments, lease assignments, guarantees
and other similar agreements between the Parent and the Banks
or the Agent for the benefit of the Banks now or hereafter
delivered to the Banks or the Agent pursuant to or in
connection with the transactions contemplated hereby, and all
financing statements (or comparable documents now or hereafter
filed in accordance with the UCC or comparable law) against the
Parent as debtor in favor of the Banks or the Agent for the
benefit of the Banks as secured party and (ii) any amendments,
supplements, modifications, renewals, replacements,
consolidations, substitutions and extensions of any of the
foregoing.
"PARENT GUARANTY" means the Rio Hotel and Casino,
Inc. Amended and Restated Guaranty executed by Parent on the
Closing Date with respect to the Obligations of Borrowers
hereunder, as it may from time to time be supplemented,
modified, amended, renewed, or extended.
"PARENT SECURITY AGREEMENT" means the Amended and
Restated Parent Pledge and Security Agreement executed by
Parent on the Closing Date to secure its obligations under the
Parent Guaranty, as it may from time to time be supplemented,
modified, amended, renewed, or extended.
"PARENT SENIOR SUBORDINATED NOTES" means (a) the
$100,000,000 10-5/8% Senior Subordinated Notes Due 2005 issued
by the Parent, (b) the $125,000,000 9-1/2% Senior Subordinated
Notes Due 2007 issued by Parent, and (c) other senior
subordinated indebtedness incurred pursuant to Section 7.05(g).
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"PARTICIPANT" has the meaning specified in Section
10.08(d).
"PBGC" means the Pension Benefit Guaranty Corporation
or any entity succeeding to any or all of its functions under
ERISA.
"PERMITTED LIENS" has the meaning specified in
Section 7.01.
"PERMITTED RIGHT OF OTHERS" means a Right of Others
consisting of (a) an interest (other than a legal or equitable
co-ownership interest, an option or right to acquire a legal or
equitable co-ownership interest and any interest of a ground
lessor under a ground lease) that does not materially impair
the value or use of property for the purposes for which it is
or may reasonably be expected to be held and does not impair
the security interest of the Banks in such Property, (b) an
option or right to acquire a Lien that would be a Permitted
Lien, and (c) the reversionary interest of a landlord under a
lease of Property.
"PERSON" means an individual, partnership,
corporation, business trust, joint stock company, limited
liability company, trust, unincorporated association, joint
venture or Governmental Authority.
"PLAN" means an employee benefit plan (as defined in
Section 3(3) of ERISA) which the Company or any member of the
Controlled Group sponsors or maintains or to which the Company
or any member of the Controlled Group makes, is making or is
obligated to make contributions, and includes any Multiemployer
Plan or Qualified Plan.
"PLEDGED COLLATERAL" has the meaning specified in the
Parent Security Agreement.
"PRE-OPENING EXPENSES" means, with respect to any
fiscal period, the amount of expenses (other than Interest
Expense) classified as "pre-opening expenses" on the applicable
financial statements of the Parent and its Subsidiaries for
such period, prepared in accordance with GAAP.
"PRICING PERIOD" means, with respect to the last day
of each calendar month (as of which a Total Leverage Ratio is
determined), the one (1) calendar month period commencing on
the first day of the third calendar month to commence after
such day.
"PROJECTIONS" means the financial projections dated
as of October 21, 1997, contained in the Confidential
Information Memorandum to the Banks.
"PROPERTY" means any estate or interest in any kind
of property or asset, whether real, personal or mixed, and
whether tangible or intangible.
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"QUALIFIED PLAN" means a pension plan (as defined in
Section 3(2) of ERISA) intended to be tax-qualified under
Section 401(a) of the Code and which any member of the
Controlled Group sponsors, maintains, or to which it makes, is
making or is obligated to make contributions, or in the case of
a multiple employer plan (as described in Section 4064(a) of
ERISA) has made contributions at any time during the
immediately preceding period covering at least five (5) plan
years, but excluding any Multiemployer Plan.
"RATE CONTRACTS" means interest rate and currency
swap agreements, cap, floor and collar agreements, interest
rate insurance, currency spot and forward contracts and other
agreements or arrangements designed to provide protection
against fluctuations in interest or currency exchange rates.
"REAL PROPERTY" means all of the Loan Parties' right,
title and interest, whether now existing or hereafter acquired,
in and to the real property described in Schedule 1.01A
together with all easements and other rights now or hereafter
made appurtenant thereto, all improvements and fixtures now or
hereafter located thereon, and all additions and accretions
thereto.
"REDUCTION AMOUNT" means, as to each Reduction Date,
(a) which occurs prior to any increase in the Aggregate
Commitment under Section 2.05, $15,000,000, or (b) following
any increase to the Aggregate Commitment pursuant to Section
2.05, an amount equal to (i) the Aggregate Commitment as of the
date of such increase MINUS $50,000,000 DIVIDED BY (ii) the
then remaining number of Reduction Dates which will occur prior
to the Maturity Date.
"REDUCTION DATE" means March 31, 2000 and the last
day of each calendar quarter thereafter until the Maturity
Date.
"REPORTABLE EVENT" means, as to any Plan, (a) any of
the events set forth in Section 4043(b) of ERISA or the
regulations thereunder, other than any such event for which the
30-day notice requirement under ERISA has been waived in
regulations issued by the PBGC, (b) a withdrawal from a Plan
described in Section 4063 of ERISA, or (c) a cessation of
operations described in Section 4062(e) of ERISA.
"REQUIREMENT OF LAW" means, (i) as to any Person, any
law (statutory or common), treaty, rule or regulation or
determination of an arbitrator or of a Governmental Authority,
in each case applicable to or binding upon the Person or any of
its property or to which the Person or any of its property is
subject, and (ii) as to the Real Property, all laws,
ordinances, regulations, orders, building codes, restrictions
and requirements of, and all agreements with and commitments
to, all governmental judicial or legal authorities having
jurisdiction over the Real Property.
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"RESPONSIBLE OFFICER" means, for any Person, the
chief executive officer or the president or any other officer
having substantially the same authority and responsibility; or,
with respect to compliance with financial covenants by any
Person or financial reporting by such Person, the chief
financial officer or the treasurer of such Person, or any other
officer having substantially the same authority and
responsibility, and with respect to delivery of Notices of
Borrowing, any of the foregoing officers of such Person or
other individuals designated in writing by any one of such
officers.
"RESTRICTED SUBSIDIARY" means each Subsidiary of
Parent which is not an Unrestricted Subsidiary.
"RIGHT OF OTHERS" means, as to any Property in which
a Person has an interest, any legal or equitable right, title
or other interest (other than a Lien) held by any other Person
in that Property, and any option or right held by any other
Person to acquire any such right, title or other interest in
that Property, INCLUDING any option or right to acquire a Lien;
PROVIDED, however, that (a) any covenant restricting the use or
disposition of Property of such Person contained in any
Contractual Obligation of such Person and (b) any provision
contained in a contract creating a right of payment or
performance in favor of a Person that conditions, limits,
restricts, diminishes, transfers or terminates such right,
shall not be deemed to constitute a Rights of Others.
"RIO DEVELOPMENT" means Rio Development Company,
Inc., a Nevada corporation, a wholly-owned Unrestricted
Subsidiary of the Parent.
"RIO EXPANSION PROJECT" means the proposed expansion
to the existing Rio Hotel and Casino described on Schedule
1.01C.
"RIO LEASING" means Rio Leasing, Inc., a Nevada
corporation.
"RIO RESORTS" means Rio Resort Properties, Inc., a
Nevada corporation, a wholly-owned Unrestricted Subsidiary of
the Parent.
"RIO SECCO GOLF COURSE" means the Rio Secco Golf
Course, formerly known as the Seven Hills Golf Course, a golf
course in Henderson, Nevada owned by Rio Development, together
with all related improvements, equipment and fixtures.
"SEC" means the Securities and Exchange Commission,
or any successor thereto.
"SENIOR INDEBTEDNESS" means Indebtedness that is not
subordinated to the Obligations on terms and conditions
satisfactory to the Agent and the Majority Banks.
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"SENIOR LEVERAGE RATIO" means, as of the last day of
each fiscal quarter, the ratio of (a) the average outstanding
principal amount of the Senior Indebtedness of the Borrowers
and their combined Restricted Subsidiaries which constitutes
Funded Debt as of the last day of that fiscal quarter
(determined by averaging all such Senior Indebtedness of the
Borrowers and their combined Restricted Subsidiaries as of the
last date of each of the three-months constituting the fiscal
quarter ending on that date using the Senior Indebtedness
reported for each such month pursuant to Section 6.01(c)) TO
(b) EBITDA for the four fiscal quarter period ending on that
date:
"SHAREHOLDERS' EQUITY" means, as of any date of
determination and with respect to any Person, the consolidated
shareholders' equity of the Person as of that date determined
in accordance with GAAP.
"SOLVENT" means, as to any Person at any time, that
(a) the fair value of the Property of such Person is greater
than the amount of such Person's liabilities (including
disputed, contingent and unliquidated liabilities) as such
value is established and liabilities evaluated for purposes of
Section 101(31) of the Bankruptcy Code and, in the alternative,
for purposes of the Nevada Uniform Fraudulent Transfer Act; (b)
the present fair saleable value of the Property of such Person
is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become
absolute and matured; (c) such Person is able to realize upon
its Property and pay its debts and other liabilities (including
disputed, contingent and unliquidated liabilities) as they
mature in the normal course of business; (d) such Person does
not intend to, and does not believe that it will, incur debts
or liabilities beyond such Person's ability to pay as such
debts and liabilities mature; and (e) such Person is not
engaged in business or a transaction, and is not about to
engage in business or a transaction, for which such Person's
property would constitute unreasonably small capital.
"SUBSIDIARY" of a Person means any corporation,
association, partnership, joint venture or other business
entity of which more than 50% of the voting stock or other
equity interests (in the case of Persons other than
corporations), is owned or controlled directly or indirectly by
the Person, or one or more of the Subsidiaries of the Person,
or a combination thereof.
"SUBSIDIARY COLLATERAL" means all Property and
interests in Property and proceeds thereof now owned or
hereafter acquired by the Guarantors other than Parent in or
upon which a Lien now or hereafter exists in favor of the
Banks, or the Agent on behalf of the Banks, whether under this
Agreement or under any other documents executed by any such
persons and delivered to the Agent or the Banks.
"SUBSIDIARY COLLATERAL DOCUMENTS" means,
collectively, (i) the Subsidiary Security Agreement and all
other security agreements, pledge agreements, mortgages, deeds
of trust, patent and trademark assignments, lease assignments,
guarantees and other similar agreements between the
Subsidiaries of the Borrowers and the Banks or the Agent for
the
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benefit of the Banks now or hereafter delivered to the Banks or
the Agent pursuant to or in connection with the transactions
contemplated hereby, and all financing statements (or
comparable documents now or hereafter filed in accordance with
the UCC or comparable law) against such Persons as debtor in
favor of the Banks or the Agent for the benefit of the Banks as
secured party and (ii) any amendments, supplements,
modifications, renewals, replacements, consolidations,
substitutions and extensions of any of the foregoing.
"SUBSIDIARY GUARANTORS" means each Subsidiary of a
Borrower that has executed and delivered a Guaranty to the
Agent.
"SUBSIDIARY GUARANTY" means each Guaranty executed
and delivered by a Subsidiary of any Borrower, as such document
may from time to time be supplemented, modified, amended,
renewed, or extended (collectively the "Subsidiary
Guaranties")."
"SUBSIDIARY SECURITY AGREEMENT" means a Security
Agreement executed by each of Cinderlane and HLG on the Closing
Date to secure its obligations under the Subsidiary Guaranty,
as it may from time to time be supplemented, modified, amended,
renewed, or extended
"SWING LINE" means the revolving line of credit
established as a sublimit within the Aggregate Commitment by
the Swing Line Bank in favor of Borrowers pursuant to Section
2.17.
"SWING LINE BANK" means Bank of America National
Trust and Savings Association, doing business through its
Nevada Commercial Banking Division.
"SWING LINE DOCUMENTS" means the promissory note and
any other documents executed by Borrowers in favor of the Swing
Line Bank in connection with the Swing Line.
"SWING LINE LOANS" means loans made by the Swing Line
Bank to Borrowers pursuant to Section 2.17.
"SWING LINE OUTSTANDINGS" means, as of any date of
determination, the aggregate principal Indebtedness of
Borrowers on all Swing Line Loans then outstanding.
"TANGIBLE NET WORTH" means, as of any date of
determination, the Shareholders' Equity of the Borrowers and
their respective Subsidiaries on that date MINUS the aggregate
Intangible Assets of the Borrowers and their respective
Subsidiaries on that date.
"TAXES" has the meaning specified in Section 3.01(a).
"TOTAL LEVERAGE RATIO" means, as of the last day of
each fiscal quarter, the ratio of (a) average outstanding total
principal Indebtedness of the Borrowers and their
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combined Restricted Subsidiaries which constitutes Funded Debt
plus outstanding principal Indebtedness under the Parent Senior
Subordinated Notes (determined by averaging all such Senior
Indebtedness of the Borrowers and their combined Restricted
Subsidiaries as of the last date of each of the three-months
constituting the fiscal quarter ending on that date using the
Senior Indebtedness and Parent Senior Subordinated Notes
reported for each such month pursuant to Section 6.01(c)) TO
(b) EBITDA for the four fiscal quarter period ending on the
same date.
"TRANSFEREE" has the meaning specified in Section
10.08(e).
"UCC" means the Uniform Commercial Code as in effect
in any jurisdiction.
"UNFUNDED PENSION LIABILITIES" means the excess of a
Plan's benefit liabilities under Section 4001(a)(16) of ERISA,
over the current value of that Plan's assets, determined in
accordance with the assumptions used by the Plan's actuaries
for funding the Plan pursuant to section 412 for the applicable
plan year.
"UNITED STATES" and "U.S." each means the United
States of America.
"UNRESTRICTED SUBSIDIARIES" means Rio Development,
Rio Resorts and each other Subsidiary of Parent which is not a
Subsidiary of either Borrower formed following the Closing Date
which is designated as such at the time of its formation
pursuant to Section 6.13, PROVIDED THAT no Subsidiaries owning
portions of the Cinderlane Property may be Unrestricted
Subsidiaries at any time when the aggregate Investments made
pursuant to Section 7.04(f) are in excess of $50,000,000.
"UNSECURED INDEMNITY AGREEMENT" means an Unsecured
Indemnity Agreement executed by Parent and the Borrowers on the
Closing Date, as it may from time to time be supplemented,
modified, amended, renewed, or extended.
"VOTING STOCK" means the shares of common stock or
preferred stock in a Person having ordinary voting power under
ordinary circumstances for the election of directors of such
Person and for carrying out the ordinary functions of
shareholders under the law of the jurisdiction of incorporation
or formation of such Person.
"WITHDRAWAL LIABILITIES" means, as of any
determination date, the aggregate amount of the liabilities, if
any, pursuant to Section 4201 of ERISA if the Controlled Group
made a complete withdrawal from all Multiemployer Plans and any
increase in contributions pursuant to Section 4243 of ERISA.
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1.02 OTHER INTERPRETIVE PROVISIONS
(a) DEFINED TERMS. Unless otherwise
specified herein or therein, all terms defined in this
Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant
hereto. The meaning of defined terms shall be equally
applicable to the singular and plural forms of the defined
terms. Terms (including uncapitalized terms) not
otherwise defined herein and that are defined in the UCC
shall have the meanings therein described.
(b) THE AGREEMENT. The words "hereof",
"herein", "hereunder" and words of similar import when
used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this
Agreement; and section, schedule and exhibit references
are to this Agreement unless otherwise specified.
(c) CERTAIN COMMON TERMS.
(i) The term "documents" includes any
and all instruments, documents, agreements, certificates,
indentures, notices and other writings, however evidenced.
(ii) The term "including" is not
limiting and means "including without limitation."
(d) PERFORMANCE; TIME. Whenever any
performance obligation hereunder (other than a payment
obligation) shall be stated to be due or required to be
satisfied on a day other than a Business Day, such
performance shall be made or satisfied on the next
succeeding Business Day. In the computation of periods of
time from a specified date to a later specified date, the
word "from" means "from and including"; the words "to" and
"until" each mean "to but excluding", and the word
"through" means "to and including." If any provision of
this Agreement refers to any action taken or to be taken
by any Person, or which such Person is prohibited from
taking, such provision shall be interpreted to encompass
any and all means, direct or indirect, of taking, or not
taking, such action.
(e) CONTRACTS. Unless otherwise expressly
provided herein, references to agreements and other
contractual instruments shall be deemed to include all
subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications
are not prohibited by the terms of any Loan Document.
(f) LAWS. References to any statute or
regulation are to be construed as including all statutory
and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting the statute or
regulation.
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(g) CAPTIONS. The captions and headings of
this Agreement are for convenience of reference only and
shall not affect the interpretation of this Agreement.
(h) INDEPENDENCE OF PROVISIONS. The parties
acknowledge that this Agreement and other Loan Documents
may use several different limitations, tests or
measurements to regulate the same or similar matters, and
that such limitations, tests and measurements are
cumulative and must each be performed, except as expressly
stated to the contrary in this Agreement.
10.3 ACCOUNTING PRINCIPLES.
(a) Unless the context otherwise clearly
requires, all accounting terms not expressly defined
herein shall be construed, and all financial computations
required under this Agreement shall be made, in accordance
with GAAP, consistently applied.
(b) References herein to "fiscal year" and
"fiscal quarter" refer to such fiscal periods of the
Borrowers.
ARTICLE 2
THE CREDIT
2.01 AMOUNTS AND TERMS OF COMMITMENT. Each Bank
severally agrees, on the terms and conditions hereinafter set
forth, to make loans to the Borrowers (each a "LOAN") on a
revolving basis from the date hereof to the Maturity Date in an
aggregate principal amount not exceeding the amount set forth
opposite such Bank's name on SCHEDULE 2.01 under the heading
"Commitment" (such amount as the same may be increased pursuant
to Section 2.05, reduced pursuant to Section 2.06 or Section
2.08 or as a result of one or more assignments pursuant to
Section 10.08, such Bank's "COMMITMENT"); PROVIDED, HOWEVER,
that, after giving effect to any Borrowing of Loans, (i) each
Bank's Loans shall not exceed its Commitment, and (ii) the
aggregate principal amount of all outstanding Loans PLUS the
aggregate principal amount of all Swing Line Outstandings shall
not exceed the Aggregate Commitment. Within the limits of each
Bank's Commitment, and subject to the other terms and
conditions hereof, the Borrowers may borrow under this Section
2.01, prepay pursuant to Section 2.07 and reborrow pursuant to
this Section 2.01.
2.02 NOTES
(a) The Loans made by each Bank shall be
evidenced by a Note payable to the order of that Bank in
an amount equal to its Commitment.
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(b) Each Bank may endorse on the schedules
annexed to its Note, the date, amount and maturity of each
Loan made by it and the amount of each payment of
principal made by the Borrowers with respect thereto. Each
Bank is irrevocably authorized by the Borrowers to endorse
its Note and each Bank's record shall be conclusive absent
manifest error; PROVIDED, HOWEVER, that the failure of a
Bank to make, or an error in making, a notation thereon
with respect to any Loan shall not limit or otherwise
affect the obligations of the Borrowers hereunder or under
any such Note to such Bank.
(c) The Loans made by each Bank may, in lieu
of Notes, be evidenced by one or more accounts or records
maintained by such Bank in the ordinary course of
business. The accounts or records maintained by each Bank
shall be conclusive absent manifest error of the amount of
the Loans made by the Banks to the Borrowers, and the
interest and payments thereon; PROVIDED, HOWEVER, that the
failure of a Bank to make, or an error in making, a
notation with respect to any Loan shall not limit or
otherwise affect the obligations of the Borrowers
hereunder to such Bank.
2.03 PROCEDURE FOR BORROWING
(a) Each Borrowing shall be made upon a
Borrower's irrevocable written notice delivered to the
Agent in accordance with Section 10.02 in the form of a
Notice of Borrowing (which notice must be received by the
Agent prior to 9:00 a.m. San Francisco time) (i) three
Business Days prior to the requested Borrowing date, in
the case of Eurodollar Rate Loans; and one Business Day
prior to the requested Borrowing date, in the case of Base
Rate Loans, specifying:
(i) the amount of the Borrowing,
which shall be: (1) for Eurodollar Rate Loans, in an
aggregate minimum principal amount of Three Million
dollars ($3,000,000) or any multiple of One Million
dollars ($1,000,000) in excess thereof and (2) for
Base Rate Loans, in an aggregate minimum principal
amount of One Million dollars ($1,000,000) or any
multiple of One Million dollars ($1,000,000) in
excess thereof;
(ii) the requested Borrowing date,
which shall be a Business Day;
(iii) whether the Borrowing is to be
comprised of Eurodollar Rate Loans or Base Rate
Loans; and
(iv) the duration of the Interest
Period applicable to such Loans included in such
notice. If the Notice of Borrowing of Loans shall
fail
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to specify the duration of the Interest Period for
any Borrowing comprised of Eurodollar Rate Loans,
such Interest Period shall be three months;
PROVIDED THAT, with respect to the Borrowing to be made on
the Closing Date, the Notice of Borrowing shall be
delivered to the Agent not later than 9:00 a.m. (San
Francisco time) one Business Day before the Closing Date
and such Borrowing will consist of Base Rate Loans only.
(b) Upon receipt of each Notice of
Borrowing, the Agent will promptly notify each Bank
thereof and of the amount of such Bank's Commitment
Percentage of the Borrowing.
(c) Each Bank will make the amount of its
Commitment Percentage of the Borrowing available to the
Agent for the account of the relevant Borrower at the
Agent's Payment Office by 11:00 a.m. (San Francisco time)
on the Borrowing Date requested by the relevant Borrower
in funds immediately available to the Agent. The proceeds
of all such Loans will then be made available to the
relevant Borrower by the Agent by wire transfer in
accordance with written instructions provided to the Agent
by the relevant Borrower of like funds as received by the
Agent.
(d) Unless the Majority Banks shall
otherwise agree, during the existence of an Event of
Default, the Borrowers may not elect to have a Loan be
made as, or converted into or continued as, an Eurodollar
Rate Loan.
(e) After giving effect to any Borrowing,
there shall not be more than 12 different Interest Periods
in effect for Eurodollar Rate Loans outstanding.
2.04 CONVERSION AND CONTINUATION ELECTIONS
(a) A Borrower may upon irrevocable written
notice to the Agent in accordance with Section 2.04(b):
(i) elect to convert on any Business
Day, any Base Rate Loans (or any part thereof in an
amount not less than $3,000,000, or that is in an
integral multiple of $1,000,000 in excess thereof)
into Eurodollar Rate Loans;
(ii) elect to convert on any Interest
Payment Date any Eurodollar Rate Loans maturing on
such Interest Payment Date (or any part thereof in an
amount not less than $1,000,000, or that is in an
integral multiple of $1,000,000 in excess thereof)
into Base Rate Loans; or
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(iii) elect to renew on any Interest
Payment Date any Eurodollar Rate Loans maturing on
such Interest Payment Date (or any part thereof in an
amount not less than $3,000,000, or that is in an
integral multiple of $1,000,000 in excess thereof);
PROVIDED, that if the aggregate amount of Eurodollar Rate
Loans shall have been reduced, by payment, prepayment, or
conversion of part thereof to be less than $3,000,000, the
Eurodollar Rate Loans shall automatically convert into
Base Rate Loans, and on and after such date the right of
the relevant Borrower to continue such Loans as, and
convert such Loans into, Eurodollar Rate Loans shall
terminate.
(b) The relevant Borrower shall deliver a
Notice of Conversion/Continuation in accordance with
Section 10.02 to be received by the Agent not later than
9:00 a.m. (San Francisco time) at least (i) three Business
Days in advance of the Conversion Date or continuation
date, if the Loans are to be converted into or continued
as Eurodollar Rate Loans; (ii) one Business Day in advance
of the Conversion Date, if the Loans are to be converted
into Base Rate Loans; specifying:
(i) the proposed Conversion Date or
continuation date;
(ii) the aggregate amount of Loans to
be converted or renewed;
(iii) the nature of the proposed
conversion or continuation; and
(iv) the duration of the requested
Interest Period.
(c) If upon the expiration of any Interest
Period applicable to Eurodollar Rate Loans, a Borrower has
failed to select a new Interest Period to be applicable to
such Eurodollar Rate Loans, as the case may be, or if any
Default or Event of Default shall then exist, such
Borrower shall be deemed to have elected to convert such
Eurodollar Rate Loans into Base Rate Loans effective as of
the expiration date of such current Interest Period.
(d) Upon receipt of a Notice of
Conversion/Continuation, the Agent will promptly notify each
Bank thereof, or, if no timely notice is provided by a
Borrower, the Agent will promptly notify each Bank of the
details of any automatic conversion. All conversions and
continuations shall be made pro rata according to the
respective outstanding principal amounts of the Loans with
respect to which the notice was given held by each Bank.
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(e) Unless the Majority Banks shall
otherwise agree, during the existence of a Default or
Event of Default, a Borrower may not elect to have a Loan
converted into or continued as an Eurodollar Rate Loan.
(f) Notwithstanding any other provision
contained in this Agreement, after giving effect to any
conversion or continuation of any Loans, there shall not
be more than 12 different Interest Periods in effect at
any one time.
2.05 OPTIONAL INCREASES TO THE AGGREGATE COMMITMENT.
(a) PROVIDED that no Default or Event of
Default then exists, the Borrowers may at any time jointly
request in writing that the then effective Aggregate
Commitment be increased to an amount which is not greater
than $300,000,000 MINUS the amount of any reductions to
the Commitment which have then occurred pursuant to
Sections 2.06 or 2.08, in accordance with the provisions
of this Section. Any request under this Section shall be
submitted in writing by Borrowers to the Banks through the
Agent not less than thirty (30) days prior to the proposed
increase, specify the proposed effective date and amount
of such increase and be accompanied by (i) a certificate
of Borrowers stating that no Default or Event of Default
exists as of the date of the request or will result from
the requested increase and (ii) a written consent to the
increase in the amount of the Aggregate Commitment
executed by each Guarantor. Borrowers may also specify
any fees offered to those Banks which will agree to an
increase in the amount of their Commitment (which fees may
be variable based upon the amount which any such Bank is
willing to assume as an increase to the amount of its
Commitment).
(b) Each Bank may approve or reject a request for
an increase in the amount of its Commitment in its sole
and absolute discretion and, absent an affirmative written
response within fifteen (15) days after receipt of such
request, shall be deemed to have rejected the request.
The rejection of such a request by any number of Banks
shall not affect Borrowers' right to increase the
Aggregate Commitment pursuant to this Section, and no
approval of any existing Bank, the Requisite Banks or all
of the Banks shall be required to increase the Commitment
under this Section. No Bank which rejects a request for
an increase in the Aggregate Commitment shall be subject
to removal as a Bank.
(c) In responding to a request under this Section,
each Bank which is willing to increase the amount of its
Commitment (a "Consenting Bank") shall specify the amount
of the proposed increase to the Aggregate Commitment which
it is willing to assume. Each Consenting Bank shall be
entitled to participate ratably (based on its Commitment
Percentage of the Aggregate Commitment before such
increase) in any resulting increase in the Aggregate
Commitment, subject to the right of the Agent to
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adjust allocations of the increased Aggregate Commitment
so as to result in the amounts of Commitments of the Banks
being in integral multiples of $100,000.
(d) If the aggregate principal amount offered to be
assumed by the Consenting Banks is less than the amount
requested, Borrowers may (i) reject the proposed increase
in its entirety, (ii) accept the offered amounts or (iii)
designate new lenders who qualify as Eligible Assignees
and which are reasonably acceptable to the Agent as
additional Banks hereunder in accordance with clause (e)
of this Section (each, a ?New Bank?), which New Banks may
assume the amount of the increase in the Aggregate
Commitment that has not been assumed by the Consenting
Banks.
(e) Each New Bank designated by Borrowers and
reasonably acceptable to the Agent shall become an
additional party hereto as a New Bank concurrently with
the effectiveness of the proposed increase in the
Aggregate Commitment upon its execution of an instrument
of joinder to this Agreement which is in form and
substance acceptable to the Agent and which, in any event,
contains the representations, warranties, indemnities and
other protections afforded to the Agent and the other
Banks which would be granted or made by an Eligible
Assignee by means of the execution of an Assignment and
Acceptance.
(f) Subject to the foregoing, any increase to the
Aggregate Commitment requested under this Section shall be
effective as of the date proposed by Borrowers and shall
be in the principal amount equal to (i) the amount which
Consenting Banks are willing to assume as increases to the
amount of their Commitments PLUS (ii) the amount offered
by any New Banks. Upon the effectiveness of any such
increase, Borrowers shall issue replacement Notes to each
affected Bank and to each New Bank, and the Commitment
Percentage of each Bank will be adjusted to give effect to
the increase in the Aggregate Commitment.
(g) The Agent shall promptly deliver to the Banks a
revised schedule showing the Commitments of the Banks
after giving effect to any increase in the Aggregate
Commitments made pursuant to this Section, together with a
calculation of the resulting Reduction Amount.
2.06 VOLUNTARY TERMINATION OR REDUCTION OF AGGREGATE
COMMITMENT. Borrowers may, upon not less than three Business
Days' prior notice to the Agent, terminate or permanently
reduce the Aggregate Commitment by an aggregate minimum amount
of $1,000,000 or any multiple of $1,000,000 in excess thereof;
PROVIDED that no such reduction or termination shall be
permitted if, after giving effect thereto and to any
prepayments of the Loans made on the effective date thereof,
the then outstanding principal amount of the Loans would exceed
the Aggregate Commitment then in effect and; PROVIDED, FURTHER,
that once reduced in accordance with this Section 2.06, the
Commitment may not be increased. Any reduction of a Commitment
shall be applied to each Bank's Commitment in accordance with
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such Bank's Commitment Percentage. All accrued commitment fees
to but not including the effective date of any reduction or
termination of the Aggregate Commitment, shall be paid on the
effective date of such reduction or termination. No voluntary
reduction shall reduce the amount of any mandatory reduction of
the Aggregate Commitment pursuant to any other provision of
this Agreement.
2.07 OPTIONAL PREPAYMENTS. Subject to Section 3.04,
a Borrower may, at any time or from time to time, upon at least
three Business Days' notice in the case of prepayment of an
Eurodollar Rate Loan, and one Business Days' notice in the case
of prepayment of a Base Rate Loan, to the Agent, ratably prepay
Loans in whole or in part, in amounts of $3,000,000 or any
multiple of $1,000,000 in excess thereof in the case of
prepayment of Eurodollar Rate Loans and in amounts of
$1,000,000 or any multiple of $1,000,000 in excess thereof in
the case of prepayment of Base Rate Loans. Such notice of
prepayment shall specify the date and amount of such prepayment
and whether such prepayment is of Base Rate Loans or Eurodollar
Rate Loans, or any combination thereof. Such notice shall not
thereafter be revocable by a Borrower and the Agent will
promptly notify each Bank thereof and of such Bank's Commitment
Percentage of such prepayment. If such notice is given by,
Borrowers shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date
specified therein, together with accrued interest to each such
date on the amount prepaid and any amounts required pursuant to
Section 3.04.
2.08 MANDATORY COMMITMENT REDUCTIONS; MANDATORY
PREPAYMENTS OF LOANS.
(a) AUTOMATIC COMMITMENT REDUCTIONS. The
Aggregate Commitment shall be automatically reduced on
each Reduction Date by the Reduction Amount, and shall be
further reduced to zero on the Maturity Date. Such
automatic reductions shall occur without regard to any
other reductions of the Aggregate Commitment occurring
pursuant to Sections 2.06 or 2.08 or pursuant to any other
provision of this Agreement.
(b) AUTOMATIC COMMITMENT TERMINATION. All
Commitments shall automatically terminate upon the
occurrence of a (a) Disposition consisting of (i) all or
substantially all of the assets of a Borrower or (ii) all
or substantially all of the assets of the Parent or (b) an
Event of Loss affecting all or substantially all of the
Rio Hotel and Casino.
(c) EFFECT OF COMMITMENT REDUCTIONS. Any
termination of the Aggregate Commitment will be
accompanied by prepayment in full of the unpaid principal
amount of the Loans then outstanding thereunder, together
with the payment of any accrued and unpaid interest or
fees, or both, on the amount prepaid. Any reduction of
the Aggregate Commitment will be accompanied by the
prepayment of Loans to the extent, if any, that the
aggregate unpaid principal amount thereof outstanding
exceeds the relevant commitment as then reduced.
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(d) GENERAL. Any prepayments pursuant to
this Section 2.08 shall be applied first to any Base Rate
Loans then outstanding and then to Eurodollar Rate Loans
with the shortest Interest Periods remaining.
2.09 REPAYMENT. The Borrowers shall repay to the
Banks in full on the Maturity Date the aggregate principal
amount of the Loans outstanding on the Maturity Date.
2.10 INTEREST.
(a) Subject to Section 2.10(d), each Loan
shall bear interest on the outstanding principal amount
thereof from the date when made until it becomes due at a
rate per annum equal to the Eurodollar Rate or the Base
Rate, as the case may be, PLUS the Applicable Margin as
the same may be adjusted pursuant to the provisions of
Section 2.10(b).
(b) The Applicable Margin for any Loan
during any month (such calendar month being the Pricing
Period) shall be based on the Total Leverage Ratio as of
the last day of the third calendar month prior to the
first day of the Pricing Period as shown in the financial
reports and certificates delivered pursuant to the
provisions of Section 6.01(c) and Section 6.02(c). If
the Borrowers fail to deliver the financial reports and
certificates required under Section 6.01(c) and Section
6.02(c) within 15 days of the date for delivery set forth
therein, the Total Leverage Ratio for such Pricing Period
shall be conclusively presumed to be greater than
4.75:1.00 and amounts payable following late delivery of
reports and application of the foregoing presumption in
respect of the Total Leverage Ratio shall be due and
payable upon demand and shall be in addition to amounts
that may otherwise become due pursuant to Section 2.10(d).
(c) Interest on each Loan shall be paid in
arrears on each Interest Payment Date. Interest shall
also be paid on the date of any prepayment of Loans
pursuant to Section 2.07 and 2.08 for the portion of the
Loans so prepaid and upon payment (including prepayment)
in full thereof and, during the existence of any Event of
Default, interest shall be paid on demand.
(d) While any Event of Default exists or
after acceleration, the Borrowers shall pay interest
(after as well as before entry of judgment thereon to the
extent permitted by law) on the principal amount of all
Loans unpaid at a rate per annum which is determined by
adding 2% per annum to the Applicable Margin then in
effect for such Loans (whether the same are Eurodollar
Rate Loans or Base Rate Loans) and, in the case of
Obligations not subject to an Applicable Margin, at a rate
per annum equal to the Base Rate plus 2%; PROVIDED,
HOWEVER, that, on and after the expiration of any Interest
Period applicable to any Eurodollar Rate Loan outstanding
on the date of occurrence of such Event of Default or
acceleration, the principal
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amount of such Loan shall, during the continuation of such
Event of Default or after acceleration, bear interest at a
rate per annum equal to the Base Rate plus the Applicable
Margin plus 2%.
2.11 FEES.
(a) ARRANGEMENT FEE. The Company shall pay
to BofA for its own account an arrangement fee in an
amount and at the times set forth in a letter agreement
between the Company and BofA.
(b) UPFRONT FEE. On the Closing Date, the
Company shall pay to the Agent (a) for the account of each
Bank hereto whose Commitment is in excess of its aggregate
credit commitment under the Existing Credit Agreement, a
fee of 25.00 basis points TIMES the amount of such excess,
and (b) for the account of each Bank hereto, a fee of
12.50 basis points TIMES the portion of that Bank?s
Commitment which is not in excess of its aggregate credit
commitment (if any) under the Existing Credit Agreement.
These fees are for the sole account of such Banks, and
need not be shared with the Agent or any other Bank.
(c) COMMITMENT FEES. The Company shall pay
to the Agent for the account of each Bank a commitment fee
on the average daily unused portion of that Bank's
Available Commitment, computed on a quarterly basis in
arrears on the last Business Day of each calendar quarter
based upon the daily utilization for that quarter as
calculated by the Agent, equal to the Applicable Margin
based on the applicable Total Leverage Ratio in effect on
the last day of such calendar quarter. For purposes of
computing this commitment fee, Swing Line Outstandings
shall not be considered utilization of the Available
Commitment. Commitment fees shall accrue from the Closing
Date to the Maturity Date (whether or not Loans are
available hereunder) and shall be due and payable
quarterly in arrears on the last Business Day of each
calendar quarter and on the Maturity Date; provided that,
in connection with any reduction or termination of
Commitments pursuant to Section 2.06 or Section 2.08,
the accrued commitment fee calculated for the period
ending on such date shall also be paid on the date of such
reduction or termination, with the next succeeding
quarterly payment being calculated on the basis of the
period from the reduction or termination date to such
quarterly payment date.
(d) AGENCY FEE. The Company shall pay to the
Agent for the Agent's own account an agency fee in the
amount and at the times set forth in a letter agreement
between the Company and the Agent.
2.12 COMPUTATION OF FEES AND INTEREST
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(a) All computations of fees and interest
under this Agreement shall be made on the basis of a
360-day year and actual days elapsed, which results in
more interest being paid than if computed on the basis of
a 365 day year. Interest and fees shall accrue during
each period during which interest or such fees are
computed from the first day thereof to the last day
thereof.
(b) The Agent will, with reasonable
promptness, notify the Borrowers and the Banks of each
determination of an Eurodollar Rate; PROVIDED that any
failure to do so shall not relieve the Borrowers of any
liability hereunder or provide the basis for any claim
against the Agent. Any change in the interest rate on a
Loan resulting from a change in the Eurodollar Reserve
Percentage shall become effective as of the opening of
business on the day on which such change in the Eurodollar
Reserve Percentage becomes effective. The Agent will with
reasonable promptness notify the Borrowers and the Banks
of the effective date and the amount of each such change,
PROVIDED that any failure to do so shall not relieve the
Borrowers of any liability hereunder or provide the basis
for any claim against the Agent.
(c) Each determination of an interest rate
by the Agent pursuant hereto shall be conclusive and
binding on the Borrowers and the Banks in the absence of
manifest error.
(d) All fees are non-refundable and earned
on the date when payment is due.
2.13 PAYMENTS BY THE BORROWERS.
(a) All payments (including prepayments) to
be made by the Borrowers on account of principal,
interest, fees and other amounts required hereunder shall
be made without setoff, recoupment or counterclaim and
shall, except as otherwise expressly provided herein, be
made to the Agent for the ratable account of the Banks at
the Agent's Payment Office, in dollars and in immediately
available funds, no later than 11:00 a.m. (San Francisco
time) on the date specified herein (OTHER than payments
with respect to Swing Line Loans, which must be received
by 3:00 p.m.), San Francisco time, on the day of payment
(which must be a Business Day). The Agent will promptly
distribute to each Bank its Commitment Percentage (or
other applicable share as expressly provided herein) of
such principal, interest, fees or other amounts, in like
funds as received. Any payment which is received by the
Agent later than 11:00 a.m. (San Francisco time) shall be
deemed to have been received on the immediately succeeding
Business Day and any applicable interest or fee shall
continue to accrue.
(b) Whenever any payment hereunder shall be
stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding
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Business Day, and such extension of time shall in such
case be included in the computation of interest or fees,
as the case may be; subject to the provisions set forth in
the definition of "Interest Period" herein.
(c) Unless the Agent shall have received
notice from a Borrower prior to the date on which any
payment is due to the Banks hereunder that such Borrower
will not make such payment in full as and when required
hereunder, the Agent may assume that such Borrower has
made such payment in full to the Agent on such date in
immediately available funds and the Agent may (but shall
not be so required), in reliance upon such assumption,
cause to be distributed to each Bank on such due date an
amount equal to the amount then due such Bank. If and to
the extent such Borrower shall not have made such payment
in full to the Agent, each Bank shall repay to the Agent
on demand such amount distributed to such Bank,
together with interest thereon for each day from the date
such amount is distributed to such Bank until the date
such Bank repays such amount to the Agent, at the Federal
Funds Rate as in effect for each such day.
2.14 PAYMENTS BY THE BANKS TO THE AGENT
(a) Unless the Agent shall have received
notice from a Bank on the Closing Date or, with respect to
each Borrowing after the Closing Date, at least one
Business Day prior to the date of any proposed Borrowing,
that such Bank will not make available to the Agent as and
when required hereunder for the account of the relevant
Borrower the amount of that Bank's Commitment Percentage
of the Borrowing, the Agent may assume that each Bank has
made such amount available to the Agent in immediately
available funds on the Borrowing date and the Agent may
(but shall not be so required), in reliance upon such
assumption, make available to the relevant Borrower on
such date a corresponding amount. If and to the extent
any Bank shall not have made its full amount available to
the Agent in immediately available funds and the Agent in
such circumstances has made available to the relevant
Borrower such amount, that Bank shall on the next Business
Day following the date of such Borrowing make such amount
available to the Agent, together with interest at the
Federal Funds Rate for and determined as of each day
during such period. A notice of the Agent submitted to
any Bank with respect to amounts owing under this Section
2.14(a) shall be conclusive, absent manifest error. If
such amount is so made available, such payment to the
Agent shall constitute such Bank's Loan on the date of
borrowing for all purposes of this Agreement. If such
amount is not made available to the Agent on the next
Business Day following the date of such Borrowing, the
Agent shall notify the relevant Borrower of such failure
to fund and, upon demand by the Agent, the relevant
Borrower shall pay such amount to the Agent for the
Agent's account, together with interest thereon for each
day elapsed since the date of such Borrowing, at a rate
per annum equal to the interest rate applicable at the
time to the Loans comprising such Borrowing.
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(b) The failure of any Bank to make any Loan
on any date of borrowing shall not relieve any other Bank
of any obligation hereunder to make a Loan on the date of
such borrowing, but no Bank shall be responsible for the
failure of any other Bank to make the Loan to be made by
such other Bank on the date of any borrowing.
2.15 SHARING OF PAYMENTS, ETC. If, other than as
expressly provided elsewhere herein, any Bank shall obtain on
account of the Loans made by it any payment (whether voluntary,
involuntary, through the exercise of any right of setoff, or
otherwise) in excess of its Commitment Percentage of payments
on account of the Loans obtained by all the Banks, such Bank
shall forthwith (a) notify the Agent of such fact, and (b)
purchase from the other Banks such participations in the Loans
made by them as shall be necessary to cause such purchasing
Bank to share the excess payment ratably with each of them;
PROVIDED, HOWEVER, that if all or any portion of such excess
payment is thereafter recovered from the purchasing Bank, such
purchase shall to that extent be rescinded and each other Bank
shall repay to the purchasing Bank the purchase price paid
therefor, together with an amount equal to such paying Bank's
Commitment Percentage (according to the proportion of (i) the
amount of such paying Bank's required repayment to (ii) the
total amount so recovered from the purchasing Bank) of any
interest or other amount paid or payable by the purchasing Bank
in respect of the total amount so recovered. The Borrowers
agree that any Bank so purchasing a participation from another
Bank pursuant to this Section 2.15 may, to the fullest extent
permitted by law, exercise all its rights of payment (including
the right of setoff, but subject to Section 10.09) with respect
to such participation as fully as if such Bank were the direct
creditor of the Borrowers in the amount of such participation.
The Agent will keep records (which shall be conclusive and
binding in the absence of manifest error) of participations
purchased pursuant to this Section 2.15 and will in each case
notify the Banks following any such purchases or repayments.
2.16 SECURITY AND GUARANTEES.
(a) All obligations of the Borrowers under
this Agreement, the Notes and all other Loan Documents
shall be secured in accordance with the Collateral
Documents.
(b) All obligations of the Borrowers under
this Agreement, each of the Notes and all other Loan
Documents shall be unconditionally guaranteed by the
Guarantors pursuant to the Guaranties.
(c) The obligations of the Borrowers under
any Rate Contracts shall be entitled to the ratable and
pari passu benefits of the security provided by the
Collateral Documents and the Guarantees in the same manner
as other obligations and indebtedness under the other Loan
Documents to the extent of the risk assessment factor
typically utilized by the Agent in assessing the credit
risk associated with Rate
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Contracts, and shall be entitled to the subordinate
benefit of the Collateral Documents and the Guarantees to
the extent of any excess, PROVIDED that the counterparties
to Rate Contracts shall not (prior to the repayment of the
other obligations and indebtedness under the Loan
Documents) be entitled to exercise any additional voting
rights hereunder by reason of their being parties to such
Rate Contracts over those otherwise allocated to Banks
hereunder.
2.17 SWING LINE.
(a) The Swing Line Bank shall from time to
time until the Maturity Date make Swing Line Loans to
Borrowers in such amounts as Borrowers may request,
PROVIDED that (i) after giving effect to such Swing Line
Loan, the Swing Line Outstandings do not exceed
$20,000,000, (ii) without the consent of all of the Banks,
no Swing Line Loan may be made during the continuation
of an Event of Default and (iii) the Swing Line Bank has
not given at least twenty-four (24) hours prior notice
to Borrowers that availability under the Swing Line is
suspended or terminated. Borrowers may borrow, repay and
reborrow under this Section. Unless notified to the
contrary by the Swing Line Bank, borrowings under the
Swing Line may be made in amounts which are integral
multiples of $100,000 upon telephonic request by a
Responsible Officer of Borrowers made to the Agent not
later than 1:00 p.m., San Francisco time, on the
Business Day of the requested borrowing (which
telephonic request shall be promptly confirmed in
writing by telecopier). Promptly after receipt of
such a request for borrowing, the Agent shall provide
telephonic verification to the Swing Line Bank that,
after giving effect to such request, availability for
Loans will exist under Section 2.01(c) (and such
verification shall be promptly confirmed in writing by
telecopier). Unless notified to the contrary by the Swing
Line Bank, each repayment of a Swing Line Loan shall be in
an amount which is an integral multiple of $100,000. If
Borrowers instruct the Swing Line Bank to debit its demand
deposit account(s) at the Swing Line Bank or any of its
Affiliates in the amount of any payment with respect to a
Swing Line Loan, or the Swing Line Bank otherwise receives
repayment, after 3:00 p.m., San Francisco time, on a
Business Day, such payment shall be deemed received on the
next Business Day. The Swing Line Bank shall promptly
notify the Agent of the Swing Line Outstandings each time
there is a change therein.
(b) Swing Line Loans shall bear interest at
a fluctuating rate per annum equal to the Base Rate PLUS
(if applicable) the Applicable Margin MINUS one percent.
Interest shall be payable on such dates, not more
frequently than monthly, as may be specified by the Swing
Line Bank and in any event on the Maturity Date. The
Swing Line Bank shall be responsible for invoicing
Borrowers for such interest. The interest payable on
Swing Line Loans is solely for the account of the Swing
Line Bank (subject to subsection (d) below).
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(c) The Swing Line Loans shall be payable on
demand made by the Swing Line Bank and in any event on the
Maturity Date.
(d) Upon the making of a Swing Line Loan,
each Bank shall be deemed to have purchased from the Swing
Line Bank a participation therein in an amount equal to
that Bank's Commitment Percentage of the Aggregate
Commitment TIMES the amount of the Swing Line Loan. Upon
demand made by the Swing Line Bank, each Bank shall,
according to its Commitment Percentage of the Aggregate
Commitment, promptly provide to the Swing Line Bank its
purchase price therefor in an amount equal to its
participation therein. The obligation of each Bank to so
provide its purchase price to the Swing Line Bank shall be
absolute and unconditional (except only demand made by the
Swing Line Bank) and shall not be affected by the
occurrence of a Default or Event of Default; PROVIDED that
no Bank shall be obligated to purchase its Commitment
Percentage of (i) Swing Line Loans to the extent that
Swing Line Outstandings are in excess of $20,000,000 and
(ii) any Swing Line Loan made (absent the consent of all
of the Banks) during the continuation of an Event of
Default. Each Bank that has provided to the Swing Line
Bank 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 Bank against Borrowers for principal and
interest and shall share, in accordance with that pro rata
participation, in any principal payment made by Borrowers
with respect to such claim and in any interest payment
made by Borrowers (but only with respect to periods
subsequent to the date such Bank paid the Swing Line Bank
its purchase price) with respect to such claim.
(e) In the event that the Swing Line
Outstandings are in excess of $5,000,000 on three (3)
consecutive Business Days, then on the next Business Day
(unless Borrowers have made other arrangements acceptable
to the Swing Line Bank to reduce the Swing Line
Outstandings below $5,000,000), Borrowers shall request a
Loan pursuant to Section 2.01 sufficient to reduce the
Swing Line Outstandings below $5,000,000. In addition,
upon any demand for payment of the Swing Line Outstandings
by the Swing Line Bank (unless Borrowers have made other
arrangements acceptable to the Swing Line Bank to reduce
the Swing Line Outstandings to $0), Borrowers shall
request a Loan pursuant to Section 2.01 sufficient to
repay all Swing Line Outstandings (and, for this purpose,
Section 2.03(a)(i) shall not apply). In each case, the
Agent shall automatically provide the responsive Loans
made by each Bank to the Swing Line Bank (which the Swing
Line Bank shall then apply to the Swing Line
Outstandings). In the event that Borrowers fail to
request a Loan within the time specified by Section 2.03
on any such date, the Agent may, but is not required to,
without notice to or the consent of Borrowers, cause Loans
to be made by the Banks under the Aggregate Commitment in
amounts which are sufficient to reduce the Swing Line
Outstandings as required above. The conditions precedent
set forth in Section 4.02 shall not apply to Loans to be
made by
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the Banks pursuant to the three preceding sentences. The
proceeds of such Loans shall be paid directly to the Swing
Line Bank for application to the Swing Line Outstandings.
ARTICLE 3
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Subject to Section 3.01(g), any and all
payments by the Borrowers to each Bank or the Agent under
this Agreement shall be made free and clear of, and
without deduction or withholding for, any and all present
or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto,
excluding, in the case of each Bank and the Agent, such
taxes (including income taxes or franchise taxes) as are
imposed on or measured by each Bank's net income by the
jurisdiction under the laws of which such Bank or the
Agent, as the case may be, is organized or maintains a
Lending Office or any political subdivision thereof (all
such nonexcluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter
referred to as "TAXES").
(b) In addition, the Borrowers shall pay any
present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies which
arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with
respect to, this Agreement or any other Loan Documents
(hereinafter referred to as "OTHER TAXES").
(c) Subject to Section 3.01(g), the
Borrowers shall indemnify and hold harmless each Bank and
the Agent for the full amount of Taxes or Other Taxes
(including any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 3.01)
paid by the Bank or the Agent and any liability (including
penalties, interest, additions to tax and expenses)
arising therefrom or with respect thereto, whether or not
such Taxes or Other Taxes were correctly or legally
asserted. Payment under this indemnification shall be
made within 30 days from the date the Bank or the Agent
makes written demand therefor.
(d) If the Borrowers shall be required by
law to deduct or withhold any Taxes or Other Taxes from or
in respect of any sum payable hereunder to any Bank or the
Agent, then, subject to Section 3.01(g):
(i) the sum payable shall be increased
as necessary so that after making all required
deductions (including deductions applicable to
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additional sums payable under this Section 3.01) such
Bank or the Agent, as the case may be, receives an
amount equal to the sum it would have received had no
such deductions been made;
(ii) the Borrowers shall make such
deductions; and
(iii) the Borrowers shall pay the full
amount deducted to the relevant taxation authority or
other authority in accordance with applicable law.
(e) Within 30 days after the date of any
payment by the Borrowers of Taxes or Other Taxes, the
Borrowers shall furnish to the Agent the original or a
certified copy of a receipt evidencing payment thereof, or
other evidence of payment satisfactory to the Agent.
(f) Each Bank which is a foreign person
(i.e., a person other than a United States person for
United States Federal income tax purposes) agrees that:
(i) it shall, no later than the Closing
Date (or, in the case of a Bank which becomes a party
hereto pursuant to Section 10.08 after the Closing
Date, the date upon which the Bank becomes a party
hereto) deliver to the Borrowers through the Agent
two accurate and complete signed originals of
Internal Revenue Service Form 4224 or any successor
thereto ("FORM 4224"), or two accurate and complete
signed originals of Internal Revenue Service Form
1001 or any successor thereto ("FORM 1001"), as
appropriate, in each case indicating that the Bank is
on the date of delivery thereof entitled to receive
payments of principal, interest and fees under this
Agreement free from withholding of United States
Federal income tax;
(ii) if at any time the Bank makes any
changes necessitating a new Form 4224 or Form 1001,
it shall with reasonable promptness deliver to the
Borrowers through the Agent in replacement for, or in
addition to, the forms previously delivered by it
hereunder, two accurate and complete signed originals
of Form 4224; or two accurate and complete signed
originals of Form 1001, as appropriate, in each case
indicating that the Bank is on the date of delivery
thereof entitled to receive payments of principal,
interest and fees under this Agreement free from
withholding of United States Federal income tax;
(iii) it shall, before or promptly
after the occurrence of any event (including the
passing of time but excluding any event mentioned in
(ii) above) requiring a change in or renewal of the
most recent Form 4224 or Form 1001 previously
delivered by such Bank and deliver to the Borrowers
through
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the Agent two accurate and complete original signed
copies of Form 4224 or Form 1001 in replacement for
the forms previously delivered by the Bank; and
(v) it shall, promptly upon the
Borrowers' or the Agent's reasonable request to that
effect, deliver to the Borrowers or the Agent (as the
case may be) such other forms or similar
documentation as may be required from time to time by
any applicable law, treaty, rule or regulation in
order to establish such Bank's tax status for
withholding purposes.
(g) The Borrowers will not be required to
pay any additional amounts in respect of United States
Federal income tax pursuant to Section 3.01(d) to any Bank
for the account of any Lending Office of such Bank:
(i) if the obligation to pay such
additional amounts would not have arisen but for a
failure by such Bank to comply with its obligations
under Section 3.01(f) in respect of such Lending
Office;
(ii) if such Bank shall have delivered
to the Borrowers a Form 4224 in respect of such
Lending Office pursuant to Section 3.01(f), and such
Bank shall not at any time be entitled to exemption
from deduction or withholding of United States
Federal income tax in respect of payments by the
Borrowers hereunder for the account of such Lending
Office for any reason other than a change in United
States law or regulations or in the official
interpretation of such law or regulations by any
governmental authority charged with the
interpretation or administration thereof (whether
or not having the force of law) after the date of
delivery of such Form 4224; or
(iii) if the Bank shall have delivered
to the Borrowers Form 1001 in respect of such Lending
Office pursuant to Section 3.01(f), and such Bank
shall not at any time be entitled to exemption from
deduction or withholding of United States Federal
income tax in respect of payments by the Borrowers
hereunder for the account of such Lending Office for
any reason other than a change in United States law
or regulations or any applicable tax treaty or
regulations or in the official interpretation of any
such law, treaty or regulations by any governmental
authority charged with the interpretation or
administration thereof (whether or not having the
force of law) after the date of delivery of such Form
1001.
(h) If, at any time, the Borrowers request
any Bank to deliver any forms or other documentation
pursuant to Section 3.01(f)(iv), then the Borrowers shall,
on demand of such Bank through the Agent, reimburse such
Bank for any costs and expenses (including Attorney Costs)
reasonably incurred by such Bank in the preparation or
delivery of such forms or other documentation.
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(i) If the Borrowers are required to pay
additional amounts to any Bank or the Agent pursuant to
Section 3.01(d), then such Bank shall use its reasonable
best efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Lending
Office so as to eliminate any such additional payment by
the Borrowers which may thereafter accrue if such change,
in the judgment of such Bank, is not otherwise
disadvantageous to such Bank.
3.02 ILLEGALITY.
(a) If any Bank shall determine that the
introduction of any Requirement of Law, or any change in
any Requirement of Law or in the interpretation or
administration thereof, has made it unlawful, or that any
central bank or other Governmental Authority has asserted
that it is unlawful, for any Bank or its Lending Office to
make Eurodollar Rate Loans, then, on notice thereof by the
Bank to the Company through the Agent, the obligation of
that Bank to make Eurodollar Rate Loans shall be suspended
until the Bank shall have notified the Agent and the
Company that the circumstances giving rise to such
determination no longer exists.
(b) If a Bank shall determine that it is
unlawful to maintain any Eurodollar Rate Loan, the
relevant Borrower shall prepay in full all Eurodollar Rate
Loans of that Bank then outstanding, together with
interest accrued thereon, either on the last day of the
Interest Period thereof if the Bank may lawfully continue
to maintain such Eurodollar Rate Loans to such day, or
immediately, if the Bank may not lawfully continue to
maintain such Eurodollar Rate Loans, together with any
amounts required to be paid in connection therewith
pursuant to Section 3.04.
(c) If a Borrower is required to prepay any
Eurodollar Rate Loan immediately as provided in Section
3.02(b), then concurrently with such prepayment, such
Borrower shall borrow from the affected Bank, in the
amount of such repayment, a Base Rate Loan.
(d) Before giving any notice to the Agent
pursuant to this Section 3.02, the affected Bank shall
designate a different Lending Office with respect to its
Eurodollar Rate Loans if such designation will avoid the
need for giving such notice or making such demand and will
not, in the judgment of the Bank, be illegal or otherwise
disadvantageous to the Bank.
3.03 INCREASED COSTS AND REDUCTION OF RETURN.
(a) If any Bank shall determine that, due to
either (i) the introduction of or any change in reserve
requirements included in the calculation of the Eurodollar
Rate) in or in the interpretation of any law or regulation
or (ii) the compliance with any guideline or request from
any central bank or other
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Governmental Authority (whether or not having the force of
law), there shall be any increase in the cost to such Bank
of agreeing to make or making, funding or maintaining any
Eurodollar Rate Loans, then the Borrowers shall be liable
for, and shall from time to time, upon demand therefor by
such Bank (with a copy of such demand to the Agent), pay
to such Bank, additional amounts as are sufficient to
compensate such Bank for such increased costs.
(b) If any Bank shall have determined that
(i) the introduction of any Capital Adequacy Regulation,
(ii) any change in any Capital Adequacy Regulation, (iii)
any change in the interpretation or administration of any
Capital Adequacy Regulation by any central bank or other
Governmental Authority charged with the interpretation or
administration thereof, or (iv) compliance by the Bank (or
its Lending Office) or any corporation controlling the
Bank, with any Capital Adequacy Regulation; affects or
would affect the amount of capital required or expected to
be maintained by the Bank or any corporation controlling
the Bank and (taking into consideration such Bank's or
such corporation's policies with respect to capital
adequacy and such Bank's desired return on capital)
determines that the amount of such capital is increased as
a consequence of its Commitment, loans, credits or
obligations under this Agreement, then, upon demand of
such Bank (with a copy to the Agent), the Borrowers shall
upon demand pay to the Bank, from time to time as
specified by the Bank, additional amounts sufficient to
compensate the Bank for such increase.
3.04 FUNDING LOSSES. Each Borrower agrees to
reimburse each Bank and to hold each Bank harmless from any
loss or expense which the Bank may sustain or incur as a
consequence of:
(a) the failure of such Borrower to make any
payment or prepayment of principal of any Eurodollar Rate
Loan (including payments made after any acceleration
thereof);
(b) the failure of such Borrower to borrow,
continue or convert a Loan after such Borrower has given
(or is deemed to have given) a Notice of Borrowing or a
Notice of Conversion/ Continuation;
(c) the failure of such Borrower to make any
prepayment after such Borrower has given a notice in
accordance with Section 2.07;
(d) the prepayment (including pursuant to
Section 2.08) of an Eurodollar Rate Loan on a day which is
not the last day of the Interest Period with respect
thereto; or
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(e) the conversion pursuant to Section 2.04
of any Eurodollar Rate Loan to a Base Rate Loan on a day
that is not the last day of the respective Interest
Period;
including any such loss or expense arising from the liquidation
or reemployment of funds obtained by it to maintain its
Eurodollar Rate Loans hereunder or from fees payable to
terminate the deposits from which such funds were obtained.
Solely for purposes of calculating amounts payable by such
Borrower to the Banks under this Section 3.04, each Eurodollar
Rate Loan made by a Bank (and each related reserve, special
deposit or similar requirement) shall be conclusively deemed to
have been funded at the LIBOR used in determining the
Eurodollar Rate for such Eurodollar Rate Loan by a matching
deposit or other borrowing in the interbank eurodollar market
for a comparable amount and for a comparable period, whether or
not such Eurodollar Rate Loan is in fact so funded.
3.05 INABILITY TO DETERMINE RATES. If the Agent
shall have determined that for any reason adequate and
reasonable means do not exist for ascertaining the Eurodollar
Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Loan or that the Eurodollar Rate
applicable pursuant to Section 2.10(a) for any requested
Interest Period with respect to a proposed Eurodollar Rate Loan
or does not adequately and fairly reflect the cost to the Banks
of funding such Loan, the Agent will forthwith give notice of
such determination to the relevant Borrower and each Bank.
Thereafter, the obligation of the Banks to make or maintain
Eurodollar Rate Loans, as the case may be, hereunder shall be
suspended until the Agent revokes such notice in writing. Upon
receipt of such notice, such Borrower may revoke any Notice of
Borrowing or Notice of Conversion/Continuation then submitted
by it. If such Borrower does not revoke such notice, the Banks
shall make, convert or continue the Loans, as proposed by such
Borrower, in the amount specified in the applicable notice
submitted by such Borrower, but such Loans shall be made,
converted or continued as Base Rate Loans instead of Eurodollar
Rate Loans, as the case may be.
3.06 CERTIFICATES OF BANKS. Any Bank claiming
reimbursement or compensation pursuant to this Article III
shall deliver to the Borrowers (with a copy to the Agent) a
certificate setting forth in reasonable detail the amount
payable to the Bank hereunder and such certificate shall be
conclusive and binding on the Borrowers in the absence of
manifest error.
3.07 SURVIVAL. The agreements and obligations of
the Borrowers in this Article III shall survive the payment of
all other Obligations.
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ARTICLE 4
CONDITIONS PRECEDENT
4.01 CONDITIONS OF INITIAL LOANS. The obligation of
each Bank to make its initial Loan hereunder is subject to the
following conditions precedent. All documents delivered
hereunder shall, at the request of the Agent, be delivered in
sufficient copies for each Bank, and shall in any event be in
form and substance acceptable to the Agent.
(a) CREDIT AGREEMENT AND NOTES. The Agent
shall have received this Agreement executed by the
Company, the Agent and each of the Banks and the Notes
executed by the Company.
(b) COLLATERAL DOCUMENTS. The Agent shall
have received the Collateral Documents, executed by the
Company, and the Parent Guaranty, and Parent Collateral
Documents executed by the Parent, and the Subsidiary
Guaranty and the Subsidiary Collateral Documents executed
by HLG and Cinderlane.
(c) UNSECURED INDEMNITY AGREEMENT. The
Agent shall have received the Unsecured Indemnity
Agreement executed by each of the Company and the Parent.
(d) ARTICLES OF INCORPORATION; BY-LAWS AND
GOOD STANDING. The Agent shall have received each of the
following documents:
(i) the articles or certificate of
incorporation of the Parent and of the Company as in
effect on the Closing Date, certified by the
Secretary of State of the state of incorporation of
the Parent and of the Company as of a recent date and
by the Secretary or Assistant Secretary of the
Company as of the Closing Date, and the bylaws of the
Parent and of the Company as in effect on the Closing
Date, certified by the Secretary or Assistant
Secretary, respectively of the Parent and of the
Company as of the Closing Date; and
(ii) a good standing certificate for
the Parent and for the Company from the Secretary of
State of its state of incorporation and each state
where the Parent or the Company, as the case may be,
is qualified to do business as a foreign corporation
as of a recent date.
(e) RESOLUTIONS;INCUMBENCY. The Agent shall
have received the following:
(i) Copies of the resolutions of the
board of directors of the Parent, each Borrower and
each Guarantor approving and authorizing the
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execution, delivery and performance by the Loan
Parties of this Agreement and the other Loan
Documents to be delivered hereunder, and authorizing
the borrowing of the Loans, certified as of the
Closing Date by the Secretary or an Assistant
Secretary of the appropriate Loan Party;
(ii) Copies of the resolutions of the
board of directors of the each such Loan Party
approving and authorizing the execution, delivery and
performance by such Loan Party of the Loan Documents
to be delivered by it hereunder, certified as of the
Closing Date by the Secretary or an Assistant
Secretary thereof; and
(iii) A certificate of the Secretary or
Assistant Secretary of each such Loan Party
certifying the names and true signatures of the
officers of that Loan Party who are authorized to
execute, deliver and perform, as applicable, this
Agreement, and all other Loan Documents to be
delivered by such Loan Party hereunder.
(f) CERTIFICATE. The Agent shall have
received a certificate signed by a Responsible Officer of
the Borrowers, dated as of the Closing Date:
(i) certifying that the representa-
tions and warranties contained in Article V are true
and correct on and as of such date, as though made on
and as of such date;
(ii) certifying that no Default or
Event of Default exists or would result from the
initial Borrowing;
(iii) certifying that there has
occurred since December 31, 1996 no event or
circumstance that could reasonably be expected to
result in a Material Adverse Effect;
(iv) certifying the Total Leverage
Ratio as of December 31, 1997 together with
supporting calculations; and
(v) certifying as to such other
matters as the Agent and the Banks may reasonably
request.
(g) FINANCIAL STATEMENTS. The Agent shall
have received a certified copy of financial statements of
Parent and its Subsidiaries referred to in Section 5.11.
(h) RECORDATION OF DEED OF TRUST. The Deed
of Trust shall have been duly recorded in a first priority
lien position with the County Recorder's Office of Clark
County, Nevada.
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(i) PLEDGED COLLATERAL. The Agent shall have
received all certificates and instruments representing the
Pledged Collateral and undated stock transfer powers
executed in blank.
(j) FINANCING STATEMENTS. The Agent shall
have received acknowledgment copies of all UCC-l financing
statements filed, registered or recorded to perfect the
security interests of the Agent for the benefit of the
Banks, or other evidence satisfactory to the Agent that
there has been filed, registered or recorded all financing
statements and other filings, registrations and recordings
necessary and advisable to perfect the Liens of the Agent
for the benefit of the Banks in accordance with applicable
law.
(k) LIEN SEARCHES. The Agent shall have
received written advice relating to such Lien and judgment
searches as the Agent shall have requested of the Company,
and such termination statements or other documents as may
be necessary to confirm that the Collateral and the Parent
Collateral is subject to no other Liens in favor of any
Persons (other than Permitted Liens).
(l) TITLE INSURANCE. A title insurance
company acceptable to the Banks shall have issued or
committed to issue an ALTA Lender's extended coverage
policy of title insurance, including an LP10 Construction
Loan Package or its equivalent, in a liability amount
satisfactory to the Agent and the Banks. The title policy
shall insure the Deed of Trust as a first priority lien on
the Real Property, subject only to exceptions consented to
by the Agent in writing, and shall contain such
endorsements as the Agent and/or any of the Banks may
require, In addition, one or more other title insurance
companies acceptable to the Agent and the Banks shall have
issued such reinsurance as the Agent and the Banks may
require. No title matter may be insured over by any title
company without the express written consent of the Agent.
(m) WORKER'S COMPENSATION INSURANCE. The
Company shall have provided such policy or policies of
worker's compensation insurance as may be required by
applicable worker's compensation insurance laws (including
employer's liability insurance, if required by the Agent),
covering all employees of the Company.
(n) LIABILITY INSURANCE. The Company shall
have provided comprehensive liability insurance naming
Agent as an additional insured, on an "occurrence" basis
against claims for "personal injury" liability, including
bodily injury, death or property damage liability, with a
limit of not less than One Million Dollars ($1,000,000).
(o) LOSS PAYABLE ENDORSEMENTS. The Company
shall have provided the Agent with evidence that the Agent
has been named as loss payee under all policies of
casualty insurance, and as additional insured under all
policies of
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liability insurance, required by the Deed of Trust and
with respect to the insurance policies or other
instruments or documents evidencing insurance coverage on
the properties of the Company in accordance with Section
6.06.
(p) APPRAISAL. The Agent shall have received
an Appraisal in form and substance satisfactory to the
Banks showing an Appraisal Value of the Real Property of
in amount which is not less than $300,000,000.
(q) ENVIRONMENTAL QUESTIONNAIRE. The Agent
shall have received an Environmental Questionnaire and
Disclosure Statement prepared and certified by the Company
using Agent's prescribed form, and the information set
forth in it shall be acceptable to Agent.
(r) LEGAL OPINIONS. The Agent shall have
received an opinion of Kummer, Kaempfer, Bonner & Renshaw,
counsel to the Company and addressed to the Agent and the
Banks.
(s) PAYMENT OF FEES. The Company shall have
paid all accrued and unpaid fees, costs and expenses to
the extent then due and payable on the Closing Date,
together with Attorney Costs to the extent invoiced prior
to or on the Closing Date, together with such additional
amounts of Attorney Costs as shall constitute the Agent's
reasonable estimate of Attorney Costs incurred or to be
incurred through the closing proceedings, provided that
such estimate shall not thereafter preclude final settling
of accounts between the Company and the Agent; including
any such costs, fees and expenses arising under or
referenced in Sections 2.11, 3.01 and 10.04.
(t) GAMING APPROVALS. The Agent shall have
received a copy of a duly completed and executed form
prepared in accordance with Nevada Gaming Commission
Regulation 8.130 with respect to this Agreement and the
Loans thereunder and the Company shall have made such
other filings and disclosures as may be required by the
Gaming Authorities.
(u) NOTICE OF BORROWING; ARRANGEMENTS FOR
REFINANCING. The Agent shall have received a Notice of
Borrowing, and arrangements acceptable to the Agreement
for the refinancing of the loans outstanding under the
Existing Credit Facility (and all related interest and
fees) using the proceeds of the initial Loans hereunder as
contemplated in Section 6.11 shall have been made.
(v) OTHER DOCUMENTS. The Agent shall have
received evidence that all other actions necessary or, in
the opinion of the Agent or the Banks, desirable to
perfect and protect the first priority Lien created by the
Collateral Documents and the Parent Collateral Documents
and to enhance the Agent's ability to preserve and protect
its interests in and access to the Collateral and the
Parent Collateral
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Documents, have been taken, and shall have received such
other approvals, opinions or documents as the Agent or any
Bank may request.
4.02 CONDITIONS TO ALL BORROWINGS. The obligation
of each Bank to make any Loan to be made by it hereunder
(including its initial Loan) or to continue or convert any Loan
pursuant to Section 2.04, and the obligation of the Swing Line
Bank to make any Swing Line Loan, is subject to the
satisfaction of the following conditions precedent on the
relevant borrowing, or continuation or conversion date:
(a) NOTICE OF BORROWING OR CONTINUATION/
CONVERSION. The Agent shall have received (with, in the
case of the initial Loan only, a copy for each Bank) a
Notice of Borrowing or a Notice of Continuation/
Conversion, as applicable.
(b) CONTINUATION OF REPRESENTATIONS AND
WARRANTIES. The representations and warranties made by
the Borrowers contained in Article V shall be true and
correct on and as of such borrowing, continuation or
conversion date with the same effect as if made on and as
of such borrowing or continuation or conversion date.
(c) NO EXISTING DEFAULT. No Default or Event
of Default shall exist or shall result from such Borrowing
or continuation or conversion.
(d) GAMING CONDITIONS. No Gaming Authority
shall have entered any order or imposed any requirement
requiring (i) approval of the Loans prior to further
advances or (ii) rescission or repayment of any Loan or
Loan Document.
Each Notice of Borrowing and Notice of Continuation/Conversion
submitted by the Borrowers hereunder shall constitute a
representation and warranty by the Borrowers hereunder, as of
the date of each such notice or application and as of the date
of each Borrowing or continuation or conversion, as applicable,
that the conditions in Section 4.02 are satisfied.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
The Borrowers jointly and severally represent and warrant
to the Agent and each Bank that:
5.01 CORPORATE EXISTENCE AND POWER. Each Loan
Party and each of its Subsidiaries:
(a) is a corporation duly organized, validly
existing and in good standing under the laws of the
jurisdiction of its incorporation;
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(b) has the power and authority and all
governmental licenses, authorizations, consents and
approvals to own its assets, carry on its business and
execute, deliver, and perform its obligations under, the
Loan Documents;
(c) is duly qualified as a foreign
corporation, licensed and in good standing under the laws
of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business
requires such qualification; and
(d) is in compliance with all Requirements
of Law; except, in each case referred to in clause (c) or
clause (d), to the extent that the failure to do so could
not reasonably be expected to have a Material Adverse
Effect.
5.02 CORPORATE AUTHORIZATION; NO CONTRAVENTION. The
execution, delivery and performance by each Loan Party and its
Subsidiaries of this Agreement, and any other Loan Document to
which such Person is party, have been duly authorized by all
necessary corporate action, and do not and will not:
(a) contravene the terms of any of that
Person's Organization Documents;
(b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, any
document evidencing any Contractual Obligation to which
such Person is a party or any order, injunction, writ or
decree of any Governmental Authority to which such Person
or its Property is subject;
(c) violate any Requirement of Law;
(d) constitute a "transfer of an interest"
or an "obligation incurred" that is avoidable by a trustee
under Section 548 of the Bankruptcy Code of 1978, as
amended, or constitute a "fraudulent conveyance,"
"fraudulent obligation" or "fraudulent transfer" within
the meaning of the Uniform Fraudulent Conveyances Act or
Uniform Fraudulent Transfer Act, as enacted in any
jurisdiction;
(e) result in or require the creation or
imposition of any Lien or Right of Others upon or with
respect to any Property now owned or leased or hereafter
acquired by such party; or
(f) require any consent or approval not
heretofore obtained of any partner, director, stockholder
or creditor of such party.
5.03 GOVERNMENTAL AUTHORIZATION. No approval,
consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority (except
for recordings or filings in connection with the Liens granted
to the Agent under the
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Collateral Documents) is necessary or required in connection
with the execution, delivery or performance by, or enforcement
against, the Loan Parties or any of their respective
Subsidiaries of the Agreement or any other Loan Document.
5.04 BINDING EFFECT. This Agreement and each other
Loan Document to which each Loan Party or any of its
Subsidiaries is a party constitute the legal, valid and binding
obligations of each Loan Party and any of its Subsidiaries to
the extent it is a party thereto, enforceable against such
Person in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating
to enforceability.
5.05 LITIGATION. Except as specifically disclosed
in Schedule 5.05, there are no actions, suits, proceedings,
claims or disputes pending, or to the best knowledge of Loan
Parties, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, against the
Loan Parties or their respective Subsidiaries or any of their
respective Properties which:
(a) purport to affect or pertain to this
Agreement, or any other Loan Document, or any of the
transactions contemplated hereby or thereby or the Real
Property; or
(b) if determined adversely to the Loan
Parties or their respective Subsidiaries, would reasonably
be expected to have a Material Adverse Effect. No
injunction, writ, temporary restraining order or any order
of any nature has been issued by any court or other
Governmental Authority purporting to enjoin or restrain
the execution, delivery and performance of this Agreement
or any other Loan Document, or directing that the
transactions provided for herein or therein not be
consummated as herein or therein provided.
5.06 NO DEFAULT. No Default or Event of Default
exists or would result from the incurring of any Obligations by
the Loan Parties or the grant or perfection of the Agent's
Liens on the Collateral. Neither the Loan Parties nor any of
their respective Subsidiaries is in default under or with
respect to any Contractual Obligation in any respect which,
individually or together with all such defaults, could
reasonably be expected to have a Material Adverse Effect.
5.07 ERISA COMPLIANCE.
(a) SCHEDULE 5.07 lists all Plans and
separately identifies Plans intended to be Qualified Plans
and Multiemployer Plans. All written descriptions thereof
provided to the Agent are true and complete in all
material respects.
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(b) Each Plan is in compliance in all
material respects with the applicable provisions of ERISA,
the Code and other Federal or state law, including all
requirements under the Code or ERISA for filing reports
(which are true and correct in all material respects as of
the date filed), and benefits have been paid in accordance
with the provisions of the Plan.
(c) Except for the Qualified Plans and
Multiemployer Plans listed on SCHEDULE 5.07, each
Qualified Plan and Multiemployer Plan has been determined
by the IRS to qualify under Section 401 of the Code, and
the trusts created thereunder have been determined to be
exempt from tax under the provisions of Section 501 of the
Code, and to the best knowledge of the Loan Parties
nothing has occurred which would cause the loss of such
qualification or tax-exempt status. With respect to the
Qualified Plans and Multiemployer Plans listed on SCHEDULE
5.07, a favorable determination letter has not yet been
obtained from the Internal Revenue Service under Sections
401(a) and 501(a) of the Code regarding the current status
of each such Qualified Plan and Multiemployer Plan. After
due execution of each such Plan by the Loan Parties, an
application for a favorable determination letter will be
submitted to the Internal Revenue Service within the
remedial amendment period prescribed by Section 401(b) of
the Code, and each such Plan will be amended to the extent
required to secure a favorable determination letter from
the Internal Revenue Service.
(d) Except as specifically disclosed in
SCHEDULE 5.07, there is no outstanding liability under
Title IV of ERISA with respect to any Plan maintained or
sponsored by the Loan Parties or any ERISA Affiliate, nor
with respect to any Plan to which the Loan Parties or any
ERISA Affiliate contributes or is obligated to contribute.
(e) Except as specifically disclosed in
SCHEDULE 5.07, no Plan subject to Title IV of ERISA has
any Unfunded Pension Liability.
(f) Except as specifically disclosed in
SCHEDULE 5.07, no member of the Controlled Group has ever
represented, promised or contracted (whether in oral or
written form) to any current or former employee (either
individually or to employees as a group) that such current
or former employee(s) would be provided, at any cost to
any member of the Controlled Group, with life insurance or
employee welfare plan benefits (within the meaning of
section 3(1) of ERISA) following retirement or termination
of employment. To the extent that any member of the
Controlled Group has made any such representation, promise
or contract, such member has expressly reserved the right
to amend or terminate such life insurance or employee
welfare plan benefits with respect to claims not yet
incurred.
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(g) Members of the Controlled Group have
complied in all material respects with the notice and
continuation coverage requirements of Section 4980B of the
Code.
(h) Except as specifically disclosed in
SCHEDULE 5.07, no ERISA Event has occurred or is
reasonably expected to occur with respect to any Plan.
(i) There are no pending or, to the best
knowledge of the Loan Parties, threatened claims, actions
or lawsuits, other than routine claims for benefits in the
usual and ordinary course, asserted or instituted against
(i) any Plan maintained or sponsored by the Loan Parties
or its assets, (ii) any member of the Controlled Group
with respect to any Qualified Plan, or (iii) any fiduciary
with respect to any Plan for which the Loan Parties may be
directly or indirectly liable, through indemnification
obligations or otherwise.
(j) Except as specifically disclosed in
SCHEDULE 5.07, neither the Loan Parties nor any ERISA
Affiliate has incurred nor reasonably expects to incur (i)
any liability (and no event has occurred which, with the
giving of notice under Section 4219 of ERISA, would result
in such liability) under Section 4201 or 4243 of ERISA
with respect to a Multiemployer Plan or (ii) any liability
under Title IV of ERISA (other than premiums due and not
delinquent under Section 4007 of ERISA) with respect to a
Plan.
(k) Except as specifically disclosed in
SCHEDULE 5.07, neither the Loan Parties nor any ERISA
Affiliate has transferred any Unfunded Pension Liability
to a Person other than the Loan Parties or an ERISA
Affiliate or otherwise engaged in a transaction that could
be subject to Section 4069 or 4212(c) of ERISA.
(l) No member of the Controlled Group has
engaged, directly or indirectly, in a nonexempt prohibited
transaction (as defined in Section 4975 of the Code or
Section 406 of ERISA) in connection with any Plan which
could reasonably be expected to have a Material Adverse
Effect.
5.08 USE OF PROCEEDS; MARGIN REGULATIONS. The
proceeds of the Loans are intended to be and shall be used
solely for the purposes set forth in and permitted by Section
6.11, and are intended to be and shall be used in compliance
with Section 7.07.
5.09 TITLE TO PROPERTIES. The Property subject to
the Deed of Trust constitutes the entire Rio Resort Hotel &
Casino and the associated parcel(s) of real property underlying
the associated hotel towers, casino, convention and meeting
facilities, parking garages, kitchens and other amenities
associated therewith. Each Loan Party and each of its
Subsidiaries has good record and marketable title in fee simple
to, or valid leasehold interests in, the Collateral and all
Property necessary or used in the ordinary conduct of its
business,
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except for such defects in title as could not, individually or
in the aggregate, have a Material Adverse Effect. As of the
Closing Date, the Property of each Loan Party and its
Subsidiaries is subject to no Liens, other than Permitted
Liens.
5.10 TAXES. Each Loan Party and its Subsidiaries
have filed all Federal and other material tax returns and
reports required to be filed, and have paid all Federal and
other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their Properties, income
or assets otherwise due and payable, except those which are
being contested in good faith by appropriate proceedings and
for which adequate reserves have been provided in accordance
with GAAP and no Notice of Lien has been filed or recorded.
There is no proposed tax assessment against any Loan Party or
any of its Subsidiaries which would, if the assessment were
made, have a Material Adverse Effect.
5.11 FINANCIAL CONDITION/MATERIAL ADVERSE EFFECT.
(a) The audited consolidated financial
statements of financial condition of the Parent and its
Subsidiaries dated December 31, 1996, and the related
consolidated statements of operations, shareholders'
equity and cash flows for the fiscal year ended on that
date and the unaudited consolidated balance sheet,
statement of operations and cash flow summary of the
Company dated December 31, 1996:
(i) except for the cash flow summary
of the Company, were prepared in accordance with
GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted
therein;
(ii) are complete, accurate and fairly
present the financial condition of the Parent and its
Subsidiaries and the Company and its Subsidiaries, as
of the date thereof and results of operations for the
period covered thereby; and
(iii) except as specifically disclosed
in SCHEDULE 5.11, show all material indebtedness and
other liabilities, direct or contingent of the Parent
and its consolidated Subsidiaries and of the Company
and its consolidated Subsidiaries, respectively, as
of the date thereof, including liabilities for taxes,
material commitments and Contingent Obligations.
(b) The unaudited consolidated statements of
financial condition of the Parent and its consolidated
Subsidiaries dated September 30, 1997, and the related
consolidated statements of operations, and cash flows for
the fiscal quarter ended on that date and the unaudited
consolidated financial statements of financial condition
of Parent and its Subsidiaries dated September 30, 1997,
and the related consolidated statement of operations and
cash flow summary for the fiscal quarter ended on that
date:
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(i) except for the cash flow summary
of the Company, were prepared in accordance with GAAP
consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein;
(ii) are complete, accurate and fairly
present the financial condition of both Parent and
its Subsidiaries and the Company and its Subsidiaries
as of the date thereof and results of operations for
the period covered thereby; and
(iii) except as specifically disclosed
in Schedule 5.11, show all material indebtedness and
other liabilities, direct or contingent of the
Company and its consolidated Subsidiaries as of the
date thereof, including liabilities for taxes,
material commitments and Contingent Obligations.
(c) Since December 31, 1996 there has been
no Material Adverse Effect.
5.12 ENVIRONMENTAL MATTERS.
(a) Except as specifically disclosed in
Schedule 5.12, the on-going operations of each Loan Party
and each of its Subsidiaries comply in all respects with
all Environmental Laws.
(b) Except as specifically disclosed in
Schedule 5.12, each Loan Party and each of its
Subsidiaries has obtained all licenses, permits,
authorizations and registrations required under any
Environmental Law ("ENVIRONMENTAL PERMITS") and necessary
for its ordinary course operations, all such Environmental
Permits are in good standing, and each Loan Party and each
of its Subsidiaries is in compliance with all material
terms and conditions of such Environmental Permits.
(c) Except as specifically disclosed in
Schedule 5.12, none of the Loan Parties, any of their
respective Subsidiaries or any of their respective present
Property or operations is subject to any outstanding
written order from or agreement with any Governmental
Authority nor subject to any judicial or docketed
administrative proceeding, respecting any Environmental
Law, Environmental Claim or Hazardous Material.
(d) Except as specifically disclosed in
Schedule 5.12, there are no Hazardous Materials or other
conditions or circumstances existing with respect to any
Property, or arising from operations prior to the Closing
Date, of the Loan Parties or any of their respective
Subsidiaries that would reasonably be expected to give
rise to Environmental Claims with a potential liability of
the Loan Parties and their respective Subsidiaries in
excess of $100,000 in the aggregate for any such
condition,
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circumstance or Property. In addition, (i) neither the
Loan Parties nor any of their respective Subsidiaries has
any underground storage tanks (x) that are not properly
registered or permitted under applicable Environmental
Laws, or (y) that are leaking or disposing of Hazardous
Materials offsite, and (ii)_ the Loan Parties and their
respective Subsidiaries have notified all of their
employees of the existence, if any, of any health hazard
arising from the conditions of their employment and have
met all notification requirements under Title III of
CERCLA and all other Environmental Laws.
5.13 COLLATERAL DOCUMENTS.
(a) The provisions of each of the Collateral
Documents are effective to create in favor of the Agent
for the benefit of the Banks, a legal, valid and
enforceable first priority security interest in all right,
title and interest of each Loan Party and its Subsidiaries
in the collateral described therein; and financing
statements have been filed in the appropriate offices of
the State of Nevada.
(b) The Deed of Trust and each other
Mortgage when delivered will be effective to grant to the
Agent for the benefit of the Banks a legal, valid and
enforceable deed of trust lien on all the right, title and
interest of the mortgagor under the Deed of Trust or such
Mortgage in the mortgaged Property described therein.
When the Deed of Trust or each such other Mortgage is duly
recorded in Clark County, Nevada and the mortgage
recording fees and taxes in respect thereof are paid and
compliance is otherwise had with the formal requirements
of state law applicable to the recording of real estate
mortgages generally, each such mortgaged Property, subject
to the encumbrances and exceptions to title set forth
therein and except as noted in the title policies
delivered to the Agent pursuant to Section 4.01 is subject
to a legal, valid, enforceable and perfected first
priority deed of trust; and when financing statements
have been filed in Clark County, Nevada, such Mortgage
also creates a legal, valid, enforceable and perfected
first lien on, and security interest in, all right, title
and interest of each Loan Party or such Subsidiary under
the Deed of Trust or such other Mortgage in all personal
property and fixtures which is covered by such Mortgage,
subject to no other Liens, except the encumbrances and
exceptions to title set forth therein and except as noted
in the title policies delivered to the Agent pursuant to
Section 4.01, and Permitted Liens.
(c) All representations and warranties of
each Loan Party, of any of its Subsidiaries and of the
Parent contained in the Collateral Documents or in any
Guaranty or any Parent Collateral Document are true and
correct.
5.14 REGULATED ENTITIES. None of the Loan Parties,
any Person controlling the Loan Parties or any Subsidiary of
the Loan Parties, is (a) an "Investment Company" within the
meaning of the Investment Company Act of 1940; or (b) subject
to regulation under the
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Public Utility Holding Company Act of 1935, the Federal Power
Act, the Interstate Commerce Act, any state public utilities
code, or any other Federal or state statute or regulation
limiting its ability to incur Indebtedness, with the exception
of Nevada Gaming Laws, the provisions of which have been
complied with by each Loan Party.
5.15 NO BURDENSOME RESTRICTIONS. Neither the Loan
Parties nor any of their respective Subsidiaries is a party to
or bound by any Contractual Obligation, or subject to any
charter or corporate restriction, or any Requirement of Law,
which could reasonably be expected to have a Material Adverse
Effect.
5.16 SOLVENCY. Each Loan Party is and each of its
Subsidiaries are Solvent.
5.17 LABOR RELATIONS. There are no strikes,
lockouts or other labor disputes against the Loan Parties or
any of their respective Subsidiaries, or, to the best of the
Loan Parties' knowledge, threatened against or affecting the
Loan Parties or any of their respective Subsidiaries, and no
significant unfair labor practice complaints are pending
against the Loan Parties or any of their respective
Subsidiaries or, to the best knowledge of the Loan Parties,
threatened against any of them before any Governmental
Authority.
5.18 COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES,
ETC. Neither the Loan Parties nor any of their consolidated
Subsidiaries own or are licensed or otherwise have the right to
use all of the patents, trademarks, service marks, trade names,
copyrights, franchises, authorizations and other rights that
are reasonably necessary for the operation of their respective
businesses, without conflict with the rights of any other
Person. To the best knowledge of the Loan Parties, no slogan
or other advertising device, product, process, method,
substance, part or other material now employed, or now
contemplated to be employed by the Loan Parties or any of their
respective Subsidiaries infringes upon any rights held by any
other Person; no claim or litigation regarding any of the
foregoing is pending or threatened, and no patent, invention,
device, application, principle or any statute, law, rule,
regulation, standard or code is pending or, to the knowledge of
the Loan Parties, proposed, which, in either case, could
reasonably be expected to have a Material Adverse Effect.
5.19 SUBSIDIARIES AND OTHER INVESTMENTS. The Parent
does not have any Subsidiaries or any equity investments in any
other corporation or entity other than those specifically
disclosed in Schedule 5.19, in each case as such Schedule is
updated from time to time (which updates shall be deemed to
update any previous Schedule from the date received by the
Agent without further action by any party hereto).
5.20 INSURANCE. The Properties of each Loan Party
and its Subsidiaries are insured with financially sound and
reputable insurance companies, in such amounts, with such
deductibles and covering such risks as are customarily carried
by companies engaged in similar businesses and owning similar
Properties in localities where each Loan Party or such
Subsidiary operates.
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5.21 FULL DISCLOSURE. None of the representations
or warranties made by the Loan Parties or any of their
respective Subsidiaries in the Loan Documents as of the date
such representations and warranties are made or deemed made,
and none of the statements contained in each exhibit, report,
statement or certificate furnished by or on behalf of the Loan
Parties or any of their respective Subsidiaries in connection
with the Loan Documents, contains any untrue statement of a
material fact or omits any material fact required to be stated
therein or necessary to make the statements made therein, in
light of the circumstances under which they are made, not
misleading.
5.22 PROJECTIONS. As of the date of their
preparation, the assumptions set forth in the Projections were
reasonable and consistent with each other and with all facts
known to the Company and no material assumption was omitted as
a basis for the Projections, and the Projections were
reasonably based on such assumptions. As of the date of this
Agreement, and as of the Closing Date, no fact or circumstance
has come to the attention of the Company to cause it to
believe, and it does not believe, that such assumptions are not
reasonable or consistent with each other and with all facts
known to the Company or that any material assumption is omitted
as a basis for the Projections or that the Projections are not
reasonably based on the assumptions. Nothing in this Section
shall be construed as a representation or covenant that the
Projections in fact will be achieved.
5.23 GAMING LAWS. Each Loan Party and each of its
Subsidiaries are in substantial compliance with all Gaming Laws
that are applicable to it.
5.24 MANAGEMENT AGREEMENT. The Loan Parties are the
sole manager of the Real Property, the entirety of the existing
Rio Hotel and Casino and the Rio Expansion Project. The Loan
Parties have not executed a management agreement with any other
Person with respect to the Real Property.
ARTICLE 6
AFFIRMATIVE COVENANTS
The Borrowers hereby jointly and severally covenant and
agree that, so long as any Bank shall have any Commitment
hereunder, or any Loan or other Obligation shall remain unpaid
or unsatisfied, unless the Majority Banks waive compliance in
writing:
6.01 FINANCIAL STATEMENTS. The Company shall
deliver to the Agent in form and detail satisfactory to the
Agent and the Majority Banks, with sufficient copies for each
Bank:
(a) As soon as available, but not later than
120 days after the end of each fiscal year, a copy of the
Form 10-K of the Parent as filed with the SEC for such
fiscal year, which shall include, or be accompanied by,
the opinion of Arthur
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Andersen or another nationally recognized independent
public accounting firm which report shall state that such
consolidated and consolidating financial statements
present fairly the financial position for the periods
indicated in conformity with GAAP applied on a basis
consistent with prior years. Such opinion shall not be
qualified or limited for any reason, including without
limitation because of a restricted or limited examination
by such accountant of any material portion of the
Parent's, the Company's or any Subsidiary's records and
shall be delivered to the Agent pursuant to a reliance
agreement between the Agent and Banks and such accounting
firm in form and substance satisfactory to the Agent;
(b) As soon as available, but not later than
45 days after the end of each of the first three fiscal
quarters of each fiscal year a copy of the Form 10-Q of
the Parent as filed with the SEC for such fiscal quarter
accompanied by a certificate of a Responsible Officer
certifying the financial statements appearing therein as
being complete and correct and fairly presenting, in
accordance with GAAP, the financial position and the
results of operations of the Parent, the Borrowers and
their respective Subsidiaries;
(c) As soon as available, but not later than
30 days after the end of each calendar month of each year,
a copy of the unaudited combined balance sheet of the
Borrowers and their respective Subsidiaries as of the end
of such month and the related combined statement of income
and for the period commencing on the first day and ending
on the last day of such month, and for the year to date
and, in each case showing comparisons with the prior year
and certified by an appropriate Responsible Officer as
being complete and correct and fairly presenting, in
accordance with GAAP, the financial position and the
results of operations of the Borrowers and their
respective Subsidiaries; and
(d) As soon as available, and in any event
within 60 days after the commencement of each fiscal year
of the Parent and of the Company, a budget and projection
by fiscal quarter for that fiscal year and for the next
two succeeding fiscal years, including for the first such
fiscal year, projected consolidated and consolidating (in
accordance with past consolidating practices of the Parent
and the Company) balance sheets and statements of
operations and a summary of cash flow and, for the second
and third such fiscal years projected consolidated
condensed balance sheets and statements of operations and
summaries of cash flow of the Parent, the Company and
their Subsidiaries, all in reasonable detail.
6.02 CERTIFICATES; OTHER INFORMATION. The Company
shall furnish to the Agent, with sufficient copies for each
Bank:
(a) Concurrently with the delivery of the
financial statements referred to in Section 6.01(a) above,
a certificate of the independent certified public
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accountants reporting on such financial statements which
accountants' report and opinion shall be accompanied by a
certificate stating that, in making the examination
pursuant to generally accepted auditing standards
necessary for the certification of such financial
statements an such report, such accountants have obtained
no knowledge of any Default or Event of Default or, if, in
the opinion of such accountant and such Default or Event
of Default shall exist, stating the nature and status of
such Default or Event of Default;
(b) Concurrently with the delivery of the
financial statements referred to in Sections 6.01(a) and
(b) above, a Compliance Certificate signed by a
Responsible Officer (i) stating that, to the best of such
officer's knowledge, the Loan Parties, during such period,
have observed and performed in all material respects all
of their covenants and other agreements, and satisfied
every condition contained in this Agreement to be
observed, performed or satisfied by them, and that such
officer has obtained no knowledge of any Default or Event
of Default except as specified (by applicable Section
reference) in such certificate, and (ii) showing in detail
the calculations supporting such statement in respect of
Sections 7.13, 7.14, 7.15 and 7.16;
(c) Promptly after the same are sent, copies
of all financial statements and reports which the Parent
or the Company sends to its shareholders; and promptly
after the same are filed, copies of all financial
statements and regular, periodical or special reports
which the Parent or the Company may make to, or file with,
the Securities and Exchange Commission or any successor or
similar Governmental Authority;
(d) Promptly after the same are available,
copies of all copies of all reports and any correspondence
relating thereto prepared pursuant to Nevada Gaming
Commission Regulation 6.090(9) and 6A.110(2) and copies of
any written communications to the Loan Parties or any of
their respective Subsidiaries from any Gaming Authority
relating any order to show cause, any disciplinary action
or to a License Revocation with respect to the Parent, any
Borrower or any of its Subsidiaries;
(e) promptly, such additional business,
financial, corporate affairs and other information as the
Agent, at the request of any Bank, may from time to time
reasonably request; and
(f) Concurrently with the delivery of the
financial statements referred to in Sections 6.01(a) and
(b), a written report, in form and detail reasonably
acceptable to the Agent describing the revenues of the Rio
Secco Golf Course.
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(g) Prior to commencement of construction
with respect to the Rio Expansion Project, reasonably
acceptable and complete construction plans and
construction schedules with respect thereto.
6.03 NOTICES. The Company shall promptly notify the
Agent and each Bank:
(a) of the occurrence of any Default or
Event of Default, and of the occurrence or existence of
any event or circumstance that foreseeably will become a
Default or Event of Default;
(b) of any communication, whether written or
oral, that the Loan Parties may receive from any
governmental, judicial or legal authority, giving notice
of any claim or assertion that the Real Property fails in
any material respect to comply with any Requirement of
Law;
(c) of any material adverse change in the
physical condition of the Real Property (including any
damage suffered as a result of earthquakes or floods) or
any Loan Party's financial condition or operations;
(d) of (i) any breach or nonperformance of,
or any default under, any Contractual Obligations of the
Loan Parties or any of their respective Subsidiaries
which could result in a Material Adverse Effect; and (ii)
any dispute, litigation, investigation, proceeding or
suspension which may exist at any time between the Loan
Parties or any of their respective Subsidiaries and any
Governmental Authority;
(e) of the commencement of, or any material
development in, any litigation or proceedings affecting
the Loan Parties or any of their respective Subsidiaries
(i) in which the amount of damages claimed is $100,000 (or
its equivalent in another currency or currencies) or more,
(ii) in which injunctive or similar relief is sought and
which, if adversely determined, would reasonably be
expected to have a Material Adverse Effect, or (iii) in
which the relief sought is an injunction or other stay of
the performance of this Agreement or any Loan Document;
(f) upon, but in no event later than 10 days
after, becoming aware of (i) any and all enforcement,
cleanup, removal or other governmental or regulatory
actions instituted, completed or threatened against the
Loan Parties or any of their respective Subsidiaries or
any of their respective Properties pursuant to any
applicable Environmental Laws, (ii) all other
Environmental Claims, and (iii) any environmental or
similar condition on any real property adjoining or in the
vicinity of the properties of the Loan Parties or any of
their respective Subsidiaries that could reasonably be
anticipated to cause such properties or any parts thereof
to be subject to any restrictions on the ownership,
occupancy, transferability or use of such properties under
any Environmental Laws;
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(g) of any other litigation or proceedings
affecting the Loan Parties or any of their respective
Subsidiaries which any Loan Party would be required to
report to the SEC pursuant to the Exchange Act, within
four days after reporting the same to the SEC;
(h) of any of the following ERISA events
affecting any Loan Party or any member of its Controlled
Group (but in no event more than 10 days after such
event), together with a copy of any notice with respect to
such event that may be required to be filed with a
Governmental Authority and any notice delivered by a
Governmental Authority to any Loan Party or any member or
its Controlled Group with respect to such event:
(i) an ERISA Event;
(ii) the adoption of any new Plan that
is subject to Title IV of ERISA or section 412 of the
Code by any member of the Controlled Group;
(iii) the adoption of any amendment to
a Plan that is subject to Title IV of ERISA or
section 412 of the Code, if such amendment results in
a material increase in benefits or unfunded
liabilities; or
(iv) the commencement of contributions
by any member of the Controlled Group to any Plan
that is subject to Title IV of ERISA or section 412
of the Code;
(i) any Material Adverse Effect subsequent
to the date of the most recent audited financial
statements of any Loan Party delivered to the Banks
pursuant to Sections 6.01(a) or 4.01(g);
(j) of any change in accounting policies or
financial reporting practices by the Loan Parties or any
of their respective Subsidiaries; and
(k) of any labor controversy resulting in or
threatening to result in any strike, work stoppage,
boycott, shutdown or other labor disruption against or
involving the Loan Parties or any of their respective
Subsidiaries.
Each notice pursuant to this Section shall be
accompanied by a written statement by a Responsible Officer
setting forth details of the occurrence referred to therein,
and stating what action any Loan Party proposes to take with
respect thereto and at what time. Each notice under Section
6.03(a) shall describe with particularity any and all clauses
or provisions of this Agreement or other Loan Document that
have been breached or violated.
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6.04 PRESERVATION OF CORPORATE EXISTENCE, ETC. Each
Loan Party shall, and shall cause each of its Subsidiaries to:
(a) preserve and maintain in full force and
effect its corporate existence and good standing under the
laws of its state or jurisdiction of incorporation;
(b) preserve and maintain in full force and
effect all rights, privileges, qualifications, permits,
licenses and franchises necessary or desirable in the
normal conduct of its business;
(c) use its reasonable efforts, in the
Ordinary Course of Business, to preserve its business
organization and preserve the goodwill and business of the
customers, suppliers and others having material business
relations with it; and
(d) preserve or renew all of its registered
trademarks, trade names and service marks, the
nonpreservation of which could reasonably be expected to
have a Material Adverse Effect.
6.05 MAINTENANCE OF PROPERTY. Each Loan Party shall
maintain, and shall cause each of its Subsidiaries to maintain,
and preserve all their Properties which are used or useful in
their businesses in good working order and condition, ordinary
wear and tear excepted and make all necessary repairs thereto
and renewals and replacements thereof except where the failure
to do so could not reasonably be expected to have a Material
Adverse Effect, except as permitted by Section 7.02.
6.06 INSURANCE. In addition to insurance
requirements set forth in the Collateral Documents, the Loan
Parties shall maintain, and shall cause each of their
respective Subsidiaries to maintain, with financially sound and
reputable independent insurers, insurance with respect to its
Properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or
similar business, of such types and in such amounts as are
customarily carried under similar circumstances by such other
Persons; including workers' compensation insurance, flood
insurance, earthquake insurance public liability and property
and casualty insurance the amounts of which shall not be
reduced by the Loan Parties in the absence of 30 days' prior
notice to the Agent. All such insurance shall name the Agent
as loss payee/mortgagee and as additional insured, for the
benefit of the Banks, as their interests may appear. Upon
request of the Agent or any Bank, the Loan Parties shall
furnish the Agent, with sufficient copies for each Bank, at
reasonable intervals (but not more than once per calendar year)
a certificate of a Responsible Officer (and, if requested by
the Agent, any insurance broker of the Loan Parties) setting
forth the nature and extent of all insurance maintained by the
Loan Parties and their respective Subsidiaries in accordance
with this Section 6.06 or any Collateral Documents (and which,
in the case of a certificate of a broker, were placed through
such broker).
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6.07 PAYMENT OF OBLIGATIONS. Each Loan Party shall,
and shall cause its Subsidiaries to, pay and discharge as the
same shall become due and payable, all their respective
obligations and liabilities, including:
(a) all tax liabilities, assessments and
governmental charges or levies upon it or its properties
or assets, unless the same are being contested in good
faith by appropriate proceedings and adequate reserves in
accordance with GAAP are being maintained by each Loan
Party or such Subsidiary;
(b) all lawful claims which, if unpaid,
would by law become a Lien upon its Property; and
(c) all Indebtedness, as and when due and
payable, but subject to any subordination provisions
contained in any instrument or agreement evidencing such
Indebtedness.
6.08 COMPLIANCE WITH LAWS. Each Loan Party shall
comply, and shall cause each of its Subsidiaries to comply, in
all material respects with all Requirements of Law of any
Governmental Authority having jurisdiction over it or its
business (including the Federal Fair Labor Standards Act),
except such as may be contested in good faith or as to which a
bona fide dispute may exist.
6.09 INSPECTION OF PROPERTY AND BOOKS AND RECORDS.
Each Loan Party shall maintain and shall cause each of its
Subsidiaries to maintain proper books of record and account, in
which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial
transactions and matters involving the assets and businesses of
each Loan Party and such Subsidiaries. Subject to compliance
with applicable Gaming Laws, including restrictions on access
to security and surveillance systems and the casino cage, each
Loan Party shall permit, and shall cause each of its
Subsidiaries to permit, representatives and independent
contractors of the Agent or any Bank to visit and inspect any
of their respective Properties, to examine their respective
corporate, financial and operating records, and make copies
thereof or abstracts therefrom, and to discuss their respective
affairs, finances and accounts with their respective directors,
officers, and independent public accountants, all at such
reasonable times during normal business hours and as often as
may be reasonably desired, upon reasonable advance notice to
each Loan Party; PROVIDED, HOWEVER, when an Event of Default
exists the Agent or any Bank may do any of the foregoing at the
reasonable expense of each Loan Party at any time during normal
business hours and without advance notice.
6.10 ENVIRONMENTAL LAWS.
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(a) Each Loan Party shall, and shall cause
each of its Subsidiaries to, conduct their operations and
keep and maintain their Properties in compliance with all
Environmental Laws.
(b) Upon the written request of the Agent or
any Bank, each Loan Party shall submit and cause each of
its Subsidiaries to submit, to the Agent with sufficient
copies for each Bank, at each Loan Party's sole cost and
expense, at reasonable intervals, a report providing an
update of the status of any environmental, health or
safety compliance, hazard or liability issue identified in
any notice or report required pursuant to Section 6.03(f),
that could, individually or in the aggregate, result in
liability in excess of $1,000,000.
6.11 USE OF PROCEEDS. The Borrowers shall use the
proceeds of the Loans (a) on the Closing Date to replace the
obligations under the Existing Credit Agreement, and (b)
thereafter for general corporate purposes.
6.12 SOLVENCY. Each Loan Party shall at all times
be, and shall cause each of their respective Subsidiaries to
be, Solvent.
6.13 NEW SUBSIDIARIES. Borrowers shall designate
each Subsidiary of Parent formed or acquired after the Closing
Date as a Restricted Subsidiary or an Unrestricted Subsidiary
by a writing delivered to the Agent within 30 days following
such formation or acquisition. Borrowers shall cause each such
Person designated as a Restricted Subsidiary to promptly and in
any event within 30 days execute and deliver to the Agent a
Guaranty and Collateral Documents in form and substance
satisfactory to the Agent pledging substantially all of the
real and personal property of such Restricted Subsidiary, and
the corporate parent of such Restricted Subsidiary shall pledge
all of the capital stock of such Restricted Subsidiary;
PROVIDED, HOWEVER, that Cinderlane shall not be required to
pledge any of the properties listed on Schedule 5.28. No
Unrestricted Subsidiaries shall be required to be Guarantors or
to pledge any of their assets, or to have any of their capital
stock or other ownership interests pledged. In connection with
any new Subsidiary, the Borrowers shall deliver a certificate
signed by a Responsible Officer certifying that Section 5.12 is
true and correct after giving effect to the formation or
acquisition of new Subsidiary, and shall cause such Subsidiary
to also deliver documents of the type referred to in Sections
4.01(d) and (e) and to otherwise comply with Sections 4.01(h)
through (k) and 6.22 with respect thereto.
6.14 ADDITIONAL COLLATERAL. The Company shall
execute and deliver to the Agent Mortgages as appropriate
containing restrictions and granting Liens in a manner similar
to the Deed of Trust and in any event reasonably acceptable to
the Majority Banks, with respect to each fee, fixture and
leasehold interest in real property acquired by any Borrower or
any of their respective Subsidiaries, except as provided in the
proviso to Section 6.13.
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6.15 REQUIREMENTS OF LAW. The Company shall
construct any and all improvements to the Real Property in a
good and workmanlike manner in accordance with sound building
practices. The Company shall comply with all existing and
future laws, regulations, orders, building codes, restrictions
and requirements of, and all agreements with and commitments
to, all governmental, judicial or legal authorities having
jurisdiction over the Real Property, including those pertaining
to the construction, sale, leasing or financing of such
improvements, and with all recorded covenants and restrictions
affecting the Real Property.
6.16 PERMITS, LICENSES AND APPROVALS. Each Loan
Party shall properly obtain, comply with and keep in effect all
permits, licenses and approvals which are required to be
obtained from Governmental Authorities in order to construct,
occupy and operate the Real Property. Each Loan Party shall
promptly deliver copies of all such permits, licenses and
approvals to the Agent.
6.17 PURCHASE OF MATERIALS; CONDITIONAL SALES
CONTRACTS. Except as permitted under Section 7.01(i) or
7.05(e) the Loan Parties shall not purchase or contract for any
materials, equipment, furnishings, fixtures or articles of
personal property to be placed or installed on the Real
Property or in any Improvements in connection with the Rio
Expansion Project under any security agreement or other
agreement where the seller reserves or purports to reserve
title or the right of removal or repossession, or the right to
consider them personal property after their incorporation in
the work of construction, unless the Agent in each instance has
authorized the Loan Parties to do so in writing.
6.18 SITE VISITS; RIGHT TO STOP WORK.
(a) The Agent, or any Bank and its agents
and representatives shall have the right at any reasonable
time to enter and visit the Real Property for the purposes
of performing an appraisal, observing the work of
construction and examining all materials, plans,
specifications, working drawings and other matters
relating to the construction of the Rio Expansion Project.
For purposes of these site visits, the Loan Parties shall
at all times maintain a full set of working drawings at
the construction site. The Agent shall also have the
right to examine, copy and audit the books, records,
accounting data and other documents of the Loan Parties
and their contractors which relate to the Rio Expansion
Project. In each instance, the Agent or Bank, as the case
may be, shall give the Loan Parties reasonable notice
before entering the Property. The Agent or Bank, as the
case may be, shall make reasonable efforts to avoid
interfering with the Loan Parties' use of the Property
when exercising any of the rights granted in this Section.
(b) If Majority Banks in their reasonable
judgment determine that any work or materials associated
with the Rio Expansion Project fail to conform to sound
building practices, or that they otherwise depart from any
of the requirements of
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this Agreement, Majority Banks may require the work to be
stopped and withhold disbursements until the matter is
corrected. If this occurs, the Loan Parties shall
promptly correct the work to the Agent's satisfaction, and
pending completion of such corrective work shall not allow
any other work to proceed.
(c) Neither the Agent nor any Bank is under
any duty to visit the construction site for the Rio
Expansion Project, or to supervise or observe construction
or to examine any books or records. Any site visit,
observation or examination shall be solely for the purpose
of protecting the Agent's and the Banks' rights and
interests. No site visit, observation or examination by
the Agent shall impose any liability on the Agent or the
Banks or result in a waiver of any default of the Loan
Parties. In no event shall any site visit, observation or
examination be a representation that there has been or
shall be compliance with any construction plans delivered
to the Agent or the Banks, that the construction is free
from defective materials or workmanship, or that the
construction complies with the Requirements of Law or any
other applicable law of a Governmental Authority. Neither
the Loan Parties nor any other party is entitled to rely
on any site visit, observation or examination by the Agent
or any Bank. Neither the Agent nor any Bank owes any duty
of care to protect the Loan Parties or any other party
against, or to inform the Loan Parties or any other party
of, any negligent or defective design or construction of
the Improvements, or any other adverse condition affecting
the Real Property.
6.19 PROTECTION AGAINST LIEN CLAIMS. Each Loan
Party shall promptly pay or otherwise discharge all claims and
liens for labor done and materials and services furnished in
connection with the Rio Expansion Project. Each Loan Party
shall have the right to contest in good faith any claim or
lien, provided that they do so diligently and without prejudice
to the Agent or delay in completing the Rio Expansion Project.
Upon the Agent's request, each Loan Party shall promptly
provide a bond, cash deposit or other security which the Agent
in the exercise of its reasonable judgment determines to be
satisfactory.
6.20 SIGNS AND PUBLICITY. At the Agent's request,
The Loan Parties shall post signs on the Real Property for the
purpose of identifying the Banks as the construction lenders
for the Rio Expansion Project, and shall use its best efforts
to identify the Banks in publicity concerning the Rio Expansion
Project. In addition, the Agent shall have the right to refer
to the Rio Expansion Project in its own promotional and
advertising materials. The Loan Parties shall not post signs,
or otherwise identify any of the Banks as the construction
lender, except with the Agent's prior written consent in each
instance.
6.21 LEASES OF COMPANY PREMISES. Each Loan Party
shall notify the Agent promptly of any lease of all or any
portion of the Real Property to any Person. Except for the
leases set forth on SCHEDULE 6.26 all leases to any Person of
any portion of the Real Property (and any renewal or extension
of the leases set forth on SCHEDULE 6.26) shall include
provisions requiring the tenant to provide the Agent with
estoppel certificates in form and
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substance satisfactory to Majority Banks within 10 days of the
Agent's request. Each Loan Party shall diligently work to
obtain such estoppel certificates within such 10 day period.
The Agent is hereby authorized to execute, on behalf of the
Banks, non-disturbance agreements in favor of the tenants under
each lease described on SCHEDULE 6.26 and in favor of each
tenant under any lease hereafter entered into by a Loan Party
with a tenant for retail sales, consumer services or restaurant
space, in each case in a form reasonably acceptable to the
Agent.
6.22 FURTHER ASSURANCES.
(a) Each Loan Party shall ensure that all
written information, exhibits and reports furnished to the
Agent or the Banks do not and will not contain any untrue
statement of a material fact and do not and will not omit
to state any material fact or any fact necessary to make
the statements contained therein not misleading in light
of the circumstances in which made, and will promptly
disclose to the Agent and the Banks and correct any defect
or error that may be discovered therein or in any Loan
Document or in the execution, acknowledgment or
recordation thereof.
(b) Promptly upon request by the Agent or
the Majority Banks, each Loan Party shall (and shall cause
any of its Subsidiaries to) do, execute, acknowledge,
deliver, record, rerecord, file, refile, register and re-
register, any and all such further acts, deeds,
conveyances, security agreements, Mortgages, assignments,
estoppel certificates, financing statements and
continuations thereof, termination statements, notices of
assignment, transfers, certificates, assurances and other
instruments the Agent or such Banks, as the case may be,
may reasonably require from time to time in order (i) to
carry out more effectively the purposes of this Agreement
or any other Loan Document, (ii) to subject to the Liens
created by any of the Collateral Documents any of the
Properties, rights or interests covered by any of the
Collateral Documents, (iii) to perfect and maintain the
validity, effectiveness and priority of any of the
Collateral Documents and the Liens intended to be created
thereby, and (iv) to better assure, convey, grant, assign,
transfer, preserve, protect and confirm to the Agent and
Banks the rights granted or now or hereafter intended to
be granted to the Banks under any Loan Document or under
any other document executed in connection therewith.
ARTICLE 7
NEGATIVE COVENANTS
The Borrowers hereby jointly and severally covenant and
agree that, so long as any Bank shall have any Commitment
hereunder, or any Loan or other Obligation shall remain unpaid
or unsatisfied, unless the Majority Banks waive compliance in
writing:
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7.01 LIMITATION ON LIENS. The Loan Parties shall
not, and shall not suffer or permit any of their respective
Subsidiaries to, directly or indirectly, make, create, incur,
assume or suffer to exist any Negative Pledges, Rights of
Others or Liens upon or with respect to any parts of their
Property, whether now owned or hereafter acquired, or grant any
Negative Pledge to any other creditor, other than the following
("PERMITTED LIENS"):
(a) any Lien (other than Liens on the
Collateral) existing on the Property of the Loan Parties
or their respective Subsidiaries on the Closing Date and
set forth in SCHEDULE 7.01 securing Indebtedness
outstanding on such date;
(b) any Negative Pledge or Lien created
under any Loan Document;
(c) Liens for taxes, fees, assessments or
other governmental charges which are not delinquent or
remain payable without penalty, or to the extent that
nonpayment thereof is permitted by Section 6.07, provided
that no Notice of Lien has been filed or recorded under
the Code;
(d) carriers', warehousemen's, mechanics',
landlords', materialmen's, repairmen's or other similar
Liens arising in the Ordinary Course of Business which are
not delinquent or remain payable without penalty;
(e) Liens (other than any Lien imposed by
ERISA and other than on the Collateral) consisting of
pledges or deposits required in the Ordinary Course of
Business in connection with workers' compensation,
unemployment insurance and other social security
legislation;
(f) Liens (other than Liens on the
Collateral) on the Property of the Loan Parties or any of
their respective Subsidiaries securing (i) the non-
delinquent performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations,
(ii) contingent obligations on surety and appeal bonds,
and (iii) other non-delinquent obligations of a like
nature; in each case, incurred in the Ordinary Course of
Business, provided all such Liens in the aggregate would
not (even if enforced) cause a Material Adverse Effect;
(g) Liens (other than Liens on the
Collateral) consisting of judgment or judicial attachment
liens, provided that the enforcement of such Liens is
effectively stayed and all such liens in the aggregate at
any time outstanding for the Loan Parties and their
respective Subsidiaries do not exceed $1,000,000;
(h) easements, rights of way, restrictions
and other similar encumbrances incurred in the Ordinary
Course of Business which, in the aggregate, are not
substantial in amount, and which do not in any case
materially detract from the
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value of the Property subject thereto or interfere with
the ordinary conduct of the businesses of the Loan Parties
and their respective Subsidiaries;
(i) Purchase money security interests on
equipment and slot machines only, which are acquired or
held by the Loan Parties or their respective Subsidiaries
in the Ordinary Course of Business, securing Indebtedness
incurred or assumed for the purpose of financing all or
any part of the cost of acquiring such equipment or slot
machines; PROVIDED THAT (i) any such Lien attaches to such
equipment or slot machines concurrently with or within 20
days after the acquisition thereof, (ii) such Lien
attaches solely to the equipment or slot machines so
acquired in such transaction, (iii) the principal amount
of the debt secured thereby does not exceed 100% of the
cost of such equipment or slot machines, (iv) the
outstanding principal amount of the Indebtedness incurred
following the Closing Date which is secured by such
purchase money security interests shall not at any time
exceed, when aggregated with Indebtedness permitted under
Section 7.05(e), $30,000,000, and (v) the terms and
conditions of any such purchase money loan and the related
security interest are acceptable to Majority Banks;
(j) Liens securing Capital Lease Obligations
on assets subject to such Capital Leases, provided that
such Capital Leases are permitted under Section 7.11(c);
(k) Liens on cash in an amount not to exceed
$1,000,000 securing obligations of the Loan Parties as
account party under workers' compensation letters of
credit permitted under Section 7.08(d); and
(l) Liens arising solely by virtue of any
statutory or common law provision relating to banker's
liens, rights of set-off or similar rights and remedies as
to deposit accounts or other funds maintained with a
creditor depository institution; PROVIDED THAT (i) such
deposit account is not a dedicated cash collateral account
and is not subject to restrictions against access by the
Loan Parties in excess of those set forth by regulations
promulgated by the Federal Reserve Board, and (ii)_such
deposit account is not intended by the Loan Parties or any
of their respective Subsidiaries to provide collateral to
the depository institution.
7.02 DISPOSITION OF ASSETS. The Loan Parties shall
not, and shall not suffer or permit any of their respective
Subsidiaries to, directly or indirectly, sell, assign, lease,
convey, transfer or otherwise dispose of (whether in one or a
series of transactions) any Property (including accounts and
notes receivable, with or without recourse) or enter into any
agreement to do any of the foregoing, except:
(a) dispositions of inventory, or used,
worn-out or surplus equipment, all in the Ordinary Course
of Business;
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(b) the sale of equipment to the extent that
such equipment is exchanged for credit against the
purchase price of similar replacement equipment, or the
proceeds of such sale are reasonably promptly applied to
the purchase price of such replacement equipment; and
(c) transfers of assets by any Subsidiary or
any Borrower to any Borrower, or transfers of assets by
any Subsidiary or any Borrower to any Restricted
Subsidiaries with respect to which Sections 6.13 and 6.14
have been complied with.
7.03 CONSOLIDATIONS AND MERGERS. The Loan Parties
shall not, and shall not suffer or permit any of their
respective Subsidiaries to, merge, consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions all or substantially
all of its assets (whether now owned or hereafter acquired) to
or in favor of any Person, except:
(a) any Subsidiary of the Loan Parties may
merge with the Loan Parties, provided that the Loan
Parties shall be the continuing or surviving corporation,
or with any one or more Subsidiaries of the Loan Parties,
provided that if any transaction shall be between a
Subsidiary and a wholly owned Subsidiary, the wholly owned
Subsidiary shall be the continuing or surviving
corporation; and
(b) any Subsidiary of the Loan Parties may
sell all or substantially all of its assets (upon
voluntary liquidation or otherwise), to the Loan Parties
or another wholly owned Subsidiary of the Loan Parties.
7.04 LOANS AND INVESTMENTS. The Loan Parties shall
not purchase or acquire, or suffer or permit any of their
respective Subsidiaries to purchase or acquire, or make any
commitment therefor, any capital stock, equity interest, all or
substantially all of the assets of, or any obligations or other
securities of, or any interest in, any Person, or make any
advance, loan, extension of credit or capital contribution to
or any other investment in, any Person including any Affiliate
of the Loan Parties (collectively, "investments"), except for:
(a) investments in Cash Equivalents;
(b) extensions of credit in the nature of
accounts receivable or notes receivable arising from the
sale or lease of goods or services in the Ordinary Course
of Business and all extensions of credit to gaming
customers to the extent, and of amounts, customarily made
available by the Loan Parties in the Ordinary Course of
its Business;
(c) Investments in Borrowers and Restricted
Subsidiaries with respect to which Sections 6.13 and 6.14
have been complied with;
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(d) Existing Investments through Rio
Development in the Rio Secco Golf Course;
(e) Investments made following the Closing
Date in Rio Development in an aggregate amount not to
exceed $30,000,000 for the purpose of further development
of the Rio Secco Golf Course made when no Default or Event
of Default exists or would result therefrom; and
(f) Investments following the Closing Date
in Cinderlane or New Project Entities for the purpose of
constructing improvements to the Cinderlane Property,
PROVIDED THAT the aggregate amount of such Investments
shall not exceed $50,000,000 UNLESS (i) Cinderlane, the
relevant New Project Entity or a Borrower, or another
Restricted Subsidiary which is the owner of such real
property has granted a guaranty to the Agent pursuant to
Section 6.13 and has executed and delivered a deed of
trust with respect to the Cinderlane Property to the Agent
for the benefit of the Banks, which deed of trust shall be
substantially in the form of the Deed of Trust, (ii) the
Borrowers shall have provided the Agent with endorsements
to its policy of title insurance assuring the deed of
trust to be of first priority, subject only to such
exceptions to title as may be acceptable to the Agent and
as are disclosed in writing to the Banks, and (iii)
Borrowers or the Restricted Subsidiary owning the
Cinderlane Real Property has provided to the Agent such
other assurances, opinions, instruments, documents and
agreements as the Agent may reasonably request.
7.05 LIMITATION ON INDEBTEDNESS. The Loan Parties
shall not, and shall not suffer or permit any of their
respective Subsidiaries to, create, incur, assume, suffer to
exist, or otherwise become or remain directly or indirectly
liable with respect to, any Indebtedness, except:
(a) Indebtedness incurred pursuant to this
Agreement;
(b) accounts payable to trade creditors for
goods and services and current operating liabilities (not
the result of the borrowing of money) incurred in the
Ordinary Course of Business of the Loan Parties or such
Subsidiary in accordance with customary terms and paid
within the specified time, unless contested in good faith
by appropriate proceedings and reserved for in accordance
with GAAP;
(c) Indebtedness consisting of Contingent
Obligations permitted pursuant to Section 7.08;
(d) Indebtedness existing on the Closing
Date and set forth in SCHEDULE 7.05;
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(e) Indebtedness secured by Liens permitted
by Section 7.01(i) incurred following the Closing Date in
an aggregate principal amount which does not exceed
$30,000,000 at any time;
(f) Indebtedness incurred in connection with
leases permitted pursuant to Section 7.11;
(g) Indebtedness incurred when no Default or
Event of Default exists having subordination and other
terms substantially the same as the Parent's outstanding
10-5/8% Senior Subordinated Notes Due 2005 (other than
pricing, but in any event reasonably satisfactory to the
Agent and its counsel), providing in any event for no
payments of principal prior to the maturity of such Senior
Subordinated Notes.
7.06 TRANSACTIONS WITH AFFILIATES. The Loan Parties
shall not, and shall not suffer or permit any of their
respective Subsidiaries to, enter into any transaction with any
Affiliate of the Loan Parties or of any such Subsidiary, except
(a) as expressly permitted by this Agreement, or (b) in the
Ordinary Course of Business and pursuant to the reasonable
requirements of the businesses of the Loan Parties or such
Subsidiary; in each case (a) and (b), upon fair and reasonable
terms no less favorable to the Loan Parties or such Subsidiary
than would be obtained in a comparable arm's length transaction
with a Person not an Affiliate of the Loan Parties or such
Subsidiary.
7.07 USE OF PROCEEDS. The Loan Parties shall not
use any portion of the Loan proceeds, directly or indirectly,
(i) to purchase or carry Margin Stock, (ii) to repay or
otherwise refinance indebtedness of the Loan Parties or others
incurred to purchase or carry Margin Stock, (iii) to extend
credit for the purpose of purchasing or carrying any Margin
Stock, or (iv) to acquire any security in any transaction that
is subject to Section 13 or 14 of the Exchange Act.
7.08 CONTINGENT OBLIGATIONS. The Loan Parties shall
not, and shall not suffer or permit any of their respective
Subsidiaries to, create, incur, assume or suffer to exist any
Contingent Obligations except:
(a) endorsements for collection or deposit
in the Ordinary Course of Business;
(b) Rate Contracts entered into with respect
to the obligations and indebtedness evidenced by this
Agreement;
(c) Contingent Obligations of the Loan
Parties and their respective Subsidiaries existing as of
the Closing Date and listed in SCHEDULE 7.08;
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(d) Contingent Obligations of the Loan
Parties for workers' compensation letters of credit the
aggregate face amount of which shall at no time exceed
$1,000,000;
(e) Guaranty Obligations of the Parent
Senior Subordinated Notes not exceeding an aggregate
principal potential liability of $225,000,000, together
with interest thereon and of any additional senior
subordinated notes of Parent issued following the Closing
Date pursuant to Section 7.05(g); PROVIDED, that any
Guaranty Obligations with respect to Parent Senior
Subordinated Notes issued following the Closing Date shall
be subordinated to the Obligations on terms and conditions
which are similar to those in existence as of the Closing
Date with respect to the then outstanding Parent Senior
Subordinated Notes and in any event reasonably
satisfactory to the Agent and its counsel; and
(f) Guaranty Obligations of the Company and/
or Rio Resorts with respect to Indebtedness of Rio
Development and/or Rio Resorts permitted by Section
7.05(e).
7.09 JOINT VENTURES. The Loan Parties shall not,
and shall not suffer or permit any of their respective
Subsidiaries to, enter into any Joint Venture, other than in
the Ordinary Course of Business.
7.10 COMPLIANCE WITH ERISA. The Loan Parties shall
not, and shall not suffer or permit any of their respective
Subsidiaries to, (i) terminate any Plan subject to Title IV of
ERISA so as to result in any material (in the opinion of the
Majority Banks) liability to the Loan Parties or any ERISA
Affiliate, (ii) permit to exist any ERISA Event or any other
event or condition, which presents the risk of a material (in
the opinion of the Majority Banks) liability to any member of
the Controlled Group, (iii) make a complete or partial
withdrawal (within the meaning of ERISA Section 4201) from any
Multiemployer Plan so as to result in any material (in the
opinion of the Majority Banks) liability to Loan Parties or any
ERISA Affiliate, (iv) enter into any new Plan or modify any
existing Plan so as to increase its obligations thereunder
which could result in any material (in the opinion of the
Majority Banks) liability to any member of the Controlled
Group, or (v) permit the present value of all nonforfeitable
accrued benefits under any Plan (using the actuarial
assumptions utilized by the PBGC upon termination of a Plan)
materially (in the opinion of the Majority Banks) to exceed the
fair market value of Plan assets allocable to such benefits,
all determined as of the most recent valuation date for each
such Plan.
7.11 LEASE OBLIGATIONS. The Loan Parties shall not,
and shall not suffer or permit any of their respective
Subsidiaries to, create or suffer to exist any obligations for
the payment of rent for any Property under lease or agreement
to lease, except for:
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(a) leases of the Loan Parties and their
respective Subsidiaries in existence on the Closing Date
and any renewal, extension or refinancing thereof;
(b) Operating Leases entered into by the
Loan Parties or any of their respective Subsidiaries after
the Closing Date in the Ordinary Course of Business;
(c) Capital Leases, other than those
permitted under clause (a) of this Section 7.11, entered
into by the Loan Parties or any of their respective
Subsidiaries after the Closing Date to finance the
acquisition of equipment; PROVIDED that the aggregate
annual rental payments for all such Capital Leases shall
not exceed, when aggregated with all other Capital
Expenditures during such year, the limits on Capital
Expenditures set forth in Section 7.13.
7.12 RESTRICTED PAYMENTS. The Loan Parties shall
not, and shall not suffer or permit any of their respective
Subsidiaries to, declare or make any dividend payment or other
distribution of assets, properties, cash, rights, obligations
or securities on account of any shares of any class of its
capital stock, or purchase, redeem or otherwise acquire for
value any shares of its capital stock or any warrants, rights
or options to acquire such shares, now or hereafter
outstanding, except for:
(a) Dividends, payments or other
distributions paid to the Loan Parties by their wholly-
owned Subsidiaries;
(b) Repurchases of shares of the Guarantor
not exceeding $10,000,000 (net of issuances of such
shares) since June 30, 1997 in the aggregate; and
(c) Dividends to the Parent made when no
Default or Event of Default exists or would result
therefrom.
7.13 CAPITAL EXPENDITURES. The Loan Parties and
their respective Subsidiaries and Unrestricted Subsidiaries
shall not make, or become legally obligated to make, any
Capital Expenditures EXCEPT:
(a) Capital Expenditures associated with the
Rio Expansion Project in an aggregate amount not to exceed
$258,000,000; and
(b) Other Capital Expenditures (including
Maintenance Capital Expenditures) which do not exceed
$142,000,000.
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7.14 INTEREST COVERAGE RATIO. The Borrowers shall
not permit the Interest Coverage Ratio, as of the last day of
any fiscal quarter, to be less than the ratio set forth
opposite that fiscal quarter below:
FISCAL QUARTERS ENDING RATIO
December 31, 1997 through and
including June 30, 1998 2.00:1.00
September 30, 1998 through and
including December 31, 1999 1.75:1.00
Thereafter 2.00:1.00
7.15 MAXIMUM TOTAL LEVERAGE RATIO. The Borrowers
shall not permit the Total Leverage Ratio, as of the last day
of any fiscal quarter, to be greater than the ratio set forth
opposite that fiscal quarter below:
FISCAL QUARTERS ENDING RATIO
December 31, 1997 3.50:1.00
March 31, 1998 3.75:1.00
June 30, 1998 4.25:1.00
September 30, 1998 5.00:1.00
December 31, 1998 5.25:1.00
March 31, 1999 5.75:1.00
June 30, 1999 5.75:1.00
September 30, 1999 4.75:1.00
December 31, 1999 4.50:1.00
Thereafter 4.00:1.00
7.16 MAXIMUM SENIOR LEVERAGE RATIO. The Borrowers
shall not permit the Senior Leverage Ratio, as of the last day
of any fiscal quarter, to be greater than 3.00:1.00.
7.17 CHANGE IN BUSINESS. The Loan Parties shall
not, and shall not permit any of their respective Subsidiaries
to, engage in any material line of business substantially
different from those lines of businesses carried on by them on
the date hereof. The Loan Parties shall not, and shall not
permit any of their respective Subsidiaries to, engage in any
activity which would jeopardize any liquor, casino, gambling or
gaming license held by the Loan Parties or which would cause a
License Revocation.
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7.18 CHANGE IN STRUCTURE. Except as expressly
permitted under Section 7.03 or Section 7.04, the Loan Parties
shall not and shall not permit any of their respective
Subsidiaries to, make any changes in its equity capital
structure (including in the terms of its outstanding stock),
or amend its certificate of incorporation or bylaws in any
material respect.
7.19 ACCOUNTING CHANGES. The Loan Parties shall
not, and shall not suffer or permit any of their respective
Subsidiaries to, make any significant changes in accounting
treatment or reporting practices, except as required by GAAP or
by Gaming Authorities, or change the fiscal year of the Loan
Parties or of any of their consolidated Subsidiaries.
7.20 OTHER CONTRACTS. The Loan Parties shall not
enter into any employment contracts or other employment or
service-retention arrangements whose terms, including salaries,
benefits and other compensation, are not normal and customary
in the industry.
7.21 MANAGEMENT AGREEMENT. The Loan Parties shall
not enter into a management agreement with any other Person
with respect to the Real Property and the Improvements unless
the form of such agreement and such Person are approved by the
Agent.
7.22 IMPROVEMENT DISTRICT. The Loan Parties shall
not vote in favor of, or directly or indirectly advocate or
assist in the incorporation of any part of the Real Property or
the Project into any improvement or community facilities
district, special assessment district or other district without
the Agent's prior written consent in each instance.
ARTICLE 8
EVENTS OF DEFAULT
8.01 EVENT OF DEFAULT. Any of the following shall
constitute an "EVENT OF DEFAULT":
(a) NON-PAYMENT. Any Loan Party fails to
pay,(i) when and as required to be paid herein, any amount
of principal of any Loan, or (ii) within 5 days after the
same shall become due, any interest, fee or any other
amount payable hereunder or pursuant to any other Loan
Document;
(b) REPRESENTATION OR WARRANTY. Any
representation or warranty by any Loan Party or any of its
Subsidiaries or the Parent made or deemed made herein, in
any Loan Document, or which is contained in any
certificate, document or financial or other statement by
any Loan Party, any of its Subsidiaries, or the Parent or
their respective Responsible Officers, furnished at any
time under this Agreement, or in or under any Loan
Document, shall prove to have been incorrect in any
material respect on or as of the date made or deemed made;
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(c) SPECIFIC DEFAULTS. Any Loan Party fails
to perform or observe any term, covenant or agreement
contained in Sections 6.01, 6.02, 6.03, 6.09, 6.11, 6.15,
6.16 or 6.17 or Article VII;
(d) OTHER DEFAULTS. Any Loan Party fails to
perform or observe any other term or covenant contained in
this Agreement or any Loan Document, and such default
shall continue unremedied for a period of 15 days after
the earlier of (i) the date upon which a Responsible
Officer knew or should have known of such failure or (ii)
the date upon which written notice thereof is given to any
Loan Party by the Agent or any Bank;
(e) ABANDONMENT OF CONSTRUCTION. If,
following commencement thereof, construction of the Rio
Expansion Project is abandoned, or construction of the Rio
Expansion Project is not completed on or before December
31, 1999;
(f) GOVERNMENT STOPPAGE. Any Governmental
Authority having jurisdiction over the Project orders or
requires that construction of the Rio Expansion Project,
once commenced, be stopped in whole or in part, or any
required approval, license or permit is withdrawn or
suspended, and the order, requirement, withdrawal or
suspension remains in effect either (i) for a period of
thirty (30) consecutive days ("Initial Cure Period"), or
(ii) for a total period of ninety (90) days, so long as
any Loan Party begins within the Initial Cure Period and
diligently continues to take steps to remove the effect of
the order, requirement, withdrawal or suspension, and the
Agent, exercising reasonable judgment, determines that any
Loan Party is reasonably likely to prevail;
(g) CONDEMNATION. All or a substantial or
material portion of the Real Property is condemned, seized
or appropriated by any Governmental Authority; provided,
however, that the foregoing shall not constitute an Event
of Default if (i)_all sums secured by the Deed of Trust
are paid in full within 30 days after the date of any such
condemnation, seizure or appropriation, and (ii) any Loan
Party has executed such documents as the Agent or the
Banks may require evidencing the termination of the Banks'
obligation to make any further Loans under this Agreement;
(h) CROSS DEFAULT. Any Loan Party or any of
its Subsidiaries (i) fails to make any payment in respect
of any Indebtedness or Contingent Obligation when due
(whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) and such failure
continues after the applicable grace or notice period, if
any, specified in the document relating thereto on the
date of such failure; or (ii) fails to perform or observe
any other condition or covenant, or any other event shall
occur or condition exist, under any agreement or
instrument relating to any such Indebtedness or Contingent
Obligation, and such failure continues after the
applicable grace or notice period, if any, specified in
the document relating thereto on the date of
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such failure if the effect of such failure, event or
condition is to cause, or to permit the holder or holders
of such Indebtedness or beneficiary or beneficiaries of
such Indebtedness (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to
cause such Indebtedness to be declared to be due and
payable prior to its stated maturity, or such Contingent
Obligation to become payable or cash collateral in respect
thereof to be demanded;
(i) INSOLVENCY; VOLUNTARY PROCEEDINGS. Any
Loan Party or any of its Subsidiaries (i) ceases or fails
to be Solvent, or generally fails to pay, or admits in
writing its inability to pay, its debts as they become
due, subject to applicable grace periods, if any, whether
at stated maturity or otherwise; (ii) voluntarily ceases
to conduct its business in the ordinary course; (iii)
commences any Insolvency Proceeding with respect to
itself; or (iv) takes any action to effectuate or
authorize any of the foregoing;
(j) INVOLUNTARY PROCEEDINGS. (i) Any
involuntary Insolvency Proceeding is commenced or filed
against any Loan Party or any Subsidiary of any Loan
Party, or any writ, judgment, warrant of attachment,
execution or similar process, is issued or levied against
a substantial part of any Loan Party's or any of its
Subsidiaries' Properties, and any such proceeding or
petition shall not be dismissed, or such writ, judgment,
warrant of attachment, execution or similar process shall
not be released, vacated or fully bonded within 60 days
after commencement, filing or levy; (ii) any Loan Party or
any of its Subsidiaries admits the material allegations of
a petition against it in any Insolvency Proceeding, or an
order for relief (or similar order under non-U.S. law) is
ordered in any Insolvency Proceeding; or (iii) any Loan
Party or any of its Subsidiaries acquiesces in the
appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent
therefor), or other similar Person for itself or a
substantial portion of its Property or business;
(k) ERISA. (i) A member of the Controlled
Group shall fail to pay when due, after the expiration of
any applicable grace period, any installment payment with
respect to its withdrawal liability under a Multiemployer
Plan; (ii) any Loan Party or an ERISA Affiliate shall fail
to satisfy its contribution requirements under Section
412(c)(11) of the Code, whether or not it has sought a
waiver under Section 412(d) of the Code; (iii) in the case
of an ERISA Event involving the withdrawal from a Plan of
a "substantial employer" (as defined in Section 4001(a)(2)
or Section 4062(e) of ERISA), the withdrawing employer's
proportionate share of that Plan's Unfunded Pension
Liabilities is more than $1,000,000; (iv) in the case of
an ERISA Event involving the complete or partial
withdrawal from a Multiemployer Plan, the withdrawing
employer has incurred a withdrawal liability in an
aggregate amount exceeding $1,000,000; (v) in the case of
an ERISA Event not described in clause (iii) or (iv), the
Unfunded Pension Liabilities of the relevant Plan or Plans
exceed $1,000,000; (vi) a Plan that is intended to be
qualified under Section 401(a) of the
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Code shall lose its qualification, and the loss can
reasonably be expected to impose on members of the
Controlled Group liability (for additional taxes, to Plan
participants, or otherwise) in the aggregate amount of
$1,000,000 or more; (vii) the commencement or increase of
contributions to, or the adoption of or the amendment of a
Plan by, a member of the Controlled Group shall result in
a net increase in unfunded liabilities to the Controlled
Group in excess of $1,000,000; (viii) any member of the
Controlled Group engages in or otherwise becomes liable
for a non-exempt prohibited transaction and the initial
tax or additional tax under section 4975 of the Code
relating thereto might reasonably be expected to exceed
$1,000,000; (ix) a violation of section 404 or 405 of
ERISA or the exclusive benefit rule under section 401(a)
of the Code if such violation might reasonably be expected
to expose a member or members of the Controlled Group to
monetary liability in excess of $1,000,000; (x) any member
of the Controlled Group is assessed a tax under section
4980B of the Code in excess of $1,000,000; or (xi) the
occurrence of any combination of events listed in clauses
(iii) through (x) that involves a potential liability, net
increase in aggregate Unfunded Pension Liabilities,
unfunded liabilities, or any combination thereof, in
excess of $1,000,000;
(l) MONETARY JUDGMENTS. One or more final
(non-interlocutory) judgments, orders or decrees shall be
entered against any Loan Party or any of its Subsidiaries
involving in the aggregate a liability (not fully covered
by independent third-party insurance) as to any single or
related series of transactions, incidents or conditions,
of $1,000,000 or more, and the same shall remain
unsatisfied, unvacated and unstayed pending appeal for a
period of 30 days after the entry thereof; or
(m) NON-MONETARY JUDGMENTS. Any non-monetary
judgment, order or decree shall be rendered against any
Loan Party or any of its Subsidiaries which does or would
reasonably be expected to have a Material Adverse Effect,
and there shall be any period of 10 consecutive days
during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall
not be in effect;
(n) GUARANTIES AND COLLATERAL.
(i) any provision of any Collateral
Document, Guaranty or any Parent Collateral Document
shall for any reason cease to be valid and binding on
or enforceable against any Loan Party or any
Subsidiary of any Loan Party or any Guarantor party
thereto or any Loan Party or any Subsidiary of any
Loan Party or any Guarantor shall so state in writing
or bring an action to limit its obligations or
liabilities thereunder; or
(ii) any Collateral Document or Parent
Collateral Documents shall for any reason (other than
pursuant to the terms thereof) cease to create a
valid security interest in the Collateral purported
to be
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covered thereby or such security interest shall for
any reason cease to be a perfected and first priority
security interest subject only to Permitted Liens and
such failure shall continue unremedied for a period
of 10 days after the earlier of (i) the date upon
which a Responsible Officer knew or should have known
of such failure or (ii) the date upon which written
notice thereof is given to any Loan Party by the
Agent or any Bank; and provided that such failure is
remedied with no loss of priority and that the Banks
or the Agent on behalf of the Banks are returned to
the position they would have been in had no lapse of
the security interest, or the priority or perfection
thereof ever occurred;
(o) OWNERSHIP PARENT AND COMPANY.
(i) The Parent any time: (A) ceases to
maintain in the aggregate a direct or indirect
beneficial equity interest in any Loan Party at least
equal to 100% of the beneficial equity interest
directly or indirectly held by it on the Closing
Date; or (B) fails to own beneficially, directly or
indirectly, capital stock representing voting control
of any Loan Party; or
(ii) (A) Anthony A. Marnell II ceases
to own or control beneficially, directly or
indirectly, at least 10% of the outstanding Voting
Stock of the Parent, or (B) or any Person or group of
Persons (as defined in the Securities Exchange Act
of 1934 and regulations thereunder) shall hold or
control a greater amount of the Voting Stock of the
Parent than the amount owned directly or controlled
by Anthony A. Marnell II;
(p) GUARANTY OBLIGATIONS. If any claim,
demand or request for payment shall be made on any Loan
Party or any Subsidiary under or in respect of any
Guaranty Obligations permitted by Section 7.08(e);
(q) LOSS OF LICENSES.
(i) There shall occur any License
Revocation; or
(ii) any Governmental Authority (other
than a Gaming Authority shall revoke or fail to renew
any material license, permit or franchise of any Loan
Party or any of its Subsidiaries or any Loan Party or
any of its Subsidiaries shall for any reason lose any
material license, permit or franchise or any Loan
Party or any of its Subsidiaries shall suffer the
imposition of any restraining order, escrow,
suspension or impound of funds in connection with any
proceeding (judicial or administrative) with respect
to any material license, permit or franchise;
(r) ADVERSE CHANGE. There shall occur a
Material Adverse Effect;
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(s) RATE CONTRACTS. Any Loan Party shall
breach or default under any Rate Contract to which any
Bank is a party, if the effect of such breach or default
is to allow the Bank to proceed against, or otherwise
realize from, any Loan Party or any Collateral to satisfy
any claim of the Bank against any Loan Party in respect of
such Rate Contract;
(t) GUARANTOR DEFAULTS. The Parent shall
fail in any material respect to perform or observe any
term, covenant or agreement in the Parent Guaranty; or the
Parent Guaranty shall for any reason be partially
(including with respect to future advances) or wholly
revoked or invalidated, or otherwise cease to be in full
force and effect, or the Parent or any other Person shall
contest in any manner the validity or enforceability
thereof or deny that it has any further liability or
obligation thereunder; or any event described at
paragraphs (i) or (j) shall occur with respect to any
Guarantor;
(u) USE OF DIVIDENDS BY PARENT. Any
dividends received by the Parent from any other Loan Party
as permitted by Section 7.12(c) are not promptly (i) used
to make required interest payments on the Parent Senior
Subordinated Notes as and when due, (ii) contributed to
the Company, or (iii) used for operating expenses of the
Parent in the Ordinary Course of Business;
8.02 REMEDIES. If any Event of Default occurs, the
Agent shall, at the request of, or may, with the consent of,
the Majority Banks,
(a) declare the Commitment of each Bank to
make Loans to be terminated, whereupon such Commitments
shall forthwith be terminated;
(b) declare all or any portion of the unpaid
principal amount of all outstanding Loans, all interest
accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under any other Loan Document to be
immediately due and payable; without presentment, demand,
protest or other notice of any kind, all of which are
hereby expressly waived by Borrowers; and
(c) exercise on behalf of itself and the
Banks all rights and remedies available to it and the
Banks under the Loan Documents or applicable law (subject
to any necessary approvals from Gaming Authorities);
PROVIDED, HOWEVER, that upon the occurrence of any event
specified in paragraph (i) or (j) of Section 8.01 above
(in the case of clause (i) of paragraph (j) upon the
expiration of the 60-day period mentioned therein), the
obligation of each Bank to make Loans shall automatically
terminate and the unpaid principal amount of all
outstanding Loans and all interest and other amounts as
aforesaid shall automatically become due and payable
without further act of the Agent or any Bank.
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Also, if any Event of Default occurs before
Completion of the Rio Expansion Project, the Agent shall have
the right in its sole discretion to enter and take possession
of the Real Property, whether in person, by agent or by
court-appointed receiver, and to take any and all actions which
the Agent in its sole discretion may consider necessary to
complete construction of the Improvements, including making
changes in the construction plans, work or materials and
entering into, modifying or terminating any contractual
arrangements, all subject to the Agent's right at any time to
discontinue any work without liability. If the Agent chooses
to complete the Improvements, neither it nor the Banks shall
assume any liability to the Company or any other person for
completing the Improvements, or for the manner or quality of
construction of the Improvements, and the Company expressly
waives any such liability. If the Company exercises any of the
rights or remedies provided in this clause, that exercise shall
not make the Agent, or cause the Agent to be deemed to be, a
partner or joint venturer of the Company. The Agent in its
sole discretion may choose to complete construction in its own
name. All sums which are expended by the Agent and/or the
Banks in completing construction shall be considered to have
been disbursed to the Company and shall be secured by the
Collateral; any sums of principal shall be considered to be an
additional loan to the Company bearing interest at the Default
Rate, as defined in the Note, and shall be secured by the
Collateral.
8.03 RIGHTS NOT EXCLUSIVE. The rights provided for
in this Agreement and the other Loan Documents are cumulative
and are not exclusive of any other rights, powers, privileges
or remedies provided by law or in equity, or under any other
instrument, document or agreement now existing or hereafter
arising.
ARTICLE 9
THE AGENT
9.01 APPOINTMENT AND AUTHORIZATION. Each Bank hereby
irrevocably appoints, designates and authorizes the Agent to
take such action on its behalf under the provisions of this
Agreement and each other Loan Document and to exercise such
powers and perform such duties as are expressly delegated to it
by the terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental thereto.
Agent will distribute to Banks copies of documents received by
the Agent pursuant to Sections 2.03, 6.01 and 6.02 from the
Loan Parties or the Parent, as the case may be.
Notwithstanding any provision to the contrary contained
elsewhere in this Agreement or in any other Loan Document, the
Agent shall not have any duties or responsibilities, except
those expressly set forth herein, nor shall the Agent have or
be deemed to have any fiduciary relationship with any Bank, and
no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or
any other Loan Document or otherwise exist against the Agent.
9.02 DELEGATION OF DUTIES. The Agent may execute
any of its duties under this Agreement or any other Loan
Document by or through agents, employees or attorneys-in-fact
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and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
9.03 LIABILITY OF AGENT. None of the Agent-Related
Persons shall (i) be liable for any action taken or omitted to
be taken by any of them under or in connection with this
Agreement or any other Loan Document (except for its own gross
negligence or willful misconduct), or (ii) be responsible in
any manner to any of the Banks for any recital, statement,
representation or warranty made by the Loan Parties or any
Subsidiary or Affiliate of the Loan Parties, or any officer
thereof, contained in this Agreement or in any other Loan
Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the
Agent under or in connection with, this Agreement or any other
Loan Document, or for the value of any Collateral or the
validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or
for any failure of the Loan Parties or any other party to any
Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any
obligation to any Bank to ascertain or to inquire as to the
observance or performance of any of the agreements contained
in, or conditions of, this Agreement or any other Loan
Document, or to inspect the Properties, books or records of the
Loan Parties or any of the Loan Party's Subsidiaries or
Affiliates.
9.04 RELIANCE BY AGENT.
(a) The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit,
letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it
to be genuine and correct and to have been signed, sent or
made by the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel to the Loan
Parties), independent accountants and other experts
selected by the Agent. The Agent shall be fully justified
in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Majority Banks
as it deems appropriate and, if it so requests, it shall
first be indemnified to its satisfaction by the Banks
against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take
any such action. The Agent shall in all cases be fully
protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance
with a request or consent of the Majority Banks and such
request and any action taken or failure to act pursuant
thereto shall be binding upon all of the Banks.
(b) For purposes of determining compliance
with the conditions specified in Article IV, each Bank
that has executed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with
each document or
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other matter either sent by the Agent to such Bank for
consent, approval, acceptance or satisfaction, or required
thereunder to be consented to or approved by or acceptable
or satisfactory to the Bank, unless an officer of the
Agent responsible for the transactions contemplated by the
Loan Documents shall have received notice from the Bank
prior to the initial Borrowing specifying its objection
thereto and either such objection shall not have been
withdrawn by notice to the Agent to that effect or the
Bank shall not have made available to the Agent the Bank's
ratable portion of such Borrowing.
9.05 NOTICE OF DEFAULT. The Agent shall not be
deemed to have knowledge or notice of the occurrence of any
Default or Event of Default, except with respect to defaults in
the payment of principal, interest and fees required to be paid
to the Agent for the account of the Banks, unless the Agent
shall have received written notice from a Bank or the Loan
Parties referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of
default". In the event that the Agent receives such a notice,
the Agent shall give notice thereof to the Banks. The Agent
shall take such action with respect to such Default or Event of
Default as shall be requested by the Majority Banks in
accordance with Article VIII; PROVIDED, HOWEVER, that unless
and until the Agent shall have received any such request, the
Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default
or Event of Default as it shall deem advisable or in the best
interest of the Banks.
9.06 CREDIT DECISION. Each Bank expressly
acknowledges that none of the Agent-Related Persons has made
any representation or warranty to it and that no act by the
Agent hereinafter taken, including any review of the affairs of
the Loan Parties and their respective Subsidiaries shall be
deemed to constitute any representation or warranty by the
Agent to any Bank. Each Bank represents to the Agent that it
has, independently and without reliance upon the Agent and
based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into
the business, prospects, operations, property, financial and
other condition and creditworthiness of the Loan Parties and
their respective Subsidiaries, and all applicable bank
regulatory laws relating to the transactions contemplated
thereby, and made its own decision to enter into this Agreement
and extend credit to the Loan Parties hereunder. Each Bank
also represents that it will, independently and without
reliance upon the Agent and based on such documents and
information as it shall deem appropriate at the time, continue
to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other
Loan Documents, and to make such investigations as it deems
necessary to inform itself as to the business, prospects,
operations, property, financial and other condition and
creditworthiness of the Loan Parties. Except for notices,
reports and other documents expressly herein required to be
furnished to the Banks by the Agent, the Agent shall not have
any duty or responsibility to provide any Bank with any credit
or other information concerning the business, prospects,
operations, property, financial and other condition or
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creditworthiness of the Loan Parties which may come into the
possession of any of the Agent-Related Persons.
9.07 INDEMNIFICATION. Whether or not the
transactions contemplated hereby shall be consummated, the
Banks shall indemnify upon demand the Agent-Related Persons (to
the extent not reimbursed by or on behalf of the Loan Parties
and without limiting the obligations of the Loan Parties to do
so), ratably from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses and disbursements of any kind whatsoever
which may at any time (including at any time following the
repayment of the Loans and the termination or resignation of
the related Agent) be imposed on, incurred by or asserted
against any such Person any way relating to or arising out of
this Agreement or any document contemplated by or referred to
herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by any such Person under
or in connection with any of the foregoing; PROVIDED, HOWEVER,
that no Bank shall be liable for the payment to the Agent-
Related Persons of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such
Person's gross negligence or willful misconduct. Without
limitation of the foregoing, each Bank shall reimburse the
Agent upon demand for its ratable share of any costs or out-of-
pocket expenses (including Attorney Costs) incurred by the
Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or
legal advice in respect of rights or responsibilities under,
this Agreement, any other Loan Document, or any document
contemplated by or referred to herein to the extent that the
Agent is not reimbursed for such expenses by or on behalf of
the Loan Parties. Without limiting the generality of the
foregoing, if the Internal Revenue Service or any other
Governmental Authority of the United States or other
jurisdiction asserts a claim that the Agent did not properly
withhold tax from amounts paid to or for the account of any
Bank (because the appropriate form was not delivered, was not
properly executed, or because such Bank failed to notify the
Agent of a change in circumstances which rendered the exemption
from, or reduction of, withholding tax ineffective, or for any
other reason) such Bank shall indemnify the Agent fully for all
amounts paid, directly or indirectly, by the Agent as tax or
otherwise, including penalties and interest, and including any
taxes imposed by any jurisdiction on the amounts payable to the
Agent under this Section, together with all costs and expenses
(including Attorney Costs). The obligation of the Banks in
this Section shall survive the payment of all Obligations
hereunder.
9.08 AGENT IN INDIVIDUAL CAPACITY. BofA and its
Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in
and generally engage in any kind of banking, trust, financial
advisory or other business with the Loan Parties and their
respective Subsidiaries and Affiliates as though BofA were not
the Agent hereunder and without notice to or consent of the
Banks. With respect to its Loans, BofA shall have the same
rights and powers under this Agreement as any other Bank and
may
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exercise the same as though it were not the Agent, and the
terms "Bank" and "Banks" shall include BofA in its individual
capacity.
9.09 SUCCESSOR AGENT. The Agent may, and at the
request of the Majority Banks shall, resign as Agent upon 30
days' notice to the Banks. If the Agent shall resign as Agent
under this Agreement, the Majority Banks shall appoint from
among the Banks a successor agent for the Banks. If no
successor agent is appointed prior to the effective date of the
resignation of the Agent, the Agent may appoint, after
consulting with the Banks and the Loan Parties, a successor
agent from among the Banks. Upon the acceptance of its
appointment as successor agent hereunder, such successor agent
shall succeed to all the rights, powers and duties of the
retiring Agent and the term "Agent" shall mean such successor
agent and the retiring Agent's appointment, powers and duties
as Agent shall be terminated. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article
IX and Sections 10.04 and 10.05 shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was
Agent under this Agreement. If no successor agent has accepted
appointment as Agent by the date which is 30 days following a
retiring Agent's notice of resignation, the retiring Agent's
resignation shall nevertheless thereupon become effective and
the Banks shall perform all of the duties of the Agent
hereunder until such time, if any, as the Majority Banks
appoint a successor agent as provided for above.
9.10 COLLATERAL MATTERS.
(a) The Agent is authorized on behalf of all
the Banks, without the necessity of any notice to or
further consent from the Banks, from time to time to take
any action with respect to any Collateral, Parent
Collateral or the Collateral Documents or Parent
Collateral Documents which may be necessary to perfect and
maintain perfected the security interest in and Liens upon
the Collateral and the Parent Collateral.
(b) The Banks irrevocably authorize the
Agent, at its option and in its discretion, to release any
Guaranty and to release any Lien granted to or held by the
Agent upon any Collateral or Parent Collateral (i) upon
termination of the Commitments and payment in full of all
Loans and all other Obligations payable under this
Agreement and under any other Loan Document; (ii)
constituting Property sold or to be sold or disposed of as
part of or in connection with any disposition permitted
hereunder; (iii) constituting Property in which the Loan
Parties or any Subsidiary of Loan Parties, or Guarantor,
as applicable, owned no interest at the time the Lien was
granted or at any time thereafter; (iv) constituting
Property leased to the Loan Parties or any Subsidiary of
the Loan Parties or any Guarantor under a lease which has
expired or been terminated in a transaction permitted
under this Agreement or is about to expire and which has
not been, and is not intended by the Loan Parties or such
Subsidiary or Guarantor to be, renewed or extended; (v)
consisting of an instrument evidencing Indebtedness or
other debt instrument, if the indebtedness
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evidenced thereby has been paid in full; or (vi) if
approved, authorized or ratified in writing by the
Majority Banks or all the Banks, as the case may be, as
provided in Section 10.01(f). Upon request by the Agent
at any time, the Banks will confirm in writing the Agent's
authority to release particular types or items of
Collateral or Parent Collateral pursuant to this Section
9.10(b).
(c) Each Bank agrees with and in favor of
each other (which agreement shall not be for the benefit
of the Loan Parties or any of their respective
Subsidiaries) that the Loan Parties' obligation to such
Bank under this Agreement and the other Loan Documents is
not and shall not be secured by any real property
collateral now or hereafter acquired by such Bank other
than the real property described in the Deed of Trust or
any other Mortgage entered into pursuant to the Loan
Documents.
ARTICLE 10
MISCELLANEOUS
10.01 AMENDMENTS AND WAIVERS. No amendment or
waiver of any provision of this Agreement or any other Loan
Document, and no consent with respect to any departure by the
Borrowers therefrom, shall be effective unless the same shall
be in writing and signed by the Majority Banks, the Borrowers
and acknowledged by the Agent, and then such waiver shall be
effective only in the specific instance and for the specific
purpose for which given; PROVIDED, HOWEVER, that no such
waiver, amendment, or consent shall, unless in writing and
signed by all the Banks, the Borrowers and acknowledged by the
Agent, do any of the following:
(a) except as set forth in Section 2.05,
increase the Aggregate Commitment;
(b) increase or extend the Commitment of any
Bank (or reinstate any Commitment terminated pursuant to
Section 8.02(a)) or subject any Bank to any additional
obligations without the consent of that Bank;
(c) postpone or delay any date fixed for any
payment of principal, interest, fees or other amounts due
to the Banks (or any of them) hereunder or under any Loan
Document;
(d) reduce the principal of, or the rate of
interest specified herein on any Loan, or of any fees or
other amounts payable hereunder or under any Loan
Document;
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(e) change the percentage of the Commitments
or of the aggregate unpaid principal amount of the Loans
which shall be required for the Banks or any of them to
take any action hereunder;
(f) amend this Section 10.01 or Section
2.15; or
(g) discharge any Guarantor, or release any
material portion of the Collateral or Parent Collateral
except as otherwise may be provided in the Collateral
Documents or Parent Collateral Documents or except where
the consent of the Majority Banks only is specifically
provided for;
and, PROVIDED FURTHER, that no amendment, waiver or consent
shall, unless in writing and signed by the Agent in addition to
the Majority Banks or all the Banks, as the case may be, affect
the rights or duties of the Agent under this Agreement or any
other Loan Document.
10.02 NOTICES.
(a) All notices, requests and other
communications provided for hereunder shall be in writing
(including, unless the context expressly otherwise
provides, by facsimile transmission, provided that any
matter transmitted by any Borrower by facsimile (i) shall
be immediately confirmed by a telephone call to the
recipient at the number specified on the applicable
signature page hereof, and (ii) shall be followed promptly
by a hard copy original thereof) and mailed, faxed or
delivered, to the address or facsimile number specified
for notices on the applicable signature page hereof; or,
as directed to any Borrower or the Agent, to such other
address as shall be designated by such party in a written
notice to the other parties, and as directed to each other
party, at such other address as shall be designated by
such party in a written notice to any Borrower and the
Agent. Any notice given to any Borrower shall be deemed
to have been given to all Loan Parties.
(b) All such notices, requests and
communications shall, when transmitted by overnight
delivery, or faxed, be effective when delivered for
overnight (next day) delivery, or transmitted by facsimile
machine, respectively, or if delivered, upon delivery,
except that notices pursuant to Article II or IX shall not
be effective until actually received by the Agent.
(c) The Loan Parties acknowledge and agree
that any agreement of the Agent and the Banks at Article
II herein to receive certain notices by telephone and
facsimile is solely for the convenience and at the request
of the Loan Parties. The Agent and the Banks shall be
entitled to rely on the authority of any Person purporting
to be a Person authorized by the Loan Parties to give such
notice and the Agent and the Banks shall not have any
liability to the Loan Parties or other Person on account
of any action taken or not taken by the Agent or the Banks
in reliance upon such
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telephonic or facsimile notice. The obligation of the
Loan Parties to repay the Loans shall not be affected in
any way or to any extent by any failure by the Agent and
the Banks to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Agent
and the Banks of a confirmation which is at variance with
the terms understood by the Agent and the Banks to be
contained in the telephonic or facsimile notice.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure to
exercise and no delay in exercising, on the part of the Agent
or any Bank, any right, remedy, power or privilege hereunder,
shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
10.04 COSTS AND EXPENSES. The Borrowers jointly and
severally shall, whether or not the transactions contemplated
hereby shall be consummated:
(a) pay or reimburse Agent within five
Business Days after demand (subject to Section 4.01(s))
for all costs and expenses incurred by Agent in connection
with the development, preparation, delivery,
administration and execution of, and any amendment,
supplement, waiver or modification to (in each case,
whether or not consummated), this Agreement, any Loan
Document and any other documents prepared in connection
herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including
the reasonable Attorney Costs incurred with respect
thereto upon presentation of an invoice therefor together
with reasonable supporting documentation;
(b) pay or reimburse each Bank and the Agent
within five Business Days after demand (subject to Section
4.01(s)) for all costs and expenses incurred by them in
connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies (including in
connection with any "workout" or restructuring regarding
the Loans, and including in any Insolvency Proceeding or
appellate proceeding) under this Agreement, any other Loan
Document, and any such other documents, including Attorney
Costs incurred by the Agent and any Bank upon presentation
of an invoice therefor together with reasonable supporting
documentation; and
(c) pay or reimburse BofA (including in its
capacity as Agent) within five Business Days after demand
(subject to Section 4.01(s) for all appraisal (including
the allocated cost of internal appraisal services), audit,
environmental inspection and review (including the
allocated cost of such internal services), search and
filing costs, fees and expenses, incurred or sustained by
BofA (including in its capacity as Agent) in connection
with the matters referred to under Sections (a) and
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(b) of this Section upon presentation of an invoice
therefor together with reasonable supporting
documentation.
10.05 INDEMNITY. Whether or not the transactions
contemplated hereby shall be consummated:
(a) GENERAL INDEMNITY. The Borrowers jointly
and severally shall pay, indemnify, and hold each Bank,
the Agent and each of their respective officers,
directors, employees, counsel, agents and attorneys-in-
fact (each, an "INDEMNIFIED PERSON") harmless from and
against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, and the
reasonable costs, charges, expenses or disbursements
(including Attorney Costs) of any kind or nature
whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this
Agreement and any other Loan Documents, or the
transactions contemplated hereby and thereby, and with
respect to any investigation, litigation or proceeding
(including any Insolvency Proceeding or appellate
proceeding) related to this Agreement or the Loans or the
use of the proceeds thereof, whether or not any
Indemnified Person is a party thereto (all the foregoing,
collectively, the "INDEMNIFIED LIABILITIES"); PROVIDED,
that the Borrowers jointly and severally shall have no
obligation hereunder to any Indemnified Person with
respect to Indemnified Liabilities arising from the gross
negligence or willful misconduct of such Indemnified
Person.
(b) ENVIRONMENTAL INDEMNITY.
(i) The Borrowers jointly and severally
hereby agree to indemnify, defend and hold harmless
each Indemnified Person, from and against any and all
liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, and the reasonable costs,
charges, expenses or disbursements (including
Attorney Costs and the allocated cost of internal
environmental audit or review services), which may be
incurred by or asserted against such Indemnified
Person in connection with or arising out of any
pending or threatened investigation, litigation or
proceeding, or any action taken by any Person, with
respect to any Environmental Claim arising out of or
related to any Property subject to a Mortgage in
favor of the Agent or any Bank. No action taken by
legal counsel chosen by the Agent or any Bank in
defending against any such investigation, litigation
or proceeding or requested remedial, removal or
response action shall vitiate or any way impair the
Borrowers' obligation and duty hereunder to indemnify
and hold harmless the Agent and each Bank.
(ii) In no event shall any site visit,
observation, or testing by the Agent or any Bank be
deemed a representation or warranty that Hazardous
Materials are or are not present in, on, or under the
site, or that there has been
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or shall be compliance with any Environmental Law.
Neither the Borrowers nor any other Person is entitled
to rely on any site visit, observation, or testing by
the Agent or any Bank. Neither the Agent nor any Bank
owes any duty of care to protect the Borrowers or any
other Person against, or to inform the Borrowers or
any other party of, any Hazardous Materials or any
other adverse condition affecting any site or
Property. Neither the Agent nor any Bank shall be
obligated to disclose to the Borrowers or any other
Person any report or findings made as a result of, or
in connection with, any site visit, observation, or
testing by the Agent or any Bank.
(c) SURVIVAL; DEFENSE. The obligations in
this Section 10.05 shall survive payment of all other
Obligations. At the election of any Indemnified Person,
the Company shall defend such Indemnified Person using
legal counsel satisfactory to such Indemnified Person in
such Person's sole discretion, at the sole reasonable cost
and expense of the Company. All amounts owing under this
Section 10.05 shall be paid within 30 days after demand.
10.06 MARSHALING; PAYMENTS SET ASIDE. Neither the
Agent nor the Banks shall be under any obligation to marshall
any assets in favor of the Borrowers or any other Person or
against or in payment of any or all of the Obligations. To the
extent that the Borrowers makes a payment or payments to the
Agent or the Banks, or the Agent or the Banks enforce their
Liens 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 or required to be repaid
to a trustee, receiver or any other party in connection with
any Insolvency Proceeding, or otherwise, then to the extent of
such recovery the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full
force and effect as if such payment had not been made or such
enforcement or set-off had not occurred.
10.07 SUCCESSORS AND ASSIGNS. The provisions of
this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and
assigns, except that the Borrowers may not assign or transfer
any of its rights or obligations under this Agreement without
the prior written consent of the Agent and each Bank.
10.08 ASSIGNMENTS, PARTICIPATIONS, ETC.
(a) Any Bank may, with the written consent
of the Borrowers at all times other than during the
existence of an Event of Default and the Agent, which
consents shall not be unreasonably withheld, at any time
assign and delegate to one or more Eligible Assignees
(provided that no written consent of the Borrowers or the
Agent shall be required in connection with any assignment
and delegation by a Bank to a Bank Affiliate of such Bank
or to another Bank) (each an "ASSIGNEE") all, or any
ratable part of all, of the Loans, the Commitments and
the other rights and obligations
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of such Bank hereunder, in a minimum amount of the lesser
of $5,000,000 or such Bank's entire remaining interest in
the Loans, the Commitments and the other rights and
obligations hereunder; PROVIDED, HOWEVER, that (i) the
Borrowers and the Agent may continue to deal solely and
directly with such Bank in connection with the interest so
assigned to an Assignee until (A) written notice of such
assignment, together with payment instructions, addresses
and related information with respect to the Assignee,
shall have been given to the Borrowers and the Agent by
such Bank and the Assignee; (B) such Bank and its Assignee
shall have delivered to the Borrowers and the Agent an
Assignment and Acceptance in the form of Exhibit E
("ASSIGNMENT AND ACCEPTANCE") together with any Note or
Notes subject to such assignment and (C) the assignor Bank
or Assignee has paid to the Agent a processing fee in the
amount of $2500.
(b) From and after the date that the Agent
notifies the assignor Bank that it has received an
executed Assignment and Acceptance and payment of the
above-referenced processing fee, (i) 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 and Acceptance, shall have the
rights and obligations of a Bank under the Loan Documents,
and (ii) the assignor Bank shall, to the extent that
rights and obligations hereunder and under the other Loan
Documents have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Loan Documents.
(c) Within five Business Days after its
receipt of notice by the Agent that it has received an
executed Assignment and Acceptance and payment of the
processing fee, the Borrowers shall execute and deliver to
the Agent, new Notes evidencing such Assignee's assigned
Loans and Commitment and, if the assignor Bank has
retained a portion of its Loans and its Commitment,
replacement Notes in the principal amount of the Loans
retained by the assignor Bank (such Notes to be in
exchange for, but not in payment of, the Notes held by
such Bank). Immediately upon each Assignee's making its
processing fee payment under the Assignment and
Acceptance, this Agreement, shall be deemed to be amended
to the extent, but only to the extent, necessary to
reflect the addition of the Assignee and the resulting
adjustment of the Commitments arising therefrom. The
Commitment allocated to each Assignee shall reduce such
Commitments of the assigning Bank PRO TANTO.
(d) Any Bank may at any time sell to one or
more commercial banks or other Persons not Affiliates of
the Borrowers (a "PARTICIPANT") participating interests in
any Loans, the Commitment of that Bank and the other
interests of that Bank (the "originating Bank") hereunder
and under the other Loan Documents; PROVIDED, HOWEVER,
that (i) the originating Bank's obligations under this
Agreement shall remain unchanged, (ii) the originating
Bank shall remain solely responsible for the performance
of such obligations, (iii) the Borrowers and the Agent
shall continue
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to deal solely and directly with the originating Bank in
connection with the originating Bank's rights and
obligations under this Agreement and the other Loan
Documents, and (iv) no Bank shall transfer or grant any
participating interest under which the Participant shall
have rights to approve any amendment to, or any consent or
waiver with respect to, this Agreement or any other Loan
Document, except to the extent such amendment, consent or
waiver would require unanimous consent of the Banks as
described in the FIRST PROVISO to Section 10.01. In the
case of any such participation, the Participant shall be
entitled to the benefit of Sections 3.01, 3.03 and 10.05
as though it were also a Bank hereunder, and if amounts
outstanding under this Agreement are due and unpaid, or
shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of setoff in
respect of its participating interest in amounts owing
under this Agreement to the same extent as if the amount
of its participating interest were owing directly to it as
a Bank under this Agreement.
(e) Each Bank agrees to take normal and
reasonable precautions and exercise due care to maintain
the confidentiality of all information identified as
"confidential" by the Borrowers and provided to it by the
Borrowers or any Subsidiary of the Borrowers, or by the
Agent on such Borrower's or Subsidiary's behalf, in
connection with this Agreement or any other Loan Document,
and neither it nor any of its Affiliates shall use any
such information for any purpose or in any manner other
than pursuant to the terms contemplated by this Agreement;
except to the extent such information (i) was or becomes
generally available to the public other than as a result
of a disclosure by the Bank, or (ii) was or becomes
available on a nonconfidential basis from a source other
than the Borrowers, provided that such source is not bound
by a confidentiality agreement with the Borrowers known to
the Bank; PROVIDED FURTHER, HOWEVER, that any Bank may
disclose such information (A) at the request or pursuant
to any requirement of any Governmental Authority to which
the Bank is subject or in connection with an examination
of such Bank by any such authority; (B) pursuant to
subpoena or other court process; (C) when required to do
so in accordance with the provisions of any applicable
Requirement of Law; and (D) to such Bank's independent
auditors and other professional advisors. Notwithstanding
the foregoing, the Borrowers authorizes each Bank to
disclose to any Participant or Assignee (each, a
"TRANSFEREE") and to any prospective Transferee, such
financial and other information in such Bank's possession
concerning the Borrowers or its Subsidiaries which has
been delivered to Agent or the Banks pursuant to this
Agreement or which has been delivered to the Agent or the
Banks by the Borrowers in connection with the Banks'
credit evaluation of the Borrowers prior to entering into
this Agreement; PROVIDED that, unless otherwise agreed by
the Borrowers, such Transferee agrees in writing to such
Bank to keep such information confidential to the same
extent required of the Banks hereunder.
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The Borrowers acknowledge that from time to time
financial advisory, investment banking and other services
may be offered or provided to the Borrowers, or one or
more of its Affiliates (in connection with this Agreement
or otherwise) by any Bank or by one or more Subsidiaries
or Affiliates of such Bank and the Borrowers hereby
authorize each Bank to share any information delivered to
such Bank by the Borrowers and their Affiliates pursuant
to this Agreement, or in connection with the decision of
such Bank to enter into this Agreement, to any such
Subsidiary or Affiliate of such Bank, it being understood
that any such Subsidiary or Affiliate of any Bank
receiving such information shall be bound by any
obligation of confidentiality as if it were a Bank
hereunder. Such Authorization shall survive the repayment
of the Loans and other Obligations and the termination of
the Commitments.
(f) Notwithstanding any other provision
contained in this Agreement or any other Loan Document to
the contrary, any Bank may assign all or any portion of
the Loans or Notes held by it to any Federal Reserve Bank
or the United States Treasury 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 any payment in
respect of such assigned Loans or Notes made by the
Borrowers to or for the account of the assigning or
pledging Bank in accordance with the terms of this
Agreement shall satisfy the Borrowers' obligations
hereunder in respect to such assigned Loans or Notes to
the extent of such payment. No such assignment shall
release the assigning Bank from its obligations hereunder.
10.09 SETOFF. In addition to any rights and
remedies of the Banks provided by law, if an Event of Default
exists, each Bank is authorized at any time and from time to
time, without prior notice to the Borrowers, any such notice
being waived by the Borrowers to the fullest extent permitted
by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held
by, and other indebtedness at any time owing to, such Bank to
or for the credit or the account of the Borrowers against any
and all Obligations owing to such Bank, now or hereafter
existing, irrespective of whether or not the Agent or such Bank
shall have made demand under this Agreement or any Loan
Document and although such Obligations may be contingent or
unmatured. Each Bank agrees promptly to notify the Borrowers
and the Agent after any such setoff and application made by
such Bank; PROVIDED, HOWEVER, that the failure to give such
notice shall not affect the validity of such setoff and
application. The rights of each Bank under this Section 10.09
are in addition to the other rights and remedies (including
other rights of setoff) which the Bank may have.
NOTWITHSTANDING THE FOREGOING, NO BANK SHALL EXERCISE, OR
ATTEMPT TO EXERCISE, ANY RIGHT OF SETOFF, BANKER'S LIEN, OR THE
LIKE, AGAINST ANY DEPOSIT ACCOUNT OR PROPERTY OF THE BORROWERS
OR ANY SUBSIDIARY OF THE BORROWERS HELD OR MAINTAINED BY THE
BANK WITHOUT THE PRIOR WRITTEN CONSENT OF THE MAJORITY BANKS.
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10.10 NOTIFICATION OF ADDRESSES, LENDING OFFICES,
ETC. Each Bank shall notify the Agent in writing of any
changes in the address to which notices to the Bank should be
directed, of addresses of its Eurodollar Lending Office, of
payment instructions in respect of all payments to be made to
it hereunder and of such other administrative information as
the Agent shall reasonably request.
10.11 COUNTERPARTS. This Agreement may be executed
by one or more of the parties to this Agreement in any number
of separate counterparts, each of which, when so executed,
shall be deemed an original, and all of said counterparts taken
together shall be deemed to constitute but one and the same
instrument. A set of the copies of this Agreement signed by
all the parties shall be lodged with the Borrowers and the
Agent.
10.12 SEVERABILITY. The illegality or
unenforceability of any provision of this Agreement or any
instrument or agreement required hereunder shall not in any way
affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or
agreement required hereunder.
10.13 NO THIRD PARTIES BENEFITED. This Agreement is
made and entered into for the sole protection and legal benefit
of the Borrowers, the Banks and the Agent, and their permitted
successors and assigns, and no other Person shall be a direct
or indirect legal beneficiary of, or have any direct or
indirect cause of action or claim in connection with, this
Agreement or any of the other Loan Documents. Neither the
Agent nor any Bank shall have any obligation to any Person not
a party to this Agreement or other Loan Documents.
10.14 TIME. Time is of the essence as to each term
or provision of this Agreement and each of the other Loan
Documents.
10.15 GOVERNING LAW AND JURISDICTION.
(a) THIS AGREEMENT AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEVADA; PROVIDED THAT THE AGENT AND THE BANKS
SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT AND ANY OTHER LOAN DOCUMENTS MAY
BE BROUGHT IN THE COURTS OF THE STATE OF NEVADA OR OF THE
UNITED STATES FOR THE DISTRICT OF NEVADA, AND BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWERS, THE
AGENT AND THE BANKS CONSENTS, FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE
COURTS. EACH OF THE BORROWERS, THE AGENT AND THE BANKS
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION
TO THE LAYING
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OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS,
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF
THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE
BORROWERS, THE AGENT AND THE BANKS EACH WAIVE PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH
MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEVADA LAW.
10.16 WAIVER OF JURY TRIAL. THE BORROWERS, THE
BANKS AND THE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO
A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER
LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF
ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER
PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS,
TORT CLAIMS, OR OTHERWISE. THE BORROWERS, THE BANKS AND
THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF
ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY.
WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE
THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR
IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY
PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO
ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
10.17 NOTICE OF CLAIMS; CLAIMS BAR. THE
BORROWERS HEREBY AGREE THAT IT SHALL GIVE PROMPT WRITTEN
NOTICE OF ANY CLAIM OR CAUSE OF ACTION IT BELIEVES IT HAS,
OR MAY SEEK TO ASSERT OR ALLEGE AGAINST THE AGENT OR ANY
BANK, WHETHER SUCH CLAIM IS BASED IN LAW OR EQUITY,
ARISING UNDER OR RELATED TO THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS, OR TO THE LOANS(OR THE COLLATERAL
THEREFOR), OR ANY ACT OR OMISSION TO ACT BY THE AGENT OR
ANY BANK WITH RESPECT HERETO OR THERETO, AND THAT IF IT
SHALL FAIL TO GIVE SUCH PROMPT NOTICE TO THE AGENT WITH
REGARD TO ANY SUCH CLAIM OR CAUSE OF ACTION, IT SHALL BE
DEEMED TO HAVE WAIVED, AND SHALL BE FOREVER BARRED FROM
BRINGING OR ASSERTING SUCH CLAIM OR CAUSE OF ACTION IN ANY
SUIT, ACTION OR PROCEEDING IN ANY COURT OR BEFORE ANY
GOVERNMENTAL AGENCY.
10.18 ENTIRE AGREEMENT. This Agreement, together
with the other Loan Documents, embodies the entire
agreement and understanding among the Borrowers, the
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Banks and the Agent, and supersedes all prior or
contemporaneous Agreements and understandings of such
Persons, verbal or written, relating to the subject matter
hereof and thereof, except for the fee letters referenced
in Sections 2.11(a) and 2.11(d), and any prior
arrangements made with respect to the payment by the
Borrowers of (or any indemnification for) any fees, costs
or expenses payable to or incurred (or to be incurred) by
or on behalf of the Agent or the Banks.
10.19 INTERPRETATION. This Agreement is the result
of negotiations between and has been reviewed by counsel to the
Agent, the Borrowers and other parties, and is the product of
all parties hereto. Accordingly, this Agreement and the other
Loan Documents shall not be construed against the Banks or the
Agent merely because of the Agent's or Banks' involvement in
the preparation of such documents and agreements.
10.20 GUARANTOR AND SURETYSHIP PROVISIONS.
(a) Each Borrower shall be jointly and
severally liable for the repayment of all Loans.
(b) CONDITIONS TO EXERCISE OF RIGHTS. Each
Borrower hereby waives any right it may now or hereafter
have to require the Agent or the Banks, as a condition to
the exercise of any remedy or other right against such
Debtor hereunder or under any other document executed by
such Debtor in connection with any Obligation, (i) to
proceed against any Borrower or other Person, or against
any other collateral assigned to the Agent by such Debtor
or any other Person, (ii) to pursue any other right or
remedy in the Agent or any Bank's power, (iii) to give
notice of the time, place or terms of any public or
private sale of real or personal property collateral
assigned to the Agent by any Borrower or other Person
(other than such Borrower), or otherwise to comply with
the Nevada enactment of the Uniform Commercial Code (as
modified or recodified from time to time) with respect to
any such personal property collateral, or (iv) to make or
give (except as otherwise expressly provided in the Loan
Documents) any presentment, demand protest, notice of
dishonor, notice of protest or other demand or notice of
any kind in connection with any Obligation.
(c) DEFENSES. Each Borrower hereby waives
any defense it may now or hereafter have that relates to:
(i) any disability or other defense of any Borrower or
other Person; (ii) the cessation, from any cause other
than full performance, of the obligations of any Borrower
or other Person; (iii) the application of the proceeds
of any Obligation, by any Borrower or other Person, for
purposes other than the purposes represented to such
Debtor by any Borrower or otherwise intended or understood
by such Debtor; (iv) any act or omission by the Agent or
the Banks which directly or indirectly results in or
contributes to the release of any Borrower or other
Person or any collateral for any Obligations; (v) the
unenforceability or invalidity of any collateral
assignment or guaranty with respect to
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<PAGE>
any Obligation, or the lack of perfection or continuing
perfection or lack of priority of any lien which secures
any Obligation; (vi) any failure of the Agent or the Banks
to marshal assets in favor of such Borrower or any other
Person; (vii) any modification of any Obligation,
including any renewal, extension, acceleration or increase
in interest rate; (viii) any election of remedies by the
Agent or the Banks that impairs any subrogation or other
right of any Borrower to proceed against any other
Borrower or other Person, including any loss of rights
resulting from anti-deficiency laws relating to
nonjudicial foreclosures of real property or other laws
limiting, qualifying or discharging obligations or
remedies; (ix) any law which provides that the obligation
of a surety or guarantor must neither be larger in amount
nor in other respects more burdensome than that of the
principal or which reduces a surety's or guarantor's
obligation in proportion to the principal obligation; (x)
any failure of the Agent or the Banks to file or enforce a
claim in any bankruptcy or other proceeding with respect
to any Person; (xi) the election by the Agent or the
Banks, in any bankruptcy proceeding of any Person, of the
application or non-application of Section 1111(b)(2) of
the United States Bankruptcy Code; (xii) any extension of
credit or the grant of any lien under Section 364 of the
United States Bankruptcy Code; (xiii) any use of cash
collateral under Section 363 of the United States
Bankruptcy Code; or (xiv) any agreement or stipulation
with respect to the provision of adequate protection in
any bankruptcy proceeding of any Person.
(d) SUBROGATION. Each Borrower hereby waives
(i) any right of subrogation which such Borrower may now
or hereafter have against any other Borrower that relates
to any Obligation, (ii) any right to enforce any remedy
such Borrower may now or hereafter have against any other
Borrower that relates to any Obligation (including without
limitation any right of reimbursement, indemnity or
contribution), and (iii) any right to participate in any
collateral now or hereafter assigned to the Agent or the
Banks with any collateral now or hereafter assigned to the
Agent or the Banks with respect to any Obligation (and
each Borrower further agrees that, if and to the extent
that any waiver set forth in this section is ever held to
be unenforceable, all such rights of subrogation,
enforcement and participation shall be junior and
subordinate to the right of the Agent or the Banks to
obtain payment and performance of the Obligations and to
all rights of the Agent or the Banks in and to any
property which now or hereafter serves as collateral
security for any Obligation).
(e) BORROWER INFORMATION. Each Borrower
warrants and agrees: (i) that such Borrower has not
relied, and will not rely, on any representations or
warranties by the Agent or the Banks to such Borrower with
respect to the creditworthiness of any Borrower or the
prospects of payment of any Obligation from sources other
than the Collateral; (ii) that such Borrower has
established and/or will establish adequate means of
obtaining from each Borrower on a continuing basis
financial and other information pertaining to the business
operations, if any, and financial condition of such
Borrower; (iii) that such Borrower assumes full
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<PAGE>
responsibility for keeping informed with respect to any
Borrower's business operation, if any, and financial
condition; and (iv) that the Agent or the Banks shall have
no duty to disclose or report to such Borrower any
information now or hereafter known to the Agent or the
Banks with respect to any information now or hereafter
known to the Agent or the Banks with respect to any
Borrower, including without limitation information
relating to any Borrower's business operation or financial
condition.
(f) OTHER RIGHTS OF SURETIES. Each Borrower
hereby waives all other rights it may now or hereafter
have, whether or not similar to any of the foregoing, by
reason of laws of the State of Nevada pertaining to
sureties or guarantors.
(g) SUBORDINATION. Until all of the
Obligations have been fully paid and performed, (i) each
Borrower hereby agrees that all existing and future
indebtedness and other obligations of such Borrower to any
other Borrower (collectively, the "Subordinated Debt")
shall be and are hereby subordinated to all Obligations
which constitute obligations of the applicable Borrower,
and the payment thereof is hereby deferred in right of
payment to the prior payment and performance of all such
Obligations; (ii) such Borrower shall not collect or
receive any cash or non-cash payments on any Subordinated
Debt or transfer all or any portion of the Subordinated
Debt; and (iii) in the event that, notwithstanding the
foregoing, any payment by, or distribution of assets of,
any Borrower with respect to any Subordinated Debt is
received by such Borrower such payment or distribution
shall be held in trust and immediately paid over to the
Agent or the Banks, is hereby assigned to the Agent or the
Banks as security for the Obligations, and shall by held
by the Agent or the Banks in an interest bearing account
until all Obligations have been fully paid and preformed.
(h) LAWFULNESS AND REASONABLENESS. Each
Borrower warrants that all of the waivers in this
Agreement are made with full knowledge of their
significance, and of the fact that events giving rise to
any defense or other benefit waived by such Borrower may
destroy or impair right which such Borrower would
otherwise have against the Agent or the Banks, any
Borrower and other Persons, or against collateral. Each
Borrower agrees that all such waivers are reasonable under
the circumstances and further agrees that, if any such
waiver is determined (by a court of competent
jurisdiction) to be contrary to any law or public policy,
such waiver shall be effective to the fullest extent
permitted by law.
102
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered by their
proper and duly authorized officers as of the day and year
first above written.
RIO PROPERTIES, INC.
By: /s/ Ronald J. Radcliffe
Title: Ronald J. Radcliffe,
Treasurer
By: /s/ I. Scott Bogatz
Title: I. Scott Bogatz, Secretary
RIO LEASING, INC.
By: /s/ Ronald J. Radcliffe
Title: Ronald J. Radcliffe,
Secretary-Treasurer
By: /s/ James A. Barrett, Jr.
Title: James A. Barrett, Jr.
Address for notices for both
Borrowers:
3700 West Flamingo Road
Las Vegas, Nevada 89103
Attn: Chief Executive Officer
Facsimile: (702) 247-7957
Tel: (702) 247-7879
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<PAGE>
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Agent
By: /s/ Janice Hammond
Title: Janice Hammond
Vice President
Agency Specialist
Address for notices:
555 South Flower Street, 11th Floor
Los Angeles, CA 90017
Attn: Global Agency #5596
Facsimile: (213) 228-9861
Tel: (213) 228-2299
Address for payments:
1850 Gateway Blvd.
Concord, California 94520
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By: /s/
Title: Vice President
Address for notices:
Domestic and Eurodollar Lending
Office:
1850 Gateway Boulevard
Concord, California 94520
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<PAGE>
BANKS
WELLS FARGO BANK, N.A.
By: /s/ Kathleen Stone
Title: Vice President
Address for notices:
3800 Howard Hughes Parkway
Las Vegas, NV 89109
Attn: Kathee Stone
Facsimile: (702) 791-6365
Tel: (702) 791-6351
Address for Domestic and Eurodollar
Lending Office:
201 3rd Street, 8th Floor
San Francisco, CA 94103
Attn: Oscar Enriquez
Facsimile: (415) 979-0675
Tel: (415) 477-5425
FIRST SECURITY BANK, N.A.
By: /s/ David P. Williams
Title: Vice President
Address for notices and Domestic and
Eurodollar Lending Office:
First Security Bank, N.A.
Corporate Banking Division
15 East 100 South Second Floor
Attn: David Williams
Salt Lake City, Utah 84111
Facsimile: (801) 246-5532
Tel: (801) 246-5540
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<PAGE>
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Mark A. Isley
Mark A. Isley
Title: First Vice President
Address for notices and Domestic and
Eurodollar Lending Office:
Robert F. Simon, CSA
The First National Bank of Chicago
1132/1-10
One First National Plaza
Chicago, Illinois 60670
312/732-8543
312/732-4840 FAX
SOCIETE GENERALE
By: /s/
Title: First Vice President
Address for notices and Domestic and
Eurodollar Lending Office:
2029 Century Park East, Suite 2900
Los Angeles, CA 90067
Attn: Donald L. Schubert
Facsimile: (310) 551-1537
Tel: (310) 788-7104
-106-
<PAGE>
U.S. BANK OF NEVADA
By: /s/ Terry A. Gentry
Title: AVP
Address for notices:
2300 W. Sahara, 2nd Floor
Las Vegas, NV 89102
Attn: Terry Gentry
Facsimile: (702) 386-3880
Tel: (702) 386-3903
Domestic and Eurodollar Lending
Office:
980 9th St., Suite 1100
Sacramento, CA 958142
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<PAGE>
BANK OF SCOTLAND
By: /s/ Joseph Fratus
Joseph Fratus
Title: Asst. Vice President
Address for notices and Domestic and
Eurodollar Lending Office:
Bank of Scotland
565 Fifth Avenue
New York, New York 10017
Attn: Joseph Fratus
212/450-0871
212/557-9460 FAX
Copy to:
Bank of Scotland
660 So. Figueroa Street, Suite 1760
Los Angeles, California 90017-3548
Attn: Kandis Jaffrey
213/629-3057
213/489-3594 FAX
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Denise D. Killen
Denise D. Killen
Title: Vice President
Address for notices and Domestic and
Eurodollar Lending Office:
PNC Bank, National Association
Gaming Division, 16th Floor
16th Floor
Two Tower Center
East Brunswick, New Jersey 08816
Attn: Denise Killen
732/220-3262
732/220-3270 FAX
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<PAGE>
BANK OF HAWAII
By: /s/ Joseph T. Donalson
Joseph T. Donalson
Title: Vice President
Address for notices and Domestic and
Eurodollar Lending Office:
Bank of Hawaii
1850 North Central Avenue, Suite 400
Phoenix, Arizona 85004
Attn: Beth MacLean, Vice President
602/257-2437
602/257-2235 FAX
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<PAGE>
SCHEDULE 1.01A
The land referred to is situated in the State of Nevada, County
of Clark, City of Las Vegas, and is described as follows:
PARCEL I:
The Southwest Quarter (SW 1/4) of the Southwest Quarter (SW 1/4)
of Section 17, Township 21 South, Range 61 East, M.D.B.&M.
EXCEPTING THEREFROM the Easterly 735 feet.
ALSO EXCEPTING THEREFROM the Westerly 50 feet and the Southerly
50 feet, as conveyed to Clark County, for roads and incidental
purposes, by Deeds recorded December 21, 1966 in Book 766 as
Document No. 615412, and recorded August 24, 1967 in Book 818 as
Document No. 657103 of Official Records.
FURTHER EXCEPTING THEREFROM that portion of the Southwest Quarter
(SW 1/4) of the Southwest Quarter (SW 1/4) of Section 17,
Township 21 South, Range 61 East, M.D.B.&M., more particularly
described as follows:
BEGINNING at the intersection of the owner's Easterly property
line and the left or Northerly right of way line of Flamingo Road
(Project M-5927(6)), at a point 105.00 feet left of and measured
radially from Highway Engineer's Station "M" 5+85.38 P.O.C., said
point of beginning further described as bearing North 82 deg. 38'
49" East a distance of 614.92 feet from the Southwest corner of
Section 17, Township 21 South, Range 61 East, M.D.B.&M.;
THENCE South 0 deg. 09' 16" East along the owner's Easterly
property line a distance of 30.05 feet to the Southwest corner of
owner's property;
THENCE North 89 deg. 52' 24" West along the owner's Southerly
property line a distance of 560.54 feet to the Southwest corner
of owner's property;
THENCE North 0 deg. 41' 58" West along the owner's Westerly
property line a distance of 43.27 feet to an intersection with
the left or Northerly right of way line of said Flamingo Road;
THENCE South 89 deg. 00' 00" East along said right of way line a
distance of 286.54 feet to a point;
THENCE from a tangent which bears the last described course,
curving to the right along said right of way line, with a radius
of 1075 feet, through an angle of 3 deg. 46' 06" an arc distance
of 70.70 feet to a point;
THENCE North 4 deg. 46' 06" East along said right of way line a
distance of 30.00 feet to a point;
THENCE from a tangent which bears South 85 deg. 13' 54" East,
curving to the right along said right of way line, with a radius
of 1105 feet, through an angle of 10 deg. 37' 17" an arc distance
of 204.84 feet to the POINT OF BEGINNING.
FURTHER EXCEPTING THEREFROM those portions of the Southwest
Quarter (SW 1/4) of Section 17, Township 21 South, Range 61 East,
M.D.B.&M., Clark County, Nevada, being more particularly
described as follows:
PARCEL A:
COMMENCING at the West One-Sixteenth Corner of Section 17,
Township 21 South,
<PAGE>
Range 61 East, M.D.B.&M., Clark County, Nevada;
THENCE South 89 deg. 17' 22" East a distance of 50.01 feet to the
TRUE POINT OF BEGINNING;
THENCE continuing South 89 deg. 17' 22" East a distance of 945.61
feet to a point;
THENCE South 00 deg. 03' 46" West a distance of 30.00 feet to a
point;
THENCE North 89 deg. 17' 22" West a distance of 945.03 feet to a
point;
THENCE North 00 deg. 29' 59" West a distance of 30.01 feet to the
TRUE POINT OF BEGINNING.
PARCEL B:
COMMENCING at the West One-Sixteenth Corner of Section 17,
Township 21 South, Range 61 East, M.D.B.&M., Clark County,
Nevada;
THENCE South 89 deg. 17' 22" East a distance of 50.01 feet to a
point;
THENCE South 00 deg. 29' 59" East a distance of 30.01 feet to the
TRUE POINT OF BEGINNING;
THENCE continuing South 00 deg 29' 59" East a distance of 25.53
feet to a point;
THENCE along a curve concave to the Southeast, having a radius of
25.00 feet, a central angle of 91 deg. 12' 37" with an arc length
of 39.80 feet to a point;
THENCE North 89 deg. 17' 22" West a distance of 25.53 feet to the
TRUE POINT OF BEGINNING.
PARCEL C:
COMMENCING at the Southwest Corner of Section 17, Township 21
South, Range 61 East, M.D.B.&M., Clark County, Nevada;
THENCE South 89 deg. 38' 49" East a distance of 50.00 feet to a
point;
THENCE North 00 deg. 29' 59" West a distance of 93.27 feet to the
TRUE POINT OF BEGINNING;
THENCE continuing North 00 deg. 29' 59" West a distance of 52.40
feet to a point;
THENCE along a curve concave to the Northeast, having a radius of
54.00 feet, a central angle of 88 deg. 16' 26" with an arc length
of 83.20 feet to a point;
THENCE North 88 deg. 46' 25" West a distance of 52.40 feet to the
TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM that portion of said land as conveyed to
Clark County for road purposes by Deed recorded October 19, 1989,
in book 891019 as Document No. 00833 and re-recorded January 18,
1990 in book 900118 as Document No. 00862 of Official Records.
AND ALSO EXCEPTING that portion of said land as conveyed to the
County of Clark by that certain Grant, Bargain, Sale Deed
recorded January 8, 1998 in Book 980108 as Document No. 00820 of
Official Records.
PARCEL II:
The East 735 feet of the Southwest Quarter (SW 1/4) of the
Southwest Quarter (SW 1/4) of Section 17, Township 21 South,
Range 61 East, M.D.M.
EXCEPT that portion of the North 300 feet of said land lying West
of the East 322.58 feet.
ALSO EXCEPT the interest in the Southerly fifty (50) feet of the
Southwest Quarter (SW 1/4) of the Southwest Quarter (SW 1/4) as
conveyed to the County of
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<PAGE>
Clark, for roads, utilities, other public and incidental purposes
by Deed recorded August 24, 1967 as Document No. 657103.
FURTHER EXCEPT the interest in a portion of said land conveyed to
Clark County for roads, utilities, and other public and
incidental purposes by Deed recorded May 7, 1971 as Document No.
98302, Official Records.
FURTHER EXCEPTING THEREFROM that portion of the Southwest Quarter
(SW 1/4) of the Southwest Quarter (SW 1/4) of Section 17,
Township 21 South, Range 61 East, M.D.B.&M., Clark County,
Nevada, being more particularly described as follows:
BEGINNING at the Northeast corner of the Southwest Quarter (SW
1/4) of the Southwest Quarter (SW 1/4) of said Section 17, as
delineated on that certain recorded survey map performed by
ARMAND A. DUCHARME at the instance of STOCKS MILL AND SUPPLY,
INC. dated June 28, 1973 in File 26, Page 12, Official Records,
Clark County, Nevada;
THENCE South 00 deg. 03' 48" West along the East line of the
Southwest Quarter (SW 1/4) of the Southwest Quarter (SW 1/4) of
said Section 17 a distance of 1261.96 feet to a point in the
North right of way line of Flamingo Road (100.00 feet wide);
THENCE North 89 deg. 38' 49" West along said North right of way
line a distance of 282.59 feet to a point, being the intersection
of the North right of way line of Flamingo Road and the East
right of way line of Highland Drive (80.00 feet wide);
THENCE North 00 deg. 03' 48" East along the East right of way
line of said Highland Drive a distance of 1263.78 feet to a point
in the North line of the Southwest Quarter (SW 1/4) of the
Southwest Quarter (SW 1/4) of said Section 17;
THENCE South 89 deg. 16' 52" East along the North line of the
Southwest Quarter (SW 1/4) of the Southwest Quarter (SW 1/4) of
said Section 17, a distance of 282.58 feet to a point being the
TRUE POINT OF BEGINNING.
FURTHER EXCEPTING those portions conveyed to Clark County by Deed
recorded October 10, 1985 in Book 2198 as Document No. 2157357,
Official Records, and described as follows:
PARCEL A:
Being a portion of the Southwest Quarter (SW 1/4) of Section 17,
Township 21 South, Range 61 East, M.DM., more fully described by
metes and bounds as follows, to wit:
BEGINNING at the intersection of the Grantor's Westerly property
line as delineated on that certain survey map filed in the Office
of the County Recorder of Clark County, Nevada in File 26, Page
12 of Surveys as Document No. 300693 of Official Records on June
28, 1973; and the left or Northerly right of way line of Flamingo
Road (Project M-592(6)) at a point 105.00 feet left of and
measured radially from Highway Engineer's Station "M" 5+85.38
P.O.C., said point of beginning further described as bearing
North 82 deg. 38' 49" East, a distance of 614.92 feet from the
Southwest corner of Section 17, Township 21 South, Range 61 East,
M.D.M.;
THENCE South 46 deg. 45' 37" East, along said right of way line,
a distance of 43.97 feet to Grantor's Southerly property line;
THENCE North 89 deg. 52' 24" West, along Grantor's Southerly
property line, a distance of 31.95 feet to the Southwest corner
of Grantor's property;
Page 3
<PAGE>
THENCE North 00 deg. 09' 16" West, along the Grantor's Westerly
property line, a distance of 30.05 feet to the POINT OF
BEGINNING.
PARCEL B:
Being a portion of the Southwest Quarter (SW 1/4) of Section 17,
Township 21 South, Range 61 East, M.D.M., and more fully
described by metes and bounds as follows, to wit:
BEGINNING at Grantor's Easterly property line as delineated on
that certain recorded survey map filed in the Office of the
County Recorder of Clark County, Nevada, in File 26, Page 12 of
Surveys as Document No. 300693 of Official Records on June 28,
1973, at a point 219.10 feet left of and at right angles to the
centerline of Flamingo Road (Project M-592(6)), at Highway
Engineer's Station "M" 9+37.96 P.O.T., said point of beginning
further described as bearing North 84 deg. 53' 26" East, a
distance of 986.19 feet from the Southwest corner of Section 17,
Township 21 South, Range 61 East, M.D.M.;
THENCE South 0 deg. 09' 16" East, along the Grantor's Easterly
property line, a distance of 40.00 feet to the Southeast corner
of Grantor's property;
THENCE North 89 deg. 52' 24" West along Grantor's Southerly
property line, a distance of 50.00 feet to a point;
THENCE North 51 deg. 21' 20" East, a distance of 63.88 feet to
the POINT OF BEGINNING.
FURTHER EXCEPTING from Parcel II above any improvements located
thereon as excepted in Deed dated August 12, 1985, executed by
JAMES W. NEWMAN in favor of ALLAN D. SACHS, and recorded August
14, 1985 in Book 2167 as Document No. 2126328 and re-recorded
November 27, 1985 in Boo 2225 as Document No. 2184489, of
Official Records.
AND ALSO EXCEPTING that portion of said land as conveyed to the
County of Clark by that certain Grant, Bargain, Sale Deed
recorded January 8, 1998 in Book 980108 as Document No. 00820 of
Official Records.
PARCEL III:
That portion of the Southwest Quarter (SW 1/4) of the Southwest
Quarter (SW 1/4) of Section 17, Township 21 South, Range 61 East,
M.D.M., described as:
Lot Two (2) as shown by map thereof in File 47 of Parcel Maps,
Page 51, in the Office of the County Recorder of Clark County,
Nevada.
AND ALSO EXCEPTING that portion of said land as conveyed to the
County of Clark by that certain Grant, Bargain, Sale Deed
recorded January 8, 1998 in Book 980108 as Document No. 00820 of
Official Records.
PARCEL IV:
A portion of the Southwest Quarter (SW 1/4) of the Southwest
Quarter (SW 1/4) of Section 17, Township 21 South, Range 61 East,
M,D.M., and more particularly described by metes and bounds as
follows:, to-wit
BEGINNING at a point on the left or Northerly right of way line
of SR-592 (Flamingo Road, (Project M-592(6)), 75.00 feet left of
and measured radially from Highway Engineer's Station "M" 4+00.00
P.O.C.; said point of beginning
Page 4
<PAGE>
further described as bearing North 78 deg. 13' 43" East, a
distance of 414.70 feet from the Southwest corner of Section 17,
Township 21 South, Range 61 East, M.D.M.;
THENCE North 4 deg. 46' 06" East, along the former left or
Northerly right of way line of said SR-592, a distance of 30.00
feet to a point;
THENCE from a tangent which bears South 85 deg. 13' 54" East,
curving to the right along said former right of way line, with a
radius of 1,105 feet, through an angle of 10 deg. 37' 17", an arc
distance of 204.85 feet to a point;
THENCE South 46 deg. 45' 33" East, along said former right of way
line, a distance of 43.96 feet to an intersection with the left
or Northerly right of way line of said SR-562, 85.00 feet left of
and at right angles to Highway Engineer's Station "M" 6+22.66
P.O.T.;
THENCE North 89 deg. 52' 24" West, along said right of way line,
a distance of 35.97 feet to a point 75.00 feet left of and
measured radially from Highway Engineer's Station "M" 5+89.26
P.O.C.;
THENCE from a tangent which bears North 74 deg. 23' 17" West,
curving to the left along said right of way line, with a radius
of 1075 feet, through an angle of 10 deg. 50' 37", an arc
distance of 203.45 feet to the point of beginning; said parcel
contains an area of 6,665 square feet (0.15 of an acre), more or
less.
AND ALSO EXCEPTING that portion of said land as conveyed to the
County of Clark by that certain Grant, Bargain, Sale Deed
recorded January 8, 1998 in Book 980108 as Document No. 00820 of
Official Records.
PARCEL V:
A portion of the Southwest Quarter (SW 1/4) of Section 17,
Township 21 South, Range 61 East, M.D.B.&M., Clark County,
Nevada, being more particularly described as follows (Highland
Avenue):
COMMENCING at the Southwest corner of Section 17, Township 21
South, Range 61 East, M.D.B.&M., Clark County, Nevada;
THENCE South 89 deg. 38' 49" East a distance of 50.00 feet to a
point;
THENCE North 00 deg. 29' 59" West a distance of 93.27 feet to a
point on the North line of Flamingo Road;
THENCE South 88 deg. 46' 25" East a distance of 286.54 feet to a
point;
THENCE South 82 deg. 24' 46" East a distance of 308.90 feet to a
point;
THENCE South 89 deg. 38' 49" East a distance of 290.35 feet to
the TRUE POINT OF BEGINNING;
THENCE continuing South 89 deg. 38' 49" East a distance of 130.00
feet to a point;
THENCE North 00 deg. 03' 46" East a distance of 836.29 feet to a
point;
THENCE along a curve concave to the Northeast, having a radius of
60.00 feet, a central angle of 83 deg. 37' 14" with an arc length
of 87.57 feet to a point;
THENCE South 00 deg. 03' 46" West a distance of 795.88 feet to a
point;
THENCE South 51 deg. 34' 48" West a distance of 63.87 feet to the
TRUE POINT OF BEGINNING.
AND ALSO EXCEPTING that portion of said land as conveyed to the
County of Clark by that certain Grant, Bargain, Sale Deed
recorded January 8, 1998 in Book 980108 as Document No. 00820 of
Official Records.
PARCEL VI:
A portion of the Southwest Quarter (SW 1/4) of Section 17,
Township 21 South,
Page 5
<PAGE>
Range 61 East, M.D.B.&M., Clark County, Nevada, and a portion of
the Northwest Quarter (NW 1/4) of Section 20, township 21, South,
Range 61 East, M.D.B.&M., being more particularly described as
follows (Flamingo Road):
COMMENCING at the Southwest Quarter (SW 1/4) of Section 17,
Township 21 South, Range 61 East, M.D.B.&M., Clark County,
Nevada;
THENCE South 89 deg. 38' 49" East a distance of 50.00 feet to a
point;
THENCE North 00 deg. 29' 59" West a distance of 93.27 feet to a
point on the North right of way line of Flamingo Road;
THENCE South 88 deg. 46' 25" East a distance of 286.54 feet to a
point;
THENCE South 82 deg. 24' 46" East a distance of 308.90 feet to a
point;
THENCE South 89 deg. 38' 49" East a distance of 290.35 feet to
the TRUE POINT OF BEGINNING;
THENCE continuing South 89 deg. 38' 49" East a distance of 412.64
feet to a point;
THENCE South 00 deg. 03' 46" West a distance of 100.00 feet to a
point;
THENCE North 89 deg. 38' 49" West a distance of 282.64 feet to a
point;
THENCE North 68 deg. 41' 03" West a distance of 139.76 feet to a
point;
THENCE North 00 deg. 21' 11" East a distance of 50.00 feet to the
TRUE POINT OF BEGINNING.
AND ALSO EXCEPTING that portion of said land as conveyed to the
County of Clark by that certain Grant, Bargain, Sale Deed
recorded January 8, 1998 in Book 980108 as Document No. 00820 of
Official Records.
PARCEL VII:
All that portion of the Northwest Quarter (NW 1/4) of the
Northwest Quarter (NW 1/4) of Section 20, Township 21 South,
Range 61 East, M.D.B.&M., lying Northeasterly of the following
described parcel, excepting therefrom the North fifty (50) feet
thereof;
Situate, lying and being in the County of Clark, State of Nevada,
and more particularly described as being a portion of the North
Half (N 1/2) of the Northwest Quarter (NW 1/4) of the Northwest
Quarter (NW 1/4) of Section 20, Township 21 South, Range 61 East,
M.D.M., and more fully described by metes and bounds as follows,
to wit:
BEGINNING at a point on the right or Southerly right of way line
of Flamingo Road (SR-592), 80.00 feet right of and at right
angles to Highway Engineer's Station "M" 3+24.23 P.C., said point
of beginning further described as bearing South 78 deg. 38' 34"
East, a distance of 339.31 feet from the Northwest corner of
Section 20, Township 21 South, Range 61 East, M.D.M.;
THENCE North 1 deg. 00' 00" East, along said right of way line a
distance of 16.08 feet to an intersection with the Owner's
Northerly property line;
THENCE South 89 deg. 52' 24" East along said property line a
distance of 777.38 feet to an intersection with the left or
Northerly right of way line of said Flamingo Road;
THENCE South 81 deg. 50' 46" East along said right of way line a
distance of 201.59 feet to a point on the Westerly right of way
line of Interstate Route 15 (Project IR-015-1(68)38);
THENCE South 75 deg. 26' 45" East a distance of 36.91 feet to an
intersection with the West 1/16 section line of Section 20,
Township 21 South, Range 61 East, M.D.M., and the Owner's
Easterly property line;
THENCE South 0 deg. 19' 43" East along said West 1/16 section
line a distance of
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319.14 feet to a point on the right or Southerly right of way
line of Flamingo Road;
THENCE North 71 deg. 37' 38" West along said right of way line a
distance of 129.16 feet to a point;
THENCE North 67 deg. 47' 31" along said right of way line a
distance of 699.39 feet to a point;
THENCE from a tangent which bears North 73 deg. 32' 11" West
curving to the left along said right of way line with a radius of
920 feet through an angle of 15 deg. 27' 49", an arc distance of
248.30 feet to the POINT OF BEGINNING; said parcel contains an
area of 3.75 acres, more of less.
TOGETHER WITH all of grantors' right, title, and interest,
including abutters' rights, in and to that portion of Flamingo
Road (fifty feet wide) which abuts the above described property
on its North line, from the West property corner to the East
property corner.
PARCEL VIII:
That portion of the Southwest Quarter (SW 1/4) of the Southwest
Quarter (SW 1/4) of Section 17, Township 21 South, Range 61 East,
M.D.B.&M., described as follows:
Lots One (1) and Two (2) as shown by map thereof in File 46 of
Parcel Maps, Page 18, in the Office of the County Recorder of
Clark County, Nevada.
EXCEPTING THEREFROM the Northerly 20 feet as described in the
Grant, Bargain, and Sale Deed to Clark County, recorded October
19, 1989 in Book 891019 as Document No. 00834 and re-recorded
January 18, 1990 in Book 900118 as Document No. 00863 of Official
Records, Clark County, Nevada.
AND ALSO EXCEPTING that portion of said land as conveyed to the
County of Clark by that certain Grant, Bargain, Sale Deed
recorded January 8, 1998 in Book 980108 as Document No. 00820 of
Official Records.
PARCEL IX:
PARCEL A:
That portion of the Southeast Quarter (SE 1/4) of the Southwest
Quarter (SW 1/4) of Section 17, Township 21 South, Range 61 East,
M.D.B.&M., in the County of Clark, State of Nevada, described as
follows:
COMMENCING at the intersection of the South line of said Section
17 with the Northwesterly right of way line of the Los Angeles
and Salt Lake (Union Pacific) Railroad (200 feet wide);
THENCE North 28 deg. 12' 00" East along the said Northwesterly
right of way line a distance of 400.00 feet to the Northeast
corner of that certain property conveyed to Wilma Wilgar, et al,
by Deed recorded May 11, 1965 as Document No. 491993, said point
being the TRUE POINT OF BEGINNING;
THENCE continuing North 28 deg. 12' 00" East along the
Northwesterly right of way line of the railroad a distance of
428.37 feet to the Southeast corner of that certain parcel of
land conveyed to NEVADA CATHOLIC WELFARE BUREAU, INC. by Deed
recorded as Document No. 248789 in December of 1972;
THENCE North 61 deg. 48' 00" West along the Southerly boundary of
the above mentioned
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Welfare Bureau Parcel a distance of 573.95 feet to a point in the
West line of the Southeast Quarter (SE 1/4) of the Southwest
Quarter (SW 1/4) of said Section 17;
THENCE South 0 deg. 22' 49" West along the last mentioned West
line to the Northwest corner of the above mentioned WILGAR
PARCEL;
THENCE South 61 deg. 48' 00" East along the Northerly boundary of
the said WILGAR PARCEL a distance of 368.00 feet to the TRUE
POINT OF BEGINNING.
PARCEL B:
A right of way and easement with the right of ingress and egress
for the construction, operation, maintenance, repair, and renewal
of railroad spur track lines over and across the Easterly 10 feet
of that certain parcel of property conveyed to T. E. CONNOLLY,
INC., a Delaware corporation, as reserved in that certain Deed
recorded May 18, 1955 as Document No. 46886, Official Records,
Clark County, Nevada.
PARCEL C:
A right of way and easement for the construction, operation,
maintenance, repair, and renewal of a railroad spur track line
over, along, and across the following described property:
A strip of land 20.00 feet wide lying Westerly and immediately
adjacent to the Northwesterly right of way line of the Los
Angeles, and Salt Lake City (Union Pacific) Railroad right of way
(200 feet wide) bounded on the South by the Northerly boundary
line of the hereinabove conveyed parcel and bounded on the North
by the Southerly boundary line of that certain parcel of land
conveyed by CINDERLITE, INC. to T. E. CONNOLLY, INC. by Deed
recorded May 18, 1955 as Document No. 46886 in said County
Official Records.
PARCEL D:
A non-exclusive right of way and easement for road and utility
purposes over, along, and across the following described
property:
The Westerly 30.00 feet lying Easterly and immediately adjacent
to the West line of the East One Half (E 1/2) of the Southwest
Quarter (SW 1/4) of said Section 17, bounded on the South by the
Northerly boundary line of the hereinabove conveyed parcel and
bounded on the North by the Southerly boundary line of that
certain parcel of land conveyed by CINDERLITE, INC. to T. E.
CONNOLLY, INC. by Deed recorded May 18, 1955 as Document No.
46886 in said County Official Records.
PARCEL E:
A non-exclusive easement for ingress, egress, and public utility
purposes over and across that portion of the Southwest Quarter
(SW 1/4) of the Southwest Quarter (SW 1/4) of Section 17,
Township 21 South, Range 61 East, described as follows:
COMMENCING at the Northeast corner of the Southwest Quarter (SW
1/4) of the Southwest Quarter (SW 1/4) of Section 17, Township 21
South, Range 61 East, M.D.M.;
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THENCE South 00 deg. 03' 48" West along the East line of said
Southwest Quarter (SW 1/4) of the Southwest Quarter (SW 1/4) a
distance of 288.00 feet to the TRUE POINT OF BEGINNING;
THENCE continuing South 00 deg. 03' 48" West a distance of 40.00
feet to a point;
THENCE 89 deg. 16' 32" West on a line parallel with the North
line of the Southwest Quarter (SW 1/4) of the Southwest Quarter
(SW 1/4) a distance of 282.58 feet to a point;
THENCE North 00 deg. 03' 48" East a distance of 40.00 feet to a
point;
THENCE South 89 deg. 16' 52" East a distance of 282.58 feet to
the TRUE POINT OF BEGINNING.
PARCEL X:
PARCEL A:
That portion of the Southwest Quarter (SW 1/4) of the Southwest
Quarter (SW 1/4) of Section 17, Township 21 South, Range 61 East,
M.D.B.&M., in the County of Clark, State of Nevada, described as
follows:
BEGINNING at the intersection of the South line of the Southwest
Quarter (SW 1/4) of said Section 17, with the Northwesterly right
of way line of Los Angeles and Salt Lake City (Union Pacific)
Railroad right of way, 200 feet wide;
THENCE North 28 deg. 12' 00" East along the said Northwesterly
right of way line a distance of 400.00 feet;
THENCE North 61 deg. 48' 00" West a distance of 368.00 feet to a
point in the West line of the East Half (E 1/2) of the Southwest
Quarter (SW 1/4) of said Section 17, said West line being also
the East boundary of that certain parcel of land conveyed to
GIBBONS AND REED CO. to STOCKS MILL AND SUPPLY CO., INC. by Deed
recorded December 31, 1963 as Document No. 404686 in Clark
County, Nevada, Official Records;
THENCE Southerly along the said East boundary line a distance of
516.00 feet to the Southeast corner of said conveyed parcel, said
corner also being the Southwest corner of the East Half (E 1/2)
of the Southwest Quarter (SW 1/4) of said Section 17;
THENCE Easterly along the South line of said Southwest Quarter
(SW 1/4) of said Section 17;
THENCE Easterly along the South line of said Southwest Quarter
(SW 1/4) to the POINT OF BEGINNING.
TOGETHER WITH that portion of vacated Flamingo Road appurtenant
thereto by Order of Vacation recrded November 3, 1989 in Book
891103 as Document No. 00683, Official Records.
PARCEL B:
A non-exclusive right of way and easement for road and utility
purposes over, along and across the following described property:
The Westerly 30.00 feet lying Easterly and immediately adjacent
to the West line of the East Half (E 1/2) of the Southwest
Quarter (SW 1/4) of said Section 27, bounded on the South by the
Northerly boundary line of the hereinabove conveyed parcel and
bounded on the North by the Southerly boundary line of that
certain parcel of land conveyed by CINDERLITE, INC. to T. E.
CONNOLLY, INC. by Deed recorded May 18, 1955 as Document No.
46886 in said County Official Records.
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<PAGE>
PARCEL C:
A right of way and easement for the construction, operation,
maintenance, repair and renewal of a railroad spur track line
over, along, and across the following described property:
A strip of land 20.00 feet wide lying Westerly and immediately
adjacent to the Northwesterly right of way line of Los Angeles
and Salt Lake City (Union Pacific) Railroad right of way (200
feet wide), bounded on the South by the Northerly boundary line
of the hereinabove conveyed parcel and bounded on the North by
the Southerly boundary line of that certain parcel of land
conveyed by CINDERLITE, INC. to T. E. CONNOLLY, INC. by Deed
recorded May 18, 1955 as Document No. 46886 in said County
Official Records.
PARCEL D:
A right of way and easement with the right of ingress and egress
for the construction, operation, maintenance, repair, and renewal
of railroad spur track lines over and across the Easterly 10 feet
of that certain parcel of property conveyed to T. E. CONNOLLY,
INC. a Delaware corporation, as reserved in that certain Deed
recorded May 18, 1955 as Document No. 46886, Official Records,
Clark County, Nevada.
PARCEL E:
A non-exclusive easement for ingress, egress, and public utility
purposes over and across that portion of the Southwest Quarter
(SW 1/4) of the Southwest Quarter (SW 1/4) of Section 17,
Township 21 South, Range 61 East, M.D.M., described as follows:
COMMENCING at the Northeast corner of the Southwest Quarter (SW
1/4) of the Southwest Quarter (SW 1/4) of Section 17, Township 21
South, Range 61 East, M.D.M., Clark County, Nevada;
THENCE South 00 deg. 03' 48" West along the East line of said
Southwest Quarter (SW 1/4) of the Southwest Quarter (SW 1/4) a
distance of 288.00 feet to the TRUE POINT OF BEGINNING;
THENCE continuing South 00 deg. 03' 48" West a distance of 40.00
feet to a point;
THENCE North 89 deg. 16' 52" West on a line parallel with the
North line of the Southwest Quarter (SW 1/4) of the Southwest
Quarter (SW 1/4) a distance of 282.58 feet to a point;
THENCE North 00 deg. 03' 46" East a distance of 40.00 feet to a
point;
THENCE South 89 deg. 16' 52" East a distance of 282.58 feet to
the TRUE POINT OF BEGINNING.
PARCEL XI:
PARCEL A:
That portion of the Southeast Quarter (SE 1/4) of the Southwest
Quarter (SW 1/4) of Section 17, Township 21 South, Range 61 East,
M.D.M., described as follows:
COMMENCING at the intersection of the South line of said Section
17 with the Northwesterly right of way line of the Los Angeles
and Salt Lake (Union Pacific)
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Railroad (200 feet wide);
THENCE North 28 deg. 12' 00" East along the said Northwesterly
right of way line a distance of 1028.37 feet to the most
Southerly corner of that certain parcel of land described in a
Deed from CINDERLITE, INC. to T. E. CONNOLLY, INC., a Delaware
corporation, recorded May 18, 1955 as Document No. 46886, Clark
County, Nevada records, the TRUE POINT OF BEGINNING;
THENCE North 61 deg. 48' 00" West along the Southerly boundary of
the last mentioned parcel of land a distance of 679.49 feet to a
point in the West line of the Southeast Quarter (SE 1/4) of the
Southwest Quarter (SW 1/4) of said Section 17;
THENCE South 0 deg. 22' 49" West along the last mentioned West
line a distance of 226.14 feet to a point;
THENCE South 61 deg. 48' 00" East a distance of 573.95 feet to a
point in the aforementioned Northwesterly right of way line of
the Los Angeles and Salt Lake (Union Pacific) Railroad;
THENCE North 28 deg. 12' 00" East along the said right of way
line a distance of 200.00 feet to the TRUE POINT OF BEGINNING.
PARCEL B:
A right of way and easement with the right of ingress and egress
for the construction, operation, maintenance, repair, and renewal
of railroad spur track lines over and across the Easterly 10 feet
of that certain parcel of property conveyed to T. E. CONNOLLY,
INC., a Delaware corporation, as reserved in that certain Deed
recorded May 18, 1955 as Document No. 46886, Official Records,
Clark County, Nevada.
PARCEL C:
A non-exclusive easement for ingress, egress and public utility
purposes over and across that portion of the Southwest Quarter
(SW 1/4) of the Southwest Quarter (SW 1/4) of Section 17,
Township 21 South, Range 61 East, M.D.M., described as follows:
COMMENCING at the Northeast corner of the Southwest Quarter (SW
1/4) of the Southwest Quarter (SW 1/4) of Section 17, Township 21
South, Range 61 East, M.D.M., Clark County, Nevada;
THENCE South 00 deg. 03' 48" West along the East line of said
Southwest Quarter (SW 1/4) of the Southwest Quarter (SW 1/4) a
distance of 288.00 feet to the TRUE POINT OF BEGINNING;
THENCE continuing South 00 deg. 03' 48" West a distance of 40.00
feet to a point;
THENCE North 89 deg. 16' 52" West on a line parallel with the
North line of the Southwest Quarter (SW 1/4) of the Southwest
Quarter (SW 1/4) a distance of 282.58 feet to a point;
THENCE North 00 deg. 03' 46" East a distance of 40.00 feet to a
point;
THENCE South 89 deg. 16' 52" East a distance of 282.58 feet to
the TRUE POINT OF BEGINNING.
PARCEL XII:
COMMENCING at the Northeast corner of the Southwest Quarter (SW
1/4) of the Southwest Quarter (SW 1/4) of Section 17, Township 21
South, Range 61 East, M.D.M., Clark County, Nevada; said point
being the TRUE POINT OF BEGINNING;
THENCE South 00 deg. 03' 48" West along the East line of said
Southwest Quarter (SW 1/4) of the Southwest Quarter (SW 1/4) a
distance of 328.00 feet to a point;
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THENCE North 89 deg. 16' 52" West on a line parallel with the
North line of the Southwest Quarter (SW 1/4) of the Southwest
Quarter (SW 1/4) a distance of 282.58 feet to a point;
THENCE North 00 deg. 03' 48" East a distance of 328.00 feet to a
point;
THENCE South 89 deg. 16' 52" East a distance of 282.58 feet to
the TRUE POINT OF BEGINNING.
ALSO DESCRIBED AS:
Parcel I as shown by map thereof on file in File 47 of Parcel
Maps, Page 51, in the Office of the County Recorder of Clark
County, Nevada.
EXCEPTING THEREFROM that property conveyed to the County of Clark
by an instrument recorded January 18, 1990 in Book 900118 as
Instrument No. 00864 of Official Records, described as follows:
A portion of the Southwest Quarter (SW 1/4) of Section 17,
Township 21 South, Range 61 East, M.D.B.&M, Clark County, Nevada,
being more particularly described as follows:
COMMENCING at the South One-Sixteenth corner of Section 17,
Township 21 South, Range 61 East, M.D.B.&M., Clark County,
Nevada;
THENCE South 89 deg. 17' 22" East a distance of 1074.89 feet to
the TRUE POINT OF BEGINNING;
THENCE continuing South 89 deg. 17' 22" East a distance of 282.66
feet to a point;
THENCE South 00 deg. 03' 46" West a distance of 30.00 feet to a
point;
THENCE South 86 deg. 39' 36" West a distance of 283.14 feet to a
point;
THENCE North 00 deg. 03' 46" East a distance of 50.01 feet to the
TRUE POINT OF BEGINNING.
ALSO EXCEPTING THEREFROM that portion conveyed to the County of
Clark by an instrument recorded December 28, 1989 in Book 891228
as Document No. 00778 of Official Records, described as follows:
A portion of the Southwest Quarter (SW 1/4) of the Southwest
Quarter (SW 1/4) of Section 17, Township 21 South, Range 61 East,
M.D.M., Clark County, Nevada, being more particularly described
as follows:
COMMENCING at the Southwest One-Sixteenth corner of Section 17,
Township 21 South, Range 61 East, M.D.M., Clark County, Nevada;
THENCE South 00 deg. 03' 46" West a distance of 30.00 feet to the
TRUE POINT OF BEGINNING;
THENCE continuing South 00 deg. 03' 46" West a distance of 20.00
feet to a point;
THENCE North 89 deg. 17' 22" West a distance of 282.66 feet to a
point;
THENCE North 86 deg. 39' 36" East a distance of 282.14 feet to
the TRUE POINT OF BEGINNING.
AND ALSO EXCEPTING that portion of said land as conveyed to the
County of Clark by that certain Grant, Bargain, Sale Deed
recorded January 8, 1998 in Book 980108 as Document No. 00820 of
Official Records.
PARCEL XIII:
COMMENCING at the Northwest corner of the Northeast Quarter (NE
1/4) of the
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Northwest Quarter (NW 1/4) of Section 20, Township 21 South,
Range 61 East, M.D.B.&M., said point being the TRUE POINT OF
BEGINNING;
THENCE South 89 deg. 53' 33" East, along the North line of
Section 20, 177.49 feet to a point on the West right of way of
Union Pacific Railroad;
THENCE along said right of way South 27 deg. 39' 44" West, 132.00
feet to a point on the North right of way of Flamingo Road;
THENCE North 75 deg. 26' 45" West, 119.56 feet;
THENCE North 0 deg. 19' 45" West, 87.20 feet to the TRUE POINT OF
BEGINNING.
PARCEL XIV:
That portion of the Southwest Quarter (SW 1/4) of Section 17,
Township 21 South, Range 61 East, M.D.B.&M., being more
particularly described as follows:
COMMENCING at the Northeast corner of the Southwest Quarter (SW
1/4) of said Section 17;
THENCE Southerly along the East line of the Southwest Quarter (SW
1/4) of said Section 17 a distance of 236.20 feet to a point on
the Northwesterly line of the L.A. and S.L. (Union Pacific)
Railroad right of way line (200.00 feet wide);
THENCE South 28 deg. 12' 00" West along the said right of way
line a distance of 1644.81 feet to a point;
THENCE North 62 deg. 05' 41" West a distance of 679.68 feet to a
point;
THENCE North 00 deg. 03' 46" East a distance of 6.54 feet to the
TRUE POINT OF BEGINNING;
THENCE continuing North 00 deg. 03' 46" East a distance of 79.33
feet to a point;
THENCE South 89 deg. 16' 40" East a distance of 91.95 feet to a
point;
THENCE South 49 deg. 39' 16" West a distance of 120.75 feet to
the TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM that portion of said land conveyed to the
County of Clark by that certain Grant, Bargain, Sale Deed
recorded December 28, 1989 in Book 891228 as Document No. 00776
and re-recorded January 18, 1990 in Book 900118 as Document No.
01019 of Official Records, described as follows:
A portion of the Southwest Quarter (SW 1/4) of Section 17,
Township 21 South, Range 61 East, M.D.B.&M., Clark County,
Nevada, being more particularly described as follows:
COMMENCING at the South One-Sixteenth Corner of Section 17,
Township 21 South, Range 61 East, M.D.B.&M., Clark County,
Nevada;
THENCE South 89 deg. 17' 22" East a distance of 1357.85 feet to
the TRUE POINT OF BEGINNING;
THENCE continuing South 89 deg. 17' 22" East a distance of 91.95
feet to a point;
THENCE South 49 deg. 39' 16" West a distance of 45.67 feet to a
point;
THENCE North 89 deg. 16' 40" West a distance of 57.17 feet to a
point;
THENCE North 00 deg. 03' 46" East a distance of 30.00 feet to the
TRUE POINT OF BEGINNING.
FURTHER EXCEPTING THEREFROM that portion of said land conveyed to
the County of Clark by that certain Grant, Bargain, Sale Deed
recorded December 28, 1989 in Book 891228 as Document No. 00778
of Official Records, described as follows:
A portion of the Southeast Quarter (SE 1/4) of the Southwest
Quarter (SW 1/4) of Section 17, Township 21 South, Range 61 East,
M.D.M., Clark County, Nevada,
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<PAGE>
being more particularly described as follows:
COMMENCING at the Southwest One-Sixteenth Corner of Section 17,
Township 21 South, Range 61 East, M.D.M., Clark County, Nevada;
THENCE South 00 deg. 03' 46" West a distance of 30.00 feet to the
TRUE POINT OF BEGINNING;
THENCE continuing South 00 deg. 03' 46" West a distance of 20.00
feet to a point;
THENCE South 89 deg. 16' 40" East a distance of 33.99 feet to a
point;
THENCE North 49 deg. 39' 16" East a distance of 30.44 feet to a
point;
THENCE North 89 deg. 16' 40" West a distance of 57.17 feet to the
TRUE POINT OF BEGINNING.
PARCEL XV:
A tract of land known as a portion of Highland Avenue located in
Section 17, Township 21 South, Range 61 East, M.D.M., more
particularly described as follows:
COMMENCING at the Northwest corner of the Southwest Quarter (SW
1/4) of the Southwest Quarter (SW 1/4) of said Section 17 being
the intersection of the centerline of Valley View Boulevard and
Viking Road;
THENCE South 89 deg. 17' 11" East along the centerline of said
Viking Road a distance of 1,035.12 feet to the centerline of
Highland Avenue and Viking Road;
THENCE South 00 deg. 03' 50" West along the centerline of said
Highland Avenue a distance of 50.00 feet to the TRUE POINT OF
BEGINNING;
THENCE South 89 deg. 17' 94" East a distance of 40.00 feet;
THENCE South 00 deg. 03' 50" West a distance of 377.25 feet to a
point of non-tangent curve concave Northerly, having a radius of
60.00 feet and an initial radial bearing of South 41 deg. 45' 39"
East;
THENCE along said curve a distance of 87.57 feet;
THENCE North 00 deg. 03' 50" East a distance of 378.18 feet to a
point on the South right of way of said Viking Road;
THENCE South 89 deg. 17' 04" East a distance of 40.00 feet to the
TRUE POINT OF BEGINNING.
As set forth in that certain Order of Vacation, executed by the
County of Clark, recorded May 6, 1993 in Book 930506 as Document
No. 00865 of Official Records.
PARCEL XVI:
COMMENCING at the Northwest (NW) corner of the Northeast Quarter
(NE 1/4) of the Northwest Quarter (NW 1/4) of Section 20,
Township 21 South, Range 61 East, M.D.B.&M.;
THENCE South 0 deg. 19' 45" East, 664.42 feet to the Southwest
(SW) corner of the Northwest Quarter (NW 1/4) of the Northeast
Quarter (NE 1/4) of the Northwest Quarter (NW 1/4) of Section 20;
THENCE South 89 deg. 45' 21" East, 230.01 feet to the TRUE POINT
OF BEGINNING;
THENCE South 89 deg. 45' 21" East, 358.44 feet to a point on a
curve to the West right of way of Industrial Road, said point
having a radial bearing of North 80 deg. 04' 36" East;
THENCE along said curve concaved Northeasterly having a central
angle of 9 deg. 55' 24", a radius of 535.00 feet along an arc
length of 92.66 feet to a point of tangency;
THENCE North 0 deg. 00" East, 7.57 feet to a point on a curve on
the South right of
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way of Flamingo Road having a radial bearing of North 8 deg. 24'
18" East;
THENCE along said curve concave Northeasterly having a central
angle of 8 deg. 03' 31" a radius of 1660.00 feet along an arc
length of 233.48 feet to a point of tangency;
THENCE North 73 deg. 32' 11" West, 128.97 feet;
THENCE South 0 deg. 19' 45' East 185.03 feet to the TRUE POINT OF
BEGINNING.
EXCEPTING THEREFROM that portion conveyed to Clark County by Deed
recorded September 15, 1994 in Book 940915, as Document No. 00286
of Official Records.
PARCEL XVII:
COMMENCING at the Northwest (NW) corner of the Northeast Quarter
(NE 1/4) of the Northwest Quarter (NW 1/4) of Section 20,
Township 21 South, Range 61 East, M.D.B.&M.;
THENCE South 89 deg. 53' 33" East, 290.29 feet to the TRUE POINT
OF BEGINNING, said point also being on the North line of the
Northwest Quarter (NW 1/4) of Section 20 and the East right of
way of Union Pacific Railroad;
THENCE South 89 deg. 53' 33" East 50.98 feet;
THENCE South 27 deg. 39' 44" West, 99.64 feet;
THENCE South 66 deg. 13' 12" East 283.30 feet to a point on the
West right of way of Industrial Road;
THENCE South 0 deg. 00' East, 33.82 feet to a point on a curve on
the North right of way of Flamingo Road, said point having a
radial bearing of North 11 deg. 44' 22" East;
THENCE along said curve concaved Northerly having a central angle
of 4 deg. 43' 27", a radius of 1340.00 feet and along an arc
length of 110.49 feet to a point of tangency, said point being
N.H.D. Station 17+99.73;
THENCE North 73 deg. 32' 11" West, 199.73 feet;
THENCE North 75 deg. 26' 45" West, 41.32 feet to a point on the
Easterly right of way of Union Pacific Railroad;
THENCE along said right of way North 27 deg. 39' 44" East, 160.89
feet to the TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM that portion condemned by the State of Nevada
in Final Order of Condemnation recorded May 12, 1995 as Document
No. 01081.
PARCEL XVIII:
PARCEL A:
Parcel Two (2) as shown by map thereof on file in File 50 of
Parcel Maps, Page 30, in the Office of the County Recorder of
Clark County, Nevada.
PARCEL B:
A non-exclusive easement for access, utilities and the right of
surface drainage over the easement area, being a 35 foot wide
strip of land over a portion of Parcel 1 as shown by map thereof
on file in File 50 of Parcel Maps, Page 30, in the Office of the
County Recorder of Clark County, Nevada, as disclosed by Document
entitled "Grant of Easement" recorded October 5, 1987 in Book
871005, Document No. 00609, Official Records of Clark County,
Nevada.
PARCEL XIX:
Page 15
<PAGE>
Being a portion of the Southwest Quarter (SW 1/4) of Section 17,
Township 21 South, Range 61 East, M.D.M., Clark County, Nevada,
described as follows:
COMMENCING at the Northwest Corner (NW Cor.) of the Southwest
Quarter (SW 1/4) of the Southeast Quarter (SE 1/4) of said
Section 17, said point also being the centerline intersection of
Valley View Boulevard and Viking Road;
THENCE along the centerline of Viking Road South 89 deg. 17' 11"
East 1035.12 feet to the intersection of Viking Road and Highland
Drive;
THENCE continuing South 89 deg. 17' 11" East 357.02 feet;
THENCE South 00 deg. 42' 48" West, 50.00 feet to the South right
of way line of Viking Road and the POINT OF BEGINNING;
THENCE along the South right of way line of Viking Road South 89
deg. 17' 11" East, 76.26 feet to an angle point in the right of
way of Viking Road.
THENCE along the Southeast right of way line of Cinder Lane North
49 deg. 44' 52" East, 405.07 feet to an angle point in the right
of way of Cinder Lane;
THENCE North 33 deg. 33' 45" East, 132.26 feet;
THENCE departing said right of way line South 62 deg. 24' 58"
East, 434.50 feet to the West right of way line of Union Pacific
Railroad (200 feet wide);
THENCE along said right of way line South 27 deg. 53' 21" West,
591.60 feet;
THENCE departing said right of way line North 62 deg. 06' 39"
West, 679.69 feet;
THENCE North 00 deg. 03' 46" East, 6.52 feet;
THENCE North 49 deg. 44' 52" East, 44.32 feet to the POINT OF
BEGINNING.
Page 16
<PAGE>
SCHEDULE 1.01B
CINDERLANE, INC. REAL PROPERTY DESCRIPTIONS
<TABLE>
<CAPTION>
OLD PARCEL NO. NEW PARCEL NO. LEGAL DESCRIPTION
<S> <C> <C>
162-17-302-001 162-17-302-013 See Exhibit A
162-17-302-002 162-17-302-013 See Exhibit B
162-17-302-003 162-17-302-013 See Exhibit C, Parcel 1B
162-17-302-004 162-17-302-013 See Exhibit C, Parcel 1A
162-17-302-005 162-17-302-013 See Exhibit D (combined with description
for APN: 162-17-302-006)
162-17-302-006 162-17-302-013 See Exhibit D (combined with description
for APN: 162-17-302-005)
162-17-302-007 162-17-302-013 Exhibit E, Parcel 5
162-17-302-008 162-17-302-013 Exhibit F
162-17-302-009 162-17-302-013 Exhibit G, Parcel 2
162-17-302-010 162-17-302-013 Exhibit G, Parcel 1
162-17-302-011 162-17-302-013 Exhibit E, Parcel 6
162-17-302-012 162-17-302-013 Exhibit E, Parcels 1 through 4
162-17-303-010 162-17-303-013
162-17-303-011 162-17-303-013
</TABLE>
<PAGE>
EXHIBIT A
That portion of the Northwest Quarter (NW 1/4) of the Southwest
Quarter (SW 1/4) of Section 17, township 21 South, Range 61 East,
M.D.B. & M., described as follows:
Commencing at the Northeast Corner (NE Cor) of said Northwest
Quarter (NW 1/4) of the Southwest Quarter (SW 1/4) of Section 17,
Township 21 South, Range 61 East, M.D.B & M., as the same appears
on the Map of Survey recorded in File 17, of the Registered
Professional Engineers Surveys at Page 12, Clark County, Nevada
Records; thence South 0 deg. 04'30" West along the East line of
said Northwest Quarter (NW 1/4) of the Southwest Quarter (SW 1/4)
of Section 17, a distance of 111.12 feet to the true point of
beginning, thence continuing south 0 deg. 04'30" West a distance
of 230.00 to a point; thence North 62 deg. 21'53" West a distance
of 174.59 feet to a point on the East Right-of-Way line of
Highland Drive; thence North 46 deg. 07'19" East a distance of
215.00 feet to the true point of beginning.
<PAGE>
EXHIBIT B
That portion of the Northwest Quarter (NW 1/4) of the Southwest
Quarter (SW 1/4) of Section 17, Township 21 South, Range 61 East,
M.D.B. & M., described as follows:
Commencing at the Northeast corner of said Northwest Quarter (NW
1/4) of the Southwest Quarter (SW 1/4) of Section 17, Township 21
South, Range 61 East, M.D.B.&M., as the same appears on the map
of survey recorded in File 17, Page 12 of the Registered
Professional Engineer's Surveys, Clark County, Nevada, Official
Records; Thence South 0 deg. 04'30" West along the East line of
said Northwest Quarter (NW 1/4) of the Southwest Quarter (SW 1/4)
of Section 17, a distance of 341.12 feet to the Southernmost
corner of that Parcel conveyed by William F. Carter and Phylcon,
Inc. to Franklin and McInnis in Document No. 794272, dated
October 7, 1969, Clark County, Nevada, Official Records, said
point being the True Point of Beginning; Thence continuing South
0 deg. 04'30"West, a distance of 139.00 feet to the Northeast
corner of that certain Parcel of land conveyed to William F.
Carter by Deed recorded August 25, 1970, as Document No. 45753,
Clark County, Nevada Records. Thence North 62 deg. 21'53" West
along the Northerly line thereof, a distance of 272.31 feet to
the Easterly right of way line of Highland Drive as conveyed to
the County of Clark by Deed recorded April 13, 1956 as Document
No. 75287, Clark County, Nevada Records, said point being on a
non-tangent curve, concave to the Southeast having a radius to
258.08 feet; A radial line to said point bears North 57 deg.
36'09"West; Thence along said East line and the arc of said
curve; Through a central angle of 13 deg. 43'28", a distance of
61.96 feet to a point; Thence tangent to said curve North 46 deg.
07'19" East, a distance of 66.09 feet to the Westernmost corner
of that parcel described hereinabove; Thence South 62 deg. 21'53"
East, a distance of 174.59 feet to the True Point of Beginning.
<PAGE>
EXHIBIT C
Parcel 1A:
That portion of the Northwest Quarter (NW 1/4) of the Southwest
Quarter (SW 1/4) of Section 17, Township 21 South, Range 61 East,
M.D.B.&M., described as follows:
Commencing at the Southeast corner of said Northwest Quarter (NW
1/4) of the Southwest Quarter (SW 1/4) of Section 17, Township 21
South, Range 61 East, M.D.B.&M., as the same appears on the Map
of Survey recorded in File 17, Page 12, of the Registered
Professional Engineers Surveys, Clark County, Nevada Official
Records; thence North 0 deg, 04'30" East along the East line of
the said Northwest Quarter (NW 1/4) of the Southwest Quarter (SW
1/4) of Section 17, a distance of 66.1.03 feet more or less to
the Southeast corner (SE) of that certain parcel of land conveyed
by Edward A. Collins, et al. to William F. Carter, et al. by Deed
recorded March 18, 1963 as Document 346364, Clark County, Nevada
records; thence North 89 deg. 55'03" West along the South line of
said conveyed parcel a distance of 131.70 feet to the True Point
of Beginning; thence continuing North 89 deg. 55'03" West along
the last mentioned South line a distance of 150.00 feet to a
point on the East line of Highland Drive as conveyed to the
County of Clark by Deed recorded April 13, 1956 as Document No.
75287, Clark County, Nevada records; thence North 0 deg. 08'58"
East along said East line of Highland Drive a distance of 155.00
feet to a point; thence South 89 deg. 55'03" East and parallel to
the South line of the said parcel conveyed by Document No.
346364, a distance of 150.00 feet to a point, thence South 0 deg.
08'58" West and parallel to the aforementioned East line of
Highland Drive a distance of 155.00 feet to the True Point of
Beginning.
Parcel 1B:
That portion of the Northwest Quarter (NW 1/4) of the Southwest
Quarter (SW 1/4) of Section 17, Township 21 South, Range 61 East,
M.D.B.&M., described as follows:
Commencing at the Northeast corner of said Northwest Quarter (NW
1/4) of the Southwest Quarter (SW 1/4) of Section 17, Township 21
South, Range 61 East, M.D.B.&M. as the same appears on the Map of
Survey recorded in File 17, Page 12, of the Registered
Professional Engineers Surveys, Clark County, Nevada, Official
Records; thence South 0 deg. 04'30" West along the East line of
said Northwest Quarter (NW 1/4) of the Southwest Quarter (SW 1/4)
of Section 17, a distance of 480.12 feet to the True Point of
Beginning; thence continuing South 0 deg. 04'30" West a distance
of 168.21 feet to the Southeast corner of that certain parcel of
land conveyed by Edward A. Collins, et al. to William F. Carter,
et al. by Deed recorded March 18, 1963 as Document No. 346364,
Clark County, Nevada records; thence North 89 deg. 55'30" West
along the South line thereof a distance of 131.70 feet to the
Southeast corner of that certain parcel of land conveyed by
Phylcon, Inc., et al, to Richard V. Elitee, et al, by Deed
recorded September 19, 1969 as Document No. 786067, Clark County,
Nevada records; thence North 0 deg. 08'58" East along the East
line thereof a distance of 155.00 feet to the Northeast corner
thereof; thence North 80 deg. 55'30" West along the North line of
the "Elitee" parcel a distance of 150.00 feet to a point on the
East line of Highland Drive as conveyed to the County of Clark,
by Deed recorded April 13, 1956 as Document No. 75287, Clark
County, Nevada records; thence North 0 deg. 08'58" East along
the East line of Highland Drive a distance of 1.22 feet to a
point on a tangent curve concave to the Southeast, having a
radius of 258.68 feet; thence along the arc of said curve,
through a central angle of 32 deg. 14'53" a distance of 145.59
feet to a point, a radial to said point bears North 57 deg.
36'09" West said point being the most westerly corner of that
certain parcel of land as conveyed to Phylcon, Inc. by deed
recorded August 25, 1970 as Document No. 45752, Clark County,
Nevada records, thence departing from said curve South 62 deg.
21'53" East along the Southeasterly line of said "Phylcon"
parcel, a distance of 272.31 feet to the True Point of Beginning.
<PAGE>
EXHIBIT D
LEGAL DESCRIPTION
THAT PORTION OF THE NORTHWEST QUARTER (NW 1/4) OF THE SOUTHWEST
QUARTER (SW 1/4) OF SECTION 17, TOWNSHIP 21 SOUTH, RANGE 61 EAST,
M.D.B.& M., DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF THE NORTHWEST QUARTER (NW
1/4) OF THE SOUTHWEST QUARTER (SW 1/4) OF SAID SECTION 17; THENCE
NORTH 0 DEG. 10'14" EAST ALONG THE EAST LINE OF THE NORTHWEST
QUARTER (NW 1/4) OF THE SOUTHWEST QUARTER (SW 1/4) OF SAID
SECTION 17, A DISTANCE OF 314.03 FEET TO THE NORTHEAST CORNER OF
THAT CERTAIN PARCEL OF LAND CONVEYED BY OSCAR J. SCHERER, ET AL,
BY DEED RECORDED MARCH 8, 1960 AS DOCUMENT NO. 190425, CLARK
COUNTY, NEVADA RECORDS, THE TRUE POINT OF BEGINNING; THENCE NORTH
89 DEG. 49'46" WEST ALONG THE NORTH LINE OF SAID CONVEYED PARCEL,
A DISTANCE OF 282.58 FEET TO A POINT ON THE EAST LINE OF THAT
CERTAIN PARCEL OF LAND CONVEYED TO THE COUNTY OF CLARK FOR ROAD
PURPOSES BY DEED RECORDED AS DOCUMENT NO. 75287, CLARK COUNTY,
NEVADA RECORDS; THENCE NORTH 0 DEG. 10'14" EAST ALONG THE LAST
MENTIONED EAST LINE, A DISTANCE OF 350.00 FEET TO A POINT; THENCE
SOUTH 89(49'46" EAST A DISTANCE OF 282.58 FEET TO A POINT ON THE
EAST LINE OF THE NORTHWEST QUARTER (NW 1/4) OF THE SOUTHWEST
QUARTER (SW 1/4) OF SAID SECTION 17; THENCE SOUTH 0 DEG. 10'14"
WEST ALONG THE LAST MENTIONED EAST LINE A DISTANCE OF 350.00 FEET
TO THE TRUE POINT OF BEGINNING.
<PAGE>
EXHIBIT E
PARCEL ONE (1):
THE EAST HALF (E 1/2) OF THE SOUTHWEST QUARTER (S 1/4) OF SECTION
17, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., DESCRIBED AS
FOLLOWS:
BEGINNING AT THE SOUTHWEST (SW) CORNER OF THE NORTHEAST QUARTER
(NE 1/4) OF THE SOUTHWEST QUARTER (SW 1/4) OF SECTION 17,
TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M.;
THENCE SOUTH 0 DEG. 18' WEST AND ALONG THE WEST LINE OF THE EAST
HALF (E 1/2) OF THE SOUTHWEST QUARTER (SW 1/4) OF SAID SECTION
17, A DISTANCE OF 17.94 FEET TO A POINT;
THENCE NORTH 49 DEG. 53' 30" EAST, A DISTANCE OF 294.31 FEET TO A
POINT;
THENCE NORTH 40 DEG. 06' 30" WEST, A DISTANCE OF 185.60 FEET TO A
POINT;
THE LAST DESCRIBED LINE BEING PARALLEL APPROXIMATELY 17.14 FEET
FROM THE CENTERLINE OF AN EXISTING RAILROAD SPUR TRACK;
THENCE NORTH 89 DEG. 48' 30" WEST, A DISTANCE OF 98.00 FEET TO A
POINT IN THE WEST LINE OF THE NORTHEAST QUARTER (NE 1/4) OF THE
SOUTHWEST QUARTER (SW 1/4) OF SAID SECTION 17;
THENCE SOUTH 0 DEG. 18' WEST AND ALONG THE WEST LINE OF THE SAID
NORTHEAST QUARTER (NE 1/4) OF SECTION 17, A DISTANCE OF 314.03
FEET TO THE POINT OF BEGINNING.
PARCEL TWO (2):
THAT PORTION OF THE SOUTHWEST QUARTER (SW 1/4) OF SECTION 17,
TOWNSHIP 21 SOUTH, RANGE 60 EAST, M.D.M., DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST QUARTER (NE 1/4) OF THE SOUTHWEST
QUARTER (SW 1/4) OF SAID SECTION 17;
THENCE SOUTHERLY ALONG THE EAST LINE OF THE SOUTHWEST QUARTER (SW
1/4) OF SAID SECTION 17, A DISTANCE OF 236.2 FEET TO A POINT ON
THE NORTHWESTERLY LINE OF THE L.A. & S.L. (UNION PACIFIC)
RAILROAD RIGHT OF WAY LINE 200.00 FEET WIDE;
THENCE SOUTH 28 DEG. 12' WEST, ALONG THE SAID RIGHT OF WAY LINE,
A DISTANCE OF 1,644.81 FEET TO A POINT;
THENCE NORTH 61 DEG. 48' WEST, A DISTANCE OF 679.40 FEET TO A
POINT ON THE WEST LINE OF THE EAST HALF (E 1/2) OF THE SOUTHWEST
QUARTER (SW 1/4) OF SAID SECTION 17;
THENCE NORTH 1 DEG. 18'EAST, ALONG THE SAID WEST LINE, A DISTANCE
OF 6.54 FEET TO THE TRUE POINT OF BEGINNING;
THENCE CONTINUING NORTH 1 DEG. 18' EAST, DISTANCE OF 53.33 FEET
TO THE MOST SOUTHERLY CORNER OF THAT CERTAIN PARCEL OF LAND
CONVEYED BY CINDERLITE, INC., TO ATLAS READY-MIX CONCRETE CO. BY
DEED RECORDED MARCH 4, 1955 AS DOCUMENT NO. 37897, CLARK COUNTY,
NEVADA RECORDS;
THENCE NORTH 49 DEG. 53'30" EAST, ALONG THE SOUTHEASTERLY LINE OF
THE SAID CONVEYED PARCEL, A DISTANCE OF 294.31 FEET TO A POINT;
THENCE SOUTH 40 DEG. 06'30" EAST, A DISTANCE OF 40.00 FEET TO A
POINT;
THENCE SOUTH 49 DEG. 53'30" WEST, A DISTANCE OF 329.59 FEET TO
THE TRUE POINT OF BEGINNING.
<PAGE>
PARCEL THREE (3)
THAT PORTION OF THE SOUTHWEST QUARTER (SW 1/4) OF SECTION 17,
TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST (NE) CORNER OF THE SOUTHWEST QUARTER
(SW 1/4) OF SAID SECTION 17;
THENCE SOUTHERLY ALONG THE EAST LINE OF THE SOUTHWEST QUARTER (SW
1/4) OF SAID SECTION 17, A DISTANCE OF 236.2 FEET TO A POINT ON
THE NORTHWESTERLY LINE OF THE L.A. & S.L. (UNION PACIFIC)
RAILROAD RIGHT OF WAY LINE 200.00 FEET WIDE;
THENCE SOUTH 28 DEG. 12' WEST ALONG THE SAID RIGHT OF WAY LINE, A
DISTANCE OF 1,644.81 FEET TO A POINT;
THENCE NORTH 61 DEG. 48'WEST, A DISTANCE OF 679.40 FEET TO A
POINT ON THE WEST LINE OF THE EAST HALF (E 1/2) OF THE SOUTHWEST
QUARTER (SW 1/4) OF SAID SECTION 17;
THENCE NORTH 1 DEG. 18' EAST, ALONG THE SAID WEST LINE, A
DISTANCE OF 59.87 FEET TO THE MOST SOUTHERLY CORNER OF THAT
CERTAIN PARCEL OF LAND CONVEYED BY CINDERLITE, INC. TO ATLAS
READY-MIX CONCRETE CO., BY DEED RECORDED MARCH 4, 1955 AS
DOCUMENT NO. 37897, CLARK COUNTY, NEVADA RECORDS;
THENCE NORTH 49 DEG. 53'30" EAST, ALONG THE SAID SOUTHEASTERLY
LINE, A DISTANCE OF 294.31 FEET TO THE MOST EASTERLY CORNER OF
THE SAID CONVEYED PARCEL, THE TRUE POINT OF BEGINNING;
THENCE NORTH 40 DEG. 06'30" WEST, A DISTANCE OF 120.04 FEET TO A
POINT;
THENCE SOUTH 89 DEG. 48'30" EAST, A DISTANCE OF 11.39 FEET TO A
POINT;
THENCE SOUTH 40 DEG. 06'30" EAST, A DISTANCE OF 152.67 FEET TO A
POINT;
THENCE SOUTH 49 DEG. 53'30" WEST, A DISTANCE OF 8.69 FEET TO A
POINT;
THENCE NORTH 40 DEG. 06'30" WEST, A DISTANCE OF 40.00 FEET TO THE
TRUE POINT OF BEGINNING.
PARCEL FOUR (4)
THAT PORTION OF THE SOUTHWEST QUARTER (SW 1/4) OF SECTION 17,
TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M. DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST (NE) CORNER OF THE SOUTHWEST QUARTER
(SW 1/4) OF SECTION 17;
THENCE SOUTHERLY ALONG THE EAST LINE OF THE SOUTHWEST QUARTER (SW
1/4) OF SAID SECTION 17, A DISTANCE OF 236.2 FEET TO A POINT ON
THE NORTHWESTERLY LINE OF THE L.A. & S.L. (UNION PACIFIC)
RAILROAD RIGHT OF WAY LINE 200.00 FEET WIDE;
THENCE SOUTH 28 DEG. 12' WEST, ALONG THE SAID RIGHT OF WAY LINE,
A DISTANCE OF 1,644.81 FEET TO A POINT;
THENCE NORTH 61 DEG. 48' WEST, A DISTANCE OF 679.40 FEET TO A
POINT ON THE WEST LINE OF THE EAST HALF (E 1/2) OF THE SOUTHWEST
QUARTER (SW 1/4) OF SAID SECTION 17;
THENCE NORTH 1 DEG. 18' EAST, ALONG THE SAID WEST LINE, A
DISTANCE OF 6.54 FEET TO A POINT;
<PAGE>
THENCE NORTH 49 DEG. 53'30" EAST, A DISTANCE OF 358.28 FEET TO
THE TRUE POINT OF BEGINNING;
THENCE NORTH 40 DEG. 60'30" WEST, A DISTANCE OF 135.72 FEET TO A
POINT; THENCE SOUTH 89 DEG. 48'30" EAST, A DISTANCE OF 205.45
FEET TO A POINT; THENCE SOUTH 34 DEG. 07' WEST, A DISTANCE OF
10.42 FEET TO A POINT; THENCE SOUTH 49 DEG. 53'30" WEST, A
DISTANCE OF 146.63 FEET TO THE TRUE POINT OF BEGINNING.
TOGETHER WITH THAT PORTION OF VACATED CINDER LANE AS VACATED BY
THAT ORDER OF VACATION, RECORDED DECEMBER 31, 1990 IN BOOK 901231
AS DOCUMENT NO. 00493 OF OFFICIAL RECORDS, DESCRIBED AS FOLLOWS:
PARCEL A
COMMENCING AT THE CENTER ONE QUARTER CORNER (C 1/4) OF THE ABOVE
DESCRIBED SECTION 17; THENCE SOUTHERLY ALONG THE EAST LINE OF THE
SAID SOUTHWEST QUARTER (SW 1/4) OF SECTION 17, A DISTANCE OF
236.2 FEET TO A POINT ON THE NORTHWESTERLY RIGHT-OF-WAY LINE OF
THE LOS ANGELES AND SALT LAKE (UNION PACIFIC) RAILROAD RIGHT-OF-
WAY (200.00 FEET WIDE); THENCE SOUTH 28 DEG. 12' WEST, A DISTANCE
OF 1,644.81 FEET TO A POINT; THENCE NORTH 61 DEG. 48' WEST, A
DISTANCE OF 632.17 FEET; THENCE CONTINUING NORTH 61 DEG. 48' WEST
A DISTANCE OF 48'54 FEET TO A POINT ON THE WEST LINE OF THE EAST
ONE-HALF (E 1/2) OF THE SOUTHWEST QUARTER (SW 1/4) OF SAID
SECTION 17; THENCE NORTH 1 DEG. 18' EAST, A DISTANCE OF 6.54 FEET
TO A POINT; THENCE NORTH 49 DEG. 53'30" EAST, ALONG THE WEST
RIGHT-OF-WAY LINE OF CINDER LAND A DISTANCE OF 504.91 FEET TO A
POINT; THENCE NORTH 34 DEG. 07' EAST, ALONG SAID WEST LINE A
DISTANCE OF 10.42 FEET TO THE TRUE POINT OF BEGINNING; THENCE
NORTH 89 DEG. 48'30" WEST, A DISTANCE OF 243.06 FEET TO A POINT;
THENCE NORTH 40 DEG. 06'30" WEST, A DISTANCE OF 65.56 FEET TO A
POINT; THENCE SOUTH 89 DEG. 48'30" EAST, A DISTANCE OF 319.09
FEET MORE OR LESS TO A POINT ON THE WEST RIGHT-OF-WAY LINE OF
CINDER LANE; THENCE SOUTH 34 DEG. 07' WEST, A DISTANCE OF 60.26
FEET TO THE TRUE POINT OF BEGINNING.
<PAGE>
PARCEL B
COMMENCING AT THE CENTER ONE QUARTER CORNER (C 1/4) OF THE ABOVE
DESCRIBED SECTION 17; THENCE SOUTHERLY ALONG THE EAST LINE OF THE
SAID SOUTHWEST QUARTER (SW 1/4) OF SECTION 17, A DISTANCE OF
236.2 FEET TO A POINT ON THE NORTHWESTERLY RIGHT-OF-WAY LINE OF
THE LOS ANGELES AND SALT LAKE (UNION PACIFIC) RAILROAD RIGHT-OF-
WAY (200.00 FEET WIDE); THENCE SOUTH 28 DEG. 12' WEST, A DISTANCE
OF 1,644.81 FEET TO A POINT; THENCE NORTH 61 DEG. 48' WEST, A
DISTANCE OF 632.17 FEET TO THE TRUE POINT OF BEGINNING; THENCE
CONTINUING NORTH 51 DEG. 48' WEST, A DISTANCE OF 48.54 FEET TO A
POINT ON THE WEST LINE OF THE EAST ONE-HALF (E 1/2) OF THE
SOUTHWEST QUARTER (SW 1/4) OF SAID SECTION 17, THENCE NORTH 01
DEG. 18' EAST, A DISTANCE OF 6.54 FEET TO A POINT; THENCE NORTH
49 DEG. 53'30" EAST, A DISTANCE OF 504.91 FEET TO A POINT; THENCE
NORTH 34 DEG. 07' EAST, A DISTANCE OF 10.42 FEET TO A POINT;
THENCE SOUTH 89 DEG. 48'30" EAST, A DISTANCE OF 60.26 FEET TO A
POINT ON THE EAST LINE OF CINDER LANE; THENCE SOUTH 34 DEG. 07'
WEST ALONG SAID EAST RIGHT-OF-WAY LINE A DISTANCE OF 50.92 FEET
TO A POINT; THENCE SOUTH 49 DEG. 53'30" WEST, A DISTANCE OF
498.21 FEET TO THE TRUE POINT OF BEGINNING.
(EXCEPTING THAT WHICH IS ALREADY IN PRIVATE OWNERSHIP, AND
ADDRESSING THE 10.84 FOOT WIDE SILVER ADJACENT TO "CINDERLITE
PROPERTY")
COMMENCING AT THE CENTER ONE QUARTER CORNER (C 1/4), OF SECTION
17, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY,
NEVADA;
THENCE SOUTHERLY ALONG THE EAST LINE OF THE SOUTHWEST QUARTER (SW
1/4) OF SAID SECTION 17, A DISTANCE OF 236.2 FEET MORE OR LESS TO
A POINT ON THE NORTHWESTERLY RIGHT-OF-WAY LINE OF THE UNION
PACIFIC RAILROAD (200.00 FEET WIDE); THENCE SOUTH 28 DEG. 12'
WEST, ALONG SAID NORTHWESTERLY RIGHT-OF-WAY LINE 1,644.81 FEET;
THENCE NORTH 61 DEG. 48' WEST, 632.17 FEET; THENCE CONTINUING
NORTH 61 DEG. 48' WEST, 10.84 FEET TO THE TRUE POINT OF
BEGINNING; THENCE NORTH 49 DEG. 53'30" EAST, 81.25 FEET; THENCE
NORTH 89 DEG. 16'40" WEST, 61.08 FEET;
THENCE SOUTH 49 DEG. 53'30" WEST, 44.64 FEET; THENCE SOUTH 01
DEG. 18' WEST, 6.54 FEET; THENCE SOUTH 61 DEG. 48' EAST, 37.70
FEET TO THE TRUE POINT OF BEGINNING.
PARCEL FIVE (5):
THAT PORTION OF THE NORTHEAST QUARTER (NE 1/4) OF THE SOUTHWEST
QUARTER (SW 1/4) OF SECTION 17, TOWNSHIP 21 SOUTH, RANGE 61 EAST,
M.D.M., DESCRIBED AS FOLLOWS:
<PAGE>
COMMENCING AT THE NORTH WEST CORNER OF THE NORTHEAST CORNER (NE
1/4) OF THE SOUTHWEST QUARTER (SW 1/4) OF SAID SECTION 17; THENCE
SOUTH 1 DEG. 18' WEST LINE THEREOF A DISTANCE OF 660.06 FEET TO
THE NORTHWEST CORNER OF THAT CERTAIN PARCEL OF LAND CONVEYED BY
OLY T. EDGELL ET UX, TO D.G. LORENZI BY DEED RECORDED JANUARY 28,
1947, AS DOCUMENT NO. 245079, CLARK COUNTY, NEVADA RECORDS, THE
TRUE POINT OF BEGINNING;
THENCE SOUTH 89 DEG. 23' EAST A DISTANCE OF 245.0 FEET TO A
POINT; THENCE SOUTH 1 DEG. 18' WEST AND PARALLEL TO THE SAID WEST
LINE A DISTANCE OF 327.12 FEET MORE OR LESS TO A POINT ON THE
SOUTH LINE OF THE SAID CONVEYED PARCEL;
THENCE NORTH 89 DEG. 48'30" WEST A DISTANCE OF 245.00 TO A POINT
ON THE SAID WEST LINE;
THENCE NORTH 1 DEG. 18' EAST A DISTANCE OF 330.77 FEET MORE OR
LESS, TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION CONVEYED TO MCKELLER
DEVELOPMENT, INC. BY DEED RECORDED JULY 12, 1984 IN BOOK 1954 AS
DOCUMENT NO. 1913693, OFFICIAL RECORDS AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
THAT PORTION OF THE NORTHEAST QUARTER (NE 1/4) OF THE SOUTHWEST
QUARTER (SW 1/4) OF SECTION 17, TOWNSHIP 21 SOUTH, RANGE 61 EAST,
M.D.M., MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER (NW COR) OF SAID NORTHEAST
QUARTER (NE 1/4) OF THE SOUTHWEST QUARTER (SW 1/4); THENCE ALONG
THE WEST LINE OF SAID NORTHEAST QUARTER (NE 1/4) SOUTHWEST
QUARTER (SW 1/4) SOUTH 00 DEG. 04'56" WEST 660.00 FEET TO THE
CORNER OF THE PROPERTY AS DESCRIBED IN A DEED, DOCUMENT NUMBER
297301, DATED SEPTEMBER 24, 1948 AND THE POINT OF BEGINNING;
THENCE SOUTH 88 DEG. 54'40" EAST 245.00 FEET PARALLEL TO, AND
660.00 FEET DISTANT FROM THE NORTH LINE OF THE NORTHEAST QUARTER
(NE 1/4) OF THE SOUTHWEST QUARTER (SW 1/4);
THENCE SOUTH 00 DEG. 04'56"WEST, 13.58 FEET TO A POINT ON AN
EXISTING FENCE LINE;
THENCE NORTH 89 DEG. 44'32" WEST 244.96 FEET ALONG SAID FENCE
LINE TO A 2 INCH IRON PIPE TAGGED "2984" AS SHOWN IN A RECORD OF
SURVEY IN FILE 5 AT PAGE 50 OF THE OFFICE RECORDS OF CLARK
COUNTY, SAID POINT BEING ON THE WEST LINE OF THE NORTHEAST
QUARTER (NE 1/4) OF THE SOUTHWEST QUARTER (SW 1/4) OF SAID
SECTION 17;
THENCE NORTH 00 DEG. 04'56" WEST 17.13 FEET ALONG THE SAID WEST
LINE OF THE NORTHEAST QUARTER (NE 1/4) OF THE SOUTHWEST QUARTER
(SW 1/4) OF SECTION 17, TO THE POINT OF BEGINNING.
PARCEL SIX (6)
THAT PORTION OF THE NORTHWEST QUARTER (NW 1/4) OF THE SOUTHWEST
QUARTER (SW 1/4) OF SECTION 17, TOWNSHIP 21 SOUTH, RANGE 61 EAST,
M.D.M., DESCRIBED AS FOLLOWS:
<PAGE>
BEGINNING AT THE SOUTHEAST CORNER OF THE NORTHWEST QUARTER (NW
1/4) OF THE SOUTHWEST QUARTER (SW 1/4) OF SAID SECTION 17; THENCE
NORTH 89 DEG. 32'06" WEST ALONG THE SOUTH LINE OF THE NORTHWEST
QUARTER (NW 1/4) OF THE SOUTHWEST QUARER (SW 1/4) OF SAID SECTION
17 A DISTANCE OF 282.58 FEET TO A POINT ON THE EAST LINE OF THAT
CERTAIN PARCEL OF LAND CONVEYED TO THE COUNTY OF CLARK FOR ROAD
PURPOSES BY DEED RECORDED AS DOCUMENT NO. 75287, CLARK COUNTY,
NEVADA OFFICIAL RECORDS;
THENCE NORTH 0 DEG. 10'14" EAST ALONG THE SAID EAST LINE A
DISTANCE OF 315.48 FEET TO A POINT;
THENCE SOUTH 89 DEG. 49'46"EAST A DISTANCE OF 282.58 FEET TO A
POINT ON THE EAST LINE OF THE NORTHWEST QUARTER (NW 1/4) OF THE
SOUTHWEST QUARTER (SW 1/4) OF SAID SECTION 17;
THENCE SOUTH 0 DEG. 10'14" WEST ALONG THE SAID EAST LINE A
DISTANCE OF 314.00 FEET TO THE POINT OF BEGINNING.
TOGETHER WITH AND RESERVING FROM THE ABOVE MENTIONED PARCELS,
THOSE EASEMENTS AND RESERVATIONS AS SET FORTH IN DEEDS RECORD ON
MARCH 4, 1955 IN BOOK 44, DOCUMENT NO. 37897 AND ON MAY 11, 1955
IN BOOK 55, DOCUMENT NO. 46884, 46895 AND DOCUMENT NO. 46886 AND
ON APRIL 4, 1958 IN BOOK 157, DOCUMENT NO. 128079 AND ON JULY 25,
1968 IN BOOK 888 AS DOCUMENT NO. 713127, OF OFFICIAL RECORDS.
EXCEPTING THEREFROM THAT PORTION OF SAID LAND AS CONVEYED TO
MARCER DEVELOPMENT-NEVADA, INC., A NEVADA CORPORATION BY THAT
GRANT, BARGAIN, SALE DEED RECORDED DECEMBER 15, 1989 IN BOOK
891215 A DOCUMENT NO. 00612 OF OFFICIAL RECORDS, BEING DESCRIBED
AS FOLLOWS:
THAT PORTION OF THE SOUTHWEST QUARTER (SW 1/4) OF SECTION 17,
TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.B. & M., BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF THE SOUTHWEST QUARTER (SW
1/4) OF SAID SECTION 17; THENCE SOUTHERLY ALONG THE EAST LINE OF
THE SOUTHWEST QUARTER (SW 1/4) OF SAID SECTION 17, A DISTANCE OF
236.20 FEET TO A POINT ON THE NORTHWESTERLY LINE OF THE L.A. AND
S.L. (UNION PACIFIC) RAILROAD RIGHT-OF-WAY LINE (200.00 FEET
WIDE); THENCE SOUTH 28 DEG. 12'00" WEST ALONG THE SAID RIGHT-OF-
WAY LINE A DISTANCE OF 1,644.81 FEET TO A POINT; THENCE NORTH 62
DEG. 05'41" WEST A DISTANCE OF 679.68 FEET TO A POINT; THENCE
NORTH 00 DEG. 03'46" EAST A DISTANCE OF 6.54 FEET TO THE TRUE
POINT OF BEGINNING; THENCE CONTINUING NORTH 00 DEG. 03'46" EAST A
DISTANCE OF 79.33 FEET TO THE SOUTHWEST 1/16TH CORNER OF SAID
SECTION 17; THENCE SOUTH 89 DEG. 16'40" EAST ALONG SAID SIXTEENTH
SECTION LINE A DISTANCE OF 91.95 FEET TO A POINT; THENCE SOUTH 49
DEG. 39'16" WEST A DISTANCE OF 120.75 FEET TO THE TRUE POINT OF
BEGINNING.
FURTHER EXCEPTING THEREFROM ANY PORTION OF SAID LAND LYING WITHIN
A PUBLICLY DEDICATED ROADWAY.
<PAGE>
EXHIBIT F
THAT PORTION OF THE NORTHEAST (NE) CORNER OF THE SOUTHWEST
QUARTER (SW 1/4) OF SECTION 17, TOWNSHIP 21 SOUTH, RANGE 61 EAST,
M.D. & M., DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHWEST (NW) CORNER OF THE NORTHEAST QUARTER
(NE 1/4) OF THE SOUTHWEST QUARTER (SW 1/4) OF SECTION 17 THENCE
SOUTH 1 DEG. 16' WEST ALONG THE WEST LINE THEREOF TO A DISTANCE
OF 660.06 FEET TO THE NORTHWEST (NW) CORNER OF THAT CERTAIN
PARCEL OF LAND CONVEYED BY OLY T. EDGELL ET UX TO D.G. LORENZI BY
DEED RECORDED JANUARY 28, 1947 AS DOCUMENT NO. 245079, CLARK
COUNTY, NEVADA RECORDS THENCE SOUTH 89 DEG. 23' EAST ALONG THE
NORTH LINE OF THE SAID CONVEYED PARCEL A DISTANCE OF 245.00 FEET
TO THE POINT OF BEGINNING; THENCE, CONTINUING SOUTH 89 DEG. 23'
EAST ALONG THE NORTH OF THE SAID CONVEYED PARCEL A DISTANCE OF
384.8 FEET TO A POINT ON THE WEST LINE OF AN EXISTING ACCESS ROAD
(50 FEET WIDE); THENCE SOUTH 34 DEG. 07" WEST ALONG THE LAS
MENTIONED WEST LINE A DISTANCE OF 71.50 FEET TO A POINT; THENCE
NORTH 89 DEG. 23' WEST A DISTANCE OF 346.05 FEET TO A POINT;
THENCE NORTH 1 DEG. 18' EAST A DISTANCE OF 59 DEG. 53' TO THE
TRUE POINT OF BEGINNING.
TOGETHER WITH AN UNDIVIDED 1/72ND INTEREST IN AND TO THE ARTISAN
WELL AND THE WATER THERE AND THEREFROM FOR WELL IS LOCATED
APPROXIMATELY NORTH 46 DEG. 53' WEST 49 FEET FROM THE SOUTHWEST
(SW) CORNER OF THE NORTHEAST QUARTER (NE 1/4) OF THE SOUTHWEST
QUARTER (SW 1/4) OF SECTION 17, TOWNSHIP 21 SOUTH, RANGE 61 EAST
M.D.B.&M.
RESERVING THEREFROM A RIGHT OF WAY AND EASEMENT FOR ROAD PURPOSES
WITH RIGHT OF EGRESS AND INGRESS OVER AND ACROSS THE WEST 20.00
FEET THEREOF.
<PAGE>
EXHIBIT G
PARCEL ONE (1):
THAT PORTION OF SECTION 17, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D
& M., DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF THE NORTHEAST QUARTER (NE
1/4) OF THE SOUTHWEST QUARTER (SW 1/4) OF SAID SECTION 17; THENCE
SOUTH 1 DEG. 18' WEST ALONG THE WEST LINE THEREOF A DISTANCE OF
990.83 FEET TO THE SOUTHWEST CORNER OF THAT CERTAIN PARCEL OF
LAND CONVEYED BY OLY T. EDGELL ET. UX, TO D.G. LORENZI BY DEED
RECORDED JANUARY 29, 1947 AS DOCUMENT NO. 245079, CLARK COUNTY,
NEVADA RECORDS.
THENCE SOUTH 89 DEG. 48'30" EAST ALONG THE SOUTH LINE OF THE SAID
CONVEYED PARCEL A DISTANCE OF 245.00 FEET TO THE TRUE POINT OF
BEGINNING;
THENCE CONTINUING SOUTH 89 DEG. 48'30" EAST ALONG THE SOUTH LINE
OF THE SAID CONVEYED PARCEL A DISTANCE OF 172.09 FEET TO A POINT
ON THE WEST LINE OF AN EXISTING ACCESS ROAD (50 FEET WIDE);
THENCE NORTH 34 DEG. 07' EAST ALONG THE LAST MENTIONED WEST LINE
A DISTANCE OF 200.00 FEET TO A POINT;
THENCE NORTH 89 DEG. 51'20" WEST A DISTANCE OF 280.51 FEET TO A
POINT;
THENCE SOUTH 1 DEG. 18' WEST A DISTANCE OF 165.75 FEET TO THE
TRUE POINT OF BEGINNING.
PARCEL TWO (2)
THAT PORTION OF THE NORTHEAST QUARTER (NE 1/4) OF THE SOUTHWEST
QUARTER (SW 1/4) OF SECTION 17, TOWNSHIP 21 SOUTH, RANGE 61 EAST,
M.D. & M., DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF THE NORTHEAST QUARTER (NE
1/4) OF THE SOUTHWEST QUARTER (SW 1/4) OF SAID SECTION 17; THENCE
SOUTH 1 DEG. 18' WEST ALONG THE WEST LINE THEREOF A DISTANCE OF
660.06 FEET TO THE NORTHWEST CORNER OF THAT CERTAIN PARCEL OF
LAND CONVEYED BY OLY T. EDGELL, ET. UX, TO D.C. LORENZI BY DEED
RECORDED JANUARY 28, 1947, AS DOCUMENT NO. 245079, CLARK COUNTY,
NEVADA RECORDS;
THENCE SOUTH 89 DEG. 23' EAST ALONG THE NORTH LINE OF THE SAID
CONVEYED PARCEL A DISTANCE OF 245.00 FEET TO A POINT; THENCE
SOUTH 1 DEG. 18' WEST A DISTANCE OF 59.63 FEET TO THE SOUTHWEST
CORNER OF THAT CERTAIN PARCEL OF LAND CONVEYED BY CINDERLITE,
INC. TO GEORGE W. PHILLIPS ET UX. BY DEED RECORDED JANUARY 26,
1955 AS DOCUMENT NO. 33158, CLARK COUNTY, NEVADA RECORDS, THE
TRUE POINT OF BEGINNING;
THENCE SOUTH 1 DEG. 18' WEST A DISTANCE OF 101.72 FEET MORE OR
LESS TO THE NORTHWEST CORNER OF THAT CERTAIN PARCEL OF LAND
CONVEYED BY CINDERLITE TO E.M. THOMAS BY DEED RECORDED OCTOBER
19, 1954 AS DOCUMENT NO. 22954, CLARK COUNTY, NEVADA RECORDS;
<PAGE>
THENCE SOUTH 89 DEG. 51'20" EAST A DISTANCE OF 280.51 FEET MORE
OR LESS TO THE NORTHEAST CORNER OF THE LAST MENTIONED CONVEYED
PARCEL;
THENCE NORTH 34 DEG. 07' EAST A DISTANCE OF 119.16 FEET MORE OR
LESS TO THE SOUTHEAST CORNER OF THE PREVIOUSLY MENTIONED PARCEL
CONVEYED TO PHILLIPS;
THENCE NORTH 89 DEG. 23' WEST A DISTANCE OF 346.05 FEET MORE OR
LESS TO THE TRUE POINT OF BEGINNING.
<PAGE>
SCHEDULE 1.01C - DESCRIPTION OF THE PROPOSED RIO EXPANSION
The Proposed Rio Expansion consists of improvements to the
existing hotel and casino and Phase I of the development of the
43 acres of land adjacent to the Existing Hotel and Casino
property. Phase I includes an entertainment/meeting/special
event/convention center, a complex of approximately nine
"Palazzo" suites, a restaurant serving Chinese cuisine, a parking
valet structure, approximately 10,000 square feet of retail
space, an expanded outdoor entertainment area with an additional
swimming pool, additional exhibition space in the Masquerade
Village, an expansion of the Shutters premium gaming lounge,
creation of a concierge suite level in both of the existing hotel
towers, an expansion of the spa and completion of a road
providing access from the property to the Las Vegas Strip
development.
-1-
<PAGE>
SCHEDULE 2.01
RIO PROPERTIES, INC.
$275,000,000 AMENDED AND RESTATED REVOLVING CREDIT FACILITY
<TABLE>
<CAPTION>
Bank Amount Pro Rata Share*
<S> <C> <C>
Bank of America National Trust and Savings Association $ 45,000,000 16.3636363%
Bank of American Nevada $ 15,000,000 5.4545454%
Wells Fargo Bank, N.A. $ 41,500,000 15.0909090%
Societe Generale $ 41,500,000 15.0909090%
First Security Bank, N.A. $ 31,000,000 11.2727272%
The First National Bank of Chicago $ 22,000,000 8.0000000%
U.S. Bank, National Association $ 22,000,000 8.0000000%
Bank of Scotland $ 22,000,000 8.0000000%
PNC Bank, National Association $ 20,000,000 8.0000000%
Bank of Hawaii $ 15,000,000 5.4545454%
Total $275,000,000 100.000000%
* repeating decimals
</TABLE>
<PAGE>
SCHEDULE 5.05
LITIGATION
1. Complaints were filed on May 10, 1994 in the United
States District Court for the Middle District of Florida
(subsequently transferred to the United States District Court for
the District of Nevada, Southern Division), on April 26, 1994 in
the United States District Court for the Middle District of
Florida (subsequently transferred to the United States District
Court for the District of Nevada, Southern Division) and
September 26, 1995 in the United States District Court for the
District of Nevada, Southern Division. Plaintiffs in these
actions, each purportedly representing a class, filed complaints
against manufacturers, distributors and casino operators of video
poker and electronic slot machines, including the Company,
alleging that the defendants have engaged in a course of conduct
intended to induce persons to play such games based on a false
belief concerning how the gaming machines operate, as well as the
extent to which there is an opportunity to win on a given play.
The complaints charge defendants with violations of the Racketeer
Influenced and Corrupt Organizations Act, as well as claims of
common law fraud, unjust enrichment and negligent
misrepresentation, and seek damages in excess of $1 billion
without any substantiation of that amount. The Company filed
motions to dismiss the complaints. The Nevada District Court
dismissed the complaints, granting leave to plaintiffs to re-
file, and denying as moot all other pending motions, including
those of the Company. The plaintiffs filed an amended complaint
on or about May 31, 1996. Subsequently, the United States
District Court of Nevada consolidated the actions (and one other
action styled WILLIAM POOLS V. AMERICAN FAMILY CRUISE LINE, N.V.
ET AL., Case No. CV -S-95-936-LDG (RLH), in which the Company is
not a named defendant), ordered Plaintiffs to file a consolidated
amended complaint on or before February 14, 1997, and ordered all
defense motions, including those of the Company, withdrawn
without prejudice. The parties have established a steering
committee to address motion practice, scheduling and discovery
matters. Plaintiffs filed their consolidated amended complaint
on February 14, 1997. The Company renewed its motions to dismiss
and joined in motions to dismiss filed by other defendants. In
late December 1997, the Court granted in part and denied in part
Defendants' Motions to Dismiss for Failure to Plead Fraud with
Particularity and for Failure to State a Claim; granted in part
and denied in part Defendants' Motion to Strike Changes Made in
Plaintiffs' Consolidated Amended Complaint; denied Cruise Ship
Defendant's Motion to Dismiss for Lack of Subject Matter
Jurisdiction; denied Defendant Princess Hotel's Motion to Dismiss
Under the Act of State Doctrine; and denied Defendants' Motion
for a Stay on Primary Jurisdiction and Abstention Grounds. In
addition, the United States District Court of Nevada requested
additional briefing from the parties with respect to Defendants'
Motion to Dismiss for Lack of Personal Jurisdiction. Plaintiffs
filed their Second Consolidated Amended Complaint on or about
January 8, 1998. The Answer to the Second Consolidated Amended
Complaint is due on or before January 28, 1998. Management
believes that the substantive allegations in the Complaints are
without merit and intends vigorously to defend the allegations.
2. On May 5, 1995, a purported class action lawsuit was
filed in the United States District Court for the District of New
Jersey (Camden Division). The Company, together with 76 other
casino operators and others, is named as a defendant in the
action. The action, purportedly brought on behalf of "card
counters," alleges that the casino operators exclude "card
counters" from play and share information about "card
counters." The action is based on alleged violations of federal
antitrust law, the Fair Credit Reporting Act and various state
consumer protection laws. The amount of damages sought by the
plaintiffs in the action is unspecified. The Company has made a
motion to dismiss the complaint. The court has not yet ruled on
the motion. Management believes that the complaint is without
merit and the Company intends vigorously to defend the
allegations.
3. On March 27, 1996, a complaint in a purported class
action lawsuit was filed in the Superior Court of California,
County of San Diego, against a number of gaming entities,
including the Company. The complaint, which is primarily a
narrower version of the other class action suits filed
<PAGE>
SCHEDULE 5.05
LITIGATION
PAGE 2 OF 3
against the gaming industry, alleges that the defendants have
engaged in a course of conduct intended to induce persons to play
gaming devices based on a false belief concerning how the gaming
machines operate, as well as the extent to which there is an
opportunity to win on a given play. The Company joined in an
attempt to remove the case to federal court which was not
successful. The Company filed a motion to dismiss the complaint
for lack of personal jurisdiction. The motion is pending. In the
interim, several defendants which did not have jurisdiction
motions filed a motion to demur, arguing that the action should
not be considered by the California court because the matter is
relegated to the Nevada regulatory system pursuant to the
Commerce Clause of the U.S. Constitution. After a hearing
conducted on July 11, 1997, the court sustained the demur without
leave to amend. Although the Company is still technically a
defendant in the case, management believes that the court's
ruling will be applied to all defendants and the Company will be
dismissed from the action. In addition, management believes that
the complaint is without merit and the Company intends vigorously
to defend the allegations.
4. On December 27, 1996, a purported stockholder
derivative action was filed in the United States District Court
for the District of Nevada, against the Company as a nominal
defendant, five of the Company's directors, Marnell Corrao and
Marnell Chartered. The complaint alleges that pursuant to
construction contracts and architectural contracts with Marnell
Corrao and Marnell Chartered, respectively, the Company paid
unfair amounts in exchange for the services provided. The
complaint alleges breach of fiduciary duty by each of the
director defendants and seeks rescission of the contracts,
damages to compensate the Company to the extent that contract
amounts are unfair to the Company, and injunctive relief
prohibiting the Company from entering into similar contracts with
Mr. Marnell or entities which he controls. On January 27, 1997,
the Company and the director defendants filed a motion to dismiss
and a joinder in the Company's motion to dismiss. On April 21,
1997, the United States District Court of Nevada entered an order
denying the motion to dismiss of the Company and the individual
directors, and granting the motion to dismiss of Marnell Corrao
and Marnell Chartered. The Company and the remaining defendants
have filed an answer to the complaint and discovery proceedings
have not yet begun.
5. On June 10, 1997, the Company filed a complaint in
the United States District Court for the District of Nevada
entitled RIO PROPERTIES, INC. V. ROBERT P. BAKER. The complaint
seeks a declaration from the court that the use of the term
"suite" is not misleading under either the federal trademark act
or California's advertising code. Subsequently, on July 16, 1997,
Mr. Baker filed a related action in California state court
entitled ROBERT P. BAKER V. RIO PROPERTIES, INC., ET AL., which
was removed to federal court in California. Mr. Baker alleges
that the use of the term "all-suite" in advertising directed
into California is misleading and violates California law on the
grounds that the Rio's rooms are not partitioned. Mr. Baker
unsuccessfully sought to have the Nevada action dismissed in
favor of the California litigation. The parties have now
stipulated to have the California action dismissed and proceed in
the Nevada court. Mr. Baker filed a counterclaim in the Nevada
action seeking compensatory damages under California's
advertising code for all California residents who have stayed in
any of the Rio's accommodations, injunctive relief prohibiting
use of the term "suite" by Rio to describe its accommodations
and other relief deemed appropriate by the court. Management
believes Mr. Baker's claims are without merit and the Company
will vigorously pursue the declaratory relief action and defend
the counterclaim.
6. Two lawsuits have been filed against a number of
entities, including the Company, which have been designated
"Seven Hills Golf Course Litigation" by the Clark County, Nevada,
District Court (the "Nevada District Court"). The cases are as
follows: On October 15, 1997, a First Amended Complaint in a
purported class action lawsuit (MARSHALL F. DANIEL, ET AL. V.
AMERICAN NEVADA CORPORATION, ET AL., Case No. A377489) was filed
in the Nevada District Court, seeking damages,
<PAGE>
SCHEDULE 5.05
LITIGATION
PAGE 3 OF 3
declaratory relief and imposition of a constructive trust. On
September 18, 1997, a First Amended Complaint (THE HELMER COMPANY
OF NEVADA VS. SILVER CANYON PARTNERSHIP, ET AL., Case No. 377455)
was filed in the Nevada District Court, seeking damages for
fraud, deceit, promissory estoppel, injunctive relief, breach of
contract and declaratory relief (the "Helmer Action"). These
cases arise out of the Company's purchase of golf course property
currently known as the Rio Secco Golf Club, which the Company
purchased as an amenity for the customers of the Rio Suite Hotel
& Casino (the "Rio Customers"). Plaintiffs allege that the
Company violated the relevant CC&R's in purchasing the golf
course and is required to open the course to non-Rio Customers.
Plaintiffs are claiming that their interests run with the land,
which the Company denies. Plaintiff in the HELMER Action filed a
Motion for Preliminary Injunction asking the Nevada District
Court to require that the Company open the golf course for play
to non-Rio Customers. Prior to the date set for the hearing on
preliminary injunction, the Company issued a press release
opening the golf course for play to non-Rio Customers, which
rendered the Motion for Preliminary Injunction moot. The Company
agreed to keep the course open to non-Rio Customers pending final
adjudication of the lawsuits as to the Company. At the date of
the last court hearing, the Nevada District Court clarified the
case management order to provide for a trial date of September
14, 1998, at which time the issues of local, public or private
access to the golf course will be decided by the court, along
with all equitable issues in the case. Any and all damage issues
would be reserved for a later hearing. Management believes that
the substantive allegations in the complaints are without merit
and that, aside from its own legal fees and potential exposure
for the legal fees of certain plaintiffs, there is no liability
or exposure for money damages from any of the claims for relief
brought against it. Accordingly, management intends vigorously
to defend the Company against all allegations, and is confident
of a favorable result.
<PAGE>
SCHEDULE 5.07
ERISA
1. Rio Suite Hotel and Casino Employee Retirement
Savings Plan dated January 1, 1991 (401K - unqualified).
<PAGE>
SCHEDULE 5.11
INDEBTEDNESS NOT SHOWN ON FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PARTY AMOUNT DESCRIPTION
<S> <C> <C>
Rio Development Company, Inc. $8,000,000 Note payable, interest payable monthly based
on the prime rate, quarterly principal payments
of $400,000 commencing May 31, 1998 with any
remaining balance due May 31, 2000
Rio Development Company, Inc. $3,817,961 Construction loan agreement, secured by a
first deed of trust on the Rio Secco Golf
Club real property, to be increased to a
maximum of $6,000,000 upon completion of the
golf course clubhouse at which time it will
convert to a standing loan payable in 60
monthly installments together with interest
at LIBOR plus 2.5%
Rio Development Company, Inc. $631,154 (as of Assumption from seller of two leases with
December 31, 1997) First Security Leasing as part of the
acquisition of the Rio Secco Golf Club
Cinderlane, Inc. $6,063 Assumption of a special improvement district
bond in the amount of $6,063 at 6.3%
</TABLE>
<PAGE>
SCHEDULE 5.12
ENVIRONMENTAL
None.
<PAGE>
SCHEDULE 5.19
SUBSIDIARIES AND EQUITY INVESTMENTS
<TABLE>
<CAPTION>
PERSON JURISDICTION DIRECT OWNER PERCENTAGE
IN WHICH OF
ORGANIZED OWNERSHIP
<S> <C> <C> <C>
Rio Hotel & Casino, Inc. Nevada --- ---
SUBSIDIARIES
Rio Properties, Inc. Nevada Rio Hotel & Casino, Inc. 100%
Rio Leasing, Inc. Nevada Rio Hotel & Casino, Inc. 100%
Cinderlane, Inc. Nevada Rio Properties, Inc. 100%
HLG, Inc. Nevada Rio Properties, Inc. 100%
UNRESTRICTED SUBSIDIARIES
Rio Development Company, Inc. Nevada Rio Hotel & Casino, Inc. 100%
Rio Resort Properties, Inc. Nevada Rio Hotel & Casino, Inc. 100%
</TABLE>
<PAGE>
SCHEDULE 6.26
EXISTING LEASES
PAGE 1 OF 2
SCHEDULE 6.26
EXISTING LEASES
<TABLE>
<CAPTION>
STORE LESSEE CORPORATE ADDRESS
<S> <C> <C>
Alegre Alegre 4625 S. Polaris Avenue, Suite 114
Las Vegas, NV 89103
Bernard K. Passman Bernard K. Passman 701 Poydras Street, One Shell Square
Galleries Galleries Suite 4875
New Orleans, LA 70139
Davante Davante 4625 Polaris Ave., Suite 112
Las Vegas, NV 89103
Elegant Pretenders Elegant Pretenders 3033 South Parker Road, Suite 120
Aurora, CO 80014
Gary's Island/Dick's Last Gary's Island/Dick's Last 1065 Newport Center Drive
Resort Resort Newport Beach, CA 92660
Gary's Cole-Haan Gary's Cole-Haan 1065 Newport Center Drive
Newport Beach, CA 92660
Guess? Footwear Guess? Footwear 4255 Industrial Road, Suite J
Las Vegas, NV 89103
Houdini's Magic Shop Houdini's Magic Shop 6000 S. Eastern Avenue, Suite 12E
Las Vegas, NV 89119
Mardi Gras Cigars Mardi Gras Cigars 3900 Paradise Road, Suite 227
Las Vegas, NV 89109
Money Magnetz Money Magnetz 332 Second Street
Oakland, CA 94607
Napa Gourmet Grocery Napa Gourmet Grocery 3200 Windy Hill Road
Suite 1500 West Tower
Atlanta, GA 30339
Nawlins Authentic Nawlins Authentic 3900 Paradise Road, Suite 227
Las Vegas, NV 89109
Ben and Jerry's Ben and Jerry's 16769 Bernardo Ctr. Drive, Suite 24
San Diego, CA 92128
<PAGE>
SCHEDULE 6.26
EXISTING LEASES
PAGE 2 OF 2
Wetzel's Pretzels Wetzel's Pretzels 3900 Paradise Road, Suite 410
Las Vegas, NV 89109
Nicole Miller Nicole Miller 4640 E. Sunrise Drive, Suite 215
Tucson, AZ 85718-4576
Photo Magic Photo Magic 3660 Cinder Lane
Las Vegas, NV 89103
Reel Outfitters Reel Outfitters 3700 West Flamingo Road
Las Vegas, NV 89103
Rio Sundries Rio Sundries 3700 West Flamingo Road
Las Vegas, NV 89103
Roland's Roland's 3466 South Maryland Parkway
Las Vegas, NV 89109
Speedo Authentic Fitnss Speedo Authentic Fitness 6040 Bandini Boulevard
Commerce, CA 90040
Volare Volare 3700 West Flamingo Road
Las Vegas, NV 89103
4255 South Industrial Road, Suite J
Las Vegas, NV 89103
Watch Zone Watch Zone 870 Market Street, Suite 1047
San Francisco, CA 94102
Rio Gift Shop W H Smith 3200 Windy Hill Road
Club Rio Kiosk Suite 1500 West Tower
VooDoo Kiosk Atlanta, GA 30339
Rio Sundries
Rio Logo & Gift Shop
Vending Arcade CTS Amusements 3135 S. Industrial Road, Suite 206
Las Vegas, NV 89109
</TABLE>
<PAGE>
SCHEDULE 7.01
Permitted Liens
1. Taxes, general and special, for the fiscal year 1997 - 1998, as follows:
Assessor's Parcel No. : 162-17-401-001
District No. : 470
1st Installment : $ 457,219.87 Marked Paid
Due On or Before : Third Tuesday in August
2nd Installment : $ 457,217.00 Marked Paid
Due On or Before : First Monday in October
3rd Installment : $ 457,217.00 Marked Paid
Due On or Before : First Monday in January
4th Installment : $ 457,217.00 NOT Marked Paid
Due On or Before : First Monday in March
Total Taxes : $ 1,828,870.87
Land Value : $ 7,504,350.00
Improvements : $ 59,096,920.00
Personal Property : $ 0.00
Exemption : $ 0.00
Net Total : $ 66,601,270.00
Tax Rate : $ 2.7460
(AS TO PARCELS I THROUGH V, VIII, XII AND A PORTION OF PARCEL VI).
2. Taxes, general and special, for the fiscal year 1997 - 1998, as follows:
Assessor's Parcel No. : 162-17-401-004
District No. : 470
1st Installment : $ 3,020.42 Marked Paid
Due On or Before : Third Tuesday in August
2nd Installment : $ 3,017.00 Marked Paid
Due On or Before : First Monday in October
3rd Installment : $ 3,017.00 Marked Paid
Due On or Before : First Monday in January
4th Installment : $ 3,017.00 NOT Marked Paid
Due On or Before : First Monday in March
Total Taxes : $ 12,071.42
Land Value : $ 439,600.00
Improvements : $ 0.00
Personal Property : $ 0.00
Exemption : $ 0.00
Net Total : $ 439,600.00
Tax Rate : $ 2.7460
(AS TO PARCEL XI).
<PAGE>
3. Taxes, general and special, for the fiscal year 1997 - 1998, as follows:
Assessor's Parcel No. : 162-17-401-005
District No. : 470
1st Installment : $ 4,588.32 Marked Paid
Due On or Before : Third Tuesday in August
2nd Installment : $ 4,587.00 Marked Paid
Due On or Before : First Monday in October
3rd Installment : $ 4,587.00 Marked Paid
Due On or Before : First Monday in January
4th Installment : $ 4,587.00 NOT Marked Paid
Due On or Before : First Monday in March
Total Taxes : $ 18,349.32
Land Value : $ 668,220.00
Improvements : $ 0.00
Personal Property : $ 0.00
Exemption : $ 0.00
Net Total : $ 668,220.00
Tax Rate : $ 2.7460
(AS TO PARCEL XI).
4. Taxes, general and special, for the fiscal year 1997 - 1998, as follows:
Assessor's Parcel No. : 162-17-401-006
District No. : 470
1st Installment : $ 2,585.89 Marked Paid
Due On or Before : Third Tuesday in August
2nd Installment : $ 2,585.00 Marked Paid
Due On or Before : First Monday in October
3rd Installment : $ 2,585.00 Marked Paid
Due On or Before : First Monday in January
4th Installment : $ 2,585.00 NOT Marked Paid
Due On or Before : First Monday in March
Total Taxes : $ 10,340.89
Land Value : $ 376,580.00
Improvements : $ 0.00
Personal Property : $ 0.00
Exemption : $ 0.00
Net Total : $ 376,580.00
Tax Rate : $ 2.7460
(AS TO PARCEL X).
<PAGE>
5. Taxes, general and special, for the fiscal year 1997 - 1998, as follows:
Assessor's Parcel No. : 162-20-102-001
District No. : 470
1st Installment : $ 704.28 Marked Paid
Due On or Before : Third Tuesday in August
2nd Installment : $ 703.00 Marked Paid
Due On or Before : First Monday in October
3rd Installment : $ 703.00 Marked Paid
Due On or Before : First Monday in January
4th Installment : $ 703.00 NOT Marked Paid
Due On or Before : First Monday in March
Total Taxes : $ 2,813.28
Land Value : $ 102,450.00
Improvements : $ 0.00
Personal Property : $ 0.00
Exemption : $ 0.00
Net Total : $ 102,450.00
Tax Rate : $ 2.7460
(AS TO PARCEL VII AND A PORTION OF PARCEL VI).
6. Taxes, general and special, for the fiscal year 1997 - 1998, as follows:
Assessor's Parcel No. : 162-20-102-002
District No. : 470
1st Installment : $ 517.77 Marked Paid
Due On or Before : Third Tuesday in August
2nd Installment : $ 514.00 Marked Paid
Due On or Before : First Monday in October
3rd Installment : $ 514.00 Marked Paid
Due On or Before : First Monday in January
4th Installment : $ 514.00 NOT Marked Paid
Due On or Before : First Monday in March
Total Taxes : $ 2,059.77
Land Value : $ 75,010.00
Improvements : $ 0.00
Personal Property : $ 0.00
Exemption : $ 0.00
Net Total : $ 75,010.00
Tax Rate : $ 2.7460
(AS TO PARCEL VIII).
<PAGE>
7. Taxes, general and special, for the fiscal year 1997 - 1998, as follows:
Assessor's Parcel No. : 162-20-103-009
District No. : 470
1st Installment : $ 178.25 Marked Paid
Due On or Before : Third Tuesday in August
2nd Installment : $ 175.00 Marked Paid
Due On or Before : First Monday in October
3rd Installment : $ 175.00 Marked Paid
Due On or Before : First Monday in January
4th Installment : $ 175.00 NOT Marked Paid
Due On or Before : First Monday in March
Total Taxes : $ 703.25
Land Value : $ 25,610.00
Improvements : $ 0.00
Personal Property : $ 0.00
Exemption : $ 0.00
Net Total : $ 25,610.00
Tax Rate : $ 2.7460
(AS TO PARCEL XVI).
8. Taxes, general and special, for the fiscal year 1997 - 1998, as follows:
Assessor's Parcel No. : 162-20-103-006
District No. : 470
1st Installment : $ 5.49 Marked Paid
Due On or Before : Third Tuesday in August
2nd Installment : $ Marked Paid
Due On or Before : First Monday in October
3rd Installment : $ Marked Paid
Due On or Before : First Monday in January
4th Installment : $ Marked Paid
Due On or Before : First Monday in March
Total Taxes : $ 5.49
Land Value : $ 200.00
Improvements : $ 0.00
Personal Property : $ 0.00
Exemption : $ 0.00
Net Total : $ 200.00
Tax Rate : $ 2.7460
(AS TO PARCEL XVII).
<PAGE>
9. Taxes, general and special, for the fiscal year 1997 - 1998, as follows:
Assessor's Parcel No. : 162-17-301-016
District No. : 470
1st Installment : $ 4,189.30 Marked Paid
Due On or Before : Third Tuesday in August
2nd Installment : $ 4,186.00 Marked Paid
Due On or Before : First Monday in October
3rd Installment : $ 4,186.00 Marked Paid
Due On or Before : First Monday in January
4th Installment : $ 4,186.00 NOT Marked Paid
Due On or Before : First Monday in March
Total Taxes : $ 16,747.30
Land Value : $ 297,780.00
Improvements : $ 312,100.00
Personal Property : $ 0.00
Exemption : $ 0.00
Net Total : $ 609,880.00
Tax Rate : $ 2.7460
(AS TO PARCEL XVIII).
10. Taxes, general and special, for the fiscal year 1997 - 1998, as follows:
Assessor's Parcel No. : 162-17-303-012
District No. : 470
1st Installment : $ 1,582.67 Marked Paid
Due On or Before : Third Tuesday in August
2nd Installment : $ 481.00 Marked Paid
Due On or Before : First Monday in October
3rd Installment : $ 481.00 Marked Paid
Due On or Before : First Monday in January
4th Installment : $ 481.00 Marked Paid
Due On or Before : First Monday in March
Total Taxes : $ 3,025.67
Land Value : $ 110,250.00
Improvements : $ 0.00
Personal Property : $ 0.00
Exemption : $ 0.00
Net Total : $ 110,250.00
Tax Rate : $ 2.7460
(AS TO A PORTION OF PARCEL XIX) (NEW APN 162-17-303-013).
<PAGE>
11. Taxes, general and special, for the fiscal year 1997 - 1998, as follows:
Assessor's Parcel No. : 162-17-401-003
District No. : 470
1st Installment : $ 1,367.64 Marked Paid
Due On or Before : Third Tuesday in August
2nd Installment : $ 1,366.00 Marked Paid
Due On or Before : First Monday in October
3rd Installment : $ 1,366.00 Marked Paid
Due On or Before : First Monday in January
4th Installment : $ 1,366.00 NOT Marked Paid
Due On or Before : First Monday in March
Total Taxes : $ 5,465.64
Land Value : $ 199,040.00
Improvements : $ 0.00
Personal Property : $ 0.00
Exemption : $ 0.00
Net Total : $ 199,040.00
Tax Rate : $ 2.7460
(AS TO THE REMAINDER OF PARCEL XIX) (NEW APN 162-17-303-013).
12. Special Assessment, as follows:
For : Improvement purposes
Assessment No. : Clark County Improvement District No. 70
Set at : $183,586.26
No. of Installments : 20
Interest Rate : 6.1%
Payable each year
on or before : May 1st and November 1st
Status : Current. Payoff amount good through March 31, 1998 is
$116,815.96
<PAGE>
13. Special Assessment, as follows:
For : Improvements
Assessment No. : Clark County Improvement District No. 70
Set at : $47,518.68
No. of Installments : 20
Interest Rate : 6.1%
Payable each year
on or before : May 1st and November 1st
Status : Current
(AS TO PARCEL XVIII).
14. The lien of supplemental taxes, if any, assessed pursuant to the
provisions of Section 361.260 of the Nevada Revised Statutes.
15. Reservations, mineral rights, and exclusions in the patent from the
State of Nevada.
Recorded : November 15th, 1909 in Book 1 of Deeds, Page 96
(Affects Parcels I through VIII and Parcel XII).
16. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Patent
Reserved by: UNITED STATES OF AMERICA
For : Ditches, tunnels, and telephone and transmission lines
Recorded : November 15th, 1909 in Book 1 of Deeds, Page 96
Affects : NOTE: Said easement is blanket in nature and cannot be located
of record.
(Affects Parcels I through VIII and Parcel XII).
17. Reservations, mineral rights, and exclusions in the patent from the
United States of America.
Recorded : Dcember 2nd, 1931 in Book 19 of Deeds, Page 48, Doc No. 43171
And recorded September 13th, 1990 in Book 900913 of Official Records, Doc No.
00214.
<PAGE>
(Affects Parcels IX, X, and XI and XIX)
18. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Patent
Reserved by: UNITED STATES OF AMERICA
Recorded : December 2nd, 1931 in Book 19 of Deeds, Page 48, Doc No. 43171
And recorded September 13th, 1990 in Book 900913 of Official Records, Doc No.
00214.
NOTE: Said easement is blanket in nature and cannot be located of record.
(Affects Parcels IX, X, XI and XIX)
19. Reservations, mineral rights, and exclusions in the patent from the
State of Nevada.
Recorded : January 2nd, 1947 in Book 46 of Deeds, Page 55, Doc No. 242889
(As to Parcel XVIII).
20. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Corporation Grant, Bargain, Sale Deed
Reserved by: CINDERLITE, INC.
For : Water well and water lines and easements for railroad spur lines
Recorded : May 18th, 1955 in Book 55 of Official Records, Doc No. 46886
(As to Parcel XIX).
21. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
instrument:
Granted to : SOUTHERN NEVADA POWER COMPANY
For : public utilities
Recorded : March 27th, 1956 in Book 89 of Official Records, Doc No. 73808
Affects : The Northerly 20.00 feet of Parcel XIII
<PAGE>
22. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Grant, Bargain, Sale Deed
For : Road and public utilities
Recorded : March 11th, 1963 in Book 611 of Official Records, Doc No. 491993
Affects : The Westerly 30.00 feet of Pacel X
23. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Grant, Bargain, Sale Deed
For : Construction, operation, maintenance, repair, and renewal of a
railroad spur track line
Recorded : March 11th, 1963 in Book 611 of Official Records, Doc No. 491933
Affects : The Easterly 20.00 feet of Parcels IX and XI
24. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Grant, Bargain, Sale Deed
For : Roadway and public utilities
Recorded : March 11th, 1963 in Book 611 of Official Records, Doc No. 491933
Affects : The Westerly 30.00 feet of Parcels IX and XI
25. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Grant, Bargain, Sale Deed
For : Roadway and public utilities
Recorded : December 19th, 1968 in Book 918 of Official Records, Doc No.
737553
Affects : The Westerly 85.00 feet of Parcel XI
26. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Grant, Bargain, Sale Deed
For : Construction, operation, maintenance, repair, and renewal of a
railroad spur track line
Recorded : December 19th, 1968 in Book 918 of Official Records, Doc No.
737553
Affects : The Easterly 20.00 feet of Parcel XI
<PAGE>
27. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
instrument:
Granted to : CLARK COUNTY SANITATION DISTRICT NO. 1
For : Construction and maintenance of sewage lines
Recorded : October 15th, 1971 in Book 172 of Official Records, Doc
No. 137562
Affects : The Northerly 40.00 feet of Parcel XIII
28. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Grant, Bargain, Sale Deed
For : Roadway and public utilities
Recorded : December 29th, 1972 in Book 289 of Official Records, Doc No.
248789
Affects : The Westerly 30.00 feet of Parcel XI
29. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
instrument:
Granted to : LAS VEGAS VALLEY WATER DISTRICT
For : Construction and maintenance of pipe lines
Recorded : February 27th, 1974 in Book 404 of Official Records, Doc No.
363937
Terms and provisions as contained in an instrument
Entitled : Pipline Relocation Agreement
Recorded : December 27th, 1983 in Book 1852 of Official Records, Doc No.
1811116
And re-recorded February 29th, 1984 in Book 1882 of Official Records, Doc
No. 1841502.
Terms and provisions as contained in an instrument
Entitled : Pipline Relocation Agreement
Recorded : November 27th, 1984 in Book 2026 of Official Records, Doc No.
1985948
<PAGE>
(Affects the Southeasterly 20.00 feet of Parcel XIII)
30. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Perpetual Avigation Easement
Granted to : COUNTY OF CLARK
For : right of flight, ingress to and egress from all of the airspace
Recorded : October 24th, 1974 in Book 469 of Official Records, Doc No.
428987
Affects : NOTE: Said easement is blanket in nature and cannot be located
of record.
(Affects Parcel VIII)
31. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Perpetual Avigation Easement
Granted to : COUNTY OF CLARK
For : right of flight, ingress to and egress from all of the airspace
Recorded : January 7th, 1977 in Book 695 of Official Records, Doc
No. 654477
Affects : NOTE: Said easement is blanket in nature and cannot be located
of record.
(Affects Parcel XIV)
32. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
instrument:
Granted to : NEVADA POWER COMPANY and CENTRAL TELEPHONE COMPANY
For : public utilities
Recorded : February 28th, 1977 in Book 712 of Official Records, Doc No.
671302
Affects : The Easterly 5.00 feet of Parcel II
33. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Grant, Bargain, Sale Deed
For : Construction, operation, maintenance, repair, and renewal of a
railroad spur track line
Recorded : June 14th, 1977 in Book 751 of Official Records, Doc No. 710332
Affects : The Easterly 20.00 feet of Parcel XI
<PAGE>
34. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Grant, Bargain, Sale Deed
For : Road and public utilities
Recorded : June 14th, 1977 in Book 751 of Official Records, Doc No. 710332
Affects : The Westerly 30.00 feet of Parcel IX
35. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Grant, Bargain, Sale Deed
For : Road and public utilities
Recorded : June 14th, 1977 in Book 751 of Official Records, Doc No. 710332
Affects : The Westerly 30.00 feet of Parcel XI
36. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Perpetual Avigation Easement
Granted to : COUNTY OF CLARK
For : right of flight, ingress to and egress from all of the airspace
Recorded : August 20th, 1981 in Book 1451 of Official Records, Doc No.
1410619
Affects : NOTE: Said easement is blanket in nature and cannot be located
of record.
(Affects Parcel II)
37. Covenants, Conditions and Restrictions, but deleting restrictions, if
any, based on race, color, religion or national origin, as provided in an
instrument
Recorded : August 27th, 1981 in Book 1454 of Official Records, Doc No.
1413340
Affects Parcel II.
38. Record of Survey, performed by J. EDWARD LEAVITT and filed in File 38
of Surveys, at page 57 and recorded February 11th, 1982, in Book 1522 of
Official Records, Doc No. 1481189
<PAGE>
39. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Perpetual Avigation Easement
Granted to : COUNTY OF CLARK
For : Right of flight for the passage of aircraft
Recorded : May 5th, 1982 in Book 1561 of Official Records, Doc No. 1520396
(AS TO PARCELS XVI AND XVII).
40. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Perpetual Avigation Easement
Granted to : COUNTY OF CLARK
For : right of flight, ingress to and egress from all of the airspace
Recorded : June 28th, 1982 in Book 1586 of Official Records, Doc
No. 1545336
Affects : NOTE: Said easement is blanket in nature and cannot be located
of record.
(Affects Parcel XI)
41. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
instrument:
Granted to : NEVADA POWER COMPANY and CENTRAL TELEPHONE COMPANY
For : public utilities
Recorded : September 3rd, 1982 in Book 1617 of Official Records, Doc No.
1576705
Affects : A portion of Parcel IX, more particularly described as follows:
<PAGE>
A strip of land 6.00 feet in width, being 3.00 feet on each side of the
conductor and conduit centerline within said land.
ALSO:
Parcels of land covering above-ground appurtenances plus 3.00 feet adjacent
to and contiguous with said appurtenances lying within said land.
EXCEPTING THEREFROM those portions of the above described strip and parcels
lying within building outlines.
The interest of NEVADA POWER COMPANY in said right of way was relinquished
by that certain Relinquishment of Right of Way Grant dated March 15, 1993,
executed by NEVADA POWER COMPANY, a Nevada corporation, recorded March 19,
1993 in Book 930319 as Document No. 01037.
42. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Perpetual Avigation Easement
Granted to : COUNTY OF CLARK
For : right of flight, ingress to and egress from all of the airspace
Recorded : March 19th, 1985 in Book 2080 of Official Records, Doc
No. 2039969
Affects : NOTE: Said easement is blanket in nature and cannot be located
of record.
(Affects Parcel VIII)
43. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Perpetual Avigation Easement
Granted to : COUNTY OF CLARK
For : right of flight, ingress to and egress from all of the airspace
Recorded : August 9th, 1985 in Book 2164 of Official Records, Doc
No. 2123224
Affects : NOTE: Said easement is blanket in nature and cannot be located
of record.
<PAGE>
(Affects Parcels III and XII)
44. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Grant, Bargain, Sale Deed
For : Ingress and egress
Recorded : August 14th, 1985 in Book 2167 of Official Records, Doc No.
2126163
Affects : The Southerly 40.00 feet of Parcel XII
45. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Perpetual Avigation Easement
Granted to : COUNTY OF CLARK
For : right of flight, ingress to and egress from all of the airspace
Recorded : April 3rd, 1986 in Book 860403 of Official Records, Doc
No. 00714
Affects : NOTE: Said easement is blanket in nature and cannot be located
of record.
(Affects Parcels II, III, and XII)
46. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Perpetual Avigation Easement
Granted to : COUNTY OF CLARK
For : right of flight, ingress to and egress from all of the airspace
Recorded : April 22nd, 1986 in Book 860422 of Official Records, Doc
No. 00515
Affects : NOTE: Said easement is blanket in nature and cannot be located
of record.
(Affects Parcel XIII)
47. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Perpetual Avigation Easement
Granted to : COUNTY OF CLARK
For : Right of flight for the passage of aircraft
Recorded : April 22nd, 1986 in Book 860422 of Official Records, Doc
No. 00516
Affects : NOTE: Said easement is blanket in nature and cannot be located
of record
<PAGE>
48. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Perpetual Avigation Easement
Granted to : COUNTY OF CLARK
For : Right of flight for the passage of aircraft
Recorded : April 22nd, 1986 in Book 860422 of Official Records, Doc
No. 00518
Affects : NOTE: Said easement is blanket in nature and cannot be located
of record
49. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Perpetual Avigation Easement
Granted to : COUNTY OF CLARK
For : right of flight, ingress to and egress from all of the airspace
Recorded : May 6th, 1986 in Book 860506 of Official Records, Doc No. 00592
Affects : NOTE: Said easement is blanket in nature and cannot be located
of record.
(Affects Parcel XII)
50. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Perpetual Avigation Easement
Granted to : COUNTY OF CLARK
For : right of flight, ingress to and egress from all of the airspace
Recorded : July 1st, 1986 in Book 860701 of Official Records, Doc No. 00847
Affects : NOTE: Said easement is blanket in nature and cannot be located
of record.
(Affects Parcel XIII)
51. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Perpetual Avigation Easement
Granted to : COUNTY OF CLARK
For : right of flight, ingress to and egress from all of the airspace
Recorded : November 1st, 1988 in Book 881101 of Official Records, Doc No.
00387
Affects : NOTE: Said easement is blanket in nature and cannot be located
of record.
<PAGE>
(Affects Parcel XII)
52. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Perpetual Avigation Easement
Granted to : COUNTY OF CLARK
For : right of flight, ingress to and egress from all of the airspace
Recorded : December 6th, 1988 in Book 881206 of Official Records, Doc No.
00425
Affects : NOTE: Said easement is blanket in nature and cannot be located
of record.
(Affects Parcel XII)
53. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as shown on the map filed on July
31st, 1986 in File 50 of Parcel Maps, Page 30, at Doc No. 00720 in Book
860731 of Official Records
For : Public utilities
(AS TO PARCEL XVIII).
54. Terms and provisions as contained in an instrument
Entitled : "Grant of Easement"
Executed by: ZOBRIST CORPORATION, A Nevada Corporation, and an easement
benefits access to Parcel III, and NEW "Z" CORP., A Nevada
Corporation
Dated : April 24th, 1985
Recorded : October 5th, 1987 in Book 871005 of Official Records, Doc No.
00609
(As to Parcel XVIII)
55. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
instrument:
Granted to : LAS VEGAS VALLEY WATER DISTRICT
For : Construction and maintenance of pipelines
Recorded : August 7th, 1989 in Book 890807 of Official Records, Doc
No. 00764
Affects : NOTE: Said easement is blanket in nature and cannot be located
of record.
<PAGE>
56. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Order of Vacation
Granted to : NEVADA POWER COMPANY and CLARK COUNTY SANITATION DISTRICT
For : public utilities
Recorded : November 3rd, 1989 in Book 891103 of Official Records, Doc No.
00683
(Reference being made to the public record for full particulars)
57. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
instrument:
Granted to : NEVADA POWER COMPANY
For : public utilities
Recorded : November 17th, 1989 in Book 891117 of Official Records, Doc
No. 00894
Affects : portions of Parcel VIII, described as follows:
<PAGE>
Portions of the Southwest Quarter (SW 1/4) of Section 17, Township 21 South,
Range 61 East, M.D.M., Nevada, described as follows:
CENTERLINE 1:
A strip of land 15.00 feet in width, being 7.50 feet on each side of the
following described centerline:
COMMENCING at the Northwest (NW) corner of Lot 2 per File 46 of Parcel Maps,
Page 18, recorded March 19, 1985 as Document No. 2039968 in Book 2080,
Official Records, Clark County, Nevada; thence South 89 Deg. 16'52" East,
along the North line of said Lot 2, a distance of 23.05 feet to the POINT
OF BEGINNING; thence South 00 Deg. 03'48" West, 51.22 feet to the point
of ending, hereinafter referred to as Point "A".
The sideline boundaries of said strip are to be lengthened or shortened so
as to begin on the North line of said Lot 2.
CENTERLINE 2:
A strip of land 10.00 feet in width, being 5.00 feet on each side of the
following described centerline:
BEGINNING at Point "A"; thence South 00 Deg. 48'38" West, 45.81 feet;
thence South 18 Deg. 31'51" East, 41.22 feet; thence South 03 Deg. 44'33"
East, 38.49 feet to the point of ending, hereinafter referred to as
Point "B".
The sideline boundaries of said strip are to be lengthened or shortened
so as to intersect at the angle points.
ALSO, the following described parcel of land:
BEGINNING at Point "B"; thence North 88 Deg. 41'41" East, 9.56 feet;
thence South 01 Deg. 18'19" East, 65.00 feet; thence South 88 Deg. 41'41"
West, 29.94 feet; thence North 01 Deg. 18'19" West, 65.00 feet; thence
North 88 Deg. 41'41" East, 20.38 feet to the point of beginning.
58. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
instrument:
Granted to : NEVADA POWER COMPANY
For : public utilities
Recorded : February 16th, 1990 in Book 900216 of Official Records, Doc
No. 00639
Affects : NOTE: Said easement is blanket in nature and cannot be located
of record.
<PAGE>
59. Record of Survey, performed by DANNY LEE RIDER, JR. and filed in File
63 of Surveys, at page 47 and recorded July 9th, 1992, in Book 920709 of
Official Records, Doc No. 00578
And amended by Record of Survey in File 63 of Surveys, at page 82 and
recorded August 7th, 1992 in Book 920807 of Official Records, Doc No. 00578
60. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Perpetual Avigation Easement
Granted to : COUNTY OF CLARK
For : right of flight, ingress to and egress from all of the airspace
Recorded : October 22nd, 1992 in Book 921022 of Official Records, Doc
No. 01133
Affects : NOTE: Said easement is blanket in nature and cannot be located
of record.
61. Record of Survey, performed by BOBBY G. JOHNSON and filed in File 64
of Surveys, at page 97 and recorded November 23rd, 1992, in Book 921123 of
Official Records, Doc No. 00809
Affects Parcel XIII.
62. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
instrument:
Granted to : NEVADA POWER COMPANY
For : public utilities
Recorded : December 31st, 1992 in Book 921231 of Official Records, Doc
No. 01945
Affects : Portions of Parcels IX, X, and XI, described as follows:
<PAGE>
Strips of land 6.00 feet in width, being 3.00 feet on each side of the
following described centerlines:
CENTERLINE 1:
COMMENCING at the Northwest (NW) corner of the Southeast Quarter (SE 1/4) of
the Southwest Quarter (SW 1/4) of said Section 17;
thence South 89 Deg. 17'11" East, along the North line thereof, 91.95 feet;
thence South 49 Deg. 44'52" West, 120.58 feet;
thence South 00 Deg. 03'46" West, 6.52 feet;
thence South 62 Deg. 06'39" East, along the Northeasterly line of Grantor's
property, 30.56 feet to the POINT OF BEGINNING;
thence South 58 Deg. 06'01" West, 3.47 feet to a point hereinafter referred
to as POINT "A";
thence South 62 Deg. 06'39" East, parallel with and 3.00 feet Southwesterly
of the Northeasterly line of Grantor's property, 420.87 feet;
thence South 54 Deg. 25'21" East, 201.81 feet to a point hereinafter
referred to as POINT "B";
thence South 21 Deg. 11'38" West, 231.58 feet;
thence South 27 Deg. 53'21" West, parallel with and 3.00 feet Northwesterly
of the Southeasterly line of Grantor's property, 690.00 feet to a point
hereinafter referred to as POINT "C";
thence South 39 Deg. 57'01" West, 134.68 feet to the point of ending.
The sideline boundaries of said strip are to be lengthened or shortened so
as to begin on the Northeasterly line of Grantor's property and to intersect
at the angle points.
CENTERLINE 2:
BEGINNING at Point "A";
thence South 58 Deg. 06'01" West, 33.26 feet to the point of ending.
CENTERLINE 3:
BEGINNING at Point "B";
thence South 62 Deg. 06'39" East, 30.00 feet to the point of ending, being
a point on the Southeasterly line of Grantor's property.
The sideline boundaries of said strip are to be lengthened or shortened so
as to end on the Southeasterly line of Grantor's property.
CENTERLINE 4:
BEGINNING at Point "B";
thence North 27 Deg. 53'21" East, 30.00 feet to the point of ending, being
a point on the Northeasterly line of Grantor's property.
<PAGE>
The sideline boundaries of said strip are to be lengthened or shortened
so as to end on the Northeasterly line of Grantor's property.
CENTERLINE 5:
BEGINNING at Point "C";
thence South 27 Deg. 53'21" West, parallel with and 3.00 feet Northwesterly
of the Southeasterly line of Grantor's property, 25.00 feet to the point of
ending.
<PAGE>
63. Deed of Trust to secure an indebtedness of the amount stated below and
any other amounts payable under the terms thereof,
Amount : $65,000,000.00
Trustor/Borrower : RIO PROPERTIES, INC., a Nevada corporation
Trustee : EQUITABLE DEED COMPANY, a California corporation
Beneficiary/Lender : BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
a national banking association, as "Agent" for itself
and other lenders
Dated : July 15th, 1993
Recorded : July 15th, 1993 in 930715 of Official Records,
Doc No. 00799
Modification/amendment of the terms of said Deed of Trust by an instrument
Executed by : RIO PROPERTIES, INC., a Nevada corporation, and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a
national banking association
Recorded : May 12th, 1994 in Book 940512 of Official Records, Doc
No. 01246
Modification/amendment of the terms of said Deed of Trust by an instrument
Executed by : RIO PROPERTIES, INC., a Nevada corporation, and BANK
OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
a national banking association
Recorded : December 16th, 1994 in Book 941216 of Official Records,
Doc No. 00691
Modification/amendment of the terms of said Deed of Trust by an instrument
Executed by : RIO PROPERTIES, INC., a Nevada corporation, and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a
national banking association
Dated : September 12th, 1995
Recorded : September 15th, 1995 in Book 950915 of Official Records,
Doc No. 01687
Modification/amendment of the terms of said Deed of Trust by an instrument
Executed by : RIO PROPERTIES, INC., a Nevada corporation, and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a
national banking association
Dated : June 17th, 1996
Recorded : June 17th, 1996 in Book 960617 of Official Records, Doc
No. 01215
Modification/amendment of the terms of said Deed of Trust by an instrument
Executed by : RIO PROPERTIES, INC., a Nevada corporation, and BANK
OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a
<PAGE>
national banking association
Dated : September 22nd, 1997
Recorded : February 12th, 1998 in Book 980212 of Official Records,
Doc No. 01187
64. A financing statement given as additional security for the payment of
the indebtedness secured by the deed of trust,
Shown as : Book 930715 Doc No. 00799
Debtor : RIO PROPERTIES, INC., A Nevada Corporation
Secured Party : BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
Recorded : July 15th, 1993 in Book 930715 of Official Records, Doc
No. 00800
An amendment to the above was
Recorded : January 8th, 1998 in 980108 of Official Records, Doc No.
01350
65. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
Instrument : Perpetual Avigation Easement
Granted to : COUNTY OF CLARK
For : right of flight, ingress to and egress from all of the airspace
Recorded : October 26th, 1993 in Book 931026 of Official Records, Doc
No. 01355
Affects : NOTE: Said easement is blanket in nature and cannot be located
of record.
66. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
instrument:
Granted to : NEVADA POWER COMPANY
For : public utilities
Recorded : April 28th, 1994 in Book 940428 of Official Records, Doc
No. 01273
67. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
instrument:
Granted to : NEVADA POWER COMPANY
For : public utilities
Recorded : June 9th, 1994 in Book 940609 of Official Records, Doc No. 01146
Affects : That portion of said land described as follows:
COMMENCING at the Southwest (SW) corner of said Section 17;
thence North 00 Deg. 30'04" West, along the West line of said Section 17,
a distance of 18.58 feet to a point on the South right of way line of
Flamingo Road;
thence South 88 Deg. 47'09" East, along said South right of way line,
335.46 feet;
thence North 01 Deg. 12'51" East, 75.00 feet to the North right of
way line of Flamingo Road;
thence continuing North 01 Deg. 12'51" East, 80.00 feet to the
POINT OF BEGINNING;
thence South 88 Deg. 47'09" East, 58.00 feet;
thence North 01 Deg. 12'51" East, 16.00 feet;
thence North 88 Deg. 17'09" West, 60.00 feet;
thence South 01 Deg. 12'51" West, 16.00 feet;
thence South 88 Deg. 47'09" East, 2.00 feet to the point of beginning.
<PAGE>
68. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
instrument:
Granted to : SOUTHWEST GAS CORPORATION
For : Public utilities
Recorded : May 31st, 1996 in Book 960531 of Official Records, Doc
No. 01564
(AS TO PARCEL XVII).
69. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
instrument:
Granted to : NEVADA POWER COMPANY
For : public utilities
Recorded : December 17th, 1997 in Book 971217 of Official Records, Doc
No. 00965
Affects : a portion of Parcel XVIII
70. An easement affecting that portion of said land and for the purposes
stated herein and incidental purposes as provided in the following
instrument:
Granted to : SPRINT NEVADA OPERATIONS
For : public utilities
Recorded : December 22nd, 1997 in Book 971222 of Official Records, Doc
No. 01020
Affects : A portion of Parcel XVIII
71. Terms and provisions as contained in an instrument
Entitled : Off-Site Improvements Agreement
Executed by: RIO PROPERTIES, INC. and CLARK COUNTY, NEVADA
Recorded : January 14th, 1998 in Book 980114 of Official Records,
Doc No. 01062
72. The lack of a right of access recorded in insurable form to and from
said land to a public street.
The affirmative coverage set forth in paragraph 3 or 4 of the insuring
provisions is not provided under this policy, notwithstanding the statement
therein to the contrary.
(As to Parcel XVI).
<PAGE>
SCHEDULE 7.05
PERMITTED INDEBTEDNESS
See Schedule 5.11.
<PAGE>
SCHEDULE 7.08
CONTINGENT OBLIGATIONS
<TABLE>
<CAPTION>
PARTY AMOUNT OBLIGATION
<S> <C> <C>
Cinderlane, Inc. $4,900,000 Option to purchase 4.9 acre parcel of real
property
Cinderlane, Inc. $564,543 Option to purchase two-thirds of a 2.25 acre
parcel of real property
Rio Development Company, Inc. Undetermined Construction and completion of the
Clubhouse for the Rio Secco Golf Club and
other improvements for which
approximately $2.2 million of funds are
available under the ORIX USA construction
loan agreement as further described in
Schedule 5.11 - Indebtedness Not Shown on
Financial Statements
</TABLE>
<PAGE>
EXHIBIT A
NOTE
$ ______,000,000.00 Las Vegas, Nevada
______________, 1998
FOR VALUE RECEIVED, RIO PROPERTIES, INC., a Nevada
corporation (the "Company") and RIO LEASING, INC., a Nevada
corporation ("Rio Leasing" and collectively with the Company,
"Borrowers"), jointly and severally promise to pay to the order
of ____________________ (the "Bank"), the principal amount of
__________________ Million Dollars ($____,000,000) or, if
different, the aggregate principal amount of Loans made by the
Bank to the Company and Rio Leasing under the Credit Agreement
referred to below outstanding on the Maturity Date.
The Borrowers also jointly and severally promise to pay
interest on the unpaid principal amount hereof from the date
hereof until paid at the rates and at the times which shall be
determined in accordance with the provisions of the Amended and
Restated Credit Agreement dated as of ___________, 1998, among
the Company and Rio Leasing, as co-borrowers, the Banks named
therein and Bank of America National Trust and Savings
Association, as Agent (as further amended from time to time, the
"Credit Agreement").
The Note is one of the Notes 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 are
made and are to be repaid. Capitalized terms used herein without
definition shall have the meanings set forth in the Credit
Agreement.
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 office of Bank of America for
credit to: BANCONTROL Account No. 12337-14196, Reference: Rio
Properties, Inc., at 1850 Gateway Boulevard, Concord, California
94520 or at such other place as shall be designated in writing
for such purpose in accordance with the terms of the Credit
Agreement. Each of the Bank and any subsequent holder of this
Note agrees that before disposing of this Note or any part hereof
it will make a notation hereon of all principal payments
previously made hereunder and of the date to which interest hereon
has been paid; PROVIDED that the
-1-
<PAGE>
failure to make a notation of any payment made on this Note shall
not limit or otherwise affect the obligation of the Company
hereunder with respect to payments of principal or interest on
this Note.
This Note is subject to prepayment as provided in the
Credit Agreement. Upon the occurrence of an Event of Default,
the unpaid balance of the principal amount of this Note 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 Company and Rio Leasing jointly and severally
promise to pay all actual and reasonable costs and expenses,
including reasonable attorneys' fees and the reasonably allocated
cost of in-house counsel and staff, incurred in the collection
and enforcement of this Note. The Company, Rio Leasing and
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.
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 LAWS PRINCIPLES.
IN WITNESS WHEREOF, the Company and Rio Leasing have
caused this Note to be executed and delivered by its duly
authorized officers, as of the day and year and the place first
above written.
RIO PROPERTIES, INC.
By ___________________________________
Title ________________________________
RIO LEASING, INC.
By ____________________________________
Title _________________________________
-2-
<PAGE>
TRANSACTIONS ON NOTE
<TABLE>
<CAPTION>
Amount of Outstanding
Type of Amount of End of Principal or Principal
Loan Made Loan Made Interest Interest Balance Notation
Date This Date This Date Period Paid This This Date Made By
Date
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT B
NOTICE OF BORROWING
TO: Bank of American National Trust
and Savings Association, as Agent
555 South Flower Street, 11th Floor
Los Angeles, California 90071
Attention: Janice Hammond, Vice President - Agency
Specialist
USCG - Agency Management Los Angeles 20529
We refer to that certain Amended and Restated Credit
Agreement dated as of February 24, 1998 (as amended from time to
time, the "Credit Agreement") among Rio Properties, Inc., a
Nevada corporation (the "Company"), Rio Leasing, Inc., a Nevada
corporation (collectively with the Company, "Borrowers"), the
Banks named therein (the "Banks") and Bank of America National
Trust and Savings Association, as Agent (the "Agent").
This Notice of Borrowing represents Borrowers' request
to borrow on ___________ from the Banks on a pro rata basis the
aggregate of $___________ as [Base Rate] [Eurodollar Rate] Loans.
[The initial Interest period for such [Eurodollar Rate] is
requested to be a _________ period.] The proceeds of such Loans
are to be deposited in the Company's [operating account at Bank
of America N.T. & S.A.] [Restricted Loan Proceeds Account at Bank
of America N.T. & S.A.] pursuant to Section 2.01 (a) (iv) of the
Credit Agreement.
The undersigned officer, to the best of his knowledge,
and Borrowers certify that:
(i) the representations and warranties of Borrowers
contained in the Credit Agreement are true, correct and
complete on and as of the date hereof to the same extent as
though made on and as of the date hereof;
(ii) no Default or Event of Default has occurred and
is continuing under the Credit Agreement or will result from
the proposed borrowing;
(iii) Borrowers have performed in all material respects
all agreements and satisfied all conditions under the Credit
Agreement required to be performed by them on or before the
date hereof.
-1-
<PAGE>
Capitalized terms used herein shall have the meanings
assigned to them in the Credit Agreement.
DATED: _________________________________
RIO PROPERTIES, INC.
and
RIO LEASING, INC.
By: ________________________________
Title: _____________________________
-2-
<PAGE>
EXHIBIT C
NOTICE OF CONVERSION/CONTINUATION
TO: Bank of America National Trust
and Savings Association, as Agent
555 South Flower Street, 11th Floor
Los Angeles, California 90071
Attention: Janice Hammond, Vice President - Agency
Specialist
USCG - Agency Management Los Angeles 20529
RE: CONVERSION/CONTINUATION OF LOANS
Gentlemen:
1. CONVERSION SELECTION. Pursuant to Section 2.04 of
the Agreement, please convert an aggregate of $___________ of
existing [Base Rate, Eurodollar Rate] Loans, the final day of the
current Interest Period (if applicable) of which is
_____________, 19__, to [Base Rate, Eurodollar Rate] Loans, as
follows:
Interest Period
(Eurodollar
Dollar Amount Rate loans)
$ ________________ _______________ months
Maturing on _______ , 19__
2. CONTINUATION SELECTION. Pursuant to Section 2.04
of the Agreement, please continue an aggregate of $_________ of
existing Eurodollar Rate Loans, the final day of the current
Interest Period of which is ____________, 19__, as follows:
Requested
DOLLAR AMOUNT INTEREST PERIOD
$ ________________ _______________ months
Maturing on _______ , 19__
Unless otherwise defined herein, capitalized terms used
herein have the meanings assigned to them in the Agreement.
RIO PROPERTIES, INC.
and
RIO LEASING, INC.
By: ________________________________
Title:______________________________
-1-
<PAGE>
EXHIBIT D
COMPLIANCE CERTIFICATE
This Compliance Certificate (this "Certificate") is
executed and delivered by the undersigned to Bank of America
National Trust and Savings Association, as Agent (the "Agent"),
pursuant to the Credit Agreement referred to below to induce the
Banks described in the Credit Agreement to make certain credit
facilities available to the Rio Properties, Inc., a Nevada
corporation (the "Company") and Rio Leasing, Inc., a Nevada
corporation ("Rio Leasing"; Rio Leasing and the Company, each a
"Borrower" and collectively, the "Borrowers").
This Certificate is delivered with reference to the
Amended and Restated Credit Agreement (as amended, supplemented
or otherwise modified from time to time, the "Credit Agreement"),
dated as of February 24, 1998, among the Borrowers, the Agent and
each of the several financial institutions party to the Credit
Agreement. The terms defined in the Credit Agreement and not
otherwise defined in this Certificate shall have the meanings
defined for them in the Credit Agreement. Section references
herein relate to the Credit Agreement unless stated otherwise.
This Certificate is delivered in accordance with
Section 6.02(b) of the Credit Agreement by a Responsible Officer
of the Borrowers. This Certificate is delivered with respect to
the Fiscal Quarter ended _______________ (the "Determination
Date"). Computations indicating compliance with Sections 7.13,
7.14 7.15 and 7.16 of the Credit Agreement are set forth below:
1. SECTION 7.12 - RESTRICTED PAYMENTS. As of the
Determination Date, the aggregate amount paid in
respect of repurchased shares of the Guarantor since
June 30, 1997, not to exceed $10,000,000:
$______________
2. SECTION 7.13 - CAPITAL EXPENDITURES. As of the
Determination Date, the aggregate amount of Capital
Expenditures made by the Loan Parties and their
respective Subsidiaries and Unrestricted Subsidiaries
is:
(a) Capital Expenditures associated with the Rio
Expansion Project not to exceed $258,000,000:
$_____________
(b) Other Capital Expenditures (including Maintenance
Capital Expenditures) not to exceed $152,000,000:
$_____________
-1-
<PAGE>
3. SECTION 7.14 - INTEREST COVERAGE RATIO. As of the
Determination Date, the Interest Coverage Ratio was
_______:1.00.
FISCAL QUARTERS ENDING MAXIMUM RATIO
December 31, 1997 through and
including June 30, 1998 2.00:1.00
September 30, 1998 through and 1.75:1.00
including December 31, 1999
Thereafter 2.00:1.00
INTEREST COVERAGE RATIO is computed as follows (in each
case determined in accordance with GAAP):
(a) (i) EBITDA for the fiscal period consisting of the
fiscal quarter ending on the Determination Date
and the three immediately prior fiscal quarters
(as calculated on Appendix A hereto) $__________
LESS (ii) Maintenance Capital Expenditures made by
the Borrowers and their respective Restricted
Subsidiaries during the fiscal period set forth in
(a) above $__________
LESS (iii) cash payments of federal, state or
local income taxes made by the Borrowers and their
respective Restricted Subsidiaries during the
fiscal period set forth in
(a) above $__________
(a) equals [(i)-(ii)-(iii)] $__________
DIVIDED BY (b) Cash Interest Expense (including
capitalized Interest Expense) for the fiscal period set
forth in (a) above (as calculated on Appendix A hereto)
$__________
EQUALS INTEREST COVERAGE RATIO [(a) divided by (b)]
$__________
-2-
<PAGE>
4. SECTION 7.15 - TOTAL LEVERAGE RATIO. The Total Leverage
Ratio for the fiscal quarter ending on the
Determination Date was ____:1.00.
FISCAL QUARTERS ENDING MAXIMUM RATIO
December 31, 1997 3.50:1.00
March 31, 1998 3.75:1.00
June 30, 1998 4.25:1.00
September 30, 1998 5.00:1.00
December 31, 1998 5.25:1.00
March 31, 1999 5.75:1.00
June 30, 1999 5.75:1.00
September 30, 1999 4.75:1.00
December 31, 1999 4.50:1.00
Thereafter 4.00:1.00
TOTAL LEVERAGE RATIO is computed as follows (in each
case determined in accordance with GAAP):
(a) Average outstanding total principal Indebtedness
of the Borrowers and their combined Restricted
Subsidiaries which constitutes Funded Debt plus
outstanding principal Indebtedness under the Parent
Senior Subordinated Notes (as calculated on Appendix A
hereto)
$_____________
DIVIDED BY (b) EBITDA for the four fiscal quarter
period ending on the Determination Date (as calculated
on Appendix A hereto)
$_____________
EQUALS total Leverage Ratio [(a) divided by (b)] $_____________
-3-
<PAGE>
5. SECTION 7.16 - SENIOR LEVERAGE RATIO. The Senior
Leverage Ratio for the fiscal quarter ending on the
Determination Date was _____:1.00. (Maximum is
3.00:1.00)
Numerator of Total Leverage Ratio $_______________
MINUS Subordinated Obligations $_______________
EQUALS numerator of Senior Leverage $_______________
Denominator of Total Leverage $_______________
Ratio is __________1.00
6. A review of the activities of the Borrowers and each of
the other Loan Parties during the fiscal periods
covered by this Certificate has been made under the
supervision of the undersigned, with a view to
determining whether during such fiscal periods the
Borrowers and each of the other Loan Parties performed
and observed all of their respective Obligations. To
the best knowledge of the undersigned, during the
fiscal periods covered by this Certificate, all
covenants and conditions set forth in the Loan
Documents, INCLUDING, without limitation, those set
forth in ARTICLES 5, 6 AND 7 of the Credit Agreement,
have been so performed and observed and no Default or
Event of Default has occurred and is continuing, WITH
ONLY THE EXCEPTIONS set forth below (if none, so
state), and in response to which the Borrowers and the
other Loan Parties have taken or propose to take the
following actions (if none, so state):
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________
7. The undersigned Responsible Officer of the Borrowers
certifies that the calculations made and the
information contained herein and in each Appendix
delivered herewith are derived from the books and
records of the Borrowers and the other Loan Parties, as
applicable, and that each and every matter contained
herein and therein correctly reflects those books and
records.
-4-
<PAGE>
8. To the best knowledge of the undersigned no event or
circumstance has occurred that constitutes a Material
Adverse Effect since the date the most recent
Compliance Certificate was executed and delivered, with
the exceptions set forth below (if none, so state):
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
__________________________________________________
Dated: _________________
By ___________________________________
Responsible Officer of each Borrower
-5-
<PAGE>
APPENDIX A
TO
COMPLIANCE CERTIFICATE
PART 1
EBITA - COMPONENT CALCULATIONS
(IF THE CERTIFICATE CALCULATIONS REQUIRE CALCULATION OF
EBITDA FOR MORE THAN ONE PERIOD, ATTACH MULTIPLE COPIES OF THIS
PART 1.) The calculations below relate to the period from
_____________________ to ____________________ (the "Test Period"
for purposes of this Part 1 of Appendix A).
EBITDA for the Test Period is calculated as follows for
the Borrowers and their respective Subsidiaries on a combined
basis, in each case as determined in accordance with GAAP:
(a) net income (or net loss) without
giving effect to any extraordinary
loss or extraordinary gain $_________
PLUS (b) amounts treated as expenses
for depreciation and interest and
the amortization of intangibles of
any kind to the extent included in
the determination of net income (or
income (or net loss) set forth in (a)
above $_________
PLUS (c) THE SUM OF:
(i) all accrued taxes on or
measured by income to the extent
included in the determination of
net income (or net loss) set
forth in (a) above $_________
PLUS (ii) Pre-Operating Expenses
attributable to any New Venture $__________
EQUALS (C) $_________
EQUALS EBITDA [(a)+(b)+(c)] $_________
PART 2
-6-
<PAGE>
INTEREST EXPENSE - Component Calculation
(IF THE CERTIFICATE CALCULATIONS REQUIRE CALCULATION OF INTEREST
EXPENSE FOR MORE THAN ONE PERIOD, ATTACH MULTIPLE COPIES OF THIS
PART 2.) The calculations below relate to the period from
_____________________ to ________________________ (the "Test
Period" for purposes of this Part 2 of Appendix A).
Interest Expenses for the Test Period are calculated as
follows:
(a) gross interest for such period
(including all commissions,
discounts, fees and other charges in
connection with standby letters of
credit and similar instruments) for
the Borrowers and their respective
Restricted Subsidiaries); provided,
that the Company's obligations under
the Guaranty Obligations permitted
under Section 7.08(f) shall not be
included in this definition unless
and until a demand is made under such
Guaranty Obligations by a Person
entitled to make a demand thereunder
$_________
PLUS (b) gross interest for such
period for the Parent with respect to
the Parent senior Subordinated Notes
$_________
PLUS (c) the portion of the up-front
costs and expenses for Rate Contracts
(to the extent not included in gross
interest expense) fairly allocated to
such Rate Contracts as expenses for
for such period $_________
LESS (d) interest income for that
period and Rate Contracts payments
received as determined in accordance
with GAAP $_________
EQUALS INTEREST EXPENSE [(a)+(b)+(c)-(d)] $_________
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PART 3
TOTAL LEVERAGE RATIO (PART 4(A)) - COMPONENT CALCULATION
The calculations below relate to the period from
________________________ to _______________________ (the "Test
Period" for purposes of this Part 3 of Appendix A).
Part (a) of Total Leverage Ratio for the Test Period is
calculated as follows:
(a) Outstanding total principal Indebtedness
of the Borrowers and their combined Restricted
Subsidiaries which constitutes Funded Debt (as
calculated in Part 4 of this Appendix A) as of
the last day of each of the three-months
constituting the fiscal quarter ending on the
Determination Date:
(i) Month 1: $__________
(ii) Month 2: $__________
(iii) Month 3: $__________
EQUALS (A) [(i)+(ii)+(iii)] $______________
(b) Outstanding principal Indebtedness under
the Parent Senior Subordinated Notes reported
for each such month pursuant to Section
6.01(c):
(i) Month 1: $__________
(ii) Month 2: $__________
(iii) Month 3: $__________
EQUALS (B) [(i)+(ii)+(iii)] $______________
(c) SUM OF (A)+(B) $______________
EQUALS AVERAGE [(c) divided by 3] $______________
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PART 4
FUNDED DEBT - COMPONENT CALCULATIONS
(IF THE CERTIFICATE CALCULATIONS REQUIRE CALCULATION
OF FUNDED DEBT FOR MORE THAN ONE PERIOD, ATTACH MULTIPLE COPIES
OF THIS PART 4.) The calculations below relate to the period from
_______________ to ______________ (the "Test Period" for purposes
of this Part 1 of Appendix A)
(a) all principal Indebtedness of the
Borrowers and their respective Restricted
Subsidiaries on a combined basis for
borrowed money (including debt securities
issued by any Borrower or any of its
Restricted Subsidiaries) on the
Determination Date, PROVIDED, HOWEVER,
that the Company's obligations under the
Guaranty Obligations permitted under
Section 7.08(l) shall not be included
unless and until a demand is made under
such Guaranty Obligations by a Person
entitled to make demand thereunder $________
PLUS (b) the aggregate amount of all
monetary obligations of the Borrowers and
their respective Restricted Subsidiaries
on a combined basis in respect of Capital
Leases on the Determination Date $________
PLUS (c) the aggregate undrawn face amount
of all letters of credit (other than
letters of credit supporting workers
compensation obligations and permitted
pursuant to Section 7.08(d)) for which any
Borrower or any of its Restricted
Subsidiaries is the account party but
which have not been drawn as of the date
of determination $________
PLUS (d) the aggregate amounts on which a
drawing has been received or paid by an
issuing bank under any such letter of
credit which drawing or payment has not
been reimbursed to the issuing bank by any
Borrower or any of its Restricted
Subsidiaries as of the date of
determination $________
equals Funded Debt [(a)+(b)+(c)=(d)] $_____
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<PAGE>
EXHIBIT E
ASSIGNMENT AND ACCEPTANCE
THIS ASSIGNMENT AND ACCEPTANCE (this "Assignment") is
entered into as of ________________ between
___________________________________ ("Assignor") and
____________________ ("Assignee") with reference to that certain
Amended and Restated Credit Agreement dated as of February 24,
1998 among Rio Properties, Inc. and Rio Leasing, Inc.
("Borrowers"), the Banks therein named and Bank of America
National Trust and Savings Association, a national banking
association, as Agent for the Banks (as amended from time to
time, the "Credit Agreement"). Capitalized terms used but not
defined herein are used with the meanings set forth for those
terms in the Credit Agreement.
RECITALS
A. Assignor holds a Commitment under the Credit
Agreement.
B. As of the date hereof, the outstanding principal
balance of the Advances made by Assignor (the "Assignor
Advances") is set forth on Annex I hereto.
C. Assignor desires to assign its rights under the
Credit Agreement and the other Loan Documents with respect
to a portion of the Aggregate Commitment and a portion of
any Assignor Advances to Assignee and Assignee has agreed to
assume the obligations of Assignor under the Loan Documents
to the extent of the rights so assigned.
NOW, THEREFORE, in consideration of the matters recited
above, and the mutual covenants and agreements contained herein,
the parties hereto hereby agree as follows:
SECTION 1. ASSIGNMENT AND ASSUMPTION.
(a) Assignor hereby assigns to Assignee, without
recourse, representation or warranty, an undivided fractional
interest in Assignor's rights arising under the Loan Documents
relating to the Aggregate Commitment, and any Assignor Advances
to the extent of the Assigned Pro Rata Share reflected on Annex I
hereto (the "Assigned Pro Rata Share") including, without
limitation, (i) all amounts advanced and to be advanced or
participated in by Assignor pursuant to the Aggregate Commitment;
(ii) all of Assignor's rights and powers contained in the Loan
Documents; (iii) all
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<PAGE>
all claims of Assignor against persons who may in the future
become or are now liable for repayment of any Assignor Advances
or reimbursement of expenses incurred by Assignor on account of
any Assignor Advances; and (iv) all amounts received by Assignor
on account of any Assignor Advances, whether from the Borrowers
or from others who are now or may in the future become obligated
with respect to some or all of the amounts owing on any Assignor
Advances or from any other source, including, without limitation,
recovery from litigation.
(b) Assignee hereby assumes from Assignor, and
Assignor is hereby expressly and absolutely released from, the
Assigned Pro Rata Share of all of Assignor's obligations arising
under the Loan Documents relating to the Aggregate Commitment
including, without limitation, all obligations with respect to
any Assignor Advances. Assignee agrees that it shall fully
perform all of the obligations of Assignor with respect to the
interests assigned by this Assignment.
(c) Assignor and Assignee hereby agree that Annex I
attached hereto sets forth (i) the amount of all Assignor
Advances giving effect to the assignment and assumption described
herein, (ii) the amount of the Aggregate Commitment after giving
effect to the assignment and assumption described herein, and
(iii) accrued but unpaid interest and commitment fees thereon.
(d) Assignor and Assignee hereby agree that, upon
giving effect to the assignment and assumption described herein,
Assignee shall have all of the obligations under the Loan
Documents of, and shall be deemed to have made all of the
covenants and agreements contained in the Loan Documents made by,
a Bank having a Commitment as reflected on Annex I attached
hereto. Assignee hereby acknowledges and agrees that the
agreement set forth in this subsection 1(d) is expressly made for
the benefit of the Borrowers, the Agent, the Issuing Bank,
Assignor and the other Banks and their respective successors and
permitted assigns. From and after the date of this Assignment,
(i) Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment, shall have the rights and
obligations of a Bank under the Credit Agreement and the other
Loan Documents and (ii) Assignor shall, to the extent provided in
this Assignment, relinquish its rights and be released from its
obligations under the Credit Agreement and the other Loan
Documents.
(e) Assignor and Assignee hereby acknowledge and
confirm their understanding and intent (i) that this Assignment
shall effect the assignment by Assignor and the assumption by
Assignee of the Assigned Pro Rata Share of Assignor's rights and
obligations under the Loan Documents and (ii) that any other
assignments by Assignor of a portion of its rights and
obligations under the Loan Documents shall have no effect on the
Commitment and Pro Rata Share of Assignee set forth on Annex I
attached hereto.
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(f) Assignee agrees to pay to Assignor, on
______________, an amount equal to $______________, in
immediately available funds, representing the purchase price of
the Assigned Pro Rata Share. Assignor and Assignee shall make
all appropriate adjustments for periods prior to the date of this
Assignment or with respect to the making of this Assignment
directly between themselves.
(h) Nothing contained in this Assignment shall be
construed to amend or modify the terms of the Loan Documents
other than to effectuate the assignment contemplated herein.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) Assignee represents and warrants that it is an
Eligible Assignee.
(b) Assignee represents and warrants that it has
become a party hereto solely in reliance upon its own independent
investigation of the financial and other circumstances
surrounding Borrowers, the collateral, any Assignor Advances and
all aspects of the transactions evidenced by or referenced in the
Loan Documents, or has otherwise satisfied itself thereto, and
that it is not relying upon any representation, warranty or
statement (except any such representation, warranty or statement
expressly set forth in this Assignment) of Assignor in connection
with the assignment made hereby. Assignee further acknowledges
that Assignee will, independently and without reliance upon
Assignor and based upon Assignee's review of such documents and
information as Assignee deems appropriate at the time, continue
to make its own credit decisions in connection with the
assignment made hereby. Assignor shall have no duty or
responsibility either initially or on a continuing basis to make
any such investigation or any such appraisal on behalf of
Assignee or to provide Assignee with any credit or other
information with respect thereto, whether coming into its
possession before the making of the initial extension of credit
under the Credit Agreement or at any time thereafter.
(c) Assignee represents and warrants to Assignor that
it has experience and expertise in the making of loans such as
the Advances assigned hereby or with respect to the other types
of credit which may be extended under the Credit Agreement; that
it has acquired its Assigned Pro Rata Share for its own account
and not with any present intention of selling all or any
apportion of such interest; and that it has received, reviewed
and approved copies of all Loan Documents.
(d) Assignor and Assignee represent to one another
and to the Agent that they have duly authorized, executed and
delivered this Assignment, that they are legally entitled to
enter into the assignment and assumption transactions
contemplated herein and that, in the case of Assignor, that it is
the legal and beneficial owner of the Assigned Pro Rata Share,
free of any Liens or adverse claims.
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<PAGE>
(e) Assignor shall not be responsible to Assignee for
the execution, effectiveness, accuracy, completeness, legal
effect, genuineness, validity, enforceability, collectibility or
sufficiency of any of the Loan Documents (other than its own due
execution of the Loan Documents) or for any representations,
warranties, recitals or statements made therein or in any written
or oral statement or in any financial or other statements,
instruments, reports, certificates or any other documents made or
furnished or made available by Assignor to Assignee (other than
written representations, warranties, recitals or statements made
by Assignor therein) or by or on behalf of the Borrowers to
Assignor or Assignee in connection with the Loan Documents and
the transactions contemplated thereby or for the financial
condition or business affairs of the Borrowers or any other
Person liable for the payment of any Advance or payment of
amounts owed in connection with other extensions of credit under
the Credit Agreement or the value of the collateral or any other
matter. Assignor shall not be required to ascertain or inquire
as to the performance 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
Advances or other extensions of credit under the Credit Agreement
or as to the existence or possible existence of any Default or
Event of Default.
(f) Each party to this Assignment represents and
warrants to the other party to this Assignment that it has full
power and authority to enter into this Assignment and to perform
its obligations under this Assignment in accordance with the
provisions of this Assignment, that this Assignment has been duly
authorized, executed and delivered by such party and that this
Assignment constitutes a legal, valid and binding obligation of
such party, enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy,
moratorium or other similar laws affecting creditors' rights
generally and by general equitable principles.
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<PAGE>
SECTION 3. NOTICES.
Any notice or other communication required or permitted
to be given hereunder shall be in writing addressed to the
parties at their addresses set forth below and shall be delivered
in the manner set forth for notices in the Credit Agreement.
(a) Notices to Assignor:
(b) Notices to Assignee:
SECTION 4. MISCELLANEOUS PROVISIONS.
(a) Neither this Assignment nor any term hereof may
be changed, waived, discharged or terminated, except by an
instrument in writing signed by the party against whom
enforcement of such change, waiver, discharge or termination is
sought.
(b) Title and headings of sections in this Assignment
are for convenience of reference only and shall not be used to
define or limit the provisions hereof.
(c) This Assignment and the transactions contemplated
hereunder shall be governed by and construed and enforced in
accordance with the laws of the State of Connecticut.
(d) This Assignment embodies the entire agreement
between Assignor and Assignee with respect to the Loan Documents
and supersedes all prior agreements between Assignor and Assignee
with respect to the Loan Documents.
(e) This Assignment may be executed in one or more
counterparts, each of which shall constitute an original, but all
of which together shall constitute but one Assignment. The
signature pages of all counterparts of this Assignment may be
detached and attached to a single counterpart of this Assignment
so that all signature pages are physically attached to the same
document.
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<PAGE>
(f) All of the terms, covenants and conditions herein
contained shall inure to the benefit of and be binding upon the
parties hereto, and their respective successors and assigns.
(g) Every provision of this Assignment is intended to
be severable. If any term or provision thereof is declared by a
court of competent jurisdiction to be illegal, invalid or
unenforceable for any reason whatsoever, such illegality,
invalidity or unenforceability shall not affect the balance of
the terms and provisions hereof, which terms and provisions shall
remain binding and enforceable, and to the extent possible all of
the other provisions shall nonetheless remain in full force and
effect.
SECTION 5. THE AGENT.
Assignor and Assignee have examined this Assignment and
have exercised independent credit judgment in determining to
enter into this Assignment. Each of Assignor and Assignee have
obtained the advice of their counsel with respect
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<PAGE>
to this document or waive the opportunity to do so. The Agent
bears no responsibility for the form, legality or sufficiency of
this Assignment.
IN WITNESS WHEREOF, the parties hereto have executed
this Assignment as of the date first above written.
"ASSIGNOR"
______________________
By: ________________________________
Name: ______________________________
Title: _____________________________
"ASSIGNEE"
______________________
By: ________________________________
Name: ______________________________
Title: _____________________________
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<PAGE>
ANNEX I
I. ASSIGNOR'S PRO RATA SHARE OF THE AGGREGATE
COMMITMENT BEFORE ASSIGNMENT
Commitment $______________________
Pro Rata Share _____________%
Outstanding Principal $______________________
Accrued and unpaid Interest $______________________
Accrued and unpaid Commitment Fees $______________________
II. ASSIGNOR'S REMAINING PRO RATA SHARE OF THE
AGGREGATE COMMITMENT AFTER ASSIGNMENT
Commitment $______________________
Pro Rata share _____________%
III. ASSIGNEE'S PRO RATA SHARE OF THE AGGREGATE
COMMITMENT AFTER ASSIGNMENT
Commitment $______________________
Pro Rata share _____________%
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<PAGE>
ACKNOWLEGEMENT AND CONSENT
OF THE AGENT
Bank of America National Trust and Savings Association,
as Agent, hereby (i) acknowledges and consents to the assignment
to and assumption by Assignee of Assignor's rights and
obligations with respect to a portion of the Aggregate Commitment
effected pursuant to the foregoing Assignment and (ii) agrees
that, for all purposes of the Loan Documents, Assignee shall be
deemed to be a Bank having a Commitment as reflected on Annex I
attached to the Assignment.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By _________________________________
Name: ___________________________
Title: __________________________
ACKNOWLEGMENT AND CONSENT
OF THE BORROWERS
Borrowers hereby (i) acknowledge and consent to the
assignment to and assumption by Assignee of Assignor's rights and
obligations with respect to a portion of the Aggregate Commitment
effected pursuant to the foregoing Assignment and (ii) agree
that, for all purposes of the Loan Documents, Assignee shall be
deemed to be a Bank having a Commitment as reflected on Annex I
attached to the Assignment.
BORROWER:
RIO PROPERTIES, INC.
and
RIO LEASING, INC.
By: ________________________________
Title: _____________________________
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