LOAN AGREEMENT
Dated as of January 29, 1996
among
CIRCUS CIRCUS ENTERPRISES, INC.
THE BANKS HEREIN NAMED
THE LONG-TERM CREDIT BANK OF JAPAN, LTD., LOS ANGELES AGENCY
FIRST INTERSTATE BANK OF NEVADA, N.A.
SOCIETE GENERALE
CREDIT LYONNAIS LOS ANGELES BRANCH
CREDIT LYONNAIS CAYMAN ISLAND BRANCH,
and
CANADIAN IMPERIAL BANK OF COMMERCE
as Co-Agents
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Administrative Agent
TABLE OF CONTENTS
Page
Article 1
DEFINITIONS AND ACCOUNTING TERMS . . . . . . 1
1.1 Defined Terms. . . . . . . . . . . . . . . . . . . 1
1.2 Use of Defined Terms . . . . . . . . . . . . . . . 35
1.3 Accounting Terms . . . . . . . . . . . . . . . . . 35
1.4 Rounding . . . . . . . . . . . . . . . . . . . . . 36
1.5 Exhibits and Schedules . . . . . . . . . . . . . . 36
1.6 References to "Borrower and its Subsidiaries". . . 36
1.7 Miscellaneous Terms. . . . . . . . . . . . . . . . 36
Article 2
LOANS . . . . . . . . . . . . . 37
2.1 Committed Loans-General. . . . . . . . . . . . . . 37
2.2 Alternate Base Rate Loans. . . . . . . . . . . . . 38
2.3 Eurodollar Rate Loans. . . . . . . . . . . . . . . 38
2.4 Letters of Credit. . . . . . . . . . . . . . . . . 39
2.5 Competitive Advances . . . . . . . . . . . . . . . 43
2.6 Swing Line . . . . . . . . . . . . . . . . . . . . 47
2.7 Voluntary Reduction of Commitment. . . . . . . . . 50
2.8 Automatic Reduction of Commitment. . . . . . . . . 50
2.9 Optional Termination of Commitment . . . . . . . . 50
2.10 Automatic Termination of Commitment . . . . . . . 50
2.11 Administrative Agent's Right to Assume Funds
Available for Advances . . . . . . . . . . . . 51
2.12 Extension of the Reduction Date and the Maturity
Date . . . . . . . . . . . . . . . . . . . . . 51
Article 3
PAYMENTS AND FEES . . . . . . . . . . 53
3.1 Principal and Interest . . . . . . . . . . . . . . 53
3.2 Arrangement Fee. . . . . . . . . . . . . . . . . . 55
3.3 Upfront Fees . . . . . . . . . . . . . . . . . . . 55
3.4 Commitment Fees. . . . . . . . . . . . . . . . . . 55
3.5 Letter of Credit Fees. . . . . . . . . . . . . . . 55
3.6 Agency Fees. . . . . . . . . . . . . . . . . . . . 56
3.7 Increased Commitment Costs . . . . . . . . . . . . 56
3.8 Eurodollar Costs and Related Matters . . . . . . . 56
3.9 Late Payments. . . . . . . . . . . . . . . . . . . 60
3.10 Computation of Interest and Fees. . . . . . . . . 61
3.11 Non-Banking Days. . . . . . . . . . . . . . . . . 61
3.12 Manner and Treatment of Payments. . . . . . . . . 61
3.13 Funding Sources . . . . . . . . . . . . . . . . . 63
3.14 Failure to Charge Not Subsequent Waiver . . . . . 63
3.15 Administrative Agent's Right to Assume Payments
Will be Made by Borrower . . . . . . . . . . . 63
3.16 Fee Determination Detail. . . . . . . . . . . . . 63
3.17 Survivability . . . . . . . . . . . . . . . . . . 63
Article 4
REPRESENTATIONS AND WARRANTIES. . . . . . . 65
4.1 Existence and Qualification; Power; Compliance
With Laws. . . . . . . . . . . . . . . . . . . 65
4.2 Authority; Compliance With Other Agreements and
Instruments and Government Regulations . . . . 65
4.3 No Governmental Approvals Required . . . . . . . . 66
4.4 Subsidiaries . . . . . . . . . . . . . . . . . . . 66
4.5 Financial Statements . . . . . . . . . . . . . . . 67
4.6 No Other Liabilities; No Material Adverse Effect . 68
4.7 Title to Property. . . . . . . . . . . . . . . . . 68
4.8 Intangible Assets. . . . . . . . . . . . . . . . . 68
4.9 Public Utility Holding Company Act . . . . . . . . 68
4.10 Litigation. . . . . . . . . . . . . . . . . . . . 69
4.11 Binding Obligations . . . . . . . . . . . . . . . 69
4.12 No Default. . . . . . . . . . . . . . . . . . . . 69
4.13 ERISA . . . . . . . . . . . . . . . . . . . . . . 69
4.14 Regulations G, T, U and X; Investment Company
Act. . . . . . . . . . . . . . . . . . . . . . 70
4.15 Disclosure. . . . . . . . . . . . . . . . . . . . 70
4.16 Tax Liability . . . . . . . . . . . . . . . . . . 70
4.17 Projections . . . . . . . . . . . . . . . . . . . 70
4.18 Hazardous Materials. . . . . . . . . . . . . . . 70
4.19 Developed Properties. . . . . . . . . . . . . . . 71
4.20 Gaming Laws . . . . . . . . . . . . . . . . . . . 71
Article 5
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS). . . . . . . . . 72
5.1 Payment of Taxes and Other Potential Liens . . . . 72
5.2 Preservation of Existence. . . . . . . . . . . . . 72
5.3 Maintenance of Properties. . . . . . . . . . . . . 72
5.4 Maintenance of Insurance . . . . . . . . . . . . . 73
5.5 Compliance With Laws . . . . . . . . . . . . . . . 73
5.6 Inspection Rights. . . . . . . . . . . . . . . . . 73
5.7 Keeping of Records and Books of Account. . . . . . 73
5.8 Compliance With Agreements . . . . . . . . . . . . 74
5.9 Use of Proceeds. . . . . . . . . . . . . . . . . . 74
5.10 New Significant Subsidiaries. . . . . . . . . . . 74
5.11 Hazardous Materials Laws. . . . . . . . . . . . . 74
Article 6
NEGATIVE COVENANTS. . . . . . . . . . 75
6.1 Prepayment of Indebtedness . . . . . . . . . . . . 75
6.2 Payment of Subordinated Debt . . . . . . . . . . . 75
6.3 Disposition of Property. . . . . . . . . . . . . . 75
6.4 Mergers. . . . . . . . . . . . . . . . . . . . . . 76
6.5 Hostile Tender Offers. . . . . . . . . . . . . . . 76
6.6 Distributions. . . . . . . . . . . . . . . . . . . 77
6.7 ERISA. . . . . . . . . . . . . . . . . . . . . . . 77
6.8 Change in Nature of Business . . . . . . . . . . . 77
6.9 Liens, Negative Pledges and Rights of Others . . . 77
6.10 Indebtedness and Contingent Guaranties. . . . . . 79
6.11 Transactions with Affiliates. . . . . . . . . . . 80
6.12 Tangible Net Worth. . . . . . . . . . . . . . . . 80
6.13 Interest Charge Coverage. . . . . . . . . . . . . 80
6.14 Total Debt to EBITDA Ratio. . . . . . . . . . . . 81
6.15 New Venture Capital Expenditures and Investments. 81
6.16 Investments . . . . . . . . . . . . . . . . . . . 82
6.17 Significant Subsidiaries. . . . . . . . . . . . . 83
Article 7
INFORMATION AND REPORTING REQUIREMENTS. . . . . 84
7.1 Financial and Business Information . . . . . . . . 84
7.2 Compliance Certificates. . . . . . . . . . . . . . 87
Article 8
CONDITIONS. . . . . . . . . . . . 89
8.1 Initial Advances, Etc. . . . . . . . . . . . . . . 89
8.2 Any Increasing Advance, Etc. . . . . . . . . . . . 91
8.3 Any Advance. . . . . . . . . . . . . . . . . . . . 92
Article 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT . 93
9.1 Events of Default. . . . . . . . . . . . . . . . . 93
9.2 Remedies Upon Event of Default . . . . . . . . . . 95
Article 10
THE ADMINISTRATIVE AGENT . . . . . . . . 98
10.1 Appointment and Authorization . . . . . . . . . . 98
10.2 Administrative Agent and Affiliates . . . . . . . 98
10.3 Proportionate Interest in any Collateral. . . . . 98
10.4 Banks' Credit Decisions . . . . . . . . . . . . . 99
10.5 Action by Administrative Agent. . . . . . . . . . 99
10.6 Liability of Administrative Agent . . . . . . . .100
10.7 Indemnification . . . . . . . . . . . . . . . . .101
10.8 Successor Administrative Agent. . . . . . . . . .102
10.9 No Obligations of Borrower. . . . . . . . . . . .103
Article 11
MISCELLANEOUS . . . . . . . . . . .104
11.1 Cumulative Remedies; No Waiver. . . . . . . . . .104
11.2 Amendments; Consents. . . . . . . . . . . . . . .104
11.3 Costs, Expenses and Taxes . . . . . . . . . . . .105
11.4 Nature of Banks' Obligations. . . . . . . . . . .106
11.5 Survival of Representations and Warranties. . . .106
11.6 Notices . . . . . . . . . . . . . . . . . . . . .107
11.7 Execution of Loan Documents . . . . . . . . . . .107
11.8 Binding Effect; Assignment. . . . . . . . . . . .107
11.9 Right of Setoff . . . . . . . . . . . . . . . . .110
11.10 Sharing of Setoffs . . . . . . . . . . . . . . .110
11.11 Indemnity by Borrower. . . . . . . . . . . . . .111
11.12 Nonliability of the Banks. . . . . . . . . . . .112
11.13 No Third Parties Benefited . . . . . . . . . . .113
11.14 Confidentiality. . . . . . . . . . . . . . . . .114
11.15 Removal of a Bank. . . . . . . . . . . . . . . .114
11.16 Further Assurances . . . . . . . . . . . . . . .115
11.17 Integration. . . . . . . . . . . . . . . . . . .115
11.18 Governing Law. . . . . . . . . . . . . . . . . .116
11.19 Severability of Provisions . . . . . . . . . . .116
11.20 Headings . . . . . . . . . . . . . . . . . . . .116
11.21 Time of the Essence. . . . . . . . . . . . . . .116
11.22 Foreign Banks and Participants . . . . . . . . .116
11.23 Hazardous Material Indemnity . . . . . . . . . .117
11.24 Gaming Boards. . . . . . . . . . . . . . . . . .118
11.25 Waiver of Right to Trial by Jury . . . . . . . .118
11.26 Purported Oral Amendments. . . . . . . . . . . .119
Exhibits
A - Commitment Assignment and Acceptance
B - Committed Advance Note
C - Competitive Advance Note
D - Competitive Bid
E - Competitive Bid Request
F - Compliance Certificate
G-1-Opinion of Counsel
G-2-Opinion of Counsel
H - Request for Letter of Credit
I - Request for Loan
J - Subsidiary Guaranty
Schedules
1.1 Pro Rata Shares
4.3 Governmental Approvals
4.4 Significant Subsidiaries
4.6 Liabilities and Contingent Liabilities
4.7 Existing Liens, Negative Pledges and Rights of Others
4.10 Litigation
4.19 Developed Properties
6.16 Existing Investments
LOAN AGREEMENT
Dated as of January 29, 1996
This LOAN AGREEMENT ("Agreement") is entered into
among Circus Circus Enterprises, Inc., a Nevada corporation
("Borrower"), Bank of America National Trust and Savings
Association and each lender whose name is set forth on the
signature pages of this Agreement and each lender which may
hereafter become a party to this Agreement pursuant to
Section 11.8 (collectively, the "Banks" and individually, a
"Bank"), The Long-Term Credit Bank of Japan, Ltd., Los Angeles
Agency, First Interstate Bank of Nevada, N.A., Societe
Generale, Credit Lyonnais Los Angeles Branch and Credit
Lyonnais Cayman Island Branch and Canadian Imperial Bank of
Commerce, as Co-Agents, and Bank of America National Trust and
Savings Association, as Issuing Bank and Administrative Agent.
In consideration of the mutual covenants and agree-
ments herein contained, the parties hereto covenant and agree
as follows:
Article 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms. As used in this Agreement, the fol-
lowing terms shall have the meanings set forth below:
"Absolute Rate Bid" means a Competitive Bid to
provide Competitive Advances on the basis of a fixed
interest rate.
"Administrative Agent" means Bank of America, when
acting in its capacity as the Administrative Agent under
any of the Loan Documents, or any successor Administrative
Agent.
"Administrative Agent's Office" means the
Administrative Agent's address as set forth on the
signature pages of this Agreement, or such other address
as the Administrative Agent hereafter may designate by
written notice to Borrower and the Banks.
"Advance" means any advance made or to be made by any
Bank to Borrower as provided in Article 2, and includes
each Alternate Base Rate Advance, Eurodollar Rate Advance,
Committed Advance, Swing Line Advance and Competitive
Advance.
"Affiliate" means, as to any Person, any other Person
which directly or indirectly controls, or is under common
control with, or is controlled by, such Person. As used
in this definition, "control" (and the correlative terms,
"controlled by" and "under common control with") shall
mean possession, directly or indirectly, of power to
direct or cause the direction of management or policies
(whether through ownership of securities or partnership or
other ownership interests, by contract or otherwise);
provided that, in any event, any Person that owns,
directly or indirectly, 10% or more of the securities
having ordinary voting power for the election of directors
or other governing body of a corporation that has more
than 100 record holders of such securities, or 10% or more
of the partnership or other ownership interests of any
other Person that has more than 100 record holders of such
interests, will be deemed to control such corporation or
other Person.
"Aggregate Effective Amount" means, as of any date of
determination and with respect to all Letters of Credit
then outstanding, the sum of (a) the aggregate undrawn
face amounts of all such Letters of Credit, plus (b) the
aggregate amounts paid by the Issuing Bank under any
Letters of Credit for which the Issuing Bank has not been
reimbursed and which are not the subject of Advances made
pursuant to Section 2.4(e).
"Agreement" means this Loan Agreement, either as
originally executed or as it may from time to time be
supplemented, modified, amended, restated or extended.
"Alternate Base Rate" means, as of any date of
determination, the rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to the higher of
(a) the Reference Rate in effect on such date (calculated
on the basis of a year of 365 or 366 days and the actual
number of days elapsed) and (b) the Federal Funds Rate in
effect on such date (calculated on the basis of a year of
360 days and the actual number of days elapsed) plus 1/2
of 1% (50 basis points).
"Alternate Base Rate Advance" means a Committed
Advance made hereunder and specified to be an Alternate
Base Rate Advance in accordance with Article 2.
"Alternate Base Rate Loan" means a Committed Loan
made hereunder and specified to be an Alternate Base Rate
Loan in accordance with Article 2.
"Applicable Alternate Base Rate Margin" means, for
each Pricing Period, the interest rate margin set forth
below (expressed in basis points) opposite the Applicable
Pricing Level for that Pricing Period:
Pricing Level Margin
I 0
II 0
III 0
IV 0
V 37.50
VI 100.00
"Applicable Commitment Fee Rate" means, for each
Pricing Period, the rate set forth in Column I below
(expressed in basis points) opposite the Applicable
Pricing Level for that Pricing Period:
Pricing Level Column I Column II
I 15.00 20.00
II 18.75 20.00
III 22.50 25.00
IV 27.50 32.50
V 37.50 40.00
VI 50.00 50.00
provided that for any period (whether the same consists of
a Pricing Period or some other period) during which
Borrower's aggregate principal Funded Debt (other than the
Indebtedness evidenced by the Loan Documents, Subordinated
Debt, Commercial Paper Debt and secured Indebtedness
permitted by Section 6.9(c), 6.9(f) and 6.9(g)) is in
excess of $300,000,000 the Applicable Commitment Fee Rate
shall be the rate set forth in Column II above opposite
the Applicable Pricing Level then in effect.
"Applicable Eurodollar Rate Margin" means, for each
Pricing Period, the interest rate margin set forth below
(expressed in basis points) opposite the Applicable
Pricing Level for that Pricing Period:
Pricing Level Margin
I 37.50
II 62.50
III 75.00
IV 90.00
V 137.50
VI 200.00
"Applicable Letter of Credit Fee" means, for each
Pricing Period, the per annum rate set forth as the
interest rate margin in the definition of "Applicable
Eurodollar Rate Margin" opposite the Applicable Pricing
Level for that Pricing Period.
"Applicable Pricing Level" means, for each Pricing
Period, the pricing level set forth below opposite the
pricing criteria achieved by Borrower as of the first day
of that Pricing Period (and, if the Funded Debt Ratio and
the Applicable Rating are at different pricing levels,
then the pricing level which yields the lowest Applicable
Alternate Base Rate Margin, Applicable Eurodollar Margin,
and Applicable Commitment Fee Rate to Borrower):
Pricing Level Pricing Criteria
Funded Applicable
Debt Ratio Rating
I
Less than 0.75 to
1.00
At least
A or A2
II
Equal to or
greater than 0.75
to 1.00 but less
than 1.25 to 1.00
A- or A3
III
Equal to or
greater than 1.25
to 1.00 but less
than 1.75 to 1.00
BBB or
Baa2
IV
Equal to or
greater than 1.75
to 1.00 but less
than 2.25 to 1.00
BBB- or
Baa3
V
Equal to or
greater than 2.25
to 1.00 but less
than 2.75 to 1.00
BB+ or
Ba1
VI
Equal to or
greater than 2.75
to 1.00
BB or Ba2
or below
"Applicable Rating" means, as of each date of
determination, the most creditworthy rating, actual or
implicit, assigned to (i) senior unsecured Indebtedness of
Borrower by S&P, (ii) senior unsecured Indebtedness of
Borrower by Moody's or (iii) in the event such a rating is
issued, the bank debt rating assigned to the Indebtedness
evidenced by this Agreement by Moody's or S&P, whichever
is higher.
"Arranger" means BA Securities, Inc. The Arranger
shall have no obligations under this Agreement or the
other Loan Documents.
"Atlantic City" means Borrower's proposed development
of a resort casino/hotel on the "H-Tract" in Atlantic
City, New Jersey, whether of the entire parcel or any
portion thereof and whether by itself, through a
Subsidiary, or by means of a New Venture Investment.
"Available Cash Flow" means, for any fiscal period,
the sum of (a) EBITDA for that period, minus (b) federal
and state taxes on or measured by income for that period
payable in cash by Borrower and its Restricted Subsidia-
xxxx during that period, minus (c) Maintenance Capital
Expenditures made during that period and minus (d) to the
extent that the same exceed $300,000,000 during the term
of this Agreement (plus for each year for which the term
of this Agreement is extended pursuant to Section 2.12, an
additional $60,000,000) all Distributions made by Borrower
and its Restricted Subsidiaries during that period to
Persons other than Borrower or its Restricted
Subsidiaries.
"Average Daily Funded Debt" means, as of any date of
determination, the average daily principal amount
outstanding of all Funded Debt of Borrower and its
Restricted Subsidiaries for the 30 consecutive day period
ending on such date.
"Average Daily Total Debt" means, as of any date of
determination, the average daily principal amount
outstanding of all Total Debt of Borrower and its
Restricted Subsidiaries for the 30 consecutive day period
ending on such date.
"Bank of America" means Bank of America National
Trust and Savings Association, its successors and assigns.
"Banking Day" means any Monday, Tuesday, Wednesday,
Thursday or Friday, other than a day on which banks are
authorized or required to be closed in California, Nevada
or New York.
"Base Net Worth" means $782,099,000.
"Borrower" means Circus Circus Enterprises, Inc., a
Nevada corporation, and its permitted successors and
assigns.
"Capital Expenditure" means any expenditure that is
considered a capital expenditure under Generally Accepted
Accounting Principles, including any (a) amount which is
required to be treated as an asset subject to a Capital
Lease Obligation, and (b) (whether or not so considered)
the amount of any Investment resulting from the
acquisition by Borrower or any of its Restricted
Subsidiaries of all or a portion of another Person's
ownership interest in a New Venture Entity pursuant to an
obligation or right of such Person to sell, or an
obligation or right of Borrower or any of its Restricted
Subsidiaries to purchase, such ownership interest.
"Capital Lease Obligations" means all monetary
obligations of a Person under any leasing or similar
arrangement which, in accordance with Generally Accepted
Accounting Principles, is classified as a capital lease.
"Cash" means, when used in connection with any
Person, all monetary and non-monetary items owned by that
Person that are treated as cash in accordance with
Generally Accepted Accounting Principles, consistently
applied.
"Cash Equivalents" means, when used in connection
with any Person, that Person's Investments in:
(a) Government Securities due within one year
after the date of the making of the Investment;
(b) readily marketable direct obligations of
any State of the United States of America given on
the date of such Investment a credit rating of at
least Aa by Xxxxx'x Investors Service, Inc. or AA by
S&P, in each case due within one year from the making
of the Investment;
(c) certificates of deposit issued by, bank
deposits in, Eurodollar deposits through, bankers'
acceptances of, and repurchase agreements covering
Government Securities executed by, any bank
incorporated under the Laws of the United States of
America or any State thereof and having on the date
of such Investment combined capital, surplus and
undivided profits of at least $250,000,000, or total
assets of at least $5,000,000,000, in each case due
within one year after the date of the making of the
Investment;
(d) certificates of deposit issued by, bank
deposits in, Eurodollar deposits through, bankers'
acceptances of, and repurchase agreements covering
Government Securities executed by, any branch or
office located in the United States of America of a
bank incorporated under the Laws of any jurisdiction
outside the United States of America having on the
date of such Investment combined capital, surplus and
undivided profits of at least $500,000,000, or total
assets of at least $15,000,000,000 in each case due
within one year after the date of the making of the
Investment;
(e) repurchase agreements covering Government
Securities executed by a broker or dealer registered
under Section 15(b) of the Securities Exchange Act of
1934 having on the date of the Investment capital of
at least $100,000,000, due within 30 days after the
date of the making of the Investment; provided that
the maker of the Investment receives written confir-
mation of the transfer to it of record ownership of
the Government Securities on the books of a "primary
dealer" in such Government Securities on the books of
such registered broker or dealer, as soon as
practicable after the making of the Investment;
(f) readily marketable commercial paper of cor-
porations doing business in and incorporated under
the Laws of the United States of America or any State
thereof or of any corporation that is the holding
company for a bank described in clauses (c) or (d)
above given on the date of such Investment a credit
rating of at least P-1 by Moody's or A-1 by S&P, in
each case due within 90 days after the date of the
making of the Investment;
(g) "money market preferred stock" issued by a
corporation incorporated under the Laws of the United
States of America or any State thereof given on the
date of such Investment a credit rating of at least
Aa by Moody's and AA by S&P, in each case having an
investment period not exceeding 50 days; provided
that (i) the amount of all such Investments issued by
the same issuer does not exceed $5,000,000 and
(ii) the aggregate amount of all such Investments
does not exceed $15,000,000; and
(h) a readily redeemable "money market mutual
fund" sponsored by a bank described in clauses (c) or
(d) hereof, or a registered broker or dealer
described in clause (e) hereof, that has and
maintains an investment policy limiting its
investments primarily to instruments of the types
described in clauses (a) through (g) hereof and
having on the date of such Investment total assets of
at least $1,000,000,000.
"Certificate of a Responsible Official" means a
certificate signed by a Responsible Official of the Person
providing the certificate.
"Change in Control" means any transaction or series
of related transactions (a) in which any Unrelated Person
or two or more Unrelated Persons acting in concert acquire
beneficial ownership (within the meaning of
Rule 13d-3(a)(1) under the Securities Exchange Act of
1934, as amended), directly or indirectly, of 50% or more
of the Common Stock, (b) in which any such Unrelated
Person or Unrelated Persons acting in concert acquire
beneficial ownership of 20% or more of the Common Stock
subsequent to the Closing Date and (i) at the first
election for the board of directors of Borrower subsequent
to such acquisition, individuals who prior to such
election were directors of Borrower cease for any reason
(other than death, incapacity or disqualification under
any Gaming Law) to constitute 50% or more of the board of
directors of Borrower or (ii) if the terms of all
directors of Borrower do not expire at the date of such
first election, then at the second election for the board
of directors of Borrower subsequent to such acquisition,
individuals who prior to such first election were
directors of Borrower cease for any reason (other than
death, incapacity or disqualification under any Gaming
Law) to constitute 50% or more of the board of directors
of Borrower or (c) constituting a "change in control" or
other similar occurrence under documentation evidencing or
governing any Indebtedness of Borrower of $25,000,000 or
more which results in an obligation of Borrower to prepay,
purchase, offer to purchase, redeem or defease such
Indebtedness.
"Closing Date" means the time and Banking Day on
which the conditions set forth in Section 8.1 are
satisfied or waived. The Administrative Agent shall
notify Borrower and the Banks of the date that is the
Closing Date.
"Co-Agents" means, collectively, The Long-Term Credit
Bank of Japan, Ltd., Los Angeles Agency, First Interstate
Bank of Nevada, N.A., Societe Generale, Credit Lyonnais
Los Angeles Branch and Credit Lyonnais Cayman Island
Branch and Canadian Imperial Bank of Commerce. No Co-Agent shall
have any rights, duties or obligations under
this Agreement or other Loan Documents by reason of its
being a Co-Agent.
"Code" means the Internal Revenue Code of 1986, as
amended or replaced and as in effect from time to time.
"Commercial Paper Debt" means unsecured Indebtedness
of Borrower (with respect to which Restricted Subsidiaries
of Borrower may be co-obligors or guarantors) evidenced by
commercial paper notes bearing fixed interest rates and
having maturities not in excess of 270 days from the date
of their issuance.
"Commitment" means, subject to Sections 2.7, 2.8,
2.9, 2.10, and 11.15, $1,500,000,000. As of the Closing
Date, the respective Pro Rata Shares of the Banks with
respect to the Commitment are set forth in Schedule 1.1.
"Commitment Assignment and Acceptance" means a
commitment assignment and acceptance substantially in the
form of Exhibit A.
"Committed Advance" means an Advance made to Borrower
by any Bank in accordance with its Pro Rata Share pursuant
to Section 2.1.
"Committed Advance Note" means the promissory note
made by Borrower to a Bank evidencing the Committed
Advances under that Bank's Pro Rata Share, substantially
in the form of Exhibit B, either as originally executed or
as the same may from time to time be supplemented,
modified, amended, renewed, extended or supplanted.
"Committed Loans" means Loans that are comprised of
Committed Advances.
"Common Stock" means the common stock of Borrower or
its successor by merger.
"Competitive Advance" means an Advance made to
Borrower by any Bank not determined by that Bank's Pro
Rata Share pursuant to Section 2.5.
"Competitive Advance Note" means (a) the promissory
note made by Borrower in favor of a Bank to evidence the
Competitive Advances made by that Bank substantially in
the form of Exhibit C, and (b) any promissory note made by
Borrower in favor of a Bank to evidence a Foreign Currency
Advance made by that Bank pursuant to Section 2.5 and
delivered by Borrower to that Bank pursuant to
Section 2.5(o), in each case, either as originally
executed or as the same may from time to time be
supplemented, modified, amended, renewed or extended.
"Competitive Bid" means (a) a written bid to provide
a Competitive Advance substantially in the form of
Exhibit D, signed by a Responsible Official of a Bank and
properly completed to provide all information required to
be included therein or (b), at the election of any Bank, a
telephonic bid by that Bank to provide a Competitive
Advance which, if so made, shall be made by a Responsible
Official of that Bank and deemed to have been made
incorporating the substance of Exhibit D, and shall
promptly be confirmed by a written Competitive Bid.
"Competitive Bid Request" means (a) a written request
submitted by Borrower to the Administrative Agent to
provide a Competitive Bid, substantially in the form of
Exhibit E, signed by a Responsible Official of Borrower
and properly completed to provide all information required
to be included therein or (b), at the election of
Borrower, a telephonic request by Borrower to the
Administrative Agent to provide a Competitive Bid which,
if so made, shall be made by a Responsible Official of
Borrower and deemed to have been made incorporating the
substance of Exhibit E, and shall promptly be confirmed by
a written Competitive Bid Request.
"Completion Guaranty" means a Contingent Guaranty
given by Borrower or a Restricted Subsidiary to a holder
of Indebtedness of, or an obligee of, a New Venture Entity
which obligates Borrower or the Restricted Subsidiary to
cause the completion of construction of a New Venture
and/or to provide funding for all or a portion of any
construction cost overruns with respect thereto.
"Compliance Certificate" means a certificate in the
form of Exhibit F, properly completed and signed on behalf
of Borrower by a Senior Officer of Borrower.
"Contingent Guaranty" means, as to any Person, any
(a) guarantee by that Person of Indebtedness of, or other
obligation performable by, any other Person or (b) assur-
ance given by that Person to an obligee of any other
Person with respect to the performance of an obligation
by, or the financial condition of, such other Person,
whether direct, indirect or contingent, including any
purchase or repurchase agreement covering such obligation
or any collateral security therefor, any agreement to
provide funds (by means of loans, capital contributions or
otherwise) to such other Person, any agreement to support
the solvency or level of any balance sheet item of such
other Person or any "keep-well", "make-well" or other
arrangement of whatever nature given for the purpose of
assuring or holding harmless such obligee against loss
with respect to any obligation of such other Person;
provided, however, that the term Contingent Guaranty shall
not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount
of any Contingent Guaranty shall be deemed to be an amount
equal to the stated or determinable amount of the related
primary obligation (unless the Contingent Guaranty is
limited by its terms to a lesser amount, in which case to
the extent of such amount) or, if not stated or determin-
able, the maximum reasonably anticipated liability in
respect thereof as determined by the Person in good faith,
provided that (y) the amount of any Contingent Guaranty
consisting of a Completion Guaranty shall be deemed to be
zero unless and until Borrower's independent auditors have
quantified the amount of the exposure thereunder (and
thereafter shall be deemed to be the amount so quantified
from time to time), and (z) the amount of any Contingent
Guaranty consisting of a "keep-well", "make well" or other
similar arrangement shall be deemed to be zero unless and
until Borrower is required to make any payment with
respect thereto (and shall thereafter be deemed to be the
amount required to be paid).
"Contractual Obligation" means, as to any Person, any
provision of any outstanding security issued by that
Person or of any material agreement, instrument or under-
taking to which that Person is a party or by which it or
any of its Property is bound.
"Creditors" means, collectively, the Administrative
Agent, the Issuing Bank, the Swing Line Bank, each Bank
and, where the context requires, any one or more of them.
"Debtor Relief Laws" means the Bankruptcy Code of the
United States of America, as amended from time to time,
and all other applicable liquidation, conservatorship,
bankruptcy, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief Laws
from time to time in effect affecting the rights of
creditors generally.
"Default" means any event that, with the giving of
any applicable notice or passage of time specified in
Section 9.1, or both, would be an Event of Default.
"Default Rate" means the interest rate prescribed in
Section 3.9.
"Designated Deposit Account" means a deposit account
to be maintained by Borrower with Bank of America, as from
time to time designated by Borrower by written
notification to the Administrative Agent.
"Designated Eurodollar Market" means, with respect to
any Eurodollar Rate Loan, (a) the London Eurodollar
Market, or (b) if prime banks in the London Eurodollar
Market are at the relevant time not accepting deposits of
Dollars or if the Administrative Agent determines that the
London Eurodollar Market does not represent at the
relevant time the effective pricing to the Banks for
deposits of Dollars in the London Eurodollar Market, the
Cayman Islands Eurodollar Market or (c) if prime banks in
the Cayman Islands Eurodollar Market are at the relevant
time not accepting deposits of Dollars or if the
Administrative Agent determines that the Cayman Islands
Eurodollar Market does not represent at the relevant time
the effective pricing to the Banks for deposits of Dollars
in the Cayman Islands Eurodollar Market, such other Euro-
dollar Market as may from time to time be selected by the
Administrative Agent with the approval of Borrower and the
Requisite Banks.
"Developed Property" means, as of any date of
determination, a casino, hotel, casino/hotel, resort,
casino/resort, riverboat/dockside casino, entertainment
center or similar facility owned by Borrower or any of its
Restricted Subsidiaries (or owned by a Person in which
Borrower or any of its Restricted Subsidiaries holds an
Investment) and which is at such date substantially
complete and open for business.
"Disposition" means the sale, transfer or other dis-
position of any asset of Borrower or any of its Restricted
Subsidiaries other than (i) inventory or other assets sold
or otherwise disposed of in the ordinary course of busi-
ness of Borrower or a Restricted Subsidiary,
(ii) equipment or other assets sold or otherwise disposed
of where substantially similar equipment or other similar
assets in replacement thereof have theretofore been
acquired, or thereafter within 90 days is acquired, by
Borrower or a Restricted Subsidiary, and (iii) a
disposition to Borrower or a Restricted Subsidiary.
"Disqualified Stock" means any capital stock,
warrants, options or other rights to acquire capital stock
(but excluding any debt security which is convertible, or
exchangeable, for capital stock), which, by its terms (or
by the terms of any security into which it is convertible
or for which it is exchangeable), or upon the happening of
any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or is redeem-
able at the option of the holder thereof, in whole or in
part, on or prior to the Maturity Date; provided that the
aforementioned interests shall not be Disqualified Stock
if they are redeemable prior to the Maturity Date only if
the board of directors of Borrower determines in its
judgment that as a result of a holder or beneficial owner
owning such interests (i) Borrower or a Subsidiary of
Borrower has lost or may lose any license or franchise
from any Gaming Board held by Borrower or any Subsidiary
of Borrower necessary to conduct any portion of the
business of Borrower or such Subsidiary of Borrower or
(ii) any Gaming Board has taken or may take action to
materially restrict or impair the operations of Borrower
or its Subsidiaries, which license, franchise or action is
conditioned upon some or all of the holders or beneficial
owners of such interests being licensed or found qualified
or suitable to own such interests.
"Distribution" means, with respect to any shares of
capital stock or any warrant or option to purchase an
equity security or other equity security issued by a
Person, (i) the retirement, redemption, purchase, or other
acquisition for Cash or for Property by such Person of any
such security, (ii) the declaration or (without duplica-
tion) payment by such Person of any dividend in Cash or in
Property on or with respect to any such security,
(iii) any Investment by such Person in the holder of 5% or
more of any such security if a purpose of such Investment
is to avoid characterization of the transaction as a
Distribution and (iv) any other payment in cash or
Property by such Person constituting a distribution under
applicable Laws with respect to such security.
"Dollars" or "$" means United States dollars.
"EBITDA" means, for any fiscal period, the sum of
(a) Net Income for that period, plus (b) any extraordinary
loss reflected in such Net Income, minus (c) any extra-
ordinary gain reflected in such Net Income, plus
(d) depreciation, amortization and all other non-cash
expenses for that period, plus (e) Interest Expense for
that period, plus (f) the aggregate amount of federal and
state taxes on or measured by income for that period
(whether or not payable during that period), minus (g) Net
Income recognized by any Subsidiary which is not a
Restricted Subsidiary but not received by Borrower or its
Restricted Subsidiaries in Cash, in each case as
determined in accordance with Generally Accepted
Accounting Principles and, in the case of items (d), (e)
and (f), only to the extent deducted in the determination
of Net Income for that period, provided that EBITDA shall
in any event (y) include interest and other amounts
received by Borrower and its Restricted Subsidiaries in
Cash with respect to Investments, and (z) exclude pre-opening
expenses reasonably determined by Borrower in a
manner consistent with the past accounting practices of
Borrower.
"Eligible Assignee" means (a) another Bank, (b) with
respect to any Bank, any Affiliate of that Bank and
(c) any commercial bank having a combined capital and
surplus of $100,000,000 or more that is (i) organized
under the Laws of the United States of America or any
State thereof or (ii) organized under the Laws of any
other country which is a member of the Organization for
Economic Cooperation and Development, or a political
subdivision of such a country, provided that (A) such bank
is acting through a branch or agency located in the United
States of America and (B) is otherwise exempt from with-
holding of tax on interest and delivers Form 1001 or
Form 4224 pursuant to Section 11.22 at the time of any
assignment pursuant to Section 11.8.
"ERISA" means the Employee Retirement Income Security
Act of 1974, and any regulations issued pursuant thereto,
as amended or replaced and as in effect from time to time.
"Eurodollar Banking Day" means any Banking Day on
which dealings in Dollar deposits are conducted by and
among banks in the Designated Eurodollar Market.
"Eurodollar Base Rate" means, with respect to any
Eurodollar Rate Loan, the average of the interest rates
per annum (rounded upward, if necessary, to the next 1/16
of 1%) at which deposits in Dollars are offered by the
Eurodollar Reference Banks to prime banks in the Desig-
nated Eurodollar Market at or about 11:00 a.m. local time
in the Designated Eurodollar Market, two (2) Eurodollar
Banking Days before the first day of the applicable
Eurodollar Period in an aggregate amount approximately
equal to the amount of the Advances made by the Eurodollar
Reference Banks with respect to such Eurodollar Rate Loan
and for a period of time comparable to the number of days
in the applicable Eurodollar Period. The determination of
the Eurodollar Base Rate by the Administrative Agent shall
be conclusive in the absence of manifest error.
"Eurodollar Lending Office" means, as to each Bank,
its office or branch so designated by written notice to
Borrower and the Administrative Agent as its Eurodollar
Lending Office. If no Eurodollar Lending Office is
designated by a Bank, its Eurodollar Lending Office shall
be its office at its address for purposes of notices
hereunder.
"Eurodollar Margin Bid" means a Competitive Bid to
provide a Competitive Advance on the basis of a margin
over the Eurodollar Base Rate.
"Eurodollar Market" means a regular established
market located outside the United States of America by and
among banks for the solicitation, offer and acceptance of
Dollar deposits in such banks.
"Eurodollar Obligations" means eurocurrency liabil-
ities, as defined in Regulation D.
"Eurodollar Period" means, as to each Eurodollar Rate
Loan, the period commencing on the date specified by
Borrower pursuant to Section 2.1(b) and ending 1, 2, 3
or 6 months (or, with the written consent of all of the
Banks, any other period) thereafter, as specified by
Borrower in the applicable Request for Loan; provided
that:
(a) The first day of any Eurodollar Period
shall be a Eurodollar Banking Day;
(b) Any Eurodollar Period that would otherwise
end on a day that is not a Eurodollar Banking Day
shall be extended to the next succeeding Eurodollar
Banking Day unless such Eurodollar Banking Day falls
in another calendar month, in which case such
Eurodollar Period shall end on the next preceding
Eurodollar Banking Day;
(c) No Eurodollar Period shall extend beyond
the Reduction Date if, giving effect thereto, the
aggregate principal amount of the outstanding
Eurodollar Loans having Eurodollar Periods ending
after the Reduction Date plus the aggregate principal
amount of the outstanding Competitive Advances having
maturities after the Reduction Date, plus the
Aggregate Effective Amount of all Letters of Credit
expiring after the Reduction Date would exceed the
Commitment (as reduced on the Reduction Date); and
(d) No Eurodollar Period shall extend beyond
the Maturity Date.
"Eurodollar Rate" means, with respect to any
Eurodollar Rate Loan and any Competitive Advance based on
a margin over the Eurodollar Rate, an interest rate per
annum (rounded upward, if necessary, to the nearest 1/16
of one percent) determined pursuant to the following
formula:
Eurodollar Eurodollar Base Rate
Rate = 1.00 - Eurodollar Reserve
Percentage
"Eurodollar Rate Advance" means a Committed Advance
made hereunder and specified to be a Eurodollar Rate
Advance in accordance with Article 2.
"Eurodollar Rate Loan" means a Committed Loan made
hereunder and specified to be a Eurodollar Rate Loan in
accordance with Article 2.
"Eurodollar Reference Banks" means, collectively,
Bank of America and Canadian Imperial Bank of Commerce.
"Eurodollar Reserve Percentage" means, with respect
to any Eurodollar Rate Loan, the maximum reserve percent-
age (expressed as a decimal, rounded upward to the nearest
1/100th of 1%) in effect on the date the Eurodollar Base
Rate for that Eurodollar Rate Loan is determined (whether
or not applicable to any Bank) under regulations issued
from time to time by the Federal Reserve Board for deter-
mining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve require-
ment) with respect to eurocurrency funding (currently
referred to as "eurocurrency liabilities") having a term
comparable to the Eurodollar Period for such Eurodollar
Rate Loan. The determination by the Administrative Agent
of any applicable Eurodollar Reserve Percentage shall be
conclusive in the absence of manifest error.
"Event of Default" shall have the meaning provided in
Section 9.1.
"Existing Subordinated Debt" means, collectively,
Borrower's (a) 10 5/8% Senior Subordinated Notes due 1997,
(b) 6 3/4% Senior Subordinated Notes due 2003 and
(c) 7 5/8% Senior Subordinated Debentures due 2013.
"Existing Syndicated Credit Facilities" means,
collectively, (a) that certain Revolving Loan Agreement
dated as of September 30, 1993, as amended, among
Borrower, Bank of America, as Managing Agent, and the
banks therein named, (b) that certain Reducing Revolving
Loan Agreement dated as of September 30, 1993, as amended,
among Borrower, Bank of America, as Managing Agent, and
the banks therein named, and (c) that certain Amended and
Restated Reducing Revolving Credit Agreement, as amended,
among Goldstrike Finance Company, Inc., the banks therein
named, and First Interstate Bank of Nevada, N.A., as Agent
Bank.
"Federal Funds Rate" means, as of any date of deter-
mination, the rate set forth in the weekly statistical
release designated as H.15(519), or any successor publica-
tion, published by the Federal Reserve Board (including
any such successor, "H.15(519)") for such date opposite
the caption "Federal Funds (Effective)". If for any rele-
vant date such rate is not yet published in H.15(519), the
rate for such date will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m.
Quotations for U.S. Government Securities, or any succes-
sor publication, published by the Federal Reserve Bank of
New York (including any such successor, the "Composite
3:30 p.m. Quotation") for such date under the caption
"Federal Funds Effective Rate". If on any relevant date
the appropriate rate for such date is not yet published in
either H.15(519) or the Composite 3:30 p.m. Quotations,
the rate for such date will be the arithmetic mean of the
rates for the last transaction in overnight Federal funds
arranged prior to 9:00 a.m. (New York City time) on that
date by each of three leading brokers of Federal funds
transactions in New York City selected by the
Administrative Agent. For purposes of this Agreement, any
change in the Alternate Base Rate due to a change in the
Federal Funds Rate shall be effective as of the opening of
business on the effective date of such change.
"Fiscal Quarter" means the fiscal quarter of Borrower
consisting of a three month fiscal period ending on each
April 30, July 31, October 31 and January 31.
"Fiscal Year" means the fiscal year of Borrower
consisting of a twelve month fiscal period ending on each
January 31.
"Foreign Currency Advance" means a Competitive
Advance made in a currency other than Dollars.
"Foreign Currency Base Rate" means, with respect to
any Foreign Currency Advance, the average of the interest
rates per annum (rounded upward, if necessary, to the next
1/16 of 1%) at which deposits in the applicable foreign
currency are offered by the Eurodollar Reference Banks to
prime banks in the Designated Eurodollar Market at or
about 11:00 a.m. local time in the Designated Eurodollar
Market, two (2) Eurodollar Banking Days before the date of
the Foreign Currency Advance in an aggregate amount
approximately equal to the amount of the Foreign Currency
Advance and for a period of time comparable to the number
of days to the maturity of the Foreign Currency Advance.
The determination of the Foreign Currency Base Rate by the
Administrative Agent shall be conclusive in the absence of
manifest error.
"Foreign Currency Equivalent" means, as of any date
of determination, the equivalent amount in Dollars of a
Foreign Currency Advance using the currency exchange rate
quoted as the spot rate for the purchase by Bank of
America of such currency through its FX Trading Office at
approximately 8:00 a.m., California local time, on the
date which is two Business Days prior to the date on which
the foreign exchange computation is to be made.
"Foreign Currency Margin Bid" means a Competitive Bid
to provide a Foreign Currency Advance on the basis of a
margin over the Foreign Currency Base Rate.
"Funded Debt" means, as of any date of determination,
the sum (without duplication) of (a) all principal
Indebtedness of Borrower and its Restricted Subsidiaries
for borrowed money (including debt securities issued by
Borrower or any of its Restricted Subsidiaries) on that
date, plus (b) the aggregate amount of all Capital Lease
Obligations of Borrower and its Restricted Subsidiaries on
that date, plus (c) obligations in respect of letters of
credit or other similar instruments which support
Indebtedness of the type described in clause (a) and
Capital Lease Obligations, to the extent of the amount
drawable under such letters of credit or similar
instruments.
"Funded Debt Ratio" means, as of any date of
determination, the ratio of (a) Average Daily Funded Debt
as of the last day of the then most recently ended Fiscal
Quarter to (b) EBITDA for the four most recent Fiscal
Quarters.
"Gaming Board" means any Governmental Agency that
holds regulatory, licensing or permit authority over
gambling, gaming or casino activities conducted by
Borrower and its Subsidiaries within its jurisdiction.
"Gaming Laws" means all Laws pursuant to which any
Gaming Board possesses regulatory, licensing or permit
authority over gambling, gaming or casino activities
conducted by Borrower and its Subsidiaries within its
jurisdiction.
"Generally Accepted Accounting Principles" means, as
of any date of determination, accounting principles
(a) set forth as generally accepted in then currently
effective Opinions of the Accounting Principles Board of
the American Institute of Certified Public Accountants,
(b) set forth as generally accepted in then currently
effective Statements of the Financial Accounting Standards
Board or (c) that are then approved by such other entity
as may be approved by a significant segment of the
accounting profession in the United States of America.
The term "consistently applied," as used in connection
therewith, means that the accounting principles applied
are consistent in all material respects to those applied
at prior dates or for prior periods.
"Government Securities" means readily marketable
(a) direct full faith and credit obligations of the
United States of America or obligations guaranteed by the
full faith and credit of the United States of America and
(b) obligations of an agency or instrumentality of, or
corporation owned, controlled or sponsored by, the United
States of America that are generally considered in the
securities industry to be implicit obligations of the
United States of America.
"Governmental Agency" means (a) any international,
foreign, federal, state, county or municipal government,
or political subdivision thereof, (b) any governmental or
quasi-governmental agency, authority, board, bureau,
commission, department, instrumentality or public body, or
(c) any court or administrative tribunal.
"Hazardous Materials" means substances defined as
hazardous substances pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. 9601 et seq., or as hazardous, toxic or
pollutant pursuant to the Hazardous Materials Transporta-
tion Act, 49 U.S.C. 1801, et seq., the Resource
Conservation and Recovery Act, 42 U.S.C. 6901, et seq.,
the Hazardous Waste Control Law, California Health &
Safety Code 25100, et seq., or in any other applicable
Hazardous Materials Law, in each case as such Laws are
amended from time to time.
"Hazardous Materials Laws" means all federal, state
or local laws, ordinances, rules or regulations governing
the disposal of Hazardous Materials applicable to any of
the Real Property.
"Indebtedness" means, as to any Person (without
duplication), (a) indebtedness of such Person for borrowed
money or for the deferred purchase price of Property or
services (excluding trade and other accounts payable and
deferred payments under employment agreements in the
ordinary course of business in accordance with customary
trade terms), including any Contingent Guaranty for any
such indebtedness, (b) indebtedness of such Person of the
nature described in clause (a) that is non-recourse to the
credit of such Person but is secured by assets of such
Person, to the extent of the lesser of the amount of such
indebtedness or the value of such assets, (c) Capital
Lease Obligations of such Person, (d) indebtedness of such
Person arising under acceptance facilities or under
facilities for the discount of accounts receivable of such
Person, (e) any direct or contingent obligations of such
Person under letters of credit issued for the account of
such Person, and (f) any obligations of such Person under
a Swap Agreement.
"Intangible Assets" means assets that are considered
intangible assets under Generally Accepted Accounting
Principles, including customer lists, goodwill, computer
software, copyrights, trade names, trademarks and patents.
"Interest Charges" means, as of the last day of any
fiscal period, the sum of (a) Interest Expense of Borrower
and its Subsidiaries for that fiscal period, plus (b) all
interest incurred during that fiscal period which is
capitalized under Generally Accepted Accounting
Principles, provided that interest recorded (but not paid
or payable) by Borrower or its Subsidiaries on their
financial statements with respect to their share of any
interest paid or payable by any New Venture Entity or
other Person which is the owner or operator of a Developed
Property which is a joint venture with another Person
which is not properly consolidated with Borrower under
Generally Accepted Accounting Principles shall be excluded
from Interest Charges.
"Interest Charge Coverage" means, as of the last day
of each Fiscal Quarter (including the last day of a Fiscal
Quarter which is also the last day of a Fiscal Year), the
ratio of (a) Available Cash Flow for the fiscal period
consisting of that Fiscal Quarter and the three
immediately preceding Fiscal Quarters to (b) Interest
Charges of Borrower and its Restricted Subsidiaries during
the same fiscal period.
"Interest Differential" means, with respect to any
prepayment of a Eurodollar Rate Loan on a day prior to the
last day of the applicable Eurodollar Period and with
respect to any failure to borrow a Eurodollar Rate Loan on
the date or in the amount specified in any Request for
Loan, (a) the per annum interest rate payable pursuant to
Section 3.1(c) with respect to the Eurodollar Rate Loan
minus (b) the Eurodollar Rate on, or as near as
practicable to the date of the prepayment or failure to
borrow for, a Eurodollar Rate Loan commencing on such date
and ending on the last day of the Eurodollar Period of the
Eurodollar Rate Loan so prepaid or which would have been
borrowed on such date.
"Interest Expense" means, as of the last day of any
fiscal period, the sum of (a) all interest, fees, charges
and related expenses paid or payable (without duplication)
for that fiscal period to a lender in connection with
borrowed money or the deferred purchase price of assets
that are considered "interest expense" under Generally
Accepted Accounting Principles, plus (b) the portion of
rent paid or payable (without duplication) for that fiscal
period under Capital Lease Obligations that should be
treated as interest in accordance with Financial
Accounting Standards Board Statement No. 13.
"Investment" means, when used in connection with any
Person, any investment by or of that Person, whether by
means of purchase or other acquisition of stock or other
securities of any other Person or by means of a loan,
advance creating a debt, capital contribution, guaranty or
other debt or equity participation or interest in any
other Person, including any partnership and joint venture
interests of such Person. The amount of any Investment
shall be the amount actually invested, without adjustment
for subsequent increases or decreases in the value of such
Investment.
"Issuing Bank" means, subject to Section 10.8, Bank
of America, when acting in its capacity as Issuing Bank
under any of the Loan Documents, or any successor Issuing
Bank.
"Laws" means, collectively, all international,
foreign, federal, state and local statutes, treaties,
rules, regulations, ordinances, codes and administrative
or judicial precedents.
"Letter of Credit" means any letter of credit issued
by the Issuing Bank pursuant to Section 2.4, either as
originally issued or as the same may from time to time be
supplemented, modified, amended, renewed or extended in
accordance with the terms hereof.
"License Revocation" means the revocation, failure to
renew or suspension of, or the appointment of a receiver,
supervisor or similar official with respect to, any
casino, gambling or gaming license issued by any Gaming
Board covering any casino or gaming facility of Borrower
and its Restricted Subsidiaries.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment for security, security interest,
encumbrance, lien or charge of any kind, whether volun-
tarily incurred or arising by operation of Law or other-
wise, affecting any Property, including any agreement to
grant any of the foregoing, any conditional sale or other
title retention agreement, any lease in the nature of a
security interest, and/or the filing of or agreement to
give any financing statement (other than a precautionary
financing statement with respect to a lease that is not in
the nature of a security interest) under the Uniform
Commercial Code or comparable Law of any jurisdiction with
respect to any Property.
"Loan" means the aggregate of the Advances made at
any one time by the Banks pursuant to Article 2.
"Loan Documents" means, collectively, this Agreement,
the Notes, the Subsidiary Guaranty, the Swing Line
Documents, any Request for Loan, any Competitive Bid
Request, any Compliance Certificate and any other
instruments, documents or agreements of any type or nature
hereafter executed and delivered by Borrower or any of its
Subsidiaries or Affiliates to the Administrative Agent or
any other Creditor in any way relating to or in
furtherance of this Agreement, in each case either as
originally executed or as the same may from time to time
be supplemented, modified, amended, restated, extended or
supplanted.
"Maintenance Capital Expenditure" means a Capital
Expenditure for the maintenance, repair, restoration or
refurbishment of any Developed Property of Borrower or any
of its Restricted Subsidiaries, but excluding any Capital
Expenditure which adds to or further improves such
Developed Property.
"Majority Banks" means (a) as of any date of
determination if the Commitment is then in effect, Banks
having a majority of the Commitment then in effect and (b)
as of any date of determination if the Commitment has then
been terminated, Banks holding a majority of the
Outstanding Obligations.
"Margin Stock" means "margin stock" as such term is
defined in Regulation G or U.
"Masterplan" means Borrower's proposed development of
one or more resort casinos or resort hotels on real
property owned by Borrower and its Subsidiaries located in
Las Vegas, Nevada, and located adjacent to and southerly
of the Luxor Hotel and Casino, whether by itself, through
a Subsidiary or by means of a New Venture Investment in
concert with any other Person.
"Material Adverse Effect" means any set of circum-
stances or events which (a) has or could reasonably be
expected to have any material adverse effect whatsoever
upon the validity or enforceability of any Loan Document,
(b) is or could reasonably be expected to be material and
adverse to the condition (financial or otherwise), assets
or business operations of Borrower and its Restricted
Subsidiaries, taken as a whole, or (c) materially impairs
or could reasonably be expected to materially impair the
ability of Borrower and its Restricted Subsidiaries, taken
as a whole, to perform the Obligations.
"Maturity Date" means December 31, 2000, or such
later anniversary thereof as may be established pursuant
to Section 2.12.
"Maximum Competitive Advance" means, with respect to
any Competitive Bid made by a Bank, the amount set forth
therein as the maximum Competitive Advance which that Bank
is willing to make in response to the related Competitive
Bid Request.
"Monthly Payment Date" means the last day of each
calendar month.
"Moody's" means Xxxxx'x Investor Service, Inc., its
successors and assigns.
"Multiemployer Plan" means any employee benefit plan
of the type described in Section 4001(a)(3) of ERISA.
"Negative Pledge" means a Contractual Obligation that
contains a covenant binding on Borrower or any of its
Restricted Subsidiaries that prohibits Liens on any of its
or their Property, other than (a) any such covenant
contained in a Contractual Obligation granting a Lien
permitted under Section 6.9 which affects only the
Property that is the subject of such permitted Lien and
(b) any such covenant that does not apply to Liens
securing the Obligations.
"Net Cash Proceeds" means Net Proceeds to the extent
consisting of Cash or Cash Equivalents.
"Net Income" means, with respect to any fiscal
period, the consolidated net income of Borrower and its
Subsidiaries for that period, determined in accordance
with Generally Accepted Accounting Principles, consist-
ently applied.
"Net Proceeds" means, with respect to any
Disposition, the gross sales proceeds received by Borrower
and its Restricted Subsidiaries from such Disposition
(including Cash, Property and the assumption by the
purchaser of any liability of Borrower or its Restricted
Subsidiaries) net of brokerage commissions, legal expenses
and other transactional costs (excluding any tax on or
measured by income with respect to such Disposition)
payable by Borrower and its Restricted Subsidiaries with
respect to such Disposition.
"New Venture" means a casino, hotel, casino/hotel,
resort, casino/resort, riverboat/dockside casino,
entertainment center or similar facility (or any site or
proposed site for any of the foregoing) owned or to be
owned by Borrower or any of its Restricted Subsidiaries
(or owned or to be owned by a Person in which Borrower,
any of its Restricted Subsidiaries or a New Venture Entity
owned directly or indirectly by Borrower or any of its
Restricted Subsidiaries holds an Investment) and which is
not at the Closing Date a Developed Property. Atlantic
City and Masterplan are each New Ventures.
"New Venture Capital Expenditure" means any Capital
Expenditure of Borrower or any of its Restricted Subsidia-
xxxx (a) with respect to a New Venture or (b) which adds
to or further improves any Developed Property (including a
New Venture that becomes a Developed Property subsequent
to the Closing Date).
"New Venture Entity" means the Person or Persons that
directly own a New Venture, if such Person or Persons are
neither Borrower nor a Restricted Subsidiary.
"New Venture Investment" means any Investment by
Borrower or any of its Restricted Subsidiaries in a New
Venture Entity (and the derivative Investments owned by
that New Venture Entity); provided that the acquisition by
Borrower or any of its Restricted Subsidiaries of all or
any portion of another Person's ownership interest in a
New Venture Entity pursuant to an obligation or right of
such Person to sell, or an obligation or right of Borrower
or any of its Restricted Subsidiaries to purchase, such
ownership interest, which obligation or right was created
substantially concurrently with the acquisition of such
ownership interest in the New Venture Entity, shall not be
considered to be a New Venture Investment.
"New Venture Investor" means, with respect to any
New Venture Investment, whichever of Borrower or its
Restricted Subsidiaries is the direct holder of such New
Venture Investment.
"Notes" means, collectively, the Committed Advance
Notes and the Competitive Advance Notes.
"Obligations" means all present and future obliga-
tions of every kind or nature of Borrower or any Party at
any time and from time to time owed to the Creditors or
any one or more of them, under any one or more of the Loan
Documents, whether due or to become due, matured or
unmatured, liquidated or unliquidated, or contingent or
noncontingent, including obligations of performance as
well as obligations of payment, and including interest
that accrues after the commencement of any proceeding
under any Debtor Relief Law by or against Borrower or any
Subsidiary or Affiliate of Borrower.
"Opinions of Counsel" means the favorable written
legal opinions of (a) Wolf, Block, Shorr and Xxxxx-Xxxxx,
and (b) Jones, Jones, Close & Xxxxx, counsel to Borrower
and its Restricted Subsidiaries, substantially in the form
of Exhibits G-1 and G-2, respectively, together with
copies of all factual certificates and legal opinions upon
which such counsel has relied.
"Outstanding Obligations" means, as of each date of
determination, and giving effect to the making of any such
credit accommodations requested on that date, the sum of
(i) the aggregate principal amount of the outstanding
Committed Loans, plus (ii) the aggregate principal amount
of the outstanding Competitive Advances, plus (iii) the
Swing Line Outstandings, plus (iv) the Aggregate Effective
Amount of all Letters of Credit.
"Party" means any Person other than Creditors which
now or hereafter is a party to any of the Loan Documents.
"PBGC" means the Pension Benefit Guaranty Corporation
or any successor thereof established under ERISA.
"Pension Plan" means any "employee pension benefit
plan" (as such term is defined in Section 3(2) of ERISA),
other than a Multiemployer Plan, which is subject to
Title IV of ERISA and is maintained by Borrower or any of
its Subsidiaries or to which Borrower or any of its
Subsidiaries contributes or has an obligation to
contribute.
"Permitted Encumbrances" means:
(a) Inchoate Liens incident to construction or
maintenance of Real Property; or Liens incident to
construction or maintenance of Real Property now or
hereafter filed of record for which adequate reserves
have been set aside (or deposits made pursuant to
applicable Law) and which are being contested in good
faith by appropriate proceedings and have not
proceeded to judgment, provided that, by reason of
nonpayment of the obligations secured by such Liens,
no such Real Property is subject to a material risk
of loss or forfeiture;
(b) Liens for taxes and assessments on and
similar charges with respect to Real Property which
are not yet past due; or Liens for taxes and
assessments on Real Property for which adequate
reserves have been set aside and are being contested
in good faith by appropriate proceedings and have not
proceeded to judgment, provided that, by reason of
nonpayment of the obligations secured by such Liens,
no material Real Property is subject to a material
risk of loss or forfeiture;
(c) defects and irregularities in title to
any Real Property which in the aggregate do not
materially impair the fair market value or use of the
Real Property for the purposes for which it is or may
reasonably be expected to be held;
(d) easements, exceptions, reservations, or
other agreements for the purpose of pipelines,
conduits, cables, wire communication lines, power
lines and substations, streets, trails, walkways,
driveways, drainage, irrigation, water, and sewerage
purposes, dikes, canals, ditches, the removal of oil,
gas, coal, or other minerals, and other like purposes
affecting Real Property, facilities, or equipment
which in the aggregate do not materially burden or
impair the fair market value or use of such Real
Property for the purposes for which it is or may
reasonably be expected to be held;
(e) easements, exceptions, reservations, or
other agreements for the purpose of facilitating the
joint or common use of property which in the
aggregate do not materially burden or impair the fair
market value or use of such property for the purposes
for which it is or may reasonably be expected to be
held;
(f) rights reserved to or vested in any Govern-
mental Agency to control or regulate, or obligations
or duties to any Governmental Agency with respect to,
the use of any Real Property;
(g) rights reserved to or vested in any Govern-
mental Agency to control or regulate, or obligations
or duties to any Governmental Agency with respect to,
any right, power, franchise, grant, license, or
permit;
(h) present or future zoning laws, building
codes and ordinances, zoning restrictions, or other
laws and ordinances restricting the occupancy, use,
or enjoyment of Real Property;
(i) statutory Liens, other than those described
in clauses (a) or (b) above, arising in the ordinary
course of business with respect to obligations which
are not delinquent or are being contested in good
faith, provided that, if delinquent, adequate
reserves have been set aside with respect thereto
and, by reason of nonpayment, no property is subject
to a material risk of loss or forfeiture;
(j) covenants, conditions, and restrictions
affecting the use of Real Property which in the
aggregate do not materially impair the fair market
value or use of the Real Property for the purposes
for which it is or may reasonably be expected to be
held;
(k) rights of tenants under leases and rental
agreements covering Real Property entered into in the
ordinary course of business of the Person owning such
Real Property;
(l) Liens consisting of pledges or deposits to
secure obligations under workers' compensation laws
or similar legislation, including Liens of judgments
thereunder which are not currently dischargeable;
(m) Liens consisting of pledges or deposits of
property to secure performance in connection with
operating leases made in the ordinary course of
business to which Borrower or a Subsidiary is a party
as lessee, provided the aggregate value of all such
pledges and deposits in connection with any such
lease does not at any time exceed 20% of the annual
fixed rentals payable under such lease;
(n) Liens consisting of deposits of property to
secure bids made with respect to, or performance of,
contracts (other than contracts creating or evidenc-
ing an extension of credit to the depositor) in the
ordinary course of business;
(o) Liens consisting of any right of offset, or
statutory bankers' lien, on bank deposit accounts
maintained in the ordinary course of business so long
as such bank deposit accounts are not established or
maintained for the purpose of providing such right of
offset or bankers' lien;
(p) Liens consisting of deposits of property to
secure statutory obligations of Borrower or a Subsid-
iary of Borrower in the ordinary course of its
business;
(q) Liens consisting of deposits of property to
secure (or in lieu of) surety, appeal or customs
bonds in proceedings to which Borrower or a
Subsidiary of Borrower is a party in the ordinary
course of its business;
(r) Liens created by or resulting from any
litigation or legal proceeding involving Borrower or
a Subsidiary of Borrower in the ordinary course of
its business which is currently being contested in
good faith by appropriate proceedings, provided that
adequate reserves have been set aside and no material
property is subject to a material risk of loss or
forfeiture; and
(s) other non-consensual Liens incurred in the
ordinary course of business but not in connection
with an extension of credit, which do not in the
aggregate, when taken together with all other Liens,
materially impair the value or use of the Property of
Borrower and its Subsidiaries, taken as a whole.
"Permitted Right of Others" means a Right of Others
consisting of (i) an interest (other than a legal or
equitable co-ownership interest, an option or right to
acquire a legal or equitable co-ownership interest and any
interest of a ground lessor under a ground lease), that
does not materially impair the value or use of Property
for the purposes for which it is or may reasonably be
expected to be held, (ii) an option or right to acquire a
Lien that would be a Permitted Encumbrance, (iii) the
subordination of a lease or sublease in favor of a
financing entity and (iv) a license, or similar right, of
or to Intangible Assets granted in the ordinary course of
business.
"Person" means any entity, whether an individual,
trustee, corporation, general partnership, limited part-
nership, joint stock company, trust, estate, unincorpo-
rated organization, business association, firm, joint
venture, Governmental Agency, or otherwise.
"Pricing Occurrence" means (a) with respect to any
change in the Funded Debt Ratio which results in a change
in the Applicable Pricing Level, the earlier of (i) the
date upon which Borrower delivers the Compliance
Certificate to the Administrative Agent reflecting such
changed Funded Debt Ratio and (ii) the date upon which
Borrower is required by Section 7.2 to deliver such
Compliance Certificate and (b) with respect to any change
in the Applicable Rating which results in a change in the
Applicable Pricing Level, the date which is five (5)
Banking Days after the Administrative Agent has received
evidence reasonably satisfactory to it of such change.
"Pricing Period" means (a) the period commencing on
the Closing Date and ending on the first Pricing
Occurrence to occur thereafter and (b) each subsequent
period commencing on the date of a Pricing Occurrence and
ending on the next Pricing Occurrence to occur.
"Projections" means the financial projections
contained in the November, 1995 Confidential Information
Memorandum distributed to the Banks.
"Property" means any interest in any kind of property
or asset, whether real, personal or mixed, or tangible or
intangible.
"Pro Rata Share" means, with respect to each Bank,
the percentage of the Commitment held by that Bank. The
Pro Rata Share of each Bank as of the Closing Date is set
forth opposite the name of that Bank on Schedule 1.1.
"Quarterly Payment Date" means each October 31,
January 31, April 30 and July 31.
"Real Property" means, as of any date of
determination, all real property then or theretofore
owned, leased or occupied by Borrower or any of its
Restricted Subsidiaries.
"Reduction Date" means December 31, 1999 or such
later anniversary thereof to which the Reduction Date may
be extended in accordance with Section 2.12.
"Reference Rate" means the rate of interest publicly
announced from time to time by Bank of America in
San Francisco, California, as its "reference rate" or the
similar prime rate or reference rate announced by any
successor Administrative Agent. Bank of America's
reference rate is a rate set by Bank of America based upon
various factors including Bank of America's costs and
desired return, general economic conditions and other
factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such
announced rate. Any change in the Reference Rate
announced by Bank of America or any successor
Administrative Agent shall take effect at the opening of
business on the day specified in the public announcement
of such change.
"Regulation D" means Regulation D, as at any time
amended, of the Board of Governors of the Federal Reserve
System, or any other regulation in substance substituted
therefor.
"Regulations G, T, U and X" means Regulations G, T, U
and X, as at any time amended, of the Board of Governors
of the Federal Reserve System, or any other regulations in
substance substituted therefor.
"Request for Letter of Credit" means a written
request for a Letter of Credit substantially in the form
of Exhibit H, together with any forms of application for
letter of credit required by the Issuing Bank, in each
case signed by a Responsible Official of Borrower on
behalf of Borrower and properly completed to provide all
information required to be included therein.
"Request for Loan" means a written request for a Loan
substantially in the form of Exhibit I, signed by a
Responsible Official of Borrower, on behalf of Borrower,
and properly completed to provide all information required
to be included therein.
"Requirement of Law" means, as to any Person, the
articles or certificate of incorporation and by-laws or
other organizational or governing documents of such
Person, and any Law, or judgment, award, decree, writ or
determination of a Governmental Agency, in each case
applicable to or binding upon such Person or any of its
Property or to which such Person or any of its Property is
subject.
"Requisite Banks" means (a) as of any date of
determination if the Commitment is then in effect, Banks
having in the aggregate 66-2/3% or more of the Commitment
then in effect and (b) as of any date of determination if
the Commitment has then been terminated, Banks holding 66-2/3% of the
Outstanding Obligations.
"Responsible Official" means (a) when used with
reference to a Person other than an individual, any cor-
porate officer of such Person, general partner of such
Person, corporate officer of a corporate general partner
of such Person, or corporate officer of a corporate gene-
ral partner of a partnership that is a general partner of
such Person, or any other responsible official thereof
duly acting on behalf thereof, and (b) when used with
reference to a Person who is an individual, such Person.
Any document or certificate hereunder that is signed or
executed by a Responsible Official of another Person shall
be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on
the part of such other Person.
"Restricted Subsidiary" means, as of any date of
determination, any Subsidiary of Borrower (a) at least 80%
of the capital stock or other ownership interests of which
are owned on such date, directly or indirectly, by
Borrower and (b) with respect to which neither Borrower
nor any of its Restricted Subsidiaries has entered any
shareholders' agreement, management agreement or other
agreement which has the effect of delegating management
control over such Subsidiary to a Person other than
Borrower or a Restricted Subsidiary.
"Right of Others" means, as to any Property in which
a Person has an interest, any legal or equitable ownership
right, title or other interest (other than a Lien) held by
any other Person in that Property, and any option or right
held by any other Person to acquire any such right, title
or other interest in that Property, including any option
or right to acquire a Lien; provided, however, that
(a) any covenant restricting the use or disposition of
Property of such Person contained in any Contractual
Obligation of such Person, (b) any provision contained in
a contract creating a right of payment or performance in
favor of a Person that conditions, limits, restricts,
diminishes, transfers or terminates such right, and (c)
any residual rights held by a lessor or vendor of
Property, shall not be deemed to constitute a Right of
Others.
"S&P" means Standard & Poor's Ratings Group, a
division of McGraw Hill, Inc., its successors and assigns.
"Sale and Leaseback" means, with respect to any
Person, the sale of Property owned by that Person (the
"Seller") to another Person (the "Buyer"), together with
the substantially concurrent leasing of such Property by
the Buyer to the Seller.
"Sale and Leaseback Obligation" means, with respect
to any Sale and Leaseback and as of any date of determina-
tion, the present value of the aggregate monetary obliga-
tions of the lessee under the lease of the Property which
is the subject of such Sale and Leaseback (discounted at
the interest rate implicit in such lease, compounded
semiannually) for the then remaining term of such lease
(treating all extension options exercisable by the lessor
as having been exercised, but deeming the lease terminated
as of the earliest date upon which the lessee has the
option to do so); provided that such monetary obligations
shall exclude amounts payable in respect of maintenance,
repairs, insurance, taxes, assessments, utilities and
similar charges.
"Senior Officer" means Borrower's (a) chief executive
officer, (b) president, (c) chief financial officer, or
(d) treasurer.
"Significant Subsidiary" means, as of any date of
determination, each Restricted Subsidiary that had on the
last day of the Fiscal Quarter then most recently ended
total assets (determined in accordance with Generally
Accepted Accounting Principles) of $10,000,000 or more.
"Special Eurodollar Circumstance" means the
application or adoption after the date hereof of any Law
or interpretation, or any change therein or thereof, or
any change in the interpretation or administration thereof
by any Governmental Agency, central bank or comparable
authority charged with the interpretation or
administration thereof, or compliance by any Bank or its
Eurodollar Lending Office with any request or directive
(whether or not having the force of Law) of any such
Governmental Agency, central bank or comparable authority,
or the existence or occurrence of circumstances affecting
the Designated Eurodollar Market generally that are beyond
the reasonable control of the Banks.
"Standby Letter of Credit" means each Letter of
Credit other than any Letter of Credit which is a
commercial Letter of Credit. The determination by the
Issuing Bank of which Letters of Credit are Standby
Letters of Credit shall be conclusive in the absence of
manifest error.
"Stockholders' Equity" means, as of any date of
determination and with respect to any Person, the xxxxxxx-
dated stockholders', partners' or members' equity of the
Person as of that date determined in accordance with
Generally Accepted Accounting Principles; provided that
there shall be excluded from Stockholders' Equity any
amount attributable to Disqualified Stock.
"Subordinated Debt" means (a) the Existing
Subordinated Debt and (b) any other Indebtedness of
Borrower which is subordinated in right of payment to the
Obligations pursuant to subordination provisions which are
either (a) substantively no less favorable to the Banks
than the subordination provisions of any Existing
Subordinated Debt selected by Borrower, or (b) otherwise
are acceptable to the Requisite Banks in the exercise of
their sole discretion.
"Subsidiary" means, as of any date of determination
and with respect to any Person, any corporation or part-
nership (whether or not, in either case, characterized as
such or as a "joint venture"), whether now existing or
hereafter organized or acquired: (a) in the case of a
corporation, of which a majority of the securities having
ordinary voting power for the election of directors or
other governing body (other than securities having such
power only by reason of the happening of a contingency)
are at the time beneficially owned by such Person and/or
one or more Subsidiaries of such Person, or (b) in the
case of a partnership, of which a majority of the partner-
ship or other ownership interests are at the time benefi-
cially owned by such Person and/or one or more of its
Subsidiaries.
"Subsidiary Guaranty" means the continuing guaranty
of the Obligations to be executed and delivered by the
Significant Subsidiaries, in the form of Exhibit J, either
as originally executed or as it may from time to time be
supplemented, modified, amended, extended or supplanted.
The Subsidiary Guaranty provides that any Significant
Subsidiary which is sold, transferred or otherwise
disposed of after the Closing Date in a transaction which
does not violate this Agreement, that the Administrative
Agent shall, promptly following request therefor by
Borrower, release such Significant Subsidiary from the
Subsidiary Guaranty.
"Swap Agreement" means a written agreement between
Borrower and one or more financial institutions providing
for the "swap" of interest rate payment obligations with
respect to any Indebtedness.
"Swing Line" means the revolving line of credit
established by the Swing Line Bank in favor of Borrower
pursuant to Section 2.6.
"Swing Line Advances" means Advances made by the
Swing Line Bank to Borrower pursuant to Section 2.6.
"Swing Line Bank" means Bank of America Nevada, when
acting in such capacity, its successors and assigns.
"Swing Line Documents" means the promissory note and
any other documents executed by Borrower in favor of the
Swing Line Bank in connection with the Swing Line.
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal Indebtedness of
Borrower on all Swing Line Advances then outstanding.
"Tangible Net Worth" means, as of any date of deter-
mination, the Stockholders' Equity of Borrower and its
Subsidiaries on that date minus the aggregate Intangible
Assets of Borrower and its Subsidiaries on that date.
"to the best knowledge of" means, when modifying a
representation, warranty or other statement of any Person,
that the fact or situation described therein is known by
the Person (or, in the case of a Person other than a
natural Person, known by a Responsible Official of that
Person) making the representation, warranty or other
statement, or with the exercise of reasonable due dili-
gence under the circumstances (in accordance with the
standard of what a reasonable Person in similar circum-
stances would have done) should have been known by the
Person (or, in the case of a Person other than a natural
Person, should have been known by a Responsible Official
of that Person).
"Total Assets" means, as of any date of determina-
tion, the consolidated total assets of Borrower and its
Restricted Subsidiaries on that date, determined in
accordance with Generally Accepted Accounting Principles.
"Total Debt" means, as of any date of determination
(without duplication), the sum of (a) Funded Debt on that
date, plus (b) all Contingent Guaranties of Borrower or
any of its Restricted Subsidiaries with respect to
Indebtedness of other Persons.
"Total Debt to EBITDA Ratio" means, as of the last
day of any Fiscal Quarter, the ratio of (a) the Average
Daily Total Debt as of that date, to (b) EBITDA for the
four Fiscal Quarter period ending on that date.
"type", when used with respect to any Loan or
Advance, means the designation of whether such Loan or
Advance is an Alternate Base Rate Loan or Advance, or a
Eurodollar Rate Loan or Advance.
"Unrelated Person" means any Person other than (a) a
Subsidiary of Borrower or (b) an employee stock ownership
plan or other employee benefit plan covering the employees
of Borrower and its Subsidiaries.
1.2 Use of Defined Terms. Any defined term used in
the plural shall refer to all members of the relevant class,
and any defined term used in the singular shall refer to any
one or more of the members of the relevant class.
1.3 Accounting Terms. All accounting terms not
specifically defined in this Agreement shall be construed in
conformity with, and all financial data required to be
submitted by this Agreement shall be prepared in conformity
with, Generally Accepted Accounting Principles applied on a
consistent basis, except as otherwise specifically prescribed
herein. In the event that Generally Accepted Accounting
Principles change during the term of this Agreement such that
the covenants contained in Section 6.10 and Sections 6.12
through 6.15 would then be calculated in a different manner or
with different components, (a) Borrower and the Banks agree to
amend this Agreement in such respects as are necessary to
conform those covenants as criteria for evaluating Borrower's
financial condition to substantially the same criteria as were
effective prior to such change in Generally Accepted Accounting
Principles and (b) Borrower shall be deemed to be in compliance
with the covenants contained in the aforesaid Sections during
the 90 day period following any such change in Generally
Accepted Accounting Principles if and to the extent that
Borrower would have been in compliance therewith under
Generally Accepted Accounting Principles as in effect
immediately prior to such change.
1.4 Rounding. Any financial ratios required to be
maintained by Borrower pursuant to this Agreement shall be
calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the
number of places by which such ratio is expressed in this
Agreement and rounding the result up or down to the nearest
number (with a round-up if there is no nearest number) to the
number of places by which such ratio is expressed in this
Agreement.
1.5 Exhibits and Schedules. All Exhibits and
Schedules to this Agreement, either as originally existing or
as the same may from time to time be supplemented, modified or
amended, are incorporated herein by this reference. A matter
disclosed on any Schedule shall be deemed disclosed on all
Schedules.
1.6 References to "Borrower and its Subsidiaries".
Any reference herein to "Borrower and its Subsidiaries" or the
like shall refer solely to Borrower during such times, if any,
as Borrower shall have no Subsidiaries.
1.7 Miscellaneous Terms. The term "or" is
disjunctive; the term "and" is conjunctive. The term "shall"
is mandatory; the term "may" is permissive. Masculine terms
also apply to females; feminine terms also apply to males. The
term "including" is by way of example and not limitation.
Article 2
LOANS
2.1 Committed Loans-General.
(a) Subject to the terms and conditions set forth in
this Agreement, at any time and from time to time from the
Closing Date through and including the Maturity Date, each Bank
shall, pro rata according to that Bank's Pro Rata Share of the
then applicable Commitment, make Committed Advances in Dollars
to Borrower in such amounts as Borrower may request provided
that, giving effect to such Advances, the Outstanding
Obligations shall not exceed the Commitment. Subject to the
limitations set forth herein, Borrower may borrow, repay and
reborrow under the Commitment without premium or penalty.
(b) Subject to the next sentence, each Committed
Loan shall be made pursuant to a Request for Loan which shall
specify the requested (i) date of such Loan, (ii) type of Loan,
(iii) amount of such Loan, and (iv) in the case of a Eurodollar
Rate Loan, the Eurodollar Period for such Loan. Unless the
Administrative Agent has notified, in its sole and absolute
discretion, Borrower to the contrary, a Loan may be requested
by telephone by a Responsible Official of Borrower, in which
case Borrower shall confirm such request by promptly delivering
a Request for Loan in person or by telecopier conforming to the
preceding sentence to the Administrative Agent. The
Administrative Agent shall incur no liability whatsoever
hereunder in acting upon any telephonic request for loan
purportedly made by a Responsible Official of Borrower, which
hereby agrees to indemnify the Administrative Agent from any
loss, cost, expense or liability as a result of so acting.
(c) Promptly following receipt of a Request for
Loan, the Administrative Agent shall notify each Bank by
telephone or telecopier (and if by telephone, promptly
confirmed by telecopier) of the date and type of the Loan, the
applicable Eurodollar Period, and that Bank's Pro Rata Share of
the Loan. Not later than 11:00 a.m., California local time, on
the date specified for any Loan (which must be a Banking Day),
each Bank shall make its Pro Rata Share of the Committed Loan
in immediately available funds available to the Administrative
Agent at the Administrative Agent's Office. Upon satisfaction
or waiver of the applicable conditions set forth in Article 8,
all Committed Advances shall be credited on that date in
immediately available funds to the Designated Deposit Account.
(d) Unless the Requisite Banks otherwise consent,
each Committed Loan shall be an integral multiple of $1,000,000
and shall be not less than $5,000,000.
(e) The Committed Advances made by each Bank shall
be evidenced by that Bank's Committed Advance Note.
(f) A Request for Loan shall be irrevocable upon the
Administrative Agent's first notification thereof.
(g) If no Request for Loan (or telephonic request
for loan referred to in the second sentence of Section 2.1(b),
if applicable) has been made within the requisite notice
periods set forth in Sections 2.2 or 2.3 in connection with a
Loan which, if made and giving effect to the application of the
proceeds thereof, would not increase the outstanding principal
Indebtedness evidenced by the Committed Advance Notes, then
Borrower shall be deemed to have requested, as of the date upon
which the related then outstanding Loan is due pursuant to Sec-
tion 3.1(f)(i), an Alternate Base Rate Loan in an amount equal
to the amount necessary to cause the outstanding principal
Indebtedness evidenced by the Committed Advance Notes, to
remain the same and, subject to Section 8.3, the Banks shall
make the Advances necessary to make such Loan notwithstanding
Sections 2.1(b), 2.2 and 2.3.
(h) If a Committed Loan is to be made on the same
date that another Committed Loan is due and payable, Borrower
or the Banks, as the case may be, shall make available to the
Administrative Agent the net amount of funds giving effect to
both such Committed Loans and the effect for purposes of this
Agreement shall be the same as if separate transfers of funds
had been made with respect to each such Committed Loan.
2.2 Alternate Base Rate Loans. Each request by
Borrower for an Alternate Base Rate Loan shall be made pursuant
to a Request for Loan (or telephonic or other request for loan
referred to in the second sentence of Section 2.1(b), if
applicable) received by the Administrative Agent, at the
Administrative Agent's Office, not later than 9:00 a.m.
California local time, on the date (which must be a Banking
Day) of the requested Alternate Base Rate Loan. All Committed
Loans shall constitute Alternate Base Rate Loans unless
properly designated as a Eurodollar Rate Loan pursuant to
Section 2.3.
2.3 Eurodollar Rate Loans.
(a) Each request by Borrower for a Eurodollar Rate
Loan shall be made pursuant to a Request for Loan (or
telephonic or other request for loan referred to in the second
sentence of Section 2.1(b), if applicable) received by the
Administrative Agent, at the Administrative Agent's Office, not
later than 9:00 a.m., California local time, at least three
(3) Eurodollar Banking Days before the first day of the
applicable Eurodollar Period.
(b) On the date which is two (2) Eurodollar Banking
Days before the first day of the applicable Eurodollar Period,
the Administrative Agent shall confirm its determination of the
applicable Eurodollar Rate (which determination shall be
conclusive in the absence of manifest error) and promptly shall
give notice of the same to Borrower and the Banks by telephone
or telecopier (and if by telephone, promptly confirmed by
telecopier).
(c) Unless the Administrative Agent and the
Requisite Banks otherwise consent, no more than ten Eurodollar
Rate Loans shall be outstanding at any one time.
(d) No Eurodollar Rate Loan may be requested during
the existence of a Default or Event of Default.
(e) Nothing contained herein shall require any Bank
to fund any Eurodollar Rate Advance in the Designated
Eurodollar Market.
2.4 Letters of Credit.
(a) Subject to the terms and conditions hereof, at
any time and from time to time from the Closing Date through
the day prior to the Maturity Date, the Issuing Bank shall
issue such Letters of Credit under the Commitment as Borrower
may request by a Request for Letter of Credit; provided
that giving effect to all such Letters of Credit, (i) the
Outstanding Obligations shall not exceed the Commitment, and
(ii) the Aggregate Effective Amount under all outstanding
Letters of Credit shall not exceed $100,000,000. Each Letter
of Credit shall be in a form reasonably acceptable to the
Issuing Bank. Unless all the Banks otherwise consent in a
writing delivered to the Administrative Agent, the terms of
each Letter of Credit shall not (x) exceed one (1) year,
(y) extend beyond the Maturity Date or (z) extend past the
Reduction Date if, giving effect thereto, the aggregate
principal amount of the outstanding Eurodollar Loans having
Eurodollar Periods ending after the Reduction Date plus the
aggregate principal amount of the outstanding Competitive
Advances having maturities after the Reduction Date, plus the
Aggregate Effective Amount of all Letters of Credit expiring
after the Reduction Date would exceed the Commitment (as
reduced on the Reduction Date).
(b) Each Request for Letter of Credit shall be
submitted to the Issuing Bank, with a copy to the
Administrative Agent, at least five (5) Banking Days prior to
the date upon which the related Letter of Credit is proposed to
be issued. The Administrative Agent shall promptly notify the
Issuing Bank whether such Request for Letter of Credit, and the
issuance of a Letter of Credit pursuant thereto, conforms to
the requirements of this Agreement. Upon issuance of a Letter
of Credit, the Issuing Bank shall promptly notify the
Administrative Agent, and the Administrative Agent shall
promptly notify the Banks, of the amount and terms thereof.
(c) Upon the issuance of a Letter of Credit, each
Bank shall be deemed to have purchased a pro rata participation
in such Letter of Credit from the Issuing Bank in an amount
equal to that Bank's Pro Rata Share. Without limiting the
scope and nature of each Bank's participation in any Letter of
Credit, to the extent that the Issuing Bank has not been
reimbursed by Borrower for any payment required to be made by
the Issuing Bank under any Letter of Credit, each Bank shall,
pro rata according to its Pro Rata Share, reimburse the Issuing
Bank promptly upon demand for the amount of such payment. The
obligation of each Bank to so reimburse the Issuing Bank shall
be absolute and unconditional and shall not be affected by the
occurrence of an Event of Default or any other occurrence or
event. Any such reimbursement shall not relieve or otherwise
impair the obligation of Borrower to reimburse the Issuing Bank
for the amount of any payment made by the Issuing Bank under
any Letter of Credit together with interest as hereinafter
provided.
(d) Borrower agrees to pay to the Issuing Bank an
amount equal to any payment made by the Issuing Bank with
respect to each Letter of Credit within one (1) Banking Day
after demand made by the Issuing Bank therefor (which demand
the Issuing Bank shall make promptly and in any event shall
make upon the request of the Requisite Banks), together with
interest on such amount from the date of any payment made by
the Issuing Bank at the rate applicable to Alternate Base Rate
Loans for three Banking Days and thereafter at the Default
Rate. The principal amount of any such payment shall be used
to reimburse the Issuing Bank for the payment made by it under
the Letter of Credit and, to the extent that the Banks have not
reimbursed the Issuing Bank pursuant to Section 2.4(c), the
interest amount of any such payment shall be for the account of
the Issuing Bank. Each Bank that has reimbursed the Issuing
Bank pursuant to Section 2.4(c) for its Pro Rata Share of any
payment made by the Issuing Bank under a Letter of Credit shall
thereupon acquire a pro rata participation, to the extent of
such reimbursement, in the claim of the Issuing Bank against
Borrower for reimbursement of principal and interest under this
Section 2.4(d) and shall share, in accordance with that
pro rata participation, in any principal payment made by
Borrower with respect to such claim and in any interest payment
made by Borrower (but only with respect to periods subsequent
to the date such Bank reimbursed the Issuing Bank) with respect
to such claim. The Issuing Bank shall promptly make available
to the Administrative Agent, which will thereupon remit to the
appropriate Banks, in immediately available funds, any amounts
due to the Banks under this Section.
(e) Borrower may, pursuant to a Request for Loan,
request that Advances be made pursuant to Section 2.1(a) to
provide funds for the payment required by Section 2.4(d) and,
for this purpose, the conditions precedent set forth in
Article 8 shall not apply. The proceeds of such Advances shall
be paid directly to the Issuing Bank to reimburse it for the
payment made by it under the Letter of Credit.
(f) If Borrower fails to make the payment required
by Section 2.4(d) within the time period therein set forth, in
lieu of the reimbursement to the Issuing Bank under
Section 2.4(c) the Issuing Bank may (but is not required to),
without notice to or the consent of Borrower, cause Advances to
be made by the Banks under the Commitment in an aggregate
amount equal to the amount paid by the Issuing Bank with
respect to that Letter of Credit and, for this purpose, the
conditions precedent set forth in Article 8 shall not apply.
The proceeds of such Advances shall be paid directly to the
Issuing Bank to reimburse it for the payment made by it under
the Letter of Credit.
(g) The issuance of any supplement, modification,
amendment, renewal, or extension to or of any Letter of Credit
shall be treated in all respects the same as the issuance of a
new Letter of Credit.
(h) The obligation of Borrower to pay to the Issuing
Bank the amount of any payment made by the Issuing Bank under
any Letter of Credit shall be absolute, unconditional, and
irrevocable. Without limiting the foregoing, Borrower's
obligations shall not be affected by any of the following
circumstances:
(i) any lack of validity or enforceability
of the Letter of Credit, this Agreement, or any other
agreement or instrument relating thereto;
(ii) any amendment or waiver of or any
consent to departure from the Letter of Credit, this
Agreement, or any other agreement or instrument relating
thereto;
(iii) the existence of any claim, setoff,
defense, or other rights which Borrower may have at any
time against the Issuing Bank or any other Creditor, any
beneficiary of the Letter of Credit (or any persons or
entities for whom any such beneficiary may be acting) or
any other Person, whether in connection with the Letter of
Credit, this Agreement, or any other agreement or
instrument relating thereto, or any unrelated
transactions;
(iv) any demand, statement, or any other
document presented under the Letter of Credit proving to
be forged, fraudulent, invalid, or insufficient in any
respect or any statement therein being untrue or
inaccurate in any respect whatsoever;
(v) payment by the Issuing Bank under the
Letter of Credit against presentation of a draft or any
accompanying document which does not strictly comply with
the terms of the Letter of Credit;
(vi) the existence, character, quality,
quantity, condition, packing, value or delivery of any
Property purported to be represented by documents
presented in connection with any Letter of Credit or any
difference between any such Property and the character,
quality, quantity, condition, or value of such Property as
described in such documents;
(vii) the time, place, manner, order or con-
tents of shipments or deliveries of Property as described
in documents presented in connection with any Letter of
Credit or the existence, nature and extent of any
insurance relative thereto;
(viii) the solvency or financial
responsibility of any party issuing any documents in
connection with a Letter of Credit;
(ix) any failure or delay in notice of
shipments or arrival of any Property;
(x) any error in the transmission of any
message relating to a Letter of Credit not caused by the
Issuing Bank, or any delay or interruption in any such
message;
(xi) any error, neglect or default of any
correspondent of the Issuing Bank in connection with a
Letter of Credit;
(xii) any consequence arising from acts of
God, war, insurrection, civil unrest, disturbances, labor
disputes, emergency conditions or other causes beyond the
control of the Issuing Bank;
(xiii) so long as the Issuing Bank in good
faith determines that the contract or document appears to
comply with the terms of the Letter of Credit (and no
payment is made by the Issuing Bank after the expiration
date of the Letter of Credit or in amounts greater than
the amount thereof), the form, accuracy, genuineness or
legal effect of any contract or document referred to in
any document submitted to the Issuing Bank in connection
with a Letter of Credit;
(xiv) so long as the Issuing Bank in good faith
determines that the contract or document appears to comply
with the terms of the Letter of Credit, the form,
accuracy, genuineness or legal effect of any contract or
document referred to in any document submitted to the
Issuing Bank in connection with a Letter of Credit; and
(xv) where the Issuing Bank has acted in good
faith and observed general banking usage, any other
circumstances whatsoever.
(i) The Issuing Bank shall be entitled to the pro-
tection accorded to the Administrative Agent pursuant to
Section 10.6, mutatis mutandis.
2.5 Competitive Advances.
(a) Subject to the terms and conditions hereof, at
any time and from time to time from the Closing Date through
and including the Maturity Date, each Bank may in its sole and
absolute discretion make Competitive Advances to Borrower
pursuant to Competitive Bids accepted by Borrower in such
principal amounts as Borrower may request pursuant to a
Competitive Bid Request that do not result in the aggregate
outstanding principal Indebtedness evidenced by the Competitive
Advance Notes being in excess of $750,000,000, provided that
giving effect to the making of each Competitive Advance, the
Outstanding Obligations shall not exceed the Commitment. No
Competitive Advance made by any Bank shall relieve that Bank of
its Pro Rata Share of the undrawn Commitment.
(b) Borrower shall request Competitive Advances by
submitting Competitive Bid Requests to the Administrative
Agent, which specify the relevant date, amount and maturity of
the proposed Competitive Advance, whether the Competitive Bid
requested is an Absolute Rate Bid, a Eurodollar Margin Bid or a
Foreign Currency Margin Bid and, in the case of a Foreign
Currency Margin Bid, the foreign currency in which the
Competitive Advance is to be made. Any Competitive Bid Request
made by telephone shall promptly be confirmed by the delivery
to Administrative Agent in person or by telecopier of a written
Competitive Bid Request. The Administrative Agent shall incur
no liability whatsoever hereunder in acting upon any telephonic
Competitive Bid Request purportedly made by a Responsible
Official of Borrower, which hereby agrees to indemnify the
Administrative Agent from any loss, cost, expense or liability
as a result of so acting. The Competitive Bid Request must be
received by the Administrative Agent not later than 9:00 a.m.,
California local time, on a Banking Day that is at least
one (1) Banking Day prior to the date of the proposed
Competitive Advance if an Absolute Rate Bid is requested; if a
Eurodollar Margin Bid or Foreign Currency Margin Bid is
requested, it must be received by the Administrative Agent
five (5) Banking Days prior to the date of the proposed
Competitive Advance.
(c) Unless the Administrative Agent otherwise
agrees, in its sole and absolute discretion, no Competitive Bid
Request shall be made by Borrower if Borrower has, within the
immediately preceding five (5) Banking Days, submitted another
Competitive Bid Request.
(d) Each Competitive Bid Request must be made for a
Competitive Advance of at least $5,000,000 and shall be in an
integral multiple of $1,000,000, provided that Competitive Bid
Requests for Foreign Currency Advances may be in any amount
which is in excess of $5,000,000.
(e) No Competitive Bid Request shall be made for a
Competitive Advance with a maturity of less than 14 days or
more than 180 days, or with a maturity date subsequent to the
Maturity Date.
(f) The Administrative Agent shall, promptly after
receipt of a Competitive Bid Request, notify the Banks thereof
by telephone and provide the Banks a copy thereof by
telecopier. Any Bank may, by written notice to the
Administrative Agent, advise the Administrative Agent that it
elects not to be so notified of Competitive Bid Requests, in
which case the Administrative Agent shall not notify such Bank
of the Competitive Bid Request.
(g) Each Bank receiving a Competitive Bid Request
may, in its sole and absolute discretion, make or not make a
Competitive Bid responsive to the Competitive Bid Request.
Each Competitive Bid shall be submitted to the Administrative
Agent not later than 7:30 a.m. (or, in the case of the Bank
which is also the Administrative Agent, not later than
7:15 a.m.) California local time, in the case of a Eurodollar
Margin Bid or Foreign Currency Margin Bid, on the date which is
four (4) Banking Days prior to the requested Competitive
Advance and, in the case of an Absolute Rate Bid, on the date
of the requested Competitive Advance. Any Competitive Bid
received by the Administrative Agent after 7:30 a.m. (or 7:15
a.m. in the case of the Bank which is also the Administrative
Agent) on such date shall be disregarded for purposes of this
Agreement. Any Competitive Bid made by telephone shall
promptly be confirmed by the delivery to the Administrative
Agent in person or by telecopier of a written Competitive Bid.
The Administrative Agent shall incur no liability whatsoever
hereunder in acting upon any telephonic Competitive Bid
purportedly made by a Responsible Official of a Bank, each of
which hereby agrees to indemnify the Administrative Agent from
any loss, cost, expense or liability as a result of so acting
with respect to that Bank.
(h) Each Competitive Bid shall specify the fixed
interest rate or the margin over the Eurodollar Base Rate or
the Foreign Currency Base Rate, as applicable, for the offered
Maximum Competitive Advance set forth in the Competitive Bid.
The Maximum Competitive Advance offered by a Bank in a
Competitive Bid may be less than the Competitive Advance
requested by Borrower in the Competitive Bid Request, but, if
so, shall be an integral multiple of $1,000,000. Any
Competitive Bid which offers an interest rate other than a
fixed interest rate or a margin over the Eurodollar Base Rate
or the Foreign Currency Base Rate, is in a form other than set
forth in Exhibit D or which otherwise contains any term,
condition or provision not contained in the Competitive Bid
Request shall be disregarded for purposes of this Agreement. A
Competitive Bid once submitted to the Administrative Agent
shall be irrevocable until 8:30 a.m. California local time, in
the case of a Eurodollar Margin Bid or the Foreign Currency
Margin Bid, on the date which is three (3) Banking Days prior
to the requested Competitive Advance and, in the case of an
Absolute Rate Bid, on the date of the proposed Competitive
Advance set forth in the related Competitive Bid Request, and
shall expire by its terms at such time unless accepted by
Borrower prior thereto.
(i) Promptly after 7:30 a.m. California local time,
in the case of a Eurodollar Margin Bid or a Foreign Currency
Margin Bid, on the date which is four (4) Banking Days prior to
the date of the proposed Competitive Advance and, in the case
of an Absolute Rate Bid, on the date of the proposed
Competitive Advance, the Administrative Agent shall notify
Borrower of the names of the Banks providing Competitive Bids
to the Administrative Agent at or before 7:30 a.m. on that date
(or 7:15 a.m. in the case of the Bank which is also the
Administrative Agent) and the Maximum Competitive Advance and
fixed interest rate or margin over the Eurodollar Base Rate or
the Foreign Currency Base Rate set forth by each such Bank in
its Competitive Bid. The Administrative Agent shall promptly
confirm such notification in writing delivered in person or by
telecopier to Borrower.
(j) Borrower may, in its sole and absolute discre-
tion, reject any or all of the Competitive Bids. If Borrower
accepts any Competitive Bid, the following shall apply:
(a) Borrower must accept all Absolute Rate Bids at all lower
fixed interest rates before accepting any portion of an
Absolute Rate Bid at a higher fixed interest rate, (b) Borrower
must accept all Eurodollar Margin Bids at all lower margins
over the Eurodollar Base Rate before accepting any portion of a
Eurodollar Margin Bid at a higher margin over the Eurodollar
Base Rate, (c) Borrower must accept all Foreign Currency Margin
Bids at all lower margins over the Foreign Currency Base Rate
before accepting any portion of a Foreign Currency Margin Bid
at a higher margin over the Foreign Currency Base Rate, (d) if
two or more Banks have submitted a Competitive Bid at the same
fixed interest rate or margin, then Borrower must accept either
all of such Competitive Bids or accept such Competitive Bids in
the same proportion as the Maximum Competitive Advance of each
Bank bears to the aggregate Maximum Competitive Advances of all
such Banks, and (e) Borrower may not accept Competitive Bids
for an aggregate amount in excess of the requested Competitive
Advance set forth in the Competitive Bid Request. Acceptance
by Borrower of a Eurodollar Margin Rate Bid or a Foreign
Currency Margin Bid must be made prior to 8:30 a.m. on the date
which is three (3) Banking Days prior to the requested
Competitive Advance and acceptance by Borrower of an Absolute
Rate Bid must be made prior to 8:30 a.m. on the date of the
requested Competitive Advance. Acceptance of a Competitive Bid
by Borrower shall be irrevocable upon communication thereof to
the Administrative Agent. The Administrative Agent shall
promptly notify each of the Banks whose Competitive Bid has
been accepted by Borrower by telephone, which notification
shall promptly be confirmed in writing delivered in person or
by telecopier to such Banks. Any Competitive Bid not accepted
by Borrower by 8:30 a.m., in the case of a Eurodollar Margin
Bid or a Foreign Currency Margin Bid, on the date which is
three (3) Banking Days prior to the proposed Competitive
Advance or, in the case of an Absolute Rate Bid, on the date of
the proposed Competitive Bid, shall be deemed rejected.
(k) In the case of Eurodollar Margin Bids and
Foreign Currency Margin Bids, the Administrative Agent shall
determine the Eurodollar Base Rate or the Foreign Currency Base
Rate (as the case may be) on the date which is two
(2) Eurodollar Banking Days prior to the date of the proposed
Competitive Advance, and shall promptly thereafter notify
Borrower and the Banks whose Competitive Bids were accepted by
Borrower of such Eurodollar Base Rate or Foreign Currency Base
Rate.
(l) A Bank whose Competitive Bid has been accepted
by Borrower shall make the Competitive Advance in accordance
with the Competitive Bid Request and with its Competitive Bid,
subject to the applicable conditions set forth in this
Agreement by making funds immediately available to the
Administrative Agent at the Administrative Agent's Office in
the amount of such Competitive Advance not later than 12:00
noon, California local time, on the date set forth in the
Competitive Bid Request. The Administrative Agent shall then
promptly credit the Competitive Advance in immediately
available funds (and, in the case of each Foreign Currency
Margin Bid, in the designated foreign currency) to the
Designated Deposit Account.
(m) The Administrative Agent shall notify Borrower
and the Banks promptly after any Competitive Advance is made of
the amounts and maturity of such Competitive Advances and the
identity of the Banks making such Competitive Advances.
(n) The Competitive Advances made by a Bank shall be
evidenced by that Bank's Competitive Advance Note.
(o) Any Bank making a Foreign Currency Advance may,
at its option, require as a condition thereto that Borrower
issue in favor of such Bank a separate promissory note
substantially in the form of Exhibit C (but denominated in the
foreign currency) to evidence such Foreign Currency Advance.
If the Bank does not so require, the Foreign Currency Advance
shall be evidenced by that Bank's Competitive Advance Note
delivered at the Closing Date with the references therein to
"Dollars" being deemed references to such foreign currency.
(p) On or about the last Business Day of each
calendar month (but in no event less frequently than once each
calendar month), or at such more frequent intervals as the
Administrative Agent may reasonably determine, the
Administrative Agent shall calculate the Foreign Currency
Equivalent in Dollars of any outstanding Foreign Currency
Advances. The Administrative Agent shall inform the Borrower
and the Banks of such calculation, whereupon the amount of the
Outstanding Obligations will be deemed adjusted to give effect
thereto, provided that Borrower shall be entitled to two
Business Days to make any payments required as a result of such
calculations.
2.6 Swing Line. (a) The Swing Line Bank shall from time
to time from the Closing Date through the day prior to the
Maturity Date make Swing Line Advances in Dollars to Borrower
in such amounts as Borrower may request, provided that
(i) after giving effect to such Swing Line Advance, the Swing
Line Outstandings shall not exceed $10,000,000, (ii) after
giving effect to such Swing Line Advance, the Outstanding
Obligations shall not exceed the Commitment, (iii) without the
consent of all of the Banks, no Swing Line Advance may be made
during the continuation of any Default or Event of Default and
(iv) the Swing Line Bank has not given at least
twenty-four (24) hours prior notice to Borrower that
availability under the Swing Line is suspended or terminated.
Borrower may borrow, repay and reborrow under this Section.
Unless notified to the contrary by the Swing Line Bank,
borrowings under the Swing Line may be made in amounts which
are integral multiples of $100,000 upon telephonic request by a
Responsible Official of Borrower made to the Administrative
Agent not later than 1:00 p.m., California time, on the Banking
Day of the requested Swing Line Advance (which telephonic
request shall be promptly confirmed in writing by telecopier).
Promptly after receipt of such a request for a Swing Line
Advance, the Administrative Agent shall provide telephonic
verification to the Swing Line Bank that, after giving effect
to such request, the Outstanding Obligations shall not exceed
the Commitment (and such verification shall be promptly
confirmed in writing by telecopier). Unless the Swing Line
Bank otherwise agrees, each repayment of a Swing Line Advance
shall be in an amount which is an integral multiple of
$100,000. If Borrower instructs the Swing Line Bank to debit
its demand deposit account at the Swing Line Bank in the amount
of any payment with respect to a Swing Line Advance, or the
Swing Line Bank otherwise receives repayment, after 3:00 p.m.,
California time, on a Banking Day, such payment shall be deemed
received on the next Banking Day. The Swing Line Bank shall
promptly notify the Administrative Agent of the Swing Loan
Outstandings each time there is a change therein.
(b) Swing Line Advances shall bear interest at a
fluctuating rate per annum equal to the Alternate Base Rate
plus the Applicable Alternate Base Rate Margin. Interest shall
be payable on such dates, not more frequent than monthly, as
may be specified by the Swing Line Bank and in any event on the
Maturity Date. The Swing Line Bank shall be responsible for
submitting invoices to Borrower for such interest. The
interest payable on Swing Line Advances shall be solely for the
account of the Swing Line Bank unless and until the Banks fund
their participations therein pursuant to clause (d) of this
Section.
(c) The Swing Line Advances shall be payable on
demand made by the Swing Line Bank and in any event on the
Maturity Date.
(d) Upon the making of a Swing Line Advance, each
Bank shall be deemed to have purchased from the Swing Line Bank
a participation therein in an amount equal to that Bank's Pro
Rata Share times the amount of the Swing Line Advance. Upon
demand made by the Swing Line Bank, each Bank shall, according
to its Pro Rata Share, promptly provide to the Swing Line Bank
its purchase price therefor in an amount equal to its
participation therein. The obligation of each Bank to so
provide its purchase price to the Swing Line Bank shall be
absolute and unconditional (except only demand made by the
Swing Line Bank) and shall not be affected by the occurrence of
a Default or Event of Default; provided that no Bank shall be
obligated to purchase its Pro Rata Share of (i) Swing Line
Advances to the extent that Swing Line Outstandings are in
excess of $10,000,000 and (ii) any Swing Line Advance made
(absent the consent of all of the Banks) when the Swing Line
Bank has written notice that a Default or Event of Default has
occurred and such Default or Event of Default remains
continuing. Each Bank that has provided to the Swing Line Bank
the purchase price due for its participation in Swing Line
Advances shall thereupon acquire a pro rata participation, to
the extent of such payment, in the claim of the Swing Line Bank
against Borrower for principal and interest and shall share, in
accordance with that pro rata participation, in any principal
payment made by Borrower with respect to such claim and in any
interest payment made by Borrower (but only with respect to
periods subsequent to the date such Bank paid the Swing Line
Bank its purchase price) with respect to such claim.
(e) In the event that the Swing Line Outstandings
are in excess of $5,000,000 on three (3) consecutive Banking
Days then, on the next Banking Day (unless Borrower has made
other arrangements acceptable to the Swing Line Bank to reduce
the Swing Line Outstandings below $5,000,000), Borrower shall
request a Committed Loan in an amount sufficient to reduce the
Swing Line Outstandings below $5,000,000. In addition, upon
any demand for payment of the Swing Line Outstandings by the
Swing Line Bank (unless Borrower has made other arrangements
acceptable to the Swing Line Bank to reduce the Swing Line
Outstandings to $0), Borrower shall request a Committed Loan in
an amount sufficient to repay all Swing Line Outstandings (and,
for this purpose, Section 2.1(d) shall not apply). In each
case, the Administrative Agent shall automatically provide the
responsive Advances made by each Bank to the Swing Line Bank
(which the Swing Line Bank shall then apply to the Swing Line
Outstandings). In the event that Borrower fails to request a
Loan within the time specified by Section 2.2 on any such date,
the Administrative Agent may, but shall not be required to,
without notice to or the consent of Borrower, cause Advances to
be made by the Banks under the Commitment in amounts which are
sufficient to reduce the Swing Line Outstandings as required
above. The conditions precedent set forth in Article 8 shall
not apply to Advances to be made by the Banks pursuant to the
three preceding sentences. The proceeds of such Advances shall
be paid directly to the Swing Line Bank for application to the
Swing Line Outstandings.
2.7 Voluntary Reduction of Commitment. Borrower
shall have the right, at any time and from time to time,
without penalty or charge, upon at least three (3) Banking Days
prior written notice to the Administrative Agent, voluntarily
to reduce or to terminate, permanently and irrevocably, in
aggregate principal amounts in an integral multiple of
$1,000,000 but not less than $10,000,000, all or a portion of
the then undisbursed portion of the Commitment, provided that
any such reduction or termination shall be accompanied by
payment of all accrued and unpaid commitment fees with respect
to the portion of the Commitment being reduced or terminated.
The Administrative Agent shall promptly notify the Banks of any
reduction of the Commitment under this Section.
2.8 Automatic Reduction of Commitment. The
Commitment shall automatically reduce at the close of business
on the Reduction Date from $1,500,000,000 to $1,200,000,000 and
Borrower shall concurrently make any payments as may be
required to reduce the Outstanding Obligations to an amount
which is not greater than the Commitment as so reduced.
2.9 Optional Termination of Commitment. Following
the occurrence of a Change in Control, the Requisite Banks may
in their sole and absolute discretion elect, during the sixty
day period immediately subsequent to the later of (a) such
occurrence and (b) the earlier of (i) receipt of Borrower's
written notice to the Administrative Agent of such occurrence
and (ii) if no such notice has been received by the Administra-
tive Agent, the date upon which the Administrative Agent and
the Banks have actual knowledge thereof, to terminate the
Commitment. In any such case the Commitment shall be
terminated effective on the date which is sixty days subsequent
to the date of written notice from the Administrative Agent to
Borrower thereof, and (i) to the extent that there is then any
Indebtedness evidenced by the Notes, the same shall be
immediately due and payable, and (ii) to the extent that any
Letters of Credit are then outstanding, Borrower shall provide
cash collateral for the same.
2.10 Automatic Termination of Commitment. The
Commitment shall automatically terminate upon the occurrence of
a Disposition consisting of (a) all or substantially all of the
assets of Borrower, or (b) all or substantially all of the
assets or capital stock of any one or more Significant
Subsidiaries having (at the time of their Disposition), assets
which are in excess of $150,000,000, in the aggregate, during
the term of this Agreement, and (i) to the extent that there is
then any Indebtedness evidenced by the Notes, the same shall be
immediately due and payable, and (ii) to the extent that any
Letters of Credit are then outstanding, Borrower shall provide
cash collateral for the same.
2.11 Administrative Agent's Right to Assume Funds
Available for Advances. Unless the Administrative Agent shall
have been notified by any Bank no later than the Banking Day
prior to the funding by the Administrative Agent of any Loan
that such Bank does not intend to make available to the
Administrative Agent such Bank's portion of the total amount of
such Loan, the Administrative Agent may assume that such Bank
has made such amount available to the Administrative Agent on
the date of the Loan and the Administrative Agent may, in reli-
ance upon such assumption, make available to Borrower a corres-
ponding amount. If the Administrative Agent has made funds
available to Borrower based on such assumption and such
corresponding amount is not in fact made available to the
Administrative Agent by such Bank, the Administrative Agent
shall be entitled to recover such corresponding amount on
demand from such Bank. If such Bank does not pay such
corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent promptly shall notify
Borrower and Borrower shall pay such corresponding amount to
the Administrative Agent. The Administrative Agent also shall
be entitled to recover from such Bank interest on such corres-
ponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative
Agent to Borrower to the date such corresponding amount is
recovered by the Administrative Agent, at a rate per annum
equal to the daily Federal Funds Rate. Nothing herein shall be
deemed to relieve any Bank from its obligation to fulfill its
share of the Commitment or to prejudice any rights which the
Administrative Agent or Borrower may have against any Bank as a
result of any default by such Bank hereunder.
2.12 Extension of the Reduction Date and the
Maturity Date. The Reduction Date and the Maturity Date may
each be extended for one year periods at the request of
Borrower and with the written consent of all of the Banks
(which may be withheld in the sole and absolute discretion of
each Bank) pursuant to this Section. Not earlier than June 1,
1997 nor later than August 1, 1997, or in the similar period in
each subsequent year, and provided that Borrower is then in
compliance with Section 7.1, Borrower may deliver to the
Administrative Agent and the Banks a written request for a one
year extension of the Reduction Date and the Maturity Date
together with a Certificate of a Responsible Official signed by
a Senior Officer on behalf of Borrower stating that the
representations and warranties contained in Article 4 (other
than (i) representations and warranties which expressly speak
as of a particular date or are no longer true and correct as a
result of a change which is not a violation of this Agreement,
(ii) as otherwise disclosed by Borrower and approved in writing
by the Requisite Banks and (iii) Sections 4.4(a), 4.6 (first
sentence), 4.17 and 4.19) shall be true and correct on and as
of the date of such Certificate. Each Bank shall, prior to
August 20 of such year, notify the Administrative Agent whether
(in its sole and absolute discretion) it consents to such
request and the Administrative Agent shall, after receiving the
notifications from all of the Banks or the expiration of such
period, whichever is earlier, notify Borrower and the Banks of
the results thereof. If all of the Banks have consented, then
the Reduction Date and the Maturity Date shall each be extended
for one year.
If Banks holding at least 80% of the Commitment
consent to the request for extension, but one or more Banks
(each a "Non-Consenting Bank") notify the Administrative Agent
that it will not consent to the request for extension (or fail
to notify the Managing Agent in writing of its consent to the
extension by August 20), Borrower may (i) cause such
Non-Consenting Bank to be removed as a Bank under this
Agreement pursuant to Section 11.15(a), (ii) voluntarily
terminate the Pro Rata Share of Non-Consenting Bank in
accordance with Section 11.15(b), or (iii) utilize a
combination of the procedures described in clauses (i) and (ii)
of this Section. If such removal is accomplished by assignment
to an Eligible Assignee which has consented to the requested
extension, then the request for extension shall be granted with
the effect as set forth above. If such removal is accomplished
by a voluntary reduction of the Commitment, then the
Administrative Agent shall notify all of the Banks in writing
thereof.
Article 3
PAYMENTS AND FEES
3.1 Principal and Interest.
(a) Interest shall be payable on the outstanding
daily unpaid principal amount of each Advance from the date
thereof until payment in full is made and shall accrue and be
payable at the rates set forth or provided for herein before
and after default, before and after maturity, before and after
judgment, and before and after the commencement of any
proceeding under any Debtor Relief Law, with interest on
overdue interest to bear interest at the Default Rate to the
fullest extent permitted by applicable Laws.
(b) Interest accrued on each Alternate Base Rate
Loan on each Monthly Payment Date, and on the date of any
prepayment of the Committed Advance Notes pursuant to
Section 3.1(g), shall be due and payable on that day. Except
as otherwise provided in Section 3.9, the unpaid principal
amount of any Alternate Base Rate Loan shall bear interest at a
fluctuating rate per annum equal to the Alternate Base Rate
plus the Applicable Alternate Base Rate Margin. Each change in
the interest rate under this Section 3.1(b) due to a change in
the Alternate Base Rate shall take effect simultaneously with
the corresponding change in the Alternate Base Rate.
(c) Interest accrued on each Eurodollar Rate Loan
having a Eurodollar Period of three months or less shall be due
and payable on the last day of the related Eurodollar Period.
Interest accrued on each other Eurodollar Rate Loan shall be
due and payable on the date which is three months after the
date such Eurodollar Rate Loan was made (and, in the event that
all of the Banks have approved a Eurodollar Period of longer
than 6 months, every three months thereafter through the last
day of the Eurodollar Period) and on the last day of the
related Eurodollar Period. Except as otherwise provided in
Sections 3.1(d) and 3.9, the unpaid principal amount of any
Eurodollar Rate Loan shall bear interest at a rate per annum
equal to the Eurodollar Rate for that Eurodollar Rate Loan plus
the Applicable Eurodollar Rate Margin.
(d) During the existence of a Default or Event of
Default, the Requisite Banks may determine that any or all then
outstanding Eurodollar Rate Loans shall be converted to
Alternate Base Rate Loans. Such conversion shall be effective
upon notice to Borrower from the Requisite Banks (or from the
Administrative Agent on behalf of the Requisite Banks) and
shall continue so long as such Default or Event of Default
continues to exist.
(e) Interest accrued on each Competitive Advance
shall be due and payable on the maturity date of the
Competitive Advance. Except as otherwise provided in
Section 3.9, the unpaid principal amount of each Competitive
Advance shall bear interest at the fixed interest rate or the
margin over the Eurodollar Base Rate or Foreign Currency Base
Rate specified in the related Competitive Bid.
(f) If not sooner paid, the principal Indebtedness
evidenced by the Notes shall be payable as follows:
(i) the principal amount of each
Eurodollar Rate Loan shall be payable on the last day of
the Eurodollar Period for such Loan;
(ii) the principal amount of each
Competitive Advance shall be payable on the maturity date
specified in the related Competitive Bid;
(iii) the amount, if any, by which the
Outstanding Obligations at any time exceed the Commitment
shall be payable immediately, and shall be applied to the
Committed Advance Notes; and
(iv) the principal Indebtedness evidenced
by the Committed Advance Notes shall in any event be
payable on the Maturity Date.
(g) The Committed Advance Notes may, at any time and
from time to time, voluntarily be paid or prepaid in whole or
in part without premium or penalty, except that with respect to
any voluntary prepayment under this Section 3.1(g), (i) any
partial prepayment shall be in an integral multiple of
$1,000,000 but not less than $5,000,000, (ii) the
Administrative Agent shall have received written notice of any
prepayment by 9:00 a.m., California local time on a Banking Day
on the date of prepayment in the case of an Alternate Base Rate
Loan, and three (3) Banking Days, in the case of a Eurodollar
Rate Loan, before the date of prepayment, which notice shall
identify the date and amount of the prepayment and the Loan(s)
being prepaid, (iii) each prepayment of principal shall be
accompanied by payment of interest accrued to the date of
payment on the amount of principal paid and (iv) any payment or
prepayment of all or any part of any Eurodollar Rate Loan on a
day other than the last day of the applicable Eurodollar Period
shall be subject to Section 3.8(d).
(h) No Competitive Advance Note may be prepaid
without the prior written consent of the Bank making such
Competitive Advance.
3.2 Arrangement Fee. On the Closing Date, Borrower shall
pay to the Administrative Agent, for the sole account of the
Arranger, an arrangement fee in the amount heretofore agreed
upon by letter agreement between Borrower and the Arranger.
Such arrangement fee is for the services of the Arranger in
arranging the credit facilities under this Agreement and is
fully earned when paid. The arrangement fee is earned as of
the date hereof and is nonrefundable.
3.3 Upfront Fees. On the Closing Date, Borrower shall
pay to the Administrative Agent, for the respective accounts of
the Administrative Agent and the Banks, upfront fees in the
respective amounts heretofore agreed upon by letter agreement
between Borrower and the Administrative Agent the amount of
which fees have as to each Bank been confirmed with that Bank
by the Arranger. The upfront fees paid to each Bank are solely
for its own account and are nonrefundable.
3.4 Commitment Fees. From the Closing Date, Borrower
shall pay to the Administrative Agent, for the respective
accounts of the Banks, pro rata according to their Pro Rata
Share, a commitment fee equal to (a) the Applicable Commitment
Fee Rate per annum times (b) the amount by which the Commitment
exceeds the sum of the average daily outstanding principal
Indebtedness evidenced by the Committed Advance Notes plus the
average daily Aggregate Effective Amount of all Standby Letters
of Credit, in each case for the period from the Closing Date or
the most recent Quarterly Payment Date. Commitment fees shall
be payable quarterly in arrears on each Quarterly Payment Date,
on the date upon which all or any portion of the Commitment is
terminated pursuant to Sections 2.7 or 2.9 (with respect to the
amount so terminated) and on the Maturity Date.
3.5 Letter of Credit Fees. Concurrently with the
issuance of each Letter of Credit, Borrower shall pay a letter
of credit issuance fee to the Issuing Bank, for the sole
account of the Issuing Bank, in an amount set forth in a letter
agreement between Borrower and the Issuing Bank. Each letter
of credit issuance fee is nonrefundable. On each Quarterly
Payment Date and on the Maturity Date, Borrower shall also pay
to the Administrative Agent in arrears, for the ratable account
of the Banks in accordance with their Pro Rata Share, standby
letter of credit fees in an amount equal to the Applicable
Letter of Credit Fee per annum times the average daily
Aggregate Effective Amount of all Standby Letters of Credit, in
each case for the period from the Closing Date or the most
recent Quarterly Payment Date. All standby letter of credit
fees shall also be non-refundable.
3.6 Agency Fees. Borrower shall pay to the
Administrative Agent an agency fee in such amounts and at such
times as heretofore agreed upon by letter agreement between
Borrower and the Administrative Agent. The agency fee is for
the services to be performed by the Administrative Agent in
acting as Administrative Agent and is fully earned on the date
paid. The agency fee paid to the Administrative Agent is
solely for its own account and is nonrefundable.
3.7 Increased Commitment Costs. If any Bank shall
determine that the introduction after the Closing Date of any
applicable law, rule, regulation or guideline regarding capital
adequacy, or any change therein or any change in the inter-
pretation or administration thereof by any central bank or
other Governmental Agency charged with the interpretation or
administration thereof, or compliance by such Bank (or its
Eurodollar Lending Office) or any corporation controlling the
Bank, with any request, guidelines or directive regarding
capital adequacy (whether or not having the force of law) of
any such central bank or other authority, affects or would
affect the amount of capital required or expected to be
maintained by such Bank or any corporation controlling such
Bank and (taking into consideration such Bank's or such
corporation's policies with respect to capital adequacy and
such Bank's desired return on capital) determines that the
amount of such capital is increased, or the rate of return on
capital is reduced, as a consequence of its obligations under
this Agreement, then, within five (5) Banking Days after demand
of such Bank, Borrower shall pay to such Bank, from time to
time as specified by such Bank, additional amounts sufficient
to compensate such Bank in light of such circumstances, to the
extent reasonably allocable to such obligations under this
Agreement.
3.8 Eurodollar Costs and Related Matters.
(a) If, after the date hereof, the existence or
occurrence of any Special Eurodollar Circumstance shall:
(1) subject any Bank or its Eurodollar Lending
Office to any tax, duty or other charge or cost with
respect to any Eurodollar Rate Advance, any of its
Notes evidencing Eurodollar Rate Loans or its
obligation to make Eurodollar Rate Advances, or shall
change the basis of taxation of payments to any Bank
of the principal of or interest on any Eurodollar
Rate Advance or any other amounts due under this
Agreement in respect of any Eurodollar Rate Advance,
any of its Notes evidencing Eurodollar Rate Loans or
its obligation to make Eurodollar Rate Advances,
excluding, with respect to each Creditor, and any
Affiliate or Eurodollar Lending Office thereof,
(i) taxes imposed on or measured in whole or in part
by its net income, gross income or gross receipts or
capital and franchise taxes imposed on it, (ii) any
withholding taxes or other taxes based on gross
income (other than withholding taxes and taxes based
on gross income resulting from or attributable to any
change in any law, rule or regulation or any change
in the interpretation or administration of any law,
rule or regulation by any Governmental Agency) or
(iii) any withholding taxes or other taxes based on
gross income for any period with respect to which it
has failed to provide Borrower with the appropriate
form or forms required by Section 11.22, to the
extent such forms are then required by applicable
Laws;
(2) impose, modify or deem applicable any
reserve not applicable or deemed applicable on the
date hereof (including, without limitation, any
reserve imposed by the Board of Governors of the
Federal Reserve System, but excluding the Eurodollar
Reserve Percentage taken into account in calculating
the Eurodollar Rate), special deposit, capital or
similar requirements against assets of, deposits with
or for the account of, or credit extended by, any
Bank or its Eurodollar Lending Office; or
(3) impose on any Bank or its Eurodollar
Lending Office or the Designated Eurodollar Market
any other condition materially affecting any
Eurodollar Rate Advance, any of its Notes evidencing
Eurodollar Rate Loans, its obligation to make
Eurodollar Rate Advances or this Agreement, or shall
otherwise materially affect any of the same;
and the result of any of the foregoing, as determined by such
Bank, increases the cost to such Bank or its Eurodollar Lending
Office of making or maintaining any Eurodollar Rate Advance or
in respect of any Eurodollar Rate Advance, any of its Notes
evidencing Eurodollar Rate Loans or its obligation to make
Eurodollar Rate Advances or reduces the amount of any sum
received or receivable by such Bank or its Eurodollar Lending
Office with respect to any Eurodollar Rate Advance, any of its
Notes evidencing Eurodollar Rate Loans or its obligation to
make Eurodollar Rate Advances (assuming such Bank's Eurodollar
Lending Office had funded 100% of its Eurodollar Rate Advance
in the Designated Eurodollar Market), then, provided that such
Bank makes demand upon Borrower (with a copy to the
Administrative Agent) within 90 days following the date upon
which it becomes aware of any such event or circumstance,
Borrower shall within five Banking Days pay to such Bank such
additional amount or amounts as will compensate such Bank for
such increased cost or reduction (determined as though such
Bank's Eurodollar Lending Office had funded 100% of its
Eurodollar Rate Advance in the Designated Eurodollar Market).
Borrower hereby indemnifies each Bank against, and agrees to
hold each Bank harmless from and reimburse such Bank within
five (5) Banking Days after demand for (without duplication)
all costs, expenses, claims, penalties, liabilities, losses,
legal fees and damages incurred or sustained by each Bank in
connection with this Agreement, or any of the rights,
obligations or transactions provided for or contemplated
herein, as a result of the existence or occurrence of any
Special Eurodollar Circumstance. A statement of any Bank
claiming compensation under this subsection and setting forth
the additional amount or amounts to be paid to it hereunder
shall be conclusive in the absence of manifest error. Each
Bank agrees to endeavor promptly to notify Borrower of any
event of which it has actual knowledge, occurring after the
Closing Date, which will entitle such Bank to compensation
pursuant to this Section and agrees to designate a different
Eurodollar Lending Office if such designation will avoid the
need for or reduce the amount of such compensation and will
not, in the judgment of such Bank, otherwise be materially
disadvantageous to such Bank. If any Bank claims compensation
under this Section, Borrower may at any time, upon at least
four (4) Eurodollar Banking Days' prior notice to the
Administrative Agent and such Bank and upon payment in full of
the amounts provided for in this Section through the date of
such payment plus any prepayment fee required by
Section 3.8(d), pay in full the affected Eurodollar Rate
Advances of such Bank or request that such Eurodollar Rate
Advances be converted to Alternate Base Rate Advances. To the
extent that any Bank which receives any payment from Borrower
under this Section later receives any funds which are
identifiable as a reimbursement or rebate of such amount from
any other Person, such Bank shall promptly refund such amount
to Borrower.
(b) If the existence or occurrence of any Special
Eurodollar Circumstance shall, in the opinion of any Bank, make
it unlawful, impossible or impracticable for such Bank or its
Eurodollar Lending Office to make, maintain or fund its portion
of any Eurodollar Rate Loan, or materially restrict the
authority of such Bank to purchase or sell, or to take deposits
of, Dollars in the Designated Eurodollar Market, or to deter-
mine or charge interest rates based upon the Eurodollar Rate,
and such Bank shall so notify the Administrative Agent, then
such Bank's obligation to make Eurodollar Rate Advances shall
be suspended for the duration of such illegality, impossibility
or impracticability and the Administrative Agent forthwith
shall give notice thereof to the other Banks and Borrower.
Upon receipt of such notice, the outstanding principal amount
of such Bank's Eurodollar Rate Advances, together with accrued
interest thereon, automatically shall be converted to Alternate
Base Rate Advances with Eurodollar Periods corresponding to the
Eurodollar Loans of which such Eurodollar Rate Advances were a
part on either (1) the last day of the Eurodollar Period(s)
applicable to such Eurodollar Rate Advances if such Bank may
lawfully continue to maintain and fund such Eurodollar Rate
Advances to such day(s) or (2) immediately if such Bank may not
lawfully continue to fund and maintain such Eurodollar Rate
Advances to such day(s), provided that in such event the
conversion shall not be subject to payment of a prepayment fee
under Section 3.8(d). Each Bank agrees to endeavor promptly to
notify Borrower of any event of which it has actual knowledge,
occurring after the Closing Date, which will cause that Bank to
notify the Administrative Agent under this Section 3.8(b), and
agrees to designate a different Eurodollar Lending Office if
such designation will avoid the need for such notice and will
not, in the judgment of such Bank, otherwise be disadvantageous
to such Bank. In the event that any Bank is unable, for the
reasons set forth above, to make, maintain or fund its portion
of any Eurodollar Rate Loan, such Bank shall fund such amount
as an Alternate Base Rate Advance for the same period of time,
and such amount shall be treated in all respects as an
Alternate Base Rate Advance. Any Bank whose obligation to make
Eurodollar Rate Advances has been suspended under this
Section 3.8(b) shall promptly notify the Administrative Agent
and Borrower of the cessation of the Special Eurodollar
Circumstance which gave rise to such suspension.
(c) If, with respect to any proposed Eurodollar Rate
Loan:
(1) the Administrative Agent reasonably deter-
mines that, by reason of circumstances affecting the
Designated Eurodollar Market generally that are beyond the
reasonable control of the Banks, deposits in Dollars (in
the applicable amounts) are not being offered to any Bank
in the Designated Eurodollar Market for the applicable
Eurodollar Period; or
(2) the Requisite Banks advise the Administra-
tive Agent that the Eurodollar Rate as determined by the
Administrative Agent (i) does not represent the effective
pricing to such Banks for deposits in Dollars in the
Designated Eurodollar Market in the relevant amount for
the applicable Eurodollar Period, or (ii) will not
adequately and fairly reflect the cost to such Banks of
making the applicable Eurodollar Rate Advances;
then the Administrative Agent forthwith shall give notice
thereof to Borrower and the Banks, whereupon until the
Administrative Agent notifies Borrower that the circumstances
giving rise to such suspension no longer exist, the obligation
of the Banks to make any future Eurodollar Rate Advances shall
be suspended. If at the time of such notice there is then
pending a Request for Loan that specifies a Eurodollar Rate
Loan, such Request for Loan shall be deemed to specify an
Alternate Base Rate Loan.
(d) Upon payment or prepayment of any Eurodollar
Rate Advance, (other than as the result of a conversion
required under Section 3.1(d) or 3.8(b)), on a day other than
the last day in the applicable Eurodollar Period (whether
voluntarily, involuntarily, by reason of acceleration, or
otherwise), or upon the failure of Borrower (for a reason other
than the failure of a Bank to make an Advance) to borrow on the
date or in the amount specified for a Eurodollar Rate Loan in
any Request for Loan, Borrower shall pay to the appropriate
Bank within five (5) Banking Days after demand a prepayment fee
or failure to borrow fee, as the case may be, (determined as
though 100% of the Eurodollar Rate Advance had been funded in
the Designated Eurodollar Market) equal to the sum of:
(1) principal amount of the Eurodollar Rate
Advance prepaid or not borrowed, as the case may be, times
the quotient of (A) the number of days between the date of
prepayment or failure to borrow, as applicable, and the
last day in the applicable Eurodollar Period, divided by
(B) 360, times the applicable Interest Differential
(provided that the product of the foregoing formula must
be a positive number); plus
(2) all out-of-pocket expenses incurred by the
Bank reasonably attributable to such payment, prepayment
or failure to borrow.
Each Bank's determination of the amount of any prepayment fee
payable under this Section 3.8(d) shall be conclusive in the
absence of manifest error.
3.9 Late Payments. If any installment of principal or
interest or any fee or cost or other amount payable under any
Loan Document to any Creditor is not paid when due, it shall
thereafter bear interest at a fluctuating interest rate per
annum at all times equal to the sum of the Alternate Base Rate
plus the Applicable Alternate Base Rate Margin plus 2%, to the
fullest extent permitted by applicable Laws. Accrued and
unpaid interest on past due amounts (including, without limi-
tation, interest on past due interest) shall be compounded
monthly, on the last day of each calendar month, to the fullest
extent permitted by applicable Laws.
3.10 Computation of Interest and Fees. Computation of
interest on Alternate Base Rate Loans calculated with reference
to the Reference Rate shall be calculated on the basis of a
year of 365 or 366 days, as the case may be, and the actual
number of days elapsed; computation of interest on Alternative
Base Rate Loans calculated by reference to the Federal Funds
Rate, and on Eurodollar Rate Loans, Competitive Advances and
all fees under this Agreement shall be calculated on the basis
of a year of 360 days and the actual number of days elapsed.
Borrower acknowledges that such latter calculation method will
result in a higher yield to the Banks than a method based on a
year of 365 or 366 days. Interest shall accrue on each Loan
for the day on which the Loan is made; interest shall not
accrue on a Loan, or any portion thereof, for the day on which
the Loan or such portion is paid. Any Loan that is repaid on
the same day on which it is made shall bear interest for one
day.
3.11 Non-Banking Days. If any payment to be made by
Borrower or any other Party under any Loan Document shall come
due on a day other than a Banking Day, payment shall instead be
considered due on the next succeeding Banking Day and the
extension of time shall be reflected in computing interest and
fees.
3.12 Manner and Treatment of Payments.
(a) Each payment hereunder (except payments with
respect to Swing Line Obligations and payments pursuant to
Sections 3.7, 3.8, 11.3, 11.11 and 11.23) or on the Notes or
under any other Loan Document shall be made to the
Administrative Agent, at the Administrative Agent's Office, for
the account of each of the Banks or the Administrative Agent,
as the case may be, in immediately available funds not later
than 11:00 a.m., California local time, on the day of payment
(which must be a Banking Day), other than payments with respect
to Swing Line Advances, which must be received by 3:00 p.m.,
California time, on the day of payment (which must be a Banking
Day). All payments received after these deadlines shall be
deemed received on the next succeeding Banking Day. The amount
of all payments received by the Administrative Agent for the
account of each Bank shall be immediately paid by the
Administrative Agent to the applicable Bank in immediately
available funds and, if such payment was received by the
Administrative Agent by 11:00 a.m., California local time, on a
Banking Day and not so made available to the account of a Bank
on that Banking Day, the Administrative Agent shall reimburse
that Bank for the cost to such Bank of funding the amount of
such payment at the Federal Funds Rate. All payments shall be
made in lawful money of the United States of America except for
payments of principal and interest with respect to Foreign
Currency Advances, which may at Borrower's option be made in
Dollars equal to the Foreign Currency Equivalent or in the
foreign currency in which the related Foreign Currency Advance
is made.
(b) Each payment or prepayment on account of any
Committed Loan shall be applied pro rata according to the
outstanding Committed Advances made by each Bank comprising
such Committed Loan. Each payment or prepayment of a
Competitive Advance shall be applied to the Competitive Advance
Note held by the Bank which made such Competitive Advance.
(c) Each Bank shall use its best efforts to keep a
record of Advances made by it and payments received by it with
respect to each of its Notes and, subject to Section 10.6(g),
such record shall, as against Borrower, be presumptive evidence
of the amounts owing. Notwithstanding the foregoing sentence,
no Bank shall be liable to any Party for any failure to keep
such a record.
(d) Each payment of any amount payable by Borrower
or any other Party under this Agreement or any other Loan
Document shall be made free and clear of, and without reduction
by reason of, any taxes, assessments or other charges imposed
by any Governmental Agency, central bank or comparable
authority, excluding, in the case of each Creditor, and any
Affiliate or Eurodollar Lending Office thereof, (i) taxes
imposed on or measured in whole or in part by its net income,
gross income or gross receipts or capital and franchise taxes
imposed on it, (ii) any withholding taxes or other taxes based
on gross income (other than withholding taxes and taxes based
on gross income resulting from or attributable to any change in
any law, rule or regulation or any change in the interpretation
or administration of any law, rule or regulation by any
Governmental Agency) or (iii) any withholding taxes or other
taxes based on gross income for any period with respect to
which it has failed to provide Borrower with the appropriate
form or forms required by Section 11.22, to the extent such
forms are then required by applicable Laws, (all such non-excluded taxes,
assessments or other charges being hereinafter
referred to as "Taxes"). To the extent that Borrower is
obligated by applicable Laws to make any deduction or
withholding on account of Taxes from any amount payable to any
Bank under this Agreement, Borrower shall (i) make such
deduction or withholding and pay the same to the relevant
Governmental Agency and (ii) pay such additional amount to that
Bank as is necessary to result in that Bank's receiving a net
after-Tax amount equal to the amount to which that Bank would
have been entitled under this Agreement absent such deduction
or withholding. If and when receipt of such payment results in
an excess payment or credit to that Bank on account of such
Taxes, that Bank shall promptly refund such excess to Borrower.
3.13 Funding Sources. Nothing in this Agreement shall be
deemed to obligate any Bank to obtain the funds for any Loan or
Advance in any particular place or manner or to constitute a
representation by any Bank that it has obtained or will obtain
the funds for any Loan or Advance in any particular place or
manner.
3.14 Failure to Charge Not Subsequent Waiver. Any
decision by the Creditors not to require payment of any
interest (including interest arising under Section 3.9), fee,
cost or other amount payable under any Loan Document, or to
calculate any amount payable by a particular method, on any
occasion shall in no way limit or be deemed a waiver of the
Creditor's right to require full payment of any interest
(including interest arising under Section 3.9), fee, cost or
other amount payable under any Loan Document, or to calculate
an amount payable by another method that is not inconsistent
with this Agreement, on any other or subsequent occasion.
3.15 Administrative Agent's Right to Assume Payments Will
be Made by Borrower. Unless the Administrative Agent shall
have been notified by Borrower prior to the date on which any
payment to be made by Borrower hereunder is due that Borrower
does not intend to remit such payment, the Administrative Agent
may, in its discretion, assume that Borrower has remitted such
payment when so due and the Administrative Agent may, in its
discretion and in reliance upon such assumption, make available
to each Bank on such payment date an amount equal to such
Bank's share of such assumed payment. If Borrower has not in
fact remitted such payment to the Administrative Agent, each
Bank shall forthwith on demand repay to the Administrative
Agent the amount of such assumed payment made available to such
Bank, together with interest thereon in respect of each day
from and including the date such amount was made available by
the Administrative Agent to such Bank to the date such amount
is repaid to the Administrative Agent at the Federal Funds
Rate.
3.16 Fee Determination Detail. Each Creditor shall
provide reasonable detail to Borrower regarding the manner in
which the amount of any payment to that Creditor under
Article 3 has been determined, concurrently with demand for
such payment.
3.17 Survivability. All of Borrower's obligations under
Sections 3.7 and 3.8 shall survive for ninety days following
the date on which the Commitment is terminated and all Loans
hereunder are fully paid.
Article 4
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to the Creditors, as
of the date hereof and as of the Closing Date, that:
4.1 Existence and Qualification; Power; Compliance With
Laws. Borrower is a corporation duly formed, validly existing
and in good standing under the Laws of Nevada. Borrower is
duly qualified or registered to transact business and is in
good standing in each other jurisdiction in which the conduct
of its business or the ownership or leasing of its Properties
makes such qualification or registration necessary, except
where the failure so to qualify or register and to be in good
standing would not constitute a Material Adverse Effect.
Borrower has all requisite corporate power and authority to
conduct its business, to own and lease its Properties and to
execute and deliver each Loan Document to which it is a Party
and to perform its Obligations. All outstanding shares of
capital stock of Borrower are duly authorized, validly issued,
fully paid, non-assessable and no holder thereof has any
enforceable right of rescission under any applicable state or
federal securities Laws. Borrower is in compliance with all
Laws and other legal requirements applicable to its business,
has obtained all authorizations, consents, approvals, orders,
licenses and permits from, and has accomplished all filings,
registrations and qualifications with, or obtained exemptions
from any of the foregoing from, any Governmental Agency that
are necessary for the transaction of its business, except where
the failure so to comply, file, register, qualify or obtain
exemptions does not constitute a Material Adverse Effect.
4.2 Authority; Compliance With Other Agreements and
Instruments and Government Regulations. The execution, deliv-
ery and performance by Borrower and each Significant Subsidiary
of the Loan Documents to which it is a Party have been duly
authorized by all necessary corporate action, and do not and
will not:
(a) Require any consent or approval not hereto-
fore obtained of any partner, director, stockholder,
security holder or creditor of such Party;
(b) Violate or conflict with any provision of
such Party's charter, articles of incorporation or bylaws,
as applicable;
(c) Result in or require the creation or
imposition of any Lien or Right of Others upon or with
respect to any Property now owned or leased or hereafter
acquired by such Party;
(d) Violate any Requirement of Law applicable
to such Party, subject to obtaining the authorizations
from, or filings with, the Governmental Agencies described
in Schedule 4.3;
(e) Result in a breach by such Party of or
constitute a default by such Party under, or cause or
permit the acceleration of any obligation owed under, any
indenture or loan or credit agreement or any other
Contractual Obligation to which such Party is a party or
by which such Party or any of its Property is bound or
affected and such breach, default or acceleration would
not result in an obligation on behalf of Borrower or any
Significant Subsidiary to make payments in an aggregate
amount which exceed $25,000,000 or otherwise result in a
Material Adverse Effect;
and none of Borrower or any Significant Subsidiary is in xxxxx-
tion of, or default under, any Requirement of Law or Contract-
ual Obligation, or any indenture, loan or credit agreement
described in Section 4.2(e), in any respect that constitutes a
Material Adverse Effect.
4.3 No Governmental Approvals Required. Except as set
forth in Schedule 4.3 or previously obtained or made, no
authorization, consent, approval, order, license or permit
from, or filing, registration or qualification with, any
Governmental Agency is or will be required to authorize or
permit under applicable Laws the execution, delivery and
performance by Borrower and the Significant Subsidiaries of the
Loan Documents to which it is a Party. All authorizations
from, or filings with, any Governmental Agency described in
Schedule 4.3 will be accomplished as of the Closing Date or
such other date as is specified in Schedule 4.3.
4.4 Subsidiaries.
(a) Schedule 4.4 hereto correctly sets forth the
names, form of legal entity, percentage of shares of each class
of capital stock issued and outstanding, percentage of shares
owned by Borrower or a Restricted Subsidiary (specifying such
owner) and jurisdictions of organization of all Restricted
Subsidiaries and specifies which thereof, as of the Closing
Date, are Significant Subsidiaries. Except as described in
Schedule 4.4, Borrower does not own any capital stock, equity
interest or debt security which is convertible, or
exchangeable, for capital stock or equity interests in any
Person. Unless otherwise indicated in Schedule 4.4, as of the
Closing Date all of the outstanding shares of capital stock, or
all of the units of equity interest, as the case may be, of
each Restricted Subsidiary are owned of record and beneficially
by Borrower, there are no outstanding options, warrants or
other rights to purchase capital stock of any such Subsidiary,
and all such shares or equity interests so owned are duly
authorized, validly issued, fully paid, non-assessable, and
were issued in compliance with all applicable state and federal
securities and other Laws, and are free and clear of all Liens
and Rights of Others, except for Permitted Encumbrances and
Permitted Rights of Others.
(b) Each Restricted Subsidiary is a corporation or
partnership duly formed, validly existing and in good standing
under the Laws of its jurisdiction of organization, is duly
qualified to do business as a foreign organization and is in
good standing as such in each jurisdiction in which the conduct
of its business or the ownership or leasing of its properties
makes such qualification necessary (except where the failure to
be so duly qualified and in good standing does not constitute a
Material Adverse Effect), and has all requisite power and
authority to conduct its business and to own and lease its
Properties.
(c) Each Restricted Subsidiary is in compliance with
all Laws and other requirements applicable to its business and
has obtained all authorizations, consents, approvals, orders,
licenses, and permits from, and each such Subsidiary has
accomplished all filings, registrations, and qualifications
with, or obtained exemptions from any of the foregoing from,
any Governmental Agency that are necessary for the transaction
of its business, except where the failure to be in such
compliance, obtain such authorizations, consents, approvals,
orders, licenses, and permits, accomplish such filings,
registrations, and qualifications, or obtain such exemptions,
does not constitute a Material Adverse Effect.
(d) As of the Closing Date Borrower has no
Subsidiaries (i) in which Borrower directly or indirectly owns
at least 80% of the capital stock or other ownership interests
and (ii) with respect to which Borrower or any of its
Restricted Subsidiaries has entered any shareholders'
agreement, management agreement or other agreement which has
the effect of delegating management control over such
Subsidiary to a Person other than Borrower or a Restricted
Subsidiary.
4.5 Financial Statements. Borrower has furnished to the
Banks (a) the audited consolidated financial statements of
Borrower and its Subsidiaries for the Fiscal Year ended
January 31, 1995 and (b) the unaudited consolidated financial
statements of Borrower and its Subsidiaries for the Fiscal
Quarter ended October 31, 1995. The financial statements
described in clauses (a) and (b) fairly present in all material
respects the financial condition, results of operations and
changes in financial position of Borrower and its Subsidiaries
as of such dates and for such periods, in conformity with
Generally Accepted Accounting Principles, consistently applied.
4.6 No Other Liabilities; No Material Adverse Effect. As
of the Closing Date, Borrower and its Subsidiaries do not have
any material liability or material contingent liability not
reflected or disclosed in the financial statements described in
Section 4.5 or on Schedule 4.10, other than liabilities and
contingent liabilities arising in the ordinary course of
business since the date of such financial statements. As of
the Closing Date, no circumstance or event has occurred that
constitutes a Material Adverse Effect since October 31, 1995.
As of each date subsequent to the Closing Date, no circumstance
or event has occurred that constitutes a Material Adverse
Effect since the Closing Date.
4.7 Title to Property. Borrower and its Subsidiaries
have valid title to the Property reflected in the financial
statements described in Section 4.5(b), other than immaterial
items of Property and Property subsequently sold or disposed of
in the ordinary course of business, free and clear of all Liens
and Rights of Others, other than Liens or Rights of Others
securing Indebtedness in an aggregate amount not in excess of
$25,000,000, and Liens or Rights of Others described in
Schedule 4.7, or permitted by Section 6.9.
4.8 Intangible Assets. Borrower and its Restricted
Subsidiaries own, or possess the right to use to the extent
necessary in their respective businesses, all material
trademarks, trade names, copyrights, patents, patent rights,
computer software, licenses and other Intangible Assets that
are used in the conduct of their businesses as now operated,
and no such Intangible Asset, to the best knowledge of
Borrower, conflicts with the valid trademark, trade name,
copyright, patent, patent right or Intangible Asset of any
other Person to the extent that such conflict constitutes a
Material Adverse Effect.
4.9 Public Utility Holding Company Act. Neither Borrower
nor any Restricted Subsidiary is a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate"
of a "holding company" or of a "subsidiary company" of a
"holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
4.10 Litigation. Except for (a) any matter fully covered
as to subject matter and amount (subject to applicable
deductibles and retentions) by insurance for which the
insurance carrier has not asserted lack of subject matter
coverage or reserved its right to do so, (b) any matter, or
series of related matters, involving a claim against Borrower
or any of its Restricted Subsidiaries of less than $5,000,000,
(c) matters of an administrative nature not involving a claim
or charge against Borrower or any of its Restricted
Subsidiaries and (d) matters set forth in Schedule 4.10, there
are no actions, suits, proceedings or investigations pending as
to which Borrower or any of its Restricted Subsidiaries have
been served or have received notice or, to the best knowledge
of Borrower, threatened against or affecting Borrower or any of
its Restricted Subsidiaries or any Property of any of them
before any Governmental Agency.
4.11 Binding Obligations. Each of the Loan Documents to
which Borrower or any of its Significant Subsidiaries is a
Party will, when executed and delivered by such Party,
constitute the legal, valid and binding obligation of such
Party, enforceable against such Party in accordance with its
terms, except as enforcement may be limited by Debtor Relief
Laws or Gaming Laws or equitable principles relating to the
granting of specific performance and other equitable remedies
as a matter of judicial discretion.
4.12 No Default. No event has occurred and is continuing
that is a Default or Event of Default.
4.13 ERISA.
(a) With respect to each Pension Plan:
(i) such Pension Plan complies in all
material respects with ERISA and any other applicable Laws
to the extent that noncompliance could reasonably be
expected to have a Material Adverse Effect;
(ii) such Pension Plan has not incurred any
"accumulated funding deficiency" (as defined in
Section 302 of ERISA) that could reasonably be expected to
have a Material Adverse Effect;
(iii) no "reportable event" (as defined in
Section 4043 of ERISA) has occurred that could reasonably
be expected to have a Material Adverse Effect; and
(iv) neither Borrower nor any of its Sub-
sidiaries has engaged in any non-exempt "prohibited
transaction" (as defined in Section 4975 of the Code) that
could reasonably be expected to have a Material Adverse
Effect.
(b) Neither Borrower nor any of its Restricted
Subsidiaries has incurred or expects to incur any withdrawal
liability to any Multiemployer Plan that could reasonably be
expected to have a Material Adverse Effect.
4.14 Regulations G, T, U and X; Investment Company Act.
No part of the proceeds of any Loan hereunder will be used to
purchase or carry, or to extend credit to others for the
purpose of purchasing or carrying, any Margin Stock in xxxxx-
tion of Regulations G, T, U or X. Neither Borrower nor any of
its Restricted Subsidiaries is or is required to be registered
as an "investment company" under the Investment Company Act of
1940.
4.15 Disclosure. No written statement made by a Senior
Officer to any Creditor in connection with this Agreement, or
in connection with any Loan, Advance or Letter of Credit as of
the date thereof contained any untrue statement of a material
fact or omitted a material fact necessary to make the statement
made not misleading in light of all the circumstances existing
at the date the statement was made.
4.16 Tax Liability. Borrower and its Restricted
Subsidiaries have filed all tax returns which are required to
be filed, and have paid, or made provision for the payment of,
all taxes with respect to the periods, Property or transactions
covered by said returns, or pursuant to any assessment received
by Borrower or any of its Restricted Subsidiaries, except
(a) such taxes, if any, as are being contested in good faith by
appropriate proceedings and as to which adequate reserves have
been established and maintained and (b) immaterial taxes and
tax returns so long as no material item or portion of Property
of Borrower or any of its Restricted Subsidiaries is in
jeopardy of being seized, levied upon or forfeited.
4.17 Projections. As of the Closing Date, to the best
knowledge of Borrower, the assumptions set forth in the
Projections are reasonable and consistent with each other and
with all facts known to Borrower, and the Projections are
reasonably based on such assumptions. Nothing in this
Section 4.17 shall be construed as a representation or covenant
that the Projections in fact will be achieved.
4.18 Hazardous Materials. Neither Borrower nor any of
its Restricted Subsidiaries at any time has disposed of,
discharged, released or threatened the release of any material
amount of Hazardous Materials on, from or under the Real
Property in any manner that violates any Hazardous Materials
Law in any manner which would result in a Material Adverse
Effect. No condition exists that violates any Hazardous
Material Law affecting any Real Property except for such
violations that would not individually or in the aggregate have
a Material Adverse Effect. No Real Property or any portion
thereof is or has been utilized by Borrower or any of its
Restricted Subsidiaries as a site for the manufacture of any
Hazardous Materials. To the extent that any Hazardous
Materials are used, generated or stored by Borrower or any of
its Restricted Subsidiaries on any Real Property, or
transported to or from such Real Property by Borrower or any of
its Restricted Subsidiaries, such use, generation, storage and
transportation are in compliance in all material respects with
all Hazardous Materials Laws.
4.19 Developed Properties. As of the Closing Date, the
facilities described on Schedule 4.19 comprise all of the
Developed Property.
4.20 Gaming Laws. Borrower and each of its Restricted
Subsidiaries are in compliance in all material respects with
all Gaming Laws that are applicable to them and their
businesses.
Article 5
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)
So long as any Advance remains unpaid, or any other
Obligation remains unpaid or unperformed, or any portion of the
Commitment remains in force, Borrower shall, and shall cause
each of its Restricted Subsidiaries to, unless the
Administrative Agent (with the written approval of the
Requisite Banks) otherwise consents:
5.1 Payment of Taxes and Other Potential Liens. Pay and
discharge promptly all taxes, assessments and governmental
charges or levies imposed upon any of them, upon their
respective Property or any part thereof and upon their
respective income or profits or any part thereof, except that
Borrower and its Restricted Subsidiaries shall not be required
to pay or cause to be paid (a) any tax, assessment, charge or
levy that is not yet past due, or is being contested in good
faith by appropriate proceedings so long as the relevant entity
has established and maintains adequate reserves for the payment
of the same or (b) any immaterial tax so long as no material
item or portion of Property of Borrower or any of its
Restricted Subsidiaries is in jeopardy of being seized, levied
upon or forfeited.
5.2 Preservation of Existence. Preserve and maintain
their respective existences in the jurisdiction of their
formation and all material authorizations, rights, franchises,
privileges, consents, approvals, orders, licenses, permits, or
registrations from any Governmental Agency that are necessary
for the transaction of their respective business, except where
the failure to so preserve and maintain the existence of any
Restricted Subsidiary and such authorizations would not
constitute a Material Adverse Effect and except that a merger
permitted by Section 6.4 shall not constitute a violation of
this covenant; and qualify and remain qualified to transact
business in each jurisdiction in which such qualification is
necessary in view of their respective business or the ownership
or leasing of their respective Properties except where the
failure to so qualify or remain qualified would not constitute
a Material Adverse Effect.
5.3 Maintenance of Properties. Maintain, preserve and
protect all of their respective depreciable Properties in good
order and condition, subject to wear and tear in the ordinary
course of business, and not permit any waste of their respec-
tive Properties, except that (a) the failure to maintain,
preserve and protect a particular item of depreciable Property
that is not of significant value, either intrinsically or to
the operations of Borrower and its Restricted Subsidiaries,
taken as a whole, shall not constitute a violation of this
covenant, (b) demolition of the Hacienda Hotel or the failure
to maintain the same shall not be construed to be in violation
of this Section.
5.4 Maintenance of Insurance. Maintain liability,
casualty and other insurance (subject to customary deductibles
and retentions) with responsible insurance companies in such
amounts and against such risks as is carried by responsible
companies engaged in similar businesses and owning similar
assets in the general areas in which Borrower and its
Restricted Subsidiaries operate.
5.5 Compliance With Laws. Comply, within the time
period, if any, given for such compliance by the relevant
Governmental Agency or Agencies with enforcement authority,
with all Requirements of Law noncompliance with which con-
stitutes a Material Adverse Effect, except that Borrower and
its Restricted Subsidiaries need not comply with a Requirement
of Law then being contested by any of them in good faith by
appropriate proceedings.
5.6 Inspection Rights. Upon reasonable notice, at any
time during regular business hours and as often as requested
(a) (but not so as to materially interfere with the business of
Borrower or any of its Restricted Subsidiaries), permit the
Administrative Agent or any Bank, or any authorized employee,
agent or representative thereof, to examine, audit and make
copies and abstracts from the records and books of account of,
and to visit and inspect the Properties of, Borrower and its
Restricted Subsidiaries and to discuss the affairs, finances
and accounts of Borrower and its Restricted Subsidiaries with
any of their officers, key employees or accountants and, upon
request, furnish promptly to the Administrative Agent or any
Bank true copies of all financial information made available to
the board of directors or audit committee of the board of
directors of Borrower and (b) (but not so as to materially
interfere with the business of any New Venture Entity), permit
the Administrative Agent, or any authorized employee, agent or
representative thereof, to visit and inspect the Properties of
such New Venture Entity and to discuss the affairs, finances
and accounts of the New Venture Entity with any of its
officers, key employees or accountants.
5.7 Keeping of Records and Books of Account. Keep xxx-
xxxxx records and books of account reflecting all financial
transactions in conformity with Generally Accepted Accounting
Principles, consistently applied, and in material conformity
with all applicable requirements of any Governmental Agency
having regulatory jurisdiction over Borrower or any of its
Restricted Subsidiaries.
5.8 Compliance With Agreements. Promptly and fully
comply with all Contractual Obligations under all material
agreements, indentures, leases and/or instruments to which any
one or more of them is a party, whether such material
agreements, indentures, leases or instruments are with a Bank
or another Person, except for any such Contractual Obligations
(a) the performance of which would cause a Default or (b) then
being contested by any of them in good faith by appropriate
proceedings or if the failure to comply with such agreements,
indentures, leases or instruments does not constitute a
Material Adverse Effect.
5.9 Use of Proceeds. Use the proceeds of Loans (a) on
the Closing Date, for retirement of all outstanding obligations
under the Existing Syndicated Credit Facilities, and
(b) thereafter for working capital and general corporate
purposes of Borrower and its Restricted Subsidiaries including
without limitation capital expenditures, share repurchases,
commercial paper backup and acquisitions of equity securities
or assets of other Persons, in each case to the extent not
prohibited by the Loan Documents.
5.10 New Significant Subsidiaries. Cause each of its
Restricted Subsidiaries which hereafter becomes a Significant
Subsidiary to execute and deliver to the Administrative Agent
an instrument of joinder of the Subsidiary Guaranty.
5.11 Hazardous Materials Laws. Keep and maintain all
Real Property then owned or leased by Borrower or its
Restricted Subsidiaries and each portion thereof (or cause such
Real Property to be kept and maintained) in compliance in all
material respects with all applicable Hazardous Materials Laws
and promptly notify the Administrative Agent in writing of
(a) any and all material enforcement, cleanup, removal or other
governmental or regulatory actions instituted, completed or
threatened in writing by a Governmental Agency pursuant to any
applicable Hazardous Materials Laws, (b) any and all material
claims made or threatened in writing by any Person against
Borrower relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from any Hazardous
Materials and (c) discovery by any Senior Officer of Borrower
of any material occurrence or condition on any real property
adjoining or in the vicinity of such Real Property that could
reasonably be expected to cause such Real Property or any part
thereof to be subject to any material restrictions on the
ownership, occupancy, transferability or use of such Real
Property under any applicable Hazardous Materials Laws.
Article 6
NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any other
Obligation remains unpaid or unperformed, or any portion of the
Commitment remains in force, Borrower shall not, and shall not
permit any of its Restricted Subsidiaries to, unless the
Administrative Agent (with the written approval of the
Requisite Banks or, if required by Section 11.2, of all of the
Banks) otherwise consents:
6.1 Prepayment of Indebtedness. Pay any principal or
interest on any Indebtedness of Borrower or any of its
Restricted Subsidiaries prior to the date when due, or make any
payment or deposit with any Person that has the effect of
providing for the satisfaction of any Indebtedness of Borrower
or any of its Restricted Subsidiaries prior to the date when
due, in each case if an Event of Default then exists or would
result therefrom; provided, however, that this Section shall
not apply to prohibit any prepayment to the extent necessary to
prevent a License Revocation if (i) no Default or Event of
Default then exists which is not curable by such prepayment and
(ii) Borrower has notified the Administrative Agent in writing
of the necessity to invoke this proviso at least ten Banking
Days (or such shorter period as may be necessary in order to
comply with a regulation or order of the relevant Gaming Board)
in advance.
6.2 Payment of Subordinated Debt. Pay any (a) principal
(including sinking fund payments) or any other amount (other
than scheduled interest payments) with respect to any
Subordinated Debt, or purchase or redeem any Subordinated Debt,
if an Event of Default then exists or would result therefrom,
or (b) scheduled interest on any Subordinated Debt, if an Event
of Default described in Sections 9.1(a) or 9.1(b) then exists
or would result therefrom; provided, however, that this Section
shall not apply to prohibit any payment to the extent necessary
to prevent a License Revocation if (i) no Default or Event of
Default then exists which is not curable by such payment and
(ii) Borrower has notified the Administrative Agent in writing
of the necessity to invoke this proviso at least ten Banking
Days (or such shorter period as may be necessary in order to
comply with a regulation or order of the relevant Gaming Board)
in advance. Borrower shall not amend or modify the
subordination provisions of any Subordinated Debt in any manner
which is materially adverse to the interests of the Creditors.
6.3 Disposition of Property. Make any Disposition of its
Property, whether now owned or hereafter acquired, except
Dispositions made during the term of this Agreement in an
aggregate amount not in excess of $150,000,000 made when no
Event of Default then exists or would result therefrom;
provided, however, that this Section shall not apply to
prohibit a Disposition to the extent necessary to prevent a
License Revocation if (i) no Default or Event of Default then
exists which is not curable by such Disposition, and
(ii) Borrower has notified the Administrative Agent in writing
of the necessity to invoke this proviso at least ten Banking
Days (or such shorter period as may be necessary in order to
comply with a regulation or order of the relevant Gaming Board)
in advance, and provided further that nothing in this Section
shall apply to restrict the Disposition of any of the equity
securities of any Person that holds, directly or indirectly
through a holding company or otherwise, a license under any
Gaming Law to the extent such restriction is unlawful under
that Gaming Law.
6.4 Mergers. Merge or consolidate with or into any
Person, except:
(a) mergers and consolidations of a Subsidiary
of Borrower into Borrower or a Restricted Subsidiary (with
Borrower or the Restricted Subsidiary as the surviving
entity) or of Restricted Subsidiaries of Borrower with
each other, provided that Borrower and each of its
Subsidiaries has executed such amendments to the Loan
Documents as the Administrative Agent may reasonably
determine are appropriate as a result of such merger; and
(b) a merger or consolidation of Borrower or
any Restricted Subsidiary with any other Person, provided
that (i) either (A) Borrower or the Restricted Subsidiary
is the surviving entity, or (B) the surviving entity is a
corporation organized under the Laws of a State of the
United States of America and, as of the date of such
merger or consolidation, expressly assumes, by an
instrument satisfactory in form and substance to the
Requisite Banks, the Obligations of Borrower or the
Restricted Subsidiary, as the case may be, (ii) giving
effect thereto on a pro-forma basis, no Default or Event
of Default exists or would result therefrom, and (iii) as
a result thereof, no Change in Control has occurred.
6.5 Hostile Tender Offers. Make any offer to purchase or
acquire, or consummate a purchase or acquisition of, 5% or more
of the capital stock of any corporation or other business
entity if the board of directors or management of such corpora-
tion or business entity has notified Borrower that it opposes
such offer or purchase and such notice has not been withdrawn
or superseded.
6.6 Distributions. Make any Distribution, whether from
capital, income or otherwise, and whether in Cash or other
Property, if an Event of Default then exists or would result
therefrom except (a) Distributions by any Restricted Subsidiary
to Borrower or to another Restricted Subsidiary, (b) payment of
dividends which have been declared if the same would have been
permitted hereunder at the date of declaration and
(c) dividends payable solely in Common Stock; provided,
however, that this Section shall not apply to prohibit a
Distribution to the extent necessary to prevent a License
Revocation if (i) no Default or Event of Default then exists
which is not curable by such Distribution and (ii) Borrower has
notified the Administrative Agent in writing of the necessity
to invoke this proviso at least ten Banking Days (or such
shorter period as may be necessary in order to comply with a
regulation or order of the relevant Gaming Board) in advance.
6.7 ERISA.
(a) At any time, permit any Pension Plan to:
(i) engage in any non-exempt "prohibited
transaction" (as defined in Section 4975 of the Code);
(ii) fail to comply with ERISA or any other
applicable Laws;
(iii) incur any material "accumulated
funding deficiency" (as defined in Section 302 of ERISA);
or
(iv) terminate in any manner, which, with
respect to each event listed above, could reasonably be
expected to result in a Material Adverse Effect.
(b) Withdraw, completely or partially, from any
Multiemployer Plan if to do so could reasonably be expected to
result in a Material Adverse Effect.
6.8 Change in Nature of Business. Make any material
change in the nature of the business of Borrower and its
Restricted Subsidiaries, taken as a whole; provided that the
acquisition of an ownership interest in one or more New
Ventures shall not be construed to violate this covenant.
6.9 Liens, Negative Pledges and Rights of Others.
Create, incur, assume or suffer to exist any Lien, Negative
Pledge or Right of Others of any nature upon or with respect to
any of their respective Properties, whether now owned or
hereafter acquired, except:
(a) Permitted Encumbrances and Permitted Rights
of Others;
(b) Liens and Negative Pledges under the Loan
Documents;
(c) existing Liens, Negative Pledges and Rights
of Others disclosed in Schedule 4.7 (or not required to be
disclosed therein under Section 4.7) and any renewals or
extensions thereof; provided that the obligations secured
or benefited thereby are not increased;
(d) Rights of Others consisting of holdings in
joint tenancy or other forms of ownership interests (and
rights associated therewith) in a New Venture Entity or
consisting of obligations of Borrower or its Restricted
Subsidiaries to sell, or rights of other Persons to
purchase, the ownership interests of Borrower and its
Restricted Subsidiaries in a New Venture Entity, which
obligations or rights were created substantially
concurrently with the acquisition of such ownership
interest in the New Venture Entity;
(e) any Lien, Negative Pledge or Right of
Others on shares of any equity security or any warrant or
option to purchase an equity security or any security
which is convertible into an equity security issued by any
Subsidiary of Borrower that holds, directly or indirectly
through a holding company or otherwise, a license under
any Gaming Law, and in the proceeds thereof; provided that
this clause (e) shall apply only so long as the Gaming
Laws of the relevant jurisdiction provide that the
creation of any restriction on the disposition of any of
such securities shall not be effective and, if such Gaming
Laws at any time cease to so provide, then this clause (e)
shall be of no further effect; and provided further that
if at any time Borrower creates or suffers to exist a Lien
or Negative Pledge covering such securities in favor of
the holder of any other Indebtedness, it will (subject to
any approval required under such Gaming Laws) concurrently
grant a pari-passu Lien or Negative Pledge likewise
covering such securities in favor of the Administrative
Agent for the benefit of the Banks;
(f) Liens on Property acquired or constructed
(whether before or after the Closing Date) by Borrower or
any of its Restricted Subsidiaries, and in the proceeds
thereof, that (i) were in existence at the time of the
acquisition or construction of such Property or were
created at or within 180 days after such acquisition or
construction, (ii) secure (in the case of Liens not in
existence at the time of acquisition of the Property) only
the unpaid portion of the acquisition or construction
price for such Property, or monies borrowed that were used
to pay such acquisition or construction price and (iii) do
not secure, in the aggregate, Indebtedness (including
Capital Lease Obligations) in excess of $50,000,000
outstanding at any time;
(g) Liens securing Indebtedness (including
Capital Lease Obligations) that replaces or refinances
Indebtedness secured by Liens permitted under clause (f);
provided that (i) such Liens cover the same Property as
the Liens securing the Indebtedness replaced or refinanced
and (ii) the aggregate Indebtedness secured by all such
Liens, when added to the Indebtedness secured by Liens
permitted under clause (f), does not exceed $50,000,000
outstanding at any time;
(h) Liens, Negative Pledges and Rights of
Others held by joint venture partners and any assignees
thereof, and lenders thereto and any assignees thereof,
with respect to the interests of Borrower in that joint
venture and the proceeds thereof, provided that such
Liens, Negative Pledges and Rights of Others shall secure
and relate only the obligations of such joint venture; and
(i) Liens, Negative Pledges and Rights of
Others in favor of counterparties to agreements, and
assignees thereof, entered into by Borrower and its
Restricted Subsidiaries in the ordinary course of business
on the interests of Borrower and its Restricted
Subsidiaries under such agreements and the proceeds
thereof, provided that such Liens, Negative Pledges and
Rights of Others shall secure and relate only restrictions
on transfer of the rights of Borrower and its Restricted
Subsidiaries to the holders thereof under the relevant
agreement.
provided, that this Section shall not apply to prohibit the
creation of a Lien, Negative Pledge or Right of Others to the
extent necessary to prevent a License Revocation if (i) no
Default or Event of Default then exists which is not curable by
creation of the Lien, Negative Pledge or Right of Others and
(ii) Borrower has notified the Administrative Agent in writing
of the necessity to invoke this proviso at least ten Banking
Days (or such shorter period as may be necessary in order to
comply with a regulation or order of the relevant Gaming Board)
in advance.
6.10 Indebtedness and Contingent Guaranties. Create,
incur, assume or suffer to exist any Indebtedness or Contingent
Guaranty (other than Indebtedness of Restricted Subsidiaries to
Borrower or another Restricted Subsidiary) if:
(a) a Default or Event of Default then exists or
would result therefrom, or
(b) after giving effect thereto, the aggregate
principal amount (without duplication) of (i) all
Indebtedness (other than the Obligations, Subordinated
Debt and Commercial Paper Debt) of Borrower and its
Restricted Subsidiaries, plus (ii) the amount of all
Contingent Guaranties (to the extent that the same are
quantified pursuant to the definition thereof) would
exceed $500,000,000.
6.11 Transactions with Affiliates. Enter into any
material transaction of any kind with any Affiliate of Borrower
other than (a) salary, bonus, employee stock option and other
compensation arrangements with directors or officers in the
ordinary course of business, (b) transactions that are fully
disclosed to the board of directors of Borrower and expressly
authorized by a resolution of the board of directors of
Borrower which is approved by a majority of the directors not
having an interest in the transaction, (c) transactions between
or among Borrower and its Restricted Subsidiaries and
(d) transactions on overall terms, giving effect to all other
business arrangements of Borrowers and their Restricted
Subsidiaries with that Affiliate, at least as favorable to
Borrower or its Restricted Subsidiaries as would be the case in
an arm's-length transaction between unrelated parties of equal
bargaining power.
6.12 Tangible Net Worth. Permit Tangible Net Worth, as
of the last day of any Fiscal Quarter ending after the Closing
Date, to be less than the sum of (a) 85% of Base Net Worth plus
(b) an amount equal to 50% of the Net Income earned in each
Fiscal Quarter ending after November 1, 1995 (with no deduction
for a net loss in any such Fiscal Quarter), plus (c) an amount
equal to 50% of the aggregate increases in Stockholders' Equity
after the Closing Date by reason of the issuance and sale of
capital stock by Borrower (including upon any conversion of
debt securities of Borrower into such capital stock), minus (d)
the aggregate amount, not to exceed $300,000,000, then expended
by Borrower in Cash for purchase or redemption of Common Stock
after November 1, 1995.
6.13 Interest Charge Coverage. Permit Interest Charge
Coverage, as of the last day of any Fiscal Quarter ending after
the Closing Date, to be less than the ratio set forth below
opposite the period during which such Fiscal Quarter ends:
Period Ratio
Closing Date through
January 31, 1998 2.50 to 1.00
April 30, 1998 through 2.75 to 1.00
January 31, 1999
April 30, 1999 and 3.00 to 1.00
thereafter
6.14 Total Debt to EBITDA Ratio. Permit the Total Debt
to EBITDA Ratio, as of the last day of any Fiscal Quarter
ending after the Closing Date, to be greater than the ratio set
forth below opposite the period during which such Fiscal
Quarter ends:
Period Ratio
Closing Date through
January 31, 1998 3.50 to 1.00
April 30, 1998 through 3.25 to 1.00
January 31, 1999
April 30, 1999 and 3.00 to 1.00
thereafter
6.15 New Venture Capital Expenditures and Investments.
(a) Make, or enter any legally binding
commitment to make, any New Venture Capital Expenditure or
New Venture Investment if the aggregate New Venture
Capital Expenditures and New Venture Investments made
during the term of this Agreement (or reasonably
anticipated to be made with respect to the related New
Ventures or, in the case of an addition to or improvement
of a Developed Property, with respect to such addition or
improvement) will or may be $600,000,000 or more without
first obtaining the written consent of the Majority Banks;
(b) Make, or enter any legally binding
commitment to make, any New Venture Capital Expenditure or
New Venture Investment with respect to any single New
Venture if the aggregate New Venture Capital Expenditures
and New Venture Investments which are made, committed to
be made, or reasonably anticipated to be made, with
respect to such New Venture exceed or are reasonably
anticipated to exceed $250,000,000 without first obtaining
the written consent of the Majority Banks; or
(c) Make, or enter any legally binding
commitment to make, any New Venture Capital Expenditure if
a Default or Event of Default then exists or would result
therefrom; provided that this clause (c) shall not
prohibit the making of a New Venture Capital Expenditure
during the existence of a Default or Event of Default
which Borrower became legally bound to make prior to such
Default or Event of Default.
6.16 Investments. Make or suffer to exist any
Investment, other than:
(a) Investments in existence on the Closing
Date and disclosed on Schedule 6.16 and extensions or
similar reinvestments thereof in each case in an amount
not greater than the Investment extended or reinvested;
(b) Investments consisting of Cash and Cash
Equivalents;
(c) Investments consisting of advances to
officers, directors and employees of Borrower and its
Subsidiaries for travel, entertainment, relocation and
analogous ordinary business purposes;
(d) Investments of Borrower in any of its
Restricted Subsidiaries and Investments of any Restricted
Subsidiary in Borrower or another Restricted Subsidiary;
(e) Investments consisting of or evidencing the
extension of credit to customers of Borrower and its
Subsidiaries in the ordinary course of business and any
Investments received in satisfaction or partial
satisfaction thereof;
(f) Investments received in connection with the
settlement of a bona fide dispute with another Person;
(g) Investments representing all or a portion
of the sales price for Property sold to another Person;
(h) New Venture Investments that do not violate
Section 6.15; and
(i) Investments resulting from the acquisition
by Borrower or any of its Restricted Subsidiaries of all
or a portion of another Person's ownership interest in a
New Venture Entity pursuant to an obligation or right of
such Person to sell, or an obligation or right of Borrower
or any of its Restricted Subsidiaries to purchase, such
ownership interest, which obligation or right was created
substantially concurrently with the acquisition of such
ownership interest in the New Venture Entity.
6.17 Significant Subsidiaries. Permit any
Restricted Subsidiary that is, as of the Closing Date, a
Significant Subsidiary to cease being a Restricted Subsidiary,
except pursuant to a Disposition permitted by Section 6.3 or a
merger or consolidation permitted by Section 6.4.
Article 7
INFORMATION AND REPORTING REQUIREMENTS
7.1 Financial and Business Information. So long as any
Advance remains unpaid, or any other Obligation remains unpaid
or unperformed, or any portion of the Commitment remains in
force, Borrower shall, unless the Administrative Agent (with
the written approval of the Requisite Banks) otherwise
consents, deliver to the Administrative Agent and the Banks, at
Borrower's sole expense:
(a) As soon as practicable, and in any event
within 60 days after the end of each Fiscal Quarter (other
than the fourth Fiscal Quarter in any Fiscal Year),
(i) the consolidated balance sheet of Borrower and its
Subsidiaries as at the end of such Fiscal Quarter and the
consolidated statement of operations for each Fiscal
Quarter, and its statement of cash flows for the portion
of the Fiscal Year ended with such Fiscal Quarter and
(ii) the consolidating (in accordance with past
consolidating practices of Borrower) balance sheets and
statements of operations as at and for the portion of the
Fiscal Year ended with such Fiscal Quarter, all in
reasonable detail. Such financial statements shall be
certified by a Senior Officer of Borrower as fairly
presenting the financial condition, results of operations
and cash flows of Borrower and its Subsidiaries in
accordance with Generally Accepted Accounting Principles
(other than footnote disclosures), consistently applied,
as at such date and for such periods, subject only to
normal year-end accruals and audit adjustments;
(b) As soon as practicable, and in any event
within 60 days after the end of the fourth Fiscal Quarter
in a Fiscal Year, a Certificate of a Responsible Official
setting forth the Funded Debt Ratio as of the last day of
such Fiscal Quarter, and providing reasonable detail as to
the calculation thereof, which calculations shall be based
on the preliminary unaudited financial statements of
Borrower and its Subsidiaries for such Fiscal Quarter;
(c) As soon as practicable, and in any event
within 100 days after the end of each Fiscal Year, (i) the
consolidated balance sheet of Borrower and its
Subsidiaries as at the end of such Fiscal Year and the
consolidated statements of operations, shareholders'
equity and cash flows, in each case of Borrower and its
Subsidiaries for such Fiscal Year and (ii) consolidating
(in accordance with past consolidating practices of
Borrower) balance sheets and statements of operations, in
each case as at and for the Fiscal Year, all in reasonable
detail. Such financial statements shall be prepared in
accordance with Generally Accepted Accounting Principles,
consistently applied, and such consolidated balance sheet
and consolidated statements shall be accompanied by a
report and opinion of Xxxxxx Xxxxxxxx LLP or other
independent public accountants of recognized standing
selected by Borrower and reasonably satisfactory to the
Requisite Banks, which report and opinion shall be
prepared in accordance with generally accepted auditing
standards as at such date, and shall not be subject to any
qualifications or exceptions as to the scope of the audit
nor to any other qualification or exception determined by
the Requisite Banks in their good faith business judgment
to be adverse to the interests of the Banks. Such
accountants' report and opinion shall be accompanied by a
certificate stating that, in making the examination pur-
suant to generally accepted auditing standards necessary
for the certification of such financial statements and
such report, such accountants have obtained no knowledge
of any Default or, if, in the opinion of such accountants,
any such Default shall exist, stating the nature and
status of such Default, and stating that such accountants
have reviewed Borrower's financial calculations as at the
end of such Fiscal Year (which shall accompany such
certificate) under Section 6.10 and Sections 6.12 through
6.15, have read such Sections (including the definitions
of all defined terms used therein) and that nothing has
come to the attention of such accountants in the course of
such examination that would cause them to believe that the
same were not calculated by Borrower in the manner
prescribed by this Agreement;
(d) As soon as practicable, and in any event
within 100 days after the commencement of each Fiscal
Year, a budget and projection by Fiscal Quarter for that
Fiscal Year and by Fiscal Year for the next four
succeeding Fiscal Years, including for the first such
Fiscal Year, projected quarterly consolidated balance
sheets, statement of operations and statements of cash
flow and, for the remaining four Fiscal Years, projected
annual consolidated condensed balance sheets and
statements of operations and cash flow, of Borrower and
its Subsidiaries, all in reasonable detail;
(e) Promptly after request by any Creditor,
copies of any detailed audit reports, management letters
or recommendations submitted to the board of directors (or
the audit committee of the board of directors) of Borrower
by independent accountants in connection with the accounts
or books of Borrower or any of its Subsidiaries, or any
audit of any of them;
(f) As soon as practicable, and in any event
within 30 days after the end of each Fiscal Quarter, a
written report, in form and detail mutually acceptable to
Borrower and the Administrative Agent, with a narrative
report describing the results of operations of Borrower
and its Subsidiaries during such Fiscal Quarter and
detailing the status of each New Venture, including the
amounts of New Venture Capital Expenditures and New
Ventures Investments made, and reasonably anticipated to
be made, with respect thereto;
(g) Promptly after the same are available,
copies of each annual report, proxy or financial statement
or other report or communication sent to the shareholders
of Borrower, and copies of all annual, regular, periodic
and special reports and registration statements which
Borrower may file or be required to file with the Securi-
ties and Exchange Commission under Sections 13 or 15(d) of
the Securities Exchange Act of 1934 and not otherwise
required to be delivered to the Banks pursuant to other
provisions of this Section;
(h) Promptly after the same are available,
copies of the Nevada "Regulation 6.090 Report" and
"6-A Report" and copies of any written communication to
Borrower or any of its Restricted Subsidiaries from any
Gaming Board advising it of a violation of or
non-compliance with, any Gaming Law by Borrower or any of
its Subsidiaries;
(i) Promptly after request by any Creditor,
copies of any other report or other document that was
filed by Borrower or any of its Restricted Subsidiaries
with any Governmental Agency;
(j) Promptly upon a Senior Officer becoming
aware, and in any event within five (5) Banking Days after
becoming aware, of the occurrence of any (i) "reportable
event" (as such term is defined in Section 4043 of ERISA)
or (ii) "prohibited transaction" (as such term is defined
in Section 406 of ERISA or Section 4975 of the Code) in
connection with any Pension Plan or any trust created
thereunder, telephonic notice specifying the nature
thereof, and, no more than five (5) Banking Days after
such telephonic notice, written notice again specifying
the nature thereof and specifying what action Borrower or
any of its Restricted Subsidiaries is taking or proposes
to take with respect thereto, and, when known, any action
taken by the Internal Revenue Service with respect
thereto;
(k) As soon as practicable, and in any event
within two Banking Days after a Senior Officer becomes
aware of the existence of any condition or event which
constitutes a Default, telephonic notice specifying the
nature and period of existence thereof, and, no more than
two Banking Days after such telephonic notice, written
notice again specifying the nature and period of existence
thereof and specifying what action Borrower or any of its
Restricted Subsidiaries are taking or propose to take with
respect thereto;
(l) Promptly upon a Senior Officer becoming
aware that (i) any Person commenced a legal proceeding
with respect to a claim against Borrower or any of its
Restricted Subsidiaries that is $5,000,000 or more in
excess of the amount thereof that is fully covered by
insurance, (ii) any creditor or lessor under a written
credit agreement or material lease has asserted a default
thereunder on the part of Borrower or any of its
Restricted Subsidiaries, (iii) any Person commenced a
legal proceeding with respect to a claim against Borrower
or any of its Restricted Subsidiaries under a contract
that is not a credit agreement or material lease in
excess of $5,000,000 or which otherwise may reasonably be
expected to result in a Material Adverse Effect, (iv) any
labor union has notified Borrower of its intent to strike
Borrower or any of its Restricted Subsidiaries on a date
certain and such strike would involve more than
100 employees of Borrower and its Restricted Subsidiaries,
or (v) any Gaming Board has indicated its intent to
consider or act upon a License Revocation or a fine or
penalty of $1,000,000 or more with respect to Borrower or
any of its Restricted Subsidiaries, a written notice
describing the pertinent facts relating thereto and what
action Borrower or its Restricted Subsidiaries are taking
or propose to take with respect thereto; and
(m) Such other data and information as from
time to time may be reasonably requested by any Creditor
through the Administrative Agent.
7.2 Compliance Certificates. So long as any Advance
remains unpaid, or any other Obligation remains unpaid or
unperformed, or any portion of the Commitment remains outstand-
ing, Borrower shall deliver to the Administrative Agent and the
Banks, at Borrower's sole expense, concurrently with the
financial statements required pursuant to Sections 7.1(a) and
7.1(c), a Compliance Certificate signed on Borrower's behalf by
a Senior Officer.
Article 8
CONDITIONS
8.1 Initial Advances, Etc.. The obligation of each Bank
to make the initial Advance to be made by it, the obligation of
the Swing Line Bank to make Swing Line Advances and the
obligation of the Issuing Bank to issue the initial Letters of
Credit, are each subject to the following conditions precedent,
each of which shall be satisfied prior to the making of the
initial Advances (unless all of the Banks, in their sole and
absolute discretion, shall agree otherwise):
(a) The Administrative Agent shall have
received all of the following, each of which shall be
originals unless otherwise specified, each properly
executed by a Responsible Official of each party thereto,
each dated as of the Closing Date and each in form and
substance satisfactory to the Administrative Agent and its
legal counsel (unless otherwise specified or, in the case
of the date of any of the following, unless the
Administrative Agent otherwise agrees or directs):
(1) at least one (1) executed counterpart of
this Agreement, together with arrangements satisfac-
tory to the Administrative Agent for additional
executed counterparts, sufficient in number for
distribution to the Banks and Borrower;
(2) Committed Advance Notes executed by
Borrower in favor of each Bank, each in a principal
amount equal to that Bank's Pro Rata Share;
(3) Competitive Advance Notes executed by
Borrower in favor of each Bank;
(4) the Swing Line Documents;
(5) the Subsidiary Guaranty executed by each
Significant Subsidiary;
(6) with respect to Borrower and each
Significant Subsidiary, such documentation as the
Administrative Agent may require to establish the due
organization, valid existence and good standing of
Borrower and each such Subsidiary, its qualification
to engage in business in each material jurisdiction
in which it is engaged in business or required to be
so qualified, its authority to execute, deliver and
perform any Loan Documents to which it is a Party,
the identity, authority and capacity of each
Responsible Official thereof authorized to act on its
behalf, including certified copies of articles of
incorporation and amendments thereto, bylaws and
amendments thereto, certificates of good standing
and/or qualification to engage in business, tax
clearance certificates, certificates of corporate
resolutions, incumbency certificates, Certificates of
Responsible Officials, and the like;
(7) the Opinions of Counsel;
(8) a Certificate of a Responsible Official
certifying that the attached copies of the governing
indentures and agreements for the Existing
Subordinated Debt are true copies;
(9) such assurances as the Administrative Agent
deems appropriate that the relevant Gaming Boards
have approved the transactions contemplated by the
Loan Documents to the extent that such approval is
required by applicable Gaming Laws;
(10) evidence that the Existing Syndicated
Credit Facilities have been or will be at the time
the initial Advances are made concurrently paid in
full and terminated, and that all Liens securing the
Existing Syndicated Credit Facilities are or shall
concurrently be terminated;
(11) a Certificate of a Responsible Official
signed on Borrower's behalf by a Senior Officer
setting forth the Funded Debt Ratio as of the last
day of the most recently ended Fiscal Quarter and the
Applicable Rating as of the Closing Date;
(12) a Certificate of a Responsible Official
signed on Borrower's behalf by a Senior Officer
certifying that the conditions specified in
Sections 8.1(e) and 8.1(f) have been satisfied; and
(13) such other assurances, certificates, docu-
ments, consents or opinions as the Administrative
Agent reasonably may require.
(b) The arrangement fee payable pursuant to
Section 3.2 shall have been paid.
(c) The upfront fees payable pursuant to
Section 3.3 shall have been paid.
(d) The reasonable costs and expenses of the
Administrative Agent in connection with the preparation of
the Loan Documents payable pursuant to Section 11.3, and
invoiced to Borrower prior to the Closing Date, shall have
been paid.
(e) The representations and warranties of
Borrower contained in Article 4 shall be true and correct.
(f) Borrower and any other Parties shall be in
compliance with all the terms and provisions of the Loan
Documents, and after giving effect to the initial Advance
no Default or Event of Default shall have occurred and be
continuing.
8.2 Any Increasing Advance, Etc. Subject to
Section 2.6(e), the obligation of each Bank to make any
Committed Advance which would increase the aggregate principal
amount of the outstanding Committed Advances, the obligation of
the Issuing Bank to issue each Letter of Credit, the obligation
of the Swing Line Bank to make Swing Line Advances, and the
obligation of each Bank to make any Competitive Advance, is
subject to the following conditions precedent:
(a) except (i) for representations and
warranties which expressly speak as of a particular date
or are no longer true and correct as a result of a change
which is not a violation of the Loan Documents and (ii) as
disclosed by Borrower and approved in writing by the
Requisite Banks, the representations and warranties
contained in Article 4 (other than Sections 4.4(a), 4.6
(first sentence), 4.10, 4.17 and, in the case of any
Committed Advance the proceeds of which shall be used to
directly refinance Commercial Paper Debt, the third
sentence of Section 4.6) shall be true and correct on and
as of the date of the Advance as though made on that date;
(b) there shall not be then pending or
threatened any action, suit, proceeding or investigation
against or affecting Borrower or any of its Restricted
Subsidiaries or any Property of any of them before any
Governmental Agency that constitutes a Material Adverse
Effect;
(c) the Administrative Agent shall, in the case
of a Committed Advance, have timely received a Request for
Loan in compliance with Article 2 (or telephonic or other
request for loan referred to in the second sentence of
Section 2.1(c), if applicable) in compliance with
Article 2 (or, in the proper case, a Request for Letter of
Credit); and
(d) the Administrative Agent shall have
received, in form and substance satisfactory to the
Administrative Agent, such other assurances, certificates,
documents or consents related to the foregoing as the
Administrative Agent or Requisite Banks reasonably may
require.
8.3 Any Advance. Subject to Section 2.6(e), the
obligation of each Bank to make any Advance (other than an
Alternate Base Rate Advance with respect to an Alternate Base
Rate Loan which, if made, would not increase the outstanding
principal Indebtedness evidenced by the Committed Advance
Notes), is subject to the conditions precedent that (a) the
representations and warranties contained in Sections 4.1, 4.2,
4.3, 4.4(b), 4.11, 4.12 (but only with respect to Events of
Default) and 4.14 shall be true and correct in all material
respects on the date of such Advance as though made on that
date except as disclosed by Borrower and approved in writing by
the Requisite Banks, and (b) except as provided for in
Section 2.1(g), the Administrative Agent shall have timely
received a Request for Loan in compliance with Article 2 (or
telephonic or other request for loan referred to in the second
sentence of Section 2.1(c), if applicable).
Article 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
9.1 Events of Default. The existence or occurrence of
any one or more of the following events, whatever the reason
therefor and under any circumstances whatsoever, shall consti-
tute an Event of Default:
(a) Borrower (i) fails to pay any principal on
any Committed Advance Note or any Swing Line Advance, or
any portion thereof, on the date when due, (ii) fails to
make any payment with respect to any Letter of Credit when
required by Section 2.4(d), or (iii) fails to pay any
principal on any Competitive Advance Note, or any portion
thereof, (A) if an Event of Default otherwise then exists,
on the date when due or (B) if an Event of Default
otherwise does not then exist, within one (1) Banking Day
after the date when due; or
(b) Borrower fails to pay any interest on any
of the Notes, or any fees under Sections 3.4, 3.5 or 3.6,
or any portion thereof, within five (5) Banking Days after
the date when due; or fails to pay any other fee or amount
payable to the Banks under any Loan Document, or any por-
tion thereof, within five (5) Banking Days after demand
therefor; or
(c) Borrower fails, immediately upon notice
from the Administrative Agent, to comply with any of the
covenants contained in Sections 6.2, 6.4, 6.5, 6.6, 6.8,
6.12, 6.13, 6.14, 6.15 and 6.16; or
(d) Borrower fails to comply with
Section 7.1(k) in any respect that is materially adverse
to the interests of the Banks; or
(e) Borrower, any of its Significant
Subsidiaries or any other Party fails to perform or
observe any other covenant or agreement (not specified in
clauses (a), (b), (c) or (d) above) contained in any Loan
Document on its part to be performed or observed within
ten Banking Days after the giving of notice by the
Administrative Agent on behalf of the Requisite Banks of
such Default; or
(f) Any representation or warranty of Borrower
or any of its Significant Subsidiaries made in any Loan
Document, or in any certificate or other writing delivered
by Borrower pursuant to any Loan Document, proves to have
been incorrect when made or reaffirmed in any respect that
is materially adverse to the interests of the Banks; or
(g) Borrower or any of its Significant
Subsidiaries (i) fails to pay the principal, or any
principal installment, of any present or future
indebtedness for borrowed money of $25,000,000 or more, or
any guaranty of present or future indebtedness for
borrowed money of $25,000,000 or more, on its part to be
paid, when due (or within any stated grace period),
whether at the stated maturity, upon acceleration, by
reason of required prepayment or otherwise or (ii) fails
to perform or observe any other term, covenant or
agreement on its part to be performed or observed, or
suffers any event to occur, in connection with any present
or future indebtedness for borrowed money of $25,000,000
or more, or of any guaranty of present or future
indebtedness for borrowed money of $25,000,000 or more, if
as a result of such failure or sufferance any holder or
holders thereof (or an agent or trustee on its or their
behalf) has the right to declare such indebtedness due
before the date on which it otherwise would become due; or
(h) Any event occurs which gives the holder or
holders of any Subordinated Debt (or an agent or trustee
on its or their behalf) the right to declare such
indebtedness due before the date on which it otherwise
would become due, or the right to require the issuer
thereof to redeem or purchase, or offer to redeem or
purchase, all or any portion of any Subordinated Debt; or
(i) Any Loan Document, at any time after its
execution and delivery and for any reason other than the
agreement of the Banks or satisfaction in full of all the
Obligations ceases to be in full force and effect or is
declared by a court of competent jurisdiction to be null
and void, invalid or unenforceable in any respect which,
in any such event in the reasonable opinion of the
Requisite Banks, is materially adverse to the interests of
the Banks; or any Party thereto denies in writing that it
has any or further liability or obligation under any Loan
Document, or purports in writing to revoke, terminate or
rescind same; or
(j) A final judgment against Borrower or any of
its Significant Subsidiaries is entered for the payment of
money in excess of $5,000,000 and, absent procurement of a
stay of execution, such judgment remains unsatisfied for
thirty calendar days after the date of entry of judgment,
or in any event later than five (5) days prior to the date
of any proposed sale thereunder; or any writ or warrant of
attachment or execution or similar process is issued or
levied against all or any material part of the Property of
any such Person and is not released, vacated or fully
bonded within thirty calendar days after its issue or
levy; or
(k) Borrower or any of its Significant
Subsidiaries institutes or consents to the institution of
any proceeding under a Debtor Relief Law relating to it or
to all or any part of its Property, or is unable or admits
in writing its inability to pay its debts as they mature,
or makes an assignment for the benefit of creditors; or
applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any
part of its Property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer
is appointed without the application or consent of that
Person and the appointment continues undischarged or
unstayed for 60 calendar days; or any proceeding under a
Debtor Relief Law relating to any such Person or to all or
any part of its Property is instituted without the consent
of that Person and continues undismissed or unstayed for
60 calendar days; or
(l) The occurrence of an Event of Default (as
such term is or may hereafter be specifically defined in
any other Loan Document) under any other Loan Document; or
(m) Any determination is made by a court of
competent jurisdiction that any Subordinated Debt is not
subordinated in accordance with its terms to the
Obligations, provided that for so long as such
determination is effectively stayed during any pending
appeal the same shall not constitute an Event of Default;
or
(n) Any Pension Plan maintained by Borrower or
any of its Restricted Subsidiaries is determined to have a
material "accumulated funding deficiency" as that term is
defined in Section 302 of ERISA and the result is a
Material Adverse Effect; or
(o) The occurrence of a License Revocation with
respect to a license issued by any Governmental Agency of
the States of New Jersey or Nevada that continues for five
(5) calendar days.
9.2 Remedies Upon Event of Default. Without limiting any
other rights or remedies of the Creditors provided for
elsewhere in this Agreement, or the Loan Documents, or by
applicable Law, or in equity, or otherwise:
(a) Upon the occurrence, and during the
continuance, of any Event of Default other than an Event
of Default described in Section 9.1(k):
(1) the commitment to make Advances and all
other obligations of the Creditors and all rights of
Borrower and any other Parties under the Loan
Documents shall be suspended without notice to or
demand upon Borrower, which are expressly waived by
Borrower, except that all of the Banks or the
Requisite Banks (as the case may be, in accordance
with Section 11.2) may waive an Event of Default or,
without waiving, determine, upon terms and conditions
satisfactory to the Banks or Requisite Banks, as the
case may be, to reinstate the Commitment and make
further Advances, which waiver or determination shall
apply equally to, and shall be binding upon, all the
Banks; and
(2) the Requisite Banks may request the
Administrative Agent to, and the Administrative Agent
thereupon shall, terminate the Commitment, demand
that Borrower deposit cash collateral for all Letters
of Credit in the amount thereof with the Issuing Bank
and/or declare all or any part of the unpaid
principal of all Notes, all interest accrued and
unpaid thereon and all other amounts payable under
the Loan Documents to be forthwith due and payable,
whereupon the same shall become and be forthwith due
and payable, without protest, presentment, notice of
dishonor, demand or further notice of any kind, all
of which are expressly waived by Borrower.
(b) Upon the occurrence of any Event of Default
described in Section 9.1(k):
(1) the commitment to make Advances and all
other obligations of the Creditors and all rights of
Borrower and any other Parties under the Loan
Documents shall terminate without notice to or demand
upon Borrower, which are expressly waived by
Borrower, except that all the Banks may waive the
Event of Default or, without waiving, determine, upon
terms and conditions satisfactory to all the Banks,
to reinstate the Commitment and make further
Advances, which determination shall apply equally to,
and shall be binding upon, all the Banks; and
(2) the unpaid principal of all Notes, all
interest accrued and unpaid thereon and all other
amounts payable under the Loan Documents shall be
forthwith due and payable, without protest, present-
ment, notice of dishonor, demand or further notice of
any kind, all of which are expressly waived by
Borrower, and Borrower shall be obligated to
immediately deposit cash collateral for all Letters
of Credit with the Issuing Bank in the amount
thereof.
(c) Upon the occurrence of any Event of
Default, the Creditors, or any of them, without notice to
(except as expressly provided for in any Loan Document) or
demand upon Borrower, which are expressly waived by
Borrower (except as to notices expressly provided for in
any Loan Document), may proceed (but only with the consent
of the Requisite Banks) to protect, exercise and enforce
their rights and remedies under the Loan Documents against
Borrower and any other Party and such other rights and
remedies as are provided by Law or equity.
(d) The order and manner in which the Banks'
rights and remedies are to be exercised shall be deter-
mined by the Requisite Banks in their sole discretion, and
all payments received by the Creditors, shall be applied
first to the costs and expenses (including attorneys' fees
and disbursements and the allocated costs of attorneys
employed by the Administrative Agent) of the Creditors,
and thereafter paid pro rata to the Banks in the same
proportions that the aggregate Obligations owed to each
Bank under the Loan Documents bear to the aggregate
Obligations owed under the Loan Documents to all the
Banks, without priority or preference among the Banks.
Regardless of how each Bank may treat payments for the
purpose of its own accounting, for the purpose of
computing Borrower's Obligations hereunder and under the
Notes, payments shall be applied first, to the costs and
expenses of the Creditors, as set forth above, second, to
the payment of accrued and unpaid interest due under any
Loan Documents to and including the date of such applica-
tion (ratably, and without duplication, according to the
accrued and unpaid interest due under each of the Loan
Documents), and third, to the payment of all other amounts
(including principal and fees) then owing to the Creditors
under the Loan Documents. No application of payments will
cure any Event of Default, or prevent acceleration, or
continued acceleration, of amounts payable under the Loan
Documents, or prevent the exercise, or continued exercise,
of rights or remedies of the Banks hereunder or thereunder
or at Law or in equity.
Article 10
THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization. Each Creditor hereby
irrevocably appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such
powers under the Loan Documents as are delegated to the
Administrative Agent by the terms thereof or are reasonably
incidental, as determined by the Administrative Agent, thereto.
This appointment and authorization is intended solely for the
purpose of facilitating the servicing of the Loans and does not
constitute appointment of the Administrative Agent as trustee
for any Bank or as representative of any Bank for any other
purpose and, except as specifically set forth in the Loan
Documents to the contrary, the Administrative Agent shall take
such action and exercise such powers only in an administrative
and ministerial capacity.
10.2 Administrative Agent and Affiliates. Bank of
America (and each successor Administrative Agent) has the same
rights and powers under the Loan Documents as any other Bank
and may exercise the same as though it was not the
Administrative Agent, and the term "Bank" or "Banks" includes
Bank of America in its individual capacity. Bank of America
(and each successor Administrative Agent) and its Affiliates
may accept deposits from, lend money to and generally engage in
any kind of banking, trust or other business with Borrower, any
Subsidiary thereof, or any Affiliate of Borrower or any
Subsidiary thereof, as if it was not the Administrative Agent
and without any duty to account therefor to the Banks. Bank of
America (and each successor Administrative Agent) need not
account to any other Bank for any monies received by it for
reimbursement of its costs and expenses as Administrative Agent
hereunder, or for any monies received by it in its capacity as
a Bank hereunder. The Administrative Agent shall not be deemed
to hold a fiduciary relationship with any Bank and no implied
covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise
exist against the Administrative Agent.
10.3 Proportionate Interest in any Collateral. The
Administrative Agent, on behalf of all the Banks, shall hold in
accordance with the Loan Documents all items of any collateral
or interests therein received or held by the Administrative
Agent. Subject to the Administrative Agent's and the Banks'
rights to reimbursement for their costs and expenses hereunder
(including attorneys' fees and disbursements and other
professional services and the allocated costs of attorneys
employed by the Administrative Agent or a Bank) and subject to
the application of payments in accordance with Section 9.2(d),
each Bank shall have an interest in the Banks' interest in any
collateral or interests therein in the same proportions that
the aggregate Obligations owed such Bank under the Loan
Documents bear to the aggregate Obligations owed under the Loan
Documents to all the Banks, without priority or preference
among the Banks.
10.4 Banks' Credit Decisions. Each Creditor agrees that
it has, independently and without reliance upon the
Administrative Agent, any other Creditor or the directors,
officers, agents, employees or attorneys of any other Creditor,
and instead in reliance upon information supplied to it by or
on behalf of Borrower and upon such other information as it has
deemed appropriate, made its own independent credit analysis
and decision to enter into this Agreement. Each Creditor also
agrees that it shall, independently and without reliance upon
any other Creditor or the directors, officers, agents,
employees or attorneys of any other Creditor, continue to make
its own independent credit analyses and decisions in acting or
not acting under the Loan Documents.
10.5 Action by Administrative Agent.
(a) The Administrative Agent, the Issuing Bank and
the Swing Line Bank may assume that no Default or Event of
Default has occurred and is continuing, unless they have
received notice from Borrower stating the nature of the Default
or Event of Default or have received notice from a Bank stating
the nature of the Default or Event of Default and that such
Bank considers the Default or Event of Default to have occurred
and to be continuing.
(b) The Administrative Agent has only those
obligations under the Loan Documents as are expressly set forth
therein.
(c) Except for any obligation expressly set forth in
the Loan Documents and as long as the Administrative Agent may
assume that no Event of Default has occurred and is continuing,
the Administrative Agent may, but shall not be required to,
exercise its discretion to act or not act, except that the
Administrative Agent shall be required to act or not act upon
the instructions of the Requisite Banks (or of all the Banks,
to the extent required by Section 11.2) and those instructions
shall be binding upon the Administrative Agent and all the
Banks, provided that the Administrative Agent shall not be
required to act or not act if to do so would be contrary to any
Loan Document or to applicable Law or would result, in the
reasonable judgment of the Administrative Agent, in substantial
risk of liability to the Administrative Agent.
(d) If the Administrative Agent has received a
notice specified in clause (a), the Administrative Agent shall
immediately give notice thereof to the Banks and shall act or
not act upon the instructions of the Requisite Banks (or of all
the Banks, to the extent required by Section 11.2), provided
that the Administrative Agent shall not be required to act or
not act if to do so would be contrary to any Loan Document or
to applicable Law or would result, in the reasonable judgment
of the Administrative Agent, in substantial risk of liability
to the Administrative Agent, and except that if the Requisite
Banks (or all the Banks, if required under Section 11.2) fail,
for five (5) Banking Days after the receipt of notice from the
Administrative Agent, to instruct the Administrative Agent,
then the Administrative Agent, in its sole discretion, may act
or not act as it deems advisable for the protection of the
interests of the Creditors.
(e) The Administrative Agent shall have no liability
to any Creditor for acting, or not acting, as instructed by the
Requisite Banks (or all the Banks, if required under
Section 11.2), notwithstanding any other provision hereof.
10.6 Liability of Administrative Agent. Neither the
Administrative Agent nor any of its directors, officers,
agents, employees or attorneys shall be liable for any action
taken or not taken by them under or in connection with the Loan
Documents, except for their own gross negligence or willful
misconduct. Without limitation on the foregoing, the
Administrative Agent and its directors, officers, agents,
employees and attorneys:
(a) May treat the payee of any Note as the
holder thereof until the Administrative Agent receives
notice of the assignment or transfer thereof, in form
satisfactory to the Administrative Agent, signed by the
payee, and may treat each Bank as the owner of that Bank's
interest in the Obligations for all purposes of this
Agreement until the Administrative Agent receives notice
of the assignment or transfer thereof, in form satisfac-
tory to the Administrative Agent, signed by that Bank.
(b) May consult with legal counsel (including
in-house legal counsel), accountants (including in-house
accountants) and other professionals or experts selected
by it, or with legal counsel, accountants or other profes-
sionals or experts for Borrower and/or its Subsidiaries or
the Banks, and shall not be liable for any action taken or
not taken by it in good faith in accordance with any
advice of such legal counsel, accountants or other pro-
fessionals or experts.
(c) Shall not be responsible to any Bank for
any statement, warranty or representation made in any of
the Loan Documents or in any notice, certificate, report,
request or other statement (written or oral) given or made
in connection with any of the Loan Documents.
(d) Except to the extent expressly set forth in
the Loan Documents, shall have no duty to ask or inquire
as to the performance or observance by Borrower or its
Subsidiaries of any of the terms, conditions or covenants
of any of the Loan Documents or to inspect any collateral
or the Property, books or records of Borrower or its
Subsidiaries.
(e) Will not be responsible to any Bank for the
due execution, legality, validity, enforceability,
genuineness, effectiveness, sufficiency or value of any
Loan Document, any other instrument or writing furnished
pursuant thereto or in connection therewith, or any
collateral.
(f) Will not incur any liability by acting or
not acting in reliance upon any Loan Document, notice,
consent, certificate, statement, request or other
instrument or writing believed by it to be genuine and
signed or sent by the proper party or parties.
(g) Will not incur any liability for any
arithmetical error in computing any amount paid or payable
by Borrower or any Subsidiary or Affiliate thereof or paid
or payable to or received or receivable from any Bank
under any Loan Document, including, without limitation,
principal, interest, commitment fees, Advances and other
amounts; provided that, promptly upon discovery of such an
error in computation, the Creditors (and, to the extent
applicable Borrower and/or its Subsidiaries or Affiliates)
shall make such adjustments as are necessary to correct
such error and to restore the parties to the position that
they would have occupied had the error not occurred.
10.7 Indemnification. Each Bank shall, ratably in accor-
dance with its Pro Rata Share, indemnify and hold the
Administrative Agent, the Arranger and their respective
directors, officers, agents, employees and attorneys harmless
against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (including,
without limitation, attorneys' fees and disbursements and
allocated costs of attorneys employed by the Administrative
Agent or the Arranger) that may be imposed on, incurred by or
asserted against it or them in any way relating to or arising
out of the Loan Documents (other than losses incurred by reason
of the failure of Borrower to pay the indebtedness represented
by the Notes) or any action taken or not taken by it as
Administrative Agent and the Arranger thereunder, except such
as result from their own gross negligence or willful
misconduct. Without limitation on the foregoing, each Bank
shall reimburse the Administrative Agent and the Arranger upon
demand for that Bank's Pro Rata Share of any out-of-pocket cost
or expense incurred by the Administrative Agent or the Arranger
in connection with the negotiation, preparation, execution,
delivery, amendment, waiver, restructuring, reorganization
(including a bankruptcy reorganization), enforcement or
attempted enforcement of the Loan Documents, to the extent that
Borrower or any other Party is required by Section 11.3 to pay
that cost or expense but fails to do so upon demand. Nothing
in this Section 10.7 shall entitle the Administrative Agent or
the Arranger to recover any amount from the Banks if and to the
extent that such amount has theretofore been recovered from
Borrower or any of its Subsidiaries, and the Administrative
Agent shall promptly refund to the Banks any amount for which
it is indemnified for which it later receives duplicative
reimbursement.
10.8 Successor Administrative Agent. The Administrative
Agent may, and at the request of the Requisite Banks shall,
resign as Administrative Agent upon thirty days notice to the
Banks and Borrower. If the Administrative Agent shall resign
as Administrative Agent under this Agreement, the Requisite
Banks shall appoint from among the Banks a successor
administrative agent for the Banks, which successor
administrative agent shall be approved by Borrower (and such
approval shall not be unreasonably withheld). If no successor
administrative agent is appointed prior to the effective date
of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the
Banks and Borrower, a successor administrative agent from among
the Banks. Upon the acceptance of its appointment as successor
administrative agent hereunder, such successor administrative
agent shall succeed to all the rights, powers and duties of the
retiring Administrative Agent and the term "Administrative
Agent" shall mean such successor administrative agent and the
retiring Administrative Agent's appointment, powers and duties
as Administrative Agent shall be terminated (except for any
liabilities incurred prior to such termination). After any
retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article 10, and
Sections 11.3, 11.11 and 11.23, shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If (a) the
Administrative Agent has not been paid its agency fees under
Section 3.6 or has not been reimbursed for any expense
reimbursable to it under Section 11.3, in either case for a
period of at least one (1) year and (b) no successor
administrative agent has accepted appointment as Administrative
Agent by the date which is thirty days following a retiring
Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon
become effective and the Banks shall perform all of the duties
of the Administrative Agent hereunder until such time, if any,
as the Requisite Banks appoint a successor administrative agent
as provided for above.
10.9 No Obligations of Borrower. Nothing contained in
this Article 10 shall be deemed to impose upon Borrower any
obligation in respect of the due and punctual performance by
the Administrative Agent of its obligations to the Banks under
any provision of this Agreement, and Borrower shall have no
liability to any Creditor in respect of any failure by any
Creditor to perform any of its obligations to any other
Creditor under this Agreement. Without limiting the generality
of the foregoing, where any provision of this Agreement
relating to the payment of any amounts due and owing under the
Loan Documents provides that such payments shall be made by
Borrower to the Administrative Agent for the account of any
Creditor, Borrower's obligations to the Banks in respect of
such payments shall be deemed to be satisfied upon the making
of such payments to the Administrative Agent in the manner
provided by this Agreement.
Article 11
MISCELLANEOUS
11.1 Cumulative Remedies; No Waiver. The rights, powers,
privileges and remedies of the Creditors provided herein or in
any Note or other Loan Document are cumulative and not
exclusive of any right, power, privilege or remedy provided by
Law or equity. No failure or delay on the part of any Creditor
in exercising any right, power, privilege or remedy may be, or
may be deemed to be, a waiver thereof; nor may any single or
partial exercise of any right, power, privilege or remedy
preclude any other or further exercise of the same or any other
right, power, privilege or remedy. The terms and conditions of
Article 8 hereof are inserted for the sole benefit of the
Creditors; the same may be waived in whole or in part, with or
without terms or conditions, in respect of any Loan without
prejudicing the Creditors rights to assert them in whole or in
part in respect of any other Loan.
11.2 Amendments; Consents. No amendment, modification,
supplement, extension, termination or waiver of any provision
of this Agreement or any other Loan Document, no approval or
consent thereunder, and no consent to any departure by Borrower
or any other Party therefrom, may in any event be effective
unless in writing signed by the Requisite Banks (and, in the
case of any amendment, modification or supplement of or to any
Loan Document to which Borrower is a Party, signed by Borrower
and, in the case of any amendment, modification or supplement
to Article 10, signed by the Administrative Agent), and then
only in the specific instance and for the specific purpose
given; and, without the approval in writing of all the Banks,
no amendment, modification, supplement, termination, waiver or
consent may be effective:
(a) To amend or modify the principal of, or the
amount of principal, principal prepayments or the rate of
interest payable on, any Note, or the amount of the
Commitment or the Pro Rata Share of any Bank or the amount
of any commitment fee payable to any Bank, or any other
fee or amount payable to the Creditors under the Loan
Documents or to waive an Event of Default consisting of
the failure of Borrower to pay when due principal,
interest or any commitment fee or letter of credit fee;
(b) To postpone any date fixed for any payment
of principal of, prepayment of principal of or any
installment of interest on, any Note or any installment of
any commitment fee or letter of credit fee, or to extend
the term of the Commitment (except as set forth in Section
2.12), or to release any Subsidiary from its obligations
under the Subsidiary Guaranty (except to the extent
expressly permitted by the Loan Documents) or to release
the Subsidiary Guaranty;
(c) To amend the provisions of the definition
of "Requisite Banks", Articles 8 or 9 or this Section 11.2
or to amend or waive Section 6.5; or
(d) To amend any provision of this Agreement
that expressly requires the consent or approval of all the
Banks.
Any amendment, modification, supplement, termination, waiver or
consent pursuant to this Section 11.2 shall apply equally to,
and shall be binding upon, all of the Creditors.
11.3 Costs, Expenses and Taxes. Borrower shall pay
within five (5) Banking Days after demand, accompanied by an
invoice therefor, the reasonable costs and expenses of the
Administrative Agent and the Arranger in connection with the
negotiation, preparation, syndication, execution and delivery
of the Loan Documents and any amendment thereto or waiver
thereof. Borrower shall also pay on demand, accompanied by an
invoice therefor, the reasonable costs and expenses of the
Creditors in connection with the refinancing, restructuring,
reorganization (including a bankruptcy reorganization) and
enforcement or attempted enforcement of the Loan Documents, and
any matter related thereto. The foregoing costs and expenses
shall include filing fees, recording fees, title insurance
fees, appraisal fees, search fees, and other out-of-pocket
expenses and the reasonable fees and out-of-pocket expenses of
any legal counsel (including allocated costs of legal counsel
employed by any Creditor), independent public accountants and
other outside experts retained by any of the Creditors, whether
or not such costs and expenses are incurred or suffered by the
Creditors in connection with or during the course of any
bankruptcy or insolvency proceedings of Borrower or any
Subsidiary thereof. Such costs and expenses shall also
include, in the case of any amendment or waiver of any Loan
Document requested by Borrower, the administrative costs of the
Administrative Agent and the Issuing Bank reasonably
attributable thereto. Borrower shall pay any and all
documentary and other taxes, excluding, in the case of each
Creditor and any Affiliate or Eurodollar Lending Office
thereof, (i) taxes imposed on or measured in whole or in part
by its net income, gross income or gross receipts or capital
and franchise taxes imposed on it, (ii) any withholding taxes
or other taxes based on gross income (other than withholding
taxes and taxes based on gross income resulting from or
attributable to any change in any law, rule or regulation or
any change in the interpretation or administration of any law,
rule or regulation by any governmental authority) or (iii) any
withholding taxes or other taxes based on gross income for any
period with respect to which it has failed to provide Borrower
with the appropriate form or forms required by Section 11.22,
to the extent such forms are then required by applicable Laws,
and all costs, expenses, fees and charges payable or determined
to be payable in connection with the filing or recording of
this Agreement, any other Loan Document or any other instrument
or writing to be delivered hereunder or thereunder, or in
connection with any transaction pursuant hereto or thereto, and
shall reimburse, hold harmless and indemnify the Creditors from
and against any and all loss, liability or legal or other
expense with respect to or resulting from any delay in paying
or failure to pay any such tax, cost, expense, fee or charge or
that any of them may suffer or incur by reason of the failure
of any Party to perform any of its Obligations. Any amount
payable to the Creditors under this Section 11.3 shall bear
interest from the second Banking Day following the date of
demand for payment at the Default Rate.
11.4 Nature of Banks' Obligations. The obligations of
the Banks hereunder are several and not joint or joint and
several. Nothing contained in this Agreement or any other Loan
Document and no action taken by the Creditors or any of them
pursuant hereto or thereto may, or may be deemed to, make the
Creditors a partnership, an association, a joint venture or
other entity, either among themselves or with Borrower or any
Affiliate of Borrower. Each Bank's obligation to make any
Advance pursuant hereto is several and not joint or joint and
several, and in the case of the initial Advance only is
conditioned upon the performance by all other Banks of their
obligations to make initial Advances. A default by any Bank
will not increase the Pro Rata Share attributable to any other
Bank. Any Bank not in default may, if it desires, assume in
such proportion as a majority in interest of the nondefaulting
Banks agree the obligations of any Bank in default, but is not
obligated to do so. The Administrative Agent agrees that it
will use its best efforts either to induce the other Banks to
assume the obligations of a Bank in default or to obtain
another Bank, reasonably satisfactory to Borrower, to replace
such a Bank in default.
11.5 Survival of Representations and Warranties. All
representations and warranties contained herein or in any other
Loan Document, or in any certificate or other writing delivered
by or on behalf of any one or more of the Parties to any Loan
Document, will survive the making of the Loans hereunder and
the execution and delivery of the Notes, and have been or will
be relied upon by the Creditors, notwithstanding any
investigation made by the Creditors or on their behalf.
11.6 Notices. Except as otherwise expressly provided in
the Loan Documents, all notices, requests, demands, directions
and other communications provided for hereunder or under any
other Loan Document must be in writing and must be mailed,
telegraphed, telecopied or delivered to the appropriate party
at the address set forth on the signature pages of this
Agreement or other applicable Loan Document or, as to any party
to any Loan Document, at any other address as may be designated
by it in a written notice sent to all other parties to such
Loan Document in accordance with this Section. Except as
otherwise expressly provided in any Loan Document, if any
notice, request, demand, direction or other communication
required or permitted by any Loan Document is given by mail it
will be effective on the earlier of receipt or the third
calendar day after deposit in the United States mail with first
class or airmail postage prepaid; if given by telegraph or
cable, when delivered to the telegraph company with charges
prepaid; if given by telecopier, when sent; or if given by
personal delivery, when delivered.
11.7 Execution of Loan Documents. Unless the
Administrative Agent otherwise specifies with respect to any
Loan Document, (a) this Agreement and any other Loan Document
may be executed in any number of counterparts and any party
hereto or thereto may execute any counterpart, each of which
when executed and delivered will be deemed to be an original
and all of which counterparts of this Agreement or any other
Loan Document, as the case may be, when taken together will be
deemed to be but one and the same instrument and (b) execution
of any such counterpart may be evidenced by a telecopier
transmission of the signature of such party. The execution of
this Agreement or any other Loan Document by any party hereto
or thereto will not become effective until counterparts hereof
or thereof, as the case may be, have been executed by all the
parties hereto or thereto.
11.8 Binding Effect; Assignment.
(a) This Agreement and the other Loan Documents to
which Borrower is a Party will be binding upon and inure to the
benefit of Borrower, the Creditors, and their respective
successors and assigns, except that except as permitted in
Section 6.4, Borrower may not assign its rights hereunder or
thereunder or any interest herein or therein without the prior
written consent of all the Banks. Each Bank represents that it
is not acquiring its Note with a view to the distribution
thereof within the meaning of the Securities Act of 1933, as
amended (subject to any requirement that disposition of such
Note must be within the control of such Bank). Any Bank may at
any time pledge its Note or any other instrument evidencing its
rights as a Bank under this Agreement to a Federal Reserve
Bank, but no such pledge shall release that Bank from its
obligations hereunder or grant to such Federal Reserve Bank the
rights of a Bank hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date,
each Bank may assign to one or more Eligible Assignees all or
any portion of its Pro Rata Share and its Notes; provided that
(i) such Eligible Assignee, if not then a Bank or an Affiliate
of the assigning Bank having a combined capital and surplus in
excess of $100,000,000, shall be approved by each of the
Administrative Agent (which approval shall not be unreasonably
withheld) and Borrower (which approval may be withheld in the
sole discretion of Borrower but will not be required if an
Event of Default has occurred and remains continuing),
(ii) such assignment shall be evidenced by a Commitment
Assignment and Acceptance, a copy of which shall be furnished
to the Administrative Agent as hereinbelow provided,
(iii) except in the case of an assignment to an Affiliate of
the assigning Bank, to another Bank or of the entire remaining
Commitment of the assigning Bank, the assignment shall not
assign a Pro Rata Share which is less than $10,000,000, and
(iv) the effective date of any such assignment shall be as
specified in the Commitment Assignment and Acceptance, but not
earlier than the date which is five (5) Banking Days after the
date the Administrative Agent has received the Commitment
Assignment and Acceptance. Upon the effective date of such
Commitment Assignment and Acceptance, the Eligible Assignee
named therein shall be a Bank for all purposes of this
Agreement, with the Pro Rata Share therein set forth and, to
the extent of such Pro Rata Share, the assigning Bank shall be
released from its further obligations under this Agreement.
Borrower agrees that it shall execute and deliver (against
delivery by the assigning Bank to Borrower of its Notes) to
such assignee Bank, Notes evidencing that assignee Bank's Pro
Rata Share, and to the assigning Bank, Notes evidencing the
remaining balance Pro Rata Share retained by the assigning
Bank.
(c) By executing and delivering a Commitment
Assignment and Acceptance, the Eligible Assignee thereunder
acknowledges and agrees that: (i) other than the representation
and warranty that it is the legal and beneficial owner of the
Pro Rata Share being assigned thereby free and clear of any
adverse claim, the assigning Bank has made no representation or
warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in
connection with this Agreement or the execution, legality,
validity, enforceability, genuineness or sufficiency of this
Agreement or any other Loan Document; (ii) the assigning Bank
has made no representation or warranty and assumes no
responsibility with respect to the financial condition of
Borrower or the performance by Borrower of the Obligations;
(iii) it has received a copy of this Agreement, together with
copies of the most recent financial statements delivered
pursuant to Section 7.1 and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Commitment Assignment
and Acceptance; (iv) it will, independently and without
reliance upon any other Creditor and based on such documents
and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not
taking action under this Agreement; (v) it appoints and auth-
orizes the Administrative Agent to take such action and to
exercise such powers under this Agreement as are delegated to
the Administrative Agent by this Agreement; and (vi) it will
perform in accordance with their terms all of the obligations
which by the terms of this Agreement are required to be
performed by it as a Bank.
(d) The Administrative Agent shall maintain a copy
of each Commitment Assignment and Acceptance delivered to it.
After receipt of a completed Commitment Assignment and
Acceptance executed by any Bank and an Eligible Assignee, and
receipt of an assignment fee of $2,500 from such Eligible
Assignee, the Administrative Agent shall, promptly following
the effective date thereof, provide to Borrower and the Banks a
revised Schedule 1.1 giving effect thereto.
(e) Each Bank may from time to time grant
participations in a portion of its Pro Rata Share (with the
consent of Borrower which consent shall not be unreasonably
withheld) or in any Competitive Advance (without the
requirement of such consent), in each case to one or more banks
or other financial institutions (including another Bank);
provided, however, that (i) such Bank's obligations under this
Agreement shall remain unchanged, (ii) such Bank shall remain
solely responsible to the other parties hereto for the perfor-
xxxxx of such obligations, (iii) the participating banks or
other financial institutions shall not be a Bank hereunder for
any purpose except, if the participation agreement so provides,
for the purposes of Sections 3.7, 3.8, 11.11 and 11.25 but only
to the extent that the cost of such benefits to Borrower does
not exceed the cost which Borrower would have incurred in
respect of such Bank absent the participation, (iv) Borrower
and the other Creditors shall continue to deal solely and
directly with such Bank in connection with such Bank's rights
and obligations under this Agreement, (v) the participation
interest shall not restrict an increase in the Commitment, or
in the granting Bank's Pro Rata Share, so long as the amount of
the participation interest is not affected thereby, and
(vi) the consent of the holder of such participation interest
shall not be required for amendments or waivers of provisions
of the Loan Documents other than those which (A) extend the
Maturity Date or any other date upon which any payment of money
is due to the Banks, (B) reduce the rate of interest on the
Notes, any fee or any other monetary amount payable to the
Banks, (C) reduce the amount of any installment of principal
due under the Notes or (D) change the definition of "Requisite
Banks."
(f) Notwithstanding anything in this Section to the
contrary, the rights of the Banks to make assignments of, and
grant participations in, their Pro Rata Share of the Commitment
shall be subject to the approval of any Gaming Board, to the
extent required by applicable Gaming Laws.
11.9 Right of Setoff. If an Event of Default has occur-
red and is continuing, each of the Creditors (but only with the
consent of the Requisite Banks) may exercise its rights under
Article 9 of the Uniform Commercial Code and other applicable
Laws and, to the extent permitted by applicable Laws, apply any
funds in any deposit account maintained with it by Borrower
and/or any Property of Borrower in its possession against the
Obligations.
11.10 Sharing of Setoffs. Each Bank severally agrees
that if it, through the exercise of any right of setoff,
banker's lien or counterclaim against Borrower, or otherwise,
receives payment of the Obligations held by it that is ratably
more than any other Bank, through any means, receives in pay-
ment of the Obligations held by that Bank, then, subject to
applicable Laws: (a) The Bank exercising the right of setoff,
banker's lien or counterclaim or otherwise receiving such pay-
ment shall purchase, and shall be deemed to have simultaneously
purchased, from the other Bank a participation in the Obliga-
tions held by the other Bank and shall pay to the other Bank a
purchase price in an amount so that the share of the Obliga-
tions held by each Bank after the exercise of the right of
setoff, banker's lien or counterclaim or receipt of payment
shall be in the same proportion that existed prior to the
exercise of the right of setoff, banker's lien or counterclaim
or receipt of payment; and (b) Such other adjustments and
purchases of participations shall be made from time to time as
shall be equitable to ensure that all of the Banks share any
payment obtained in respect of the Obligations ratably in
accordance with each Bank's share of the Obligations immedi-
ately prior to, and without taking into account, the payment;
provided that, if all or any portion of a disproportionate
payment obtained as a result of the exercise of the right of
setoff, banker's lien, counterclaim or otherwise is thereafter
recovered from the purchasing Bank by Borrower or any Person
claiming through or succeeding to the rights of Borrower, the
purchase of a participation shall be rescinded and the purchase
price thereof shall be restored to the extent of the recovery,
but without interest. Each Bank that purchases a participation
in the Obligations pursuant to this Section shall from and
after the purchase have the right to give all notices,
requests, demands, directions and other communications under
this Agreement with respect to the portion of the Obligations
purchased to the same extent as though the purchasing Bank were
the original owner of the Obligations purchased. Borrower
expressly consents to the foregoing arrangements and agrees
that any Bank holding a participation in an Obligation so pur-
chased may exercise any and all rights of setoff, banker's lien
or counterclaim with respect to the participation as fully as
if the Bank were the original owner of the Obligation
purchased.
11.11 Indemnity by Borrower. Borrower agrees to indem-
nify, save and hold harmless the Creditors and the Arranger and
their Affiliates, directors, officers, agents, attorneys and
employees (collectively the "Indemnitees") from and against:
(a) Any and all claims, demands, actions or causes of action
(except a claim, demand, action, or cause of action for any
amount excluded from the definition of "Taxes" in
Section 3.12(d)) if the claim, demand, action or cause of
action arises out of or relates to any act or omission (or
alleged act or omission) of Borrower, its Affiliates or any of
its officers, directors or shareholders relating to the
Commitment, the use or contemplated use of proceeds of any
Loan, or the relationship of Borrower and the Banks under this
Agreement; (b) Any administrative or investigative proceeding
by any Governmental Agency arising out of or related to a
claim, demand, action or cause of action described in
clause (a) above; and (c) Any and all liabilities, losses,
costs or expenses (including attorneys' fees and the allocated
costs of attorneys employed by any Indemnitee and disbursements
of such attorneys and other professional services) that any
Indemnitee suffers or incurs as a result of the assertion of
any foregoing claim, demand, action or cause of action;
provided that no Indemnitee shall be entitled to
indemnification for any loss caused by its own gross negligence
or willful misconduct or for any loss asserted against it by
another Indemnitee. If any claim, demand, action or cause of
action is asserted against any Indemnitee, such Indemnitee
shall promptly notify Borrower, but the failure to so promptly
notify Borrower shall not affect Borrower's obligations under
this Section unless such failure materially prejudices
Borrower's right to participate in the contest of such claim,
demand, action or cause of action, as hereinafter provided.
Such Indemnitee may (and shall, if requested by Borrower in
writing) contest the validity, applicability and amount of such
claim, demand, action or cause of action and shall permit
Borrower to participate in such contest, provided that unless
the Indemnitee reasonably determines that allowing Borrower to
control the defense thereof would unreasonably expose such
Indemnitee to a liability which Borrower is not capable of
repaying, Borrower shall have the right to control the defense
thereof using counsel for Borrower reasonably acceptable to the
Indemnitee, provided that Borrower shall promptly provide
copies of all pleadings to the Indemnitees and shall diligently
prosecute the defense of all indemnified claims in good faith.
Any Indemnitee that proposes to settle or compromise any claim
or proceeding for which Borrower may be liable for payment of
indemnity hereunder shall give Borrower written notice of the
terms of such proposed settlement or compromise reasonably in
advance of settling or compromising such claim or proceeding
and shall obtain Borrower's prior consent (which shall not be
unreasonably withheld). In connection with any claim, demand,
action or cause of action covered by this Section against more
than one Indemnitee, all such Indemnitees shall be represented
by the same legal counsel (which may be a law firm engaged by
the Indemnitees or attorneys employed by an Indemnitee or a
combination of the foregoing) selected by the Indemnitees and
reasonably acceptable to Borrower; provided, that if such legal
counsel determines in good faith that representing all such
Indemnitees would or could result in a conflict of interest
under Laws or ethical principles applicable to such legal coun-
sel or that a defense or counterclaim is available to an Indem-
xxxxx that is not available to all such Indemnitees, then to
the extent reasonably necessary to avoid such a conflict of
interest or to permit unqualified assertion of such a defense
or counterclaim, each Indemnitee shall be entitled to separate
representation by legal counsel selected by that Indemnitee and
reasonably acceptable to Borrower, with all such legal counsel
using reasonable efforts to avoid unnecessary duplication of
effort by counsel for all Indemnitees; and further provided
that the Administrative Agent (as an Indemnitee) shall at all
times be entitled to representation by separate legal counsel
(which may be a law firm or attorneys employed by the
Administrative Agent or a combination of the foregoing). Any
obligation or liability of Borrower to any Indemnitee under
this Section shall survive the expiration or termination of
this Agreement and the repayment of all Loans and the payment
and performance of all other Obligations owed to the Banks.
11.12 Nonliability of the Banks. Borrower acknowledges
and agrees that:
(a) Any inspections of any Property of Borrower
made by or through the Creditors are solely for purposes
of administration of this Agreement and Borrower is not
entitled to rely upon the same (whether or not such
inspections are at the expense of Borrower);
(b) By accepting, furnishing or approving
anything required to be observed, performed, fulfilled or
given to the Creditors pursuant to the Loan Documents,
none of the Creditors shall be deemed to have warranted or
represented the sufficiency, legality, effectiveness or
legal effect of the same, or of any term, provision or
condition thereof, and such acceptance, furnishing or
approval thereof shall not constitute a warranty or
representation to anyone with respect thereto by the
Creditors;
(c) The relationship between Borrower and the
Creditors is, and shall at all times remain, solely that
of a borrower and lenders; none of the Creditors shall
under any circumstance be construed to be partners or
joint venturers of Borrower or its Affiliates; none of the
Creditors shall under any circumstance be deemed to be in
a relationship of confidence or trust or a fiduciary rela-
tionship with Borrower or its Affiliates, or to owe any
fiduciary duty to Borrower or its Affiliates; none of the
Creditors undertakes or assumes any responsibility or duty
to Borrower or its Affiliates to select, review, inspect,
supervise, pass judgment upon or inform Borrower or its
Affiliates of any matter in connection with their Property
or the operations of Borrower or its Affiliates; Borrower
and its Affiliates shall rely entirely upon their own
judgment with respect to such matters; and any review,
inspection, supervision, exercise of judgment or supply of
information undertaken or assumed by the Creditors in
connection with such matters is solely for the protection
of the Creditors and neither Borrower nor any other Person
is entitled to rely thereon; and
(d) The Creditors shall not be responsible or
liable to any Person for any loss, damage, liability or
claim of any kind relating to injury or death to Persons
or damage to Property caused by the actions, inaction or
negligence of Borrower and/or its Affiliates and Borrower
hereby indemnifies and holds the Creditors harmless from
any such loss, damage, liability or claim.
11.13 No Third Parties Benefited. This Agreement is made
for the purpose of defining and setting forth certain
obligations, rights and duties of Borrower and the Creditors in
connection with the Loans, Letters of Credit and Swing Line
Advances, and is made for the sole benefit of Borrower, the
Creditors, and the Creditors' successors and assigns, and,
subject to Section 6.4 successors to Borrower by permitted
merger. Except as provided in Sections 11.8 and 11.11, no
other Person shall have any rights of any nature hereunder or
by reason hereof.
11.14 Confidentiality. Each Creditor agrees to hold any
confidential information that it may receive from Borrower
pursuant to this Agreement in confidence, except for disclo-
sure: (a) To Affiliates of that Creditor and to other
Creditors; (b) To legal counsel and accountants for Borrower or
any Creditor; (c) To other professional advisors to Borrower or
any Creditor, provided that the recipient has accepted such
information subject to a confidentiality agreement
substantially similar to this Section 11.14 or has notified
such professional advisors of the confidentiality of such
information; (d) To regulatory officials having jurisdiction
over that Creditor; (e) To any Gaming Board having regulatory
jurisdiction over Borrower or its Subsidiaries, provided that
each Bank agrees to use its best efforts to notify Borrower of
any such disclosure unless prohibited by applicable Laws;
(f) As required by Law or legal process (provided that the
relevant Creditor shall endeavor, to the extent it may do so
under applicable Law, to give Borrower reasonable prior notice
thereof to allow Borrower to seek a protective order) or in
connection with any legal proceeding to which that Creditor and
Borrower are adverse parties; and (g) To another financial
institution in connection with a disposition or proposed
disposition to that financial institution of all or part of
that Creditor's interests hereunder or a participation interest
in its Notes, provided that the recipient has accepted such
information subject to a confidentiality agreement
substantially similar to this Section. For purposes of the
foregoing, "confidential information" shall mean any
information respecting Borrower or its Subsidiaries reasonably
considered by Borrower to be confidential, other than
(i) information previously filed with any Governmental Agency
and available to the public, (ii) information previously
published in any public medium from a source other than,
directly or indirectly, that Bank, and (iii) information
previously disclosed by Borrower to any Person not associated
with Borrower without a confidentiality agreement substantially
similar to this Section. Nothing in this Section shall be
construed to create or give rise to any fiduciary duty on the
part of any Creditor to Borrower.
11.15 Removal of a Bank. Borrower shall have the right
to remove a Bank as a party to this Agreement pursuant to this
Section in the event that such Bank (a) refuses to consent to
an extension of the Reduction Date and the Maturity Date
requested by Borrower in accordance with Section 2.12 which has
been consented to by Banks holding Pro Rata Share equal to or
greater than 80% of the Commitment, or (b) requests
compensation under Section 3.7 or Section 3.8 which has not
been requested by all other Banks, by written notice to the
Administrative Agent and such Bank within 120 days following
any such refusal or request, provided that no Default or Event
of Default then exists. If Borrower is entitled to remove a
Bank pursuant to this Section either:
(a) The Bank being removed shall within five
Banking Days after such notice execute and deliver a
Commitment Assignment and Acceptance covering that Bank's
Pro Rata Share in favor of one or more Eligible Assignees
designated by Borrower and reasonably acceptable to the
Administrative Agent, subject to payment of a purchase
price by such Eligible Assignee equal to all principal and
accrued interest, fees and other amounts payable to such
Bank under this Agreement through the date of assignment;
or
(b) Borrower may reduce the Commitment pursuant
to Section 2.7 (and, for this purpose, the numerical
requirements of such Section shall not apply) by an amount
equal to that Bank's Pro Rata Share, pay and provide to
such Bank the amount required by clause (a) above and
release such Bank from its Pro Rata Share (subject,
however, to the requirement that all conditions set forth
in Section 8.2 are met as of the date of such reduction
and the payment to the other Banks of appropriate fees for
the assumption of that Bank's participation in all Letters
of Credit and Swing Line Advances then outstanding), in
which case the percentage Pro Rata Shares of the remaining
Banks shall be ratably increased (but without any increase
in the Dollar amount of the Pro Rata Shares of such
Banks).
11.16 Further Assurances. Borrower and its Subsidiaries
shall, at their expense and without expense to the Creditors,
do, execute and deliver such further acts and documents as any
Creditor from time to time reasonably requires for the assuring
and confirming unto the Creditors of the rights hereby created
or intended now or hereafter so to be, or for carrying out the
intention or facilitating the performance of the terms of any
Loan Document.
11.17 Integration. This Agreement, together with the
other Loan Documents, comprises the complete and integrated
agreement of the parties on the subject matter hereof and
supersedes all prior agreements, written or oral, on the sub-
ject matter hereof. In the event of any conflict between the
provisions of this Agreement and those of any other Loan Docu-
ment, the provisions of this Agreement shall control and
govern; provided that the inclusion of supplemental rights or
remedies in favor of the Creditors in any other Loan Document
shall not be deemed a conflict with this Agreement. Each Loan
Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither
against nor in favor of any party, but rather in accordance
with the fair meaning thereof.
11.18 Governing Law. Except to the extent otherwise
provided therein, each Loan Document shall be governed by, and
construed and enforced in accordance with, the local Laws of
Nevada.
11.19 Severability of Provisions. Any provision in any
Loan Document that is held to be inoperative, unenforceable or
invalid as to any party or in any jurisdiction shall, as to
that party or jurisdiction, be inoperative, unenforceable or
invalid without affecting the remaining provisions or the
operation, enforceability or validity of that provision as to
any other party or in any other jurisdiction, and to this end
the provisions of all Loan Documents are declared to be
severable.
11.20 Headings. Article and Section headings in this
Agreement and the other Loan Documents are included for
convenience of reference only and are not part of this
Agreement or the other Loan Documents for any other purpose.
11.21 Time of the Essence. Time is of the essence of the
Loan Documents.
11.22 Foreign Banks and Participants. Each Bank, and
each holder of a participation interest herein, that is
incorporated under the Laws of a jurisdiction other than the
United States of America or any state thereof shall deliver to
Borrower (with a copy to the Administrative Agent), within
twenty days after the Closing Date (or after accepting an
assignment or receiving a participation interest herein
pursuant to Section 11.8, if applicable) two duly completed
copies, signed by a Responsible Official, of either Form 1001
(relating to such Person and entitling it to a complete
exemption from withholding on all payments to be made to such
Person by Borrower pursuant to this Agreement) or Form 4224
(relating to all payments to be made to such Person by Borrower
pursuant to this Agreement) of the United States Internal
Revenue Service or such other evidence (including, if
reasonably necessary, Form W-9) satisfactory to Borrower and
the Administrative Agent that no withholding under the federal
income tax laws is required with respect to such Person.
Thereafter and from time to time, each such Person shall
(a) promptly submit to Borrower (with a copy to the
Administrative Agent), such additional duly completed and
signed copies of one of such forms (or such successor forms as
shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then
current United States laws and regulations to avoid, or such
evidence as is satisfactory to Borrower and the Administrative
Agent of any available exemption from, United States with-
holding taxes in respect of all payments to be made to such
Person by Borrower pursuant to this Agreement and (b) take such
steps as shall not be materially disadvantageous to it, in the
reasonable judgment of such Bank, and as may be reasonably
necessary (including the re-designation of its Eurodollar
Lending Office, if any) to avoid any requirement of applicable
laws that Borrower make any deduction or withholding for taxes
from amounts payable to such Person.
11.23 Hazardous Material Indemnity. Borrower hereby
agrees to indemnify, hold harmless and defend (by counsel
reasonably satisfactory to the Administrative Agent) the
Creditors and their respective directors, officers, employees,
agents, successors and assigns from and against any and all
claims, losses, damages, liabilities, fines, penalties,
charges, administrative and judicial proceedings and orders,
judgments, remedial action requirements, enforcement actions of
any kind, and all costs and expenses incurred in connection
therewith (including but not limited to reasonable attorneys'
fees and the allocated costs of attorneys employed by any of
the Creditors, and expenses to the extent that the defense of
any such action has not been assumed by Borrower), arising
directly or indirectly, in whole or in part, out of (i) the
presence on or under any Real Property of any Hazardous
Materials, or any releases or discharges of any Hazardous
Materials on, under or from any Real Property and (ii) any
activity carried on or undertaken on or off any Real Property
by Borrower or any of its predecessors in title, whether prior
to or during the term of this Agreement, and whether by
Borrower or any predecessor in title or any employees, agents,
contractors or subcontractors of Borrower or any predecessor in
title, or any third persons at any time occupying or present on
any Real Property, in connection with the handling, treatment,
removal, storage, decontamination, clean-up, transport or
disposal of any Hazardous Materials at any time located or
present on or under any Real Property. The foregoing indemnity
shall further apply to any residual contamination on or under
any Real Property, or affecting any natural resources, and to
any contamination of any property or natural resources arising
in connection with the generation, use, handling, storage,
transport or disposal of any such Hazardous Materials, and
irrespective of whether any of such activities were or will be
undertaken in accordance with applicable Laws, but the
foregoing indemnity shall not apply to Hazardous Materials on
any Real Property, the presence of which is caused by the
Creditors. Borrower hereby acknowledges and agrees that,
notwithstanding any other provision of this Agreement or any of
the other Loan Documents to the contrary, the obligations of
Borrower under this Section shall be unlimited corporate
obligations of Borrower and shall not be secured by any deed of
trust on any Real Property. No claim giving rise for
indemnification under this Section shall be settled without
Borrower's prior written consent, which consent shall not be
unreasonably withheld or delayed.
11.24 Gaming Boards. The Creditors agree to cooperate
with all Gaming Boards in connection with the administration of
their regulatory jurisdiction over Borrower and its
Subsidiaries, including the provision of such documents or
other information as may be requested by any such Gaming Board
relating to Borrower or any of its Subsidiaries or to the Loan
Documents.
11.25 Waiver of Right to Trial by Jury. EACH SIGNATORY
TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING
UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED
OR INCIDENTAL TO THE DEALINGS OF THE SIGNATORIES HERETO OR ANY
OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS
RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE;
AND EACH SIGNATORY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY
COURT TRIAL WITHOUT A JURY, AND THAT ANY SIGNATORY TO THIS
AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF
THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY
JURY.
11.26 Purported Oral Amendments. BORROWER EXPRESSLY
ACKNOWLEDGES THAT THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
MAY ONLY BE AMENDED OR MODIFIED, OR THE PROVISIONS HEREOF OR
THEREOF WAIVED OR SUPPLEMENTED, BY AN INSTRUMENT IN WRITING
THAT COMPLIES WITH SECTION 11.2. BORROWER AGREES THAT IT WILL
NOT RELY ON ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR
ORAL OR WRITTEN STATEMENTS BY ANY REPRESENTATIVE OF ANY OF THE
CREDITORS THAT DOES NOT COMPLY WITH SECTION 11.2 TO EFFECT AN
AMENDMENT, MODIFICATION, WAIVER OR SUPPLEMENT TO THIS AGREEMENT
OR THE OTHER LOAN DOCUMENTS.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the date first above
written.
CIRCUS CIRCUS ENTERPRISES, INC.
By: __________________________________
Xxxxx Xxxxxxxxx, President and
Chief Financial Officer
Address:
Circus Circus Enterprises, Inc.
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxx Xxxxxxxxx, President
and Chief Financial Officer
Telecopier: (702) ___________
Telephone: (702) ___________
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Administrative
Agent
By: __________________________________
Xxxxx X. Xxxxxxxx, Vice President
Address:
Bank of America National Trust and
Savings Association
Global Agency #5596
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By: __________________________________
Xxx Xxxxxxx, Managing Director
Address:
Bank of America National Trust and
Savings Association
000 Xxxxx Xxxxxx Xxxxxx, #0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxx Xxxxxxx, Managing Director
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Bank of America National Trust and
Savings Association
000 Xxxxx Xxxxxx Xxxxxx (XX-0000)
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxx,
Managing Director
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
BANK OF AMERICA NEVADA, as a Bank
By: __________________________________
Xxxx Xxxxxxxxxx, Vice President
Address:
Bank of America Nevada
Commercial Banking Division, #2006
000 Xxxxx Xxxxxx Xxxxxx, 0x Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxx Xxxxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
CANADIAN IMPERIAL BANK OF COMMERCE, as
a Co-Agent and a Bank
By: __________________________________
Xxxx X. Xxxxxxx, Director
Address:
CANADIAN IMPERIAL BANK OF COMMERCE
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
CREDIT LYONNAIS CAYMAN ISLAND BRANCH,
as Co-Agent and a Bank
By: __________________________________
Xxxxxxx Xxxxxxx
Authorized Signatory
Address:
Eurodollar Lending Office
Credit Lyonnais Cayman Island Branch
c/o Credit Lyonnais
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
CREDIT LYONNAIS LOS ANGELES BRANCH, as
Co-Agent and a Bank
By: __________________________________
Xxxxxxx Xxxxxxx, Vice President
Address:
Domestic Lending Office
Credit Lyonnais Los Angeles Branch
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
FIRST INTERSTATE BANK OF NEVADA, N.A.,
as Co-Agent and a Bank
By: __________________________________
Xxxx Xxxxxxxx, Vice President
Address:
First Interstate Bank of Nevada, N.A.
Gaming Industry Division
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxx Xxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., LOS ANGELES AGENCY, as Co-Agent
and a Bank
By: __________________________________
__________________________________
[Printed Name & Title]
Address:
The Long-Term Credit Bank of Japan,
Ltd., Los Angeles Agency
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxx, Vice President or
Xxxx Xxxxxxxxxx, Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000 or
(000) 000-0000
SOCIETE GENERALE, as Co-Agent and a
Bank
By: __________________________________
Xxxxxx X. Xxxxxxxx, Vice President
Address:
Societe Generale
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx / Xxxx xxx
Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
(000) 000-0000
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
New York Branch, as a Bank
By:__________________________________
Title:_______________________________
By:__________________________________
Title:_______________________________
Address for Notices:
Westdeutsche Landesbank Girozentrale,
New York Branch
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: X.X. Xxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
THE MITSUBISHI TRUST AND BANKING
CORP., LOS ANGELES AGENCY, as a Bank
By:___________________________________
Title: _______________________________
Address for Notices:
The Mitsubishi Trust and Banking
Company
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxx Xxxxx
Telephone (000) 000-0000
Telecopier (000) 000-0000
THE BANK OF NEW YORK, as a Bank
By:_________________________________
Title:______________________________
Address for Notices:
The Bank of New York
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx
Telephone (000) 000-0000
Telecopier (000) 000-0000
COMMERZBANK AKTIENGESELLSCHAFT, as a
Bank
By: _________________________________
Title: ______________________________
By: _________________________________
Title: ______________________________
Address for Notices:
Commerzbank Aktiengesellschaft
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
DEUTSCHE BANK AG, as a Bank
By: _________________________________
Title: ______________________________
Address for Notices:
Deutsche Bank AG
000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
THE TOKAI BANK, LTD., LOS ANGELES
AGENCY, as a Bank
By: __________________________________
Xxxxxxxx Xxxxx
Assistant General Manager
Address:
The Tokai Bank, Ltd., Los Angeles
Agency
U.S. Corporate Finance
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Poebus Hon, Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
LOS ANGELES AGENCY, as a Bank
By: __________________________________
Masatake Yashiro, General Manager
Address:
The Industrial Bank of Japan, Limited,
Los Angeles Agency
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx, Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
THE SANWA BANK, LIMITED, as a Bank
By:_______________________________
Title:____________________________
Address for Notices:
The Sanwa Bank, Limited
000 Xxxxx Xxxxxxxx Xxxxxx
Sort W5-4
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxx, Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
THE SUMITOMO BANK, LIMITED, LOS
ANGELES BRANCH, as a Bank
By: ______________________________
Title: ___________________________
Address for Notices:
The Sumitomo Bank, Limited, Los
Angeles Branch
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
ABN AMRO BANK N.V., SAN FRANCISCO
INTERNATIONAL BRANCH, as a Bank
By: ABN AMRO North America, Inc., as
agent
By: ___________________________
Title: ________________________
By: ___________________________
Title: ________________________
Address for Notices:
ABN AMRO Bank N.V., San Francisco
International Branch
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx, Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
BANKERS TRUST COMPANY, as a Bank
By: __________________________________
Title: _______________________________
Address for Notices:
Bankers Trust Company
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xx Xxxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
BANQUE NATIONALE DE PARIS, as a Bank
By: ________________________________
Title: _____________________________
Address for Notices:
Banque Nationale de Paris
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
UNITED STATES NATIONAL BANK OF OREGON,
as a Bank
By: ________________________________
Xxxx Xxxxxxxx, Assistant Vice
President
Address for Notices:
National Corporate Banking Division
000 Xxxxx Xxxx Xxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
Attn: Xxxx Xxxxxxxx, A.V.P.
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
BANK OF HAWAII, as a Bank
By: ________________________________
Title: _____________________________
Address for Notices:
Bank of Hawaii
0000 X. Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx
Telephone (000) 000-0000
Telecopier: (000) 000 0000
FIRST SECURITY BANK OF UTAH, N.A., as
a Bank
By: ________________________________
Title: _____________________________
Address for Notices:
First Security Bank of Utah, N.A.
15 East 000 Xxxxx Xxxxxx, 0x Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
MIDLANTIC BANK, N.A., as a Bank
By: __________________________________
Xxxxxx X. Xxxxxx, Vice President
Address for Notices:
Midlantic Bank, N.A.
0000 Xxxxxxxxx Xxxxx
Xxxxx Xxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
THE NIPPON CREDIT BANK, LTD., LOS
ANGELES AGENCY, as a Bank
By: __________________________________
__________________________________
[Printed Name & Title]
Address:
The Nippon Credit Bank, Ltd., Los
Angeles Agency
000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxx X. Xxxxxxxx, Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
THE SUMITOMO TRUST & BANKING CO.,
LTD., LOS ANGELES AGENCY, as a Bank
By: ______________________________
Title: ___________________________
Address for Notices:
The Sumitomo Trust & Banking Co.,
Ltd., Los Angeles Agency
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Loan Administration Department
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
Xxxxx Xxxx
Telephone: (000) 000 0000
Telecopier: (000) 000 0000
THE YASUDA TRUST & BANKING COMPANY,
LTD., LOS ANGELES AGENCY, as a Bank
By: ________________________________
Title: _____________________________
Address for Notices:
The Yasuda Trust & Banking Company,
Ltd., Los Angeles Agency
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxx
Telephone: (000) 000 0000
Telecopier: (000) 000-0000
SCHEDULE 1.1
CIRCUS CIRCUS ENTERPRISES, INC.
$1,500,000,000
SENIOR REVOLVING CREDIT FACILITY
[Note: The last two decimals of each Pro Rata Share repeat indefinitely]
Pro Rata
Bank Amount Share
Bank of America National $ 205,000,000 13.66%
Trust and Savings
Association
Bank of America Nevada $ 30,000,000
2.00%
Canadian Imperial Bank of $ 125,000,000 8.33%
Commerce
Credit Lyonnais Cayman Island $ 125,000,000 8.33%
Branch and Credit Lyonnais
Los Angeles Branch
First Interstate Bank of $ 125,000,000 8.33%
Nevada
The Long-Term Credit Bank $ 125,000,000 8.33%
of Japan, Limited
Societe Generale $ 125,000,000
8.33%
Westdeutsche Landesbank $ 65,000,000 4.33%
Mitsubishi Trust and Banking $ 50,000,000 3.33%
Company
The Bank of New York $ 50,000,000 3.33%
Commerzbank AG $ 50,000,000 3.33%
Deutsche Bank $ 50,000,000 3.33%
Tokai Bank $ 50,000,000 3.33%
The Industrial Bank of Japan,
Limited $ 35,000,000 2.33%
Sanwa Bank, Limited $ 35,000,000 2.33%
The Sumitomo Bank, Limited $ 35,000,000 2.33%
ABN-AMRO Bank, N.V. $ 25,000,000 1.66%
Pro Rata
Bank Amount Share
Bankers Trust Company $ 25,000,000 1.66%
Banque Nationale de Paris $ 25,000,000 1.66%
United States National $ 25,000,000 1.66%
Bank of Oregon
Bank of Hawaii $ 20,000,000 1.33%
First Security Bank of Utah, N.A. $ 20,000,000 1.33%
Midlantic Bank, N.A. $ 20,000,000 1.33%
Nippon Credit Bank, Ltd. $ 20,000,000 1.33%
The Sumitomo Trust and Banking
Company, Ltd., Los Angeles Agency $ 20,000,000 1.33%
The Yasuda Trust and Banking $ 20,000,000 1.33%
Company, Ltd.
_________________________________________________________________________
TOTAL ALL LENDERS $1,500,000,000 100.00%
SCHEDULE 4.3
Government Approvals
1. A report of this transaction must be filed with the Nevada
State Gaming Control Board within thirty (30) days after
the end of the calendar quarter in which the transaction
is consummated, pursuant to Regulation 8.130 of the Nevada
Gaming Commission and Nevada Gaming Control Board.
2. A report of this transaction must be filed with the
Executive Director of the Mississippi Gaming Commission
within thirty (30) days of the transaction, pursuant to
Regulation II.I Section 11 of the Mississippi Gaming
Commission.
SCHEDULE 4.4
Restricted Subsidiaries
Name Jurisdiction % Owned by
of Organization and Form Borrower or
Restricted Subsidiary
Significant Subsidiaries
Circus Circus Casinos, Inc. Nevada corporation 100% CCEI
Slots-A-Fun, Inc. Nevada corporation 100% CCEI
Edgewater Hotel Corporation Nevada corporation 100% CCEI
Colorado Belle Corp. Nevada corporation 100% CCEI
New Castle Corp. Nevada corporation 100% CCEI
Ramparts, Inc. Nevada corporation 100% CCEI
Circus Circus Mississippi, Inc. Mississippi corporation 100% CCEI
Pinkless, Inc. Nevada corporation 100% CCEI
New Way, Inc. ("NWI")* Nevada corporation 100% MSE
Circus Circus Development Corp. Nevada corporation 100% CCEI
Galleon, Inc. Nevada corporation 100% CCEI
M.S.E. Investments, Incorporated ("MSE") Nevada corporation 100% CCEI
Last Chance Investments,
Incorporated ("LCI") Nevada corporation 100% CCEI
Goldstrike Investments,
Incorporated ("GSI") Nevada corporation 100% CCEI
Diamond Gold, Inc. ("DGI") Nevada corporation 100% CCEI
Oasis Development Company, Inc. ("ODC") Nevada corporation 100% CCEI
Goldstrike Finance Company, Inc. Nevada corporation 100% CCEI
Railroad Pass Investment Group ("RPIG") Nevada partnership 70% MSE
20% LCI
10% GSI
Jean Development Company ("JDC") Nevada partnership 40% MSE
40% LCI
20% GSI
Jean Development West ("JDW") Nevada partnership 40% MSE
40% LCI
12% GSI
8% DGI
Nevada Landing Partnership ("NLP") Illinois partnership 40% MSE
40% LSI
5% GSI
15% DGI
Gold Strike L.V. ("GSLV") Nevada partnership 39% MSE
39% LCI
6.5% GSI
2.5% DGI
13% NWI
Name Jurisdiction % Owned by
of Organization and Form Borrower or
Restricted Subsidiary
Xxxx Development North ("JDN") Nevada partnership 38.5% MSE
38.5% LCI
5% GSI
9% DGI
9% NWI
Lakeview Gaming Partnerships
Joint Venture Nevada partnership 16 % RPIG
16 % JDC
16 % JDN
16 % JDW
16 % NLP
16 % GSLV
Restricted Subsidiaries:
Gold Strike Resorts, Inc. Nevada corporation 100% CCEI
Gold Strike Fuel Company Nevada partnership 16 % MSE
16 % LCI
16 % GSI
50 % ODC
Jean Fuel Company West Nevada partnership 40% MSE
40% LCI
12% GSI
8% DGI
Goldstrike Aviation, Incorporated Nevada corporation 100% CCEI
Circus Circus Missouri, Inc. Missouri corporation 100% CCEI
Circus Circus Louisiana, Inc. ("CCLI") Louisiana corporation 100% CCEI
Circus Circus Louisiana II, Inc. ("CCLII")
Louisiana corporation 100% CCEI
American Entertainment, L.L.C. Louisiana limited liability co.50% CCLI
50% CCLII
Circus Australia Casino, Inc. Nevada corporation 100% CCEI
Circus Circus Indiana, Inc. Indiana corporation 100% CCEI
Pine Hills Development Mississippi partnership 90% PHDII
Name Jurisdiction % Owned by
of Organization and Form Borrower or
Restricted Subsidiary
Pine Hills Development II ("PHDII") Mississippi partnership 50.5% MSE
32% LCI
7.5% GSI
2.5% DGI
7.5% NWI
Gold Strike Resorts, L.L.C. Indiana limited liability 40% MSE
company 36% LCI
10% GSI
2% DGI
12% NWI
Scentsational, Inc. Nevada corporation 100% CCEI
Racing Boats, Inc. Nevada corporation 100% CCEI
Other Interests:
Darling Casino Limited Australian public company, 50% CCEI
limited by shares
Windsor Casino Limited Canadian corporation 33 % CCEI
* MSE owns 100% of the common stock of New Way, Inc., and 81% of the
non-voting preferred stock of New Way, Inc. A total of 19% of non-voting
preferred stock of New Way, Inc., convertible into common stock of CCEI, is
owned by five individuals who are affiliated with CCEI.
SCHEDULE 4.7
Existing Liens, Negative Pledges and Rights of Others
None
SCHEDULE 4.10
Litigation
See description of any litigation disclosed in the Borrower's
Form 10-K for the period ending January 31, 1995 and the Forms
10-Q filed through the closing. A third complaint substantially
identical to the first and second complaints in the Xxxxxx and
Xxxxx matter (alleging that defendants have engaged in a course
of fraudulent and misleading conduct intended to induce persons
to play gaming machines by collectively misrepresenting how the
gaming machines operate and the extent to which there is an
opportunity to win) has also been filed.
SCHEDULE 4.19
Developed Properties
Circus Circus- Las Vegas
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Circus Circus-Reno
000 Xxxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Slots-A-Fun
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Silver City Casino
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Excalibur Hotel and Casino
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Luxor Hotel and Casino
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Hacienda Resort Hotel and Casino
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Edgewater Hotel and Casino
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Colorado Belle Hotel and Casino
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Circus Circus Casino-Tunica
00 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxxxx, XX 00000
Railroad Pass Hotel and Casino
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Gold Strike Hotel and Gambling Hall
Xxx Xxxx Xxxxxx
Xxxx, XX 00000
Nevada Landing Hotel and Casino
Xxx Xxxx Xxxxxx
Xxxx, XX 00000
Gold Strike Auto and Truck Xxxxx
Xxx Xxxx Xxxxxx
Xxxx, XX 00000
Nevada Landing Auto Xxxxx
Xxx Xxxx Xxxxxx
Xxxx, XX 00000
Grand Victoria Casino
000 Xxxxx Xxxxx Xxxxxx
Xxxxx, XX 00000
Silver Legacy Resort and Casino
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxx, XX 00000
Xxxxxx Xxxxxxx xxx Xxxxxxxx Xxxxx
000 Xxxx Xxxxxx
000 Xxxxxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
SCHEDULE 6.16
Existing Investments
Neither Borrower nor its Retricted Subsidiaries has any Investments which are
not otherwise
excluded under Sections 6.16(b) through 6.16(i), except for the following:
Equity Investments (as of October 31, 1995):
Circus and Eldorado Joint Venture 53,047,000
Windsor Casino Limited 10,026,000
Elgin Riverboat Resort 58,448,000
Victoria Partners 39,276,000
Loans (as of October 31, 1995):
Circus and Eldorado Joint Venture 25,957,000
[Exhibit A to Loan Agreement]
COMMITMENT ASSIGNMENT AND ACCEPTANCE
THIS COMMITMENT ASSIGNMENT AND ACCEPTANCE
("Agreement") dated as of ____________, 19__ is made with
reference to that certain Loan Agreement dated as of January
29, 1996 (as amended from time to time, the "Loan Agreement")
by and among Circus Circus Enterprises, Inc., a Nevada
corporation ("Borrower"), the Banks therein named, The
Long-Term Credit Bank of Japan, Ltd., Los Angeles Agency, First
Interstate Bank of Nevada, N.A., Societe Generale, Credit
Lyonnais Los Angeles Branch, Credit Lyonnais Cayman Island
Branch and Canadian Imperial Bank of Commerce, as Co-Agents and
Bank of America National Trust and Savings Association, as
Administrative Agent for itself and for the Banks and is
entered into between the "Assignor" described below, in its
capacity as a Bank under the Loan Agreement, and the "Assignee"
described below.
Assignor and Assignee hereby represent, warrant and
agree as follows:
1. Definitions. Capitalized terms defined in the
Loan Agreement are used herein with the meanings set forth for
such terms in the Loan Agreement. As used in this Agreement,
the following capitalized terms shall have the meanings set
forth below:
"Assignee" means ___________________________________.
"Assigned Pro-Rata Share" means _________________% of the
Commitment of the Banks under the Loan Agreement which equals
$__________.
"Assignor" means _______________________
"Effective Date" means ___________, 199__, the effective
date of this Agreement determined in accordance with
Section 11.8 of the Loan Agreement.
2. Representations and Warranties of the Assignor.
The Assignor represents and warrants to the Assignee as
follows:
a. As of the date hereof, the Pro-Rata Share
of the Assignor is ___________% of the Commitment (without
giving effect to assignments thereof which have not yet become
effective). The Assignor is the legal and beneficial owner of
the Assigned Pro-Rata Share and the Assigned Pro-Rata Share is
free and clear of any adverse claim.
b. As of the date hereof, the outstanding
principal balance of Advances made by the Assignor under the
Assignor's Note is $____________________.
c. The Assignor has full power and authority,
and has taken all action necessary, to execute and deliver this
Agreement and any and all other documents required or permitted
to be executed or delivered by it in connection with this
Agreement and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Agreement,
and no governmental authorizations or other authorizations are
required in connection therewith; and
d. This Agreement constitutes the legal, valid
and binding obligation of the Assignor.
The Assignor makes no representation or warranty and assumes no
responsibility with respect to the financial condition of
Borrower or the performance by Borrower of the Obligations, and
assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the
Loan Agreement or the execution, legality, validity,
enforceability, genuineness, or sufficiency of the Loan
Agreement or any Loan Document other than as expressly set
forth above.
3. Representations and Warranties of the Assignee.
The Assignee hereby represents and warrants to the Assignor as
follows:
(a) The Assignee has full power and authority, and
has taken all action necessary, to execute and deliver this
Agreement, and any and all other documents required or per-
mitted to be executed or delivered by it in connection with
this Agreement and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Agreement,
and no governmental authorizations or other authorizations are
required in connection therewith;
(b) This Agreement constitutes the legal, valid and
binding obligation of the Assignee;
(c) The Assignee has independently and without
reliance upon the Administrative Agent or Assignor and based on
such documents and information as the Assignee has deemed
appropriate, made its own credit analysis and decision to enter
into this Agreement. The Assignee will, independently and
without reliance upon the Administrative Agent or any Bank, and
based upon such documents and information as it shall deem
appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Loan
Agreement;
(d) The Assignee has received copies of such of the
Loan Documents delivered pursuant to Section 8.1 of the Loan
Agreement as it has requested, together with copies of the most
recent financial statements delivered pursuant to Section 7.1
of the Loan Agreement;
(e) The Assignee will perform in accordance with
their respective terms all of the obligations which by the
terms of the Loan Agreement are required to be performed by it
as a Bank; and
(f) The Assignee is an Eligible Assignee.
4. Assignment. On the terms set forth herein, the
Assignor, as of the Effective Date, hereby irrevocably sells,
assigns and transfers to the Assignee all of the rights and
obligations of the Assignor under the Loan Agreement, the other
Loan Documents and the Assignor's Note to the extent of the
Assigned Pro-Rata Share, and the Assignee irrevocably accepts
such assignment of rights and assumes such obligations from the
Assignor on such terms and effective as of the Effective Date.
As of the Effective Date, the Assignee shall have the rights
and obligations of a "Bank" under the Loan Documents, except to
the extent of any arrangements with respect to payments
referred to in Section 5 hereof. Assignee hereby appoints and
authorizes the Administrative Agent to take such action and to
exercise such powers under the Loan Agreement as are delegated
to the Administrative Agent by the Loan Agreement.
5. Payment. On the Effective Date, the Assignee
shall pay to the Assignor, in immediately available funds, an
amount equal to the purchase price of the Assigned Pro-Rata
Share, as agreed between the Assignor and the Assignee pursuant
to a letter agreement of even date herewith. Such letter
agreement also sets forth the agreement between the Assignor
and the Assignee with respect to the amount of interest, fees,
and other payments with respect to the Assigned Pro-Rata Share
which are to be retained by the Assignor. Assignee shall also
pay to the Administrative Agent an assignment fee of $2,500 in
accordance with Section 11.8 of the Loan Agreement.
The Assignor and the Assignee hereby agree that if
either receives any payment of interest, principal, fees or any
other amount under the Loan Agreement, their respective Notes
or any other Loan Documents which is for the account of the
other, it shall hold the same in trust for such party to the
extent of such party's interest therein and shall promptly pay
the same to such party.
6. Principal, Interest, Fees, etc. Any principal
that would be payable and any interest, fees and other amounts
that would accrue from and after the Effective Date to or for
the account of the Assignor pursuant to the Loan Agreement and
the Note shall be payable to or for the account of the Assignor
and the Assignee, in accordance with their respective interests
as adjusted pursuant to this Agreement.
7. Notes. The Assignor and the Assignee shall make
appropriate arrangements with the Borrower concurrently with
the execution and delivery hereof so that a replacement Note is
issued to the Assignor and a new Note is issued to the
Assignee, in each case in principal amounts reflecting their
Pro Rata Shares of the Commitment or their outstanding Advances
(as adjusted pursuant to this Agreement).
8. Further Assurances. Concurrently with the
execution of this Agreement, the Assignor shall execute two
counterpart original Requests for Registration, in the form of
Exhibit A to this Agreement, to be forwarded to the
Administrative Agent. The Assignor and the Assignee further
agree to execute and deliver such other instruments, and take
such other action, as either party may reasonably request in
connection with the transactions contemplated by this
Agreement, and the Assignor specifically agrees to cause the
delivery of (i) two original counterparts of this Agreement and
(ii) the Request for Registration, to the Administrative Agent
for the purpose of registration of the Assignee as a "Bank"
pursuant to Section 11.8 of the Loan Agreement.
9. Governing Law. THIS AGREEMENT SHALL BE DEEMED
TO BE A CONTRACTUAL OBLIGATION UNDER, AND SHALL BE GOVERNED BY
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LOCAL
LAWS OF THE STATE OF NEVADA. FOR ANY DISPUTE ARISING IN
CONNECTION WITH THIS AGREEMENT, THE ASSIGNEE HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF
NEVADA.
10. Notices. All communications among the parties
or notices in connection herewith shall be in writing, hand
delivered or sent by registered airmail, postage prepaid, or by
telex, telegram or cable, addressed to the appropriate party at
its address set forth on the signature pages hereof. All such
communications and notices shall be effective upon receipt.
11. Binding Effect. This Agreement shall be binding
upon and inure to the benefit of the parties and their
respective successors and assigns; provided, however, that the
Assignee shall not assign its rights or obligations without the
prior written consent of the Assignor and any purported
assignment, absent such consent, shall be void.
12. Interpretation. The headings of the various
sections hereof are for convenience of reference only and shall
not affect the meaning or construction of any provision hereof.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed and delivered by their respective
officials, officers or agents thereunto duly authorized as of
the date first above written.
"Assignor"
_____________________________________
By:___________________________________
Its:_______________________________
Address: ____________________________
____________________________
____________________________
Telephone ____________________________
Telecopier____________________________
"Assignee"
______________________________________
By:___________________________________
Its:_______________________________
Address: _____________________________
_____________________________
_____________________________
Telephone ____________________________
Telecopier____________________________
Exhibit A to Commitment Assignment and Acceptance
REQUEST FOR REGISTRATION
To: Bank of America National Trust and Savings Association, as
Administrative Agent, and Circus Circus Enterprises, Inc.
THIS REQUEST FOR REGISTRATION OF ASSIGNEE is made as
of the date of the enclosed Commitment Assignment and
Acceptance with reference to that certain Loan Agreement, dated
as of January 29, 1996 by and among Circus Circus Enterprises,
Inc., the Banks parties thereto, The Long-Term Credit Bank of
Japan, Ltd., Los Angeles Agency, First Interstate Bank of
Nevada, N.A., Societe Generale, Credit Lyonnais Los Angeles
Branch, Credit Lyonnais Cayman Island Branch and Canadian
Imperial Bank of Commerce, as Co-Agents, and Bank of America
National Trust and Savings Association, as Administrative Agent
for itself and the Banks (as amended as of the date hereof, the
"Loan Agreement").
The Assignor and Assignee described below hereby
request that Administrative Agent register the Assignee as a
Bank pursuant to Section 11.8 of the Loan Agreement effective
as of the Effective Date described in the Commitment Assignment
and Acceptance.
Enclosed with this Request are two counterpart
originals of the Commitment Assignment and Acceptance as well
as the original Note of Borrower in favor of the Assignor in
the principal amount of $______________. The Assignor and
Assignee hereby jointly request that Administrative Agent cause
Borrower to issue a replacement Note, dated as of the Effective
Date, pursuant to Section 11.8 of the Loan Agreement in favor
of Assignor in the principal amount of the remainder of its
Pro-Rata Share of the Commitment and a new Note in favor of the
Assignee in the amount of the Assigned Pro-Rata Share.
IN WITNESS WHEREOF, the Assignor and Assignee have
executed this Request for Registration by their duly authorized
officers as of this ___ day of __________, 199__.
"Assignor"
_________________________
By:______________________
Its: _______________
"Assignee"
_________________________
By:______________________
Its: _______________
CONSENT OF ADMINISTRATIVE AGENT AND BORROWER
[When Required Pursuant to Loan Agreement]
TO: The Assignor and Assignee referred to in the above Request
for Registration
When countersigned by both Borrower and Administrative
Agent below, this document shall certify that:
[ ] [WHEN REQUIRED PURSUANT TO SECTION 11.8(b)(i) OF THE
Loan Agreement:]
[1. Borrower has consented, pursuant to the terms of the
Loan Documents, to the assignment by the Assignor to the
Assignee of the Assigned Pro-Rata Share.]
[2.] Administrative Agent has registered the Assignee as
a Bank under the Loan Agreement, effective as of the Effective
Date described above, with a Pro-Rata Share of the Commitment
corresponding to the Assigned Pro-Rata Share and has adjusted
the registered Pro-Rata Share of the Commitment of the Assignor
to reflect the assignment of the Assigned Pro-Rata Share.
Approved:
Circus Circus Enterprises, Bank of America National Trust
Inc., a Nevada corporation and Savings Association, as
Administrative Agent
By:______________________ By:___________________________
Its:__________________ Its:_______________________
[Exhibit B to Loan Agreement]
COMMITTED ADVANCE NOTE
$[Pro Rata Share] January __, 1996
Las Vegas, Nevada
FOR VALUE RECEIVED, the undersigned promises to pay
to the order of ____________________________________________
(the "Bank"), the principal amount of ________________________
__________________________ AND NO/100 DOLLARS
($___________________) or such lesser aggregate amount of
Committed Advances as may be made by the Bank as part of the
Loans pursuant to the Loan Agreement referred to below,
together with interest on the principal amount of each
Committed Advance made hereunder as part of the Loans and
remaining unpaid from time to time from the date of each such
Committed Advance until the date of payment in full, payable as
hereinafter set forth.
Reference is made to the Loan Agreement dated as of
January 29, 1996, by and among the undersigned, as Borrower,
the Banks which are parties thereto, The Long-Term Credit Bank
of Japan, Ltd., Los Angeles Agency, First Interstate Bank of
Nevada, N.A., Societe Generale, Credit Lyonnais Los Angeles
Branch, Credit Lyonnais Cayman Island Branch and Canadian
Imperial Bank of Commerce, as Co-Agents, and Bank of America
National Trust and Savings Association, as Administrative Agent
for the benefit of the Banks (the "Loan Agreement"). Terms
defined in the Loan Agreement and not otherwise defined herein
are used herein with the meanings defined for those terms in
the Loan Agreement. This is one of the Committed Advance Notes
referred to in the Loan Agreement, and any holder hereof is
entitled to all of the rights, remedies, benefits and
privileges provided for in the Loan Agreement as originally
executed or as it may from time to time be supplemented,
modified or amended. The Loan Agreement, among other things,
contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events upon the terms and
conditions therein specified.
The principal indebtedness evidenced by this
Committed Advance Note shall be payable as provided in the Loan
Agreement and in any event on the Maturity Date.
Interest shall be payable on the outstanding daily
unpaid principal amount of Committed Advances from the date of
each such Committed Advance until payment in full and shall
accrue and be payable at the rates and on the dates set forth
in the Loan Agreement both before and after default and before
and after maturity and judgment, with interest on overdue
principal and interest to bear interest at the rate set forth
in Section 3.9 of the Loan Agreement, to the fullest extent
permitted by applicable Law.
Each payment hereunder shall be made to the
Administrative Agent at the Administrative Agent's Office for
the account of the Bank in immediately available funds not
later than 11:00 a.m., California local time, on the day of
payment (which must be a Banking Day). All payments received
after 11:00 a.m., California local time, on any particular
Banking Day shall be deemed received on the next succeeding
Banking Day. All payments shall be made in lawful money of the
United States of America.
The Bank shall use its best efforts to keep a record
of Committed Advances made by it as part of Loans and payments
received by it with respect to this Committed Advance Note, and
such record shall, subject to Section 10.6(g) of the Loan
Agreement, be presumptive evidence of the amounts owing under
this Committed Advance Note.
The undersigned hereby promises to pay all costs and
expenses of any rightful holder hereof incurred in collecting
the undersigned's obligations hereunder or in enforcing or
attempting to enforce any of such holder's rights hereunder,
including reasonable attorneys' fees and disbursements, whether
or not an action is filed in connection therewith.
The undersigned hereby waives presentment, demand for
payment, dishonor, notice of dishonor, protest, notice of
protest and any other notice or formality, to the fullest
extent permitted by applicable Laws.
This Committed Advance Note shall be delivered to and
accepted by the Bank in the State of Nevada, and shall be
governed by, and construed and enforced in accordance with, the
local Laws thereof.
CIRCUS CIRCUS ENTERPRISES, INC.,
a Nevada corporation
By: _____________________________
Title:___________________________
By: _____________________________
Title:___________________________
SCHEDULE OF COMMITTED ADVANCES AND
PAYMENTS OF PRINCIPAL
Date
Amount
of
Advance
Interest
Period
Amount of
Principal Paid
Unpaid
Principal
Balance
Notation
Made by
____________________________________________________________
____________________________________________________________
___________________________________________________________________
_____________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
[Exhibit C to Loan Agreement]
COMPETITIVE ADVANCE NOTE
$750,000,000 January ___, 1996
Las Vegas, Nevada
FOR VALUE RECEIVED, the undersigned promises to pay
to the order of ____________________________________________
(the "Bank"), the principal amount of Seven Hundred Fifty
Million and 00/100 Dollars ($750,000,000) or such lesser
aggregate amounts as may be made as Competitive Advances
pursuant to the Loan Agreement hereinafter described, payable
as hereinafter set forth. The undersigned promises to pay
interest on the principal amount hereof remaining unpaid from
time to time from the date hereof until the date of payment in
full, payable as hereinafter set forth.
Reference is made to the Loan Agreement dated as of
January 29, 1996, among the undersigned, as Borrower, the Banks
that are parties thereto, The Long-Term Credit Bank of Japan,
Ltd., Los Angeles Agency, First Interstate Bank of Nevada,
N.A., Societe Generale, Credit Lyonnais Los Angeles Branch,
Credit Lyonnais Cayman Island Branch and Canadian Imperial Bank
of Commerce, as Co-Agents, and Bank of America National Trust
and Savings Association, as Administrative Agent (as amended
from time to time the "Loan Agreement"). Terms defined in the
Loan Agreement and not otherwise defined herein are used herein
with the meanings defined for those terms in the Loan
Agreement. This is one of the Competitive Advance Notes
referred to in the Loan Agreement, and any holder hereof is
entitled to all of the rights, benefits and privileges provided
for in the Loan Agreement as originally executed or as it may
from time to time be supplemented, modified or amended. The
Loan Agreement, among other things, contains provisions for
acceleration of the maturity hereof upon the happening of
certain stated events upon the terms and conditions therein
specified.
The principal indebtedness of each Competitive
Advance evidenced by this Competitive Advance Note shall be
payable on the maturity date specified in the Competitive Bid
relating to such Competitive Advance.
Interest shall be payable on the outstanding daily
unpaid principal amount of each Competitive Advance hereunder
from the date thereof until payment in full and shall accrue
and be payable at the rates and on the dates set forth in the
Competitive Bid relating to such Competitive Advance, both
before and after default and before and after maturity and
judgment, with overdue principal and interest to bear interest
at the rate set forth in Section 3.9 of the Loan Agreement, to
the fullest extent permitted by applicable Laws.
The amount of each payment hereunder shall be made to
the Administrative Agent at the Administrative Agent's Office,
for the account of the Bank, in lawful money of the United
States of America and in immediately available funds not later
than 11:00 A.M., California local time, on the day of payment
(which must be a Banking Day). All payments received after
11:00 A.M., California local time, on any Banking Day, shall be
deemed received on the next succeeding Banking Day. The Bank
shall use its best efforts to keep a record of Competitive
Advances made by it and payments of principal with respect to
this Competitive Advance Note, and such record shall, subject
to Section 10.6(g) of the Loan Agreement, be presumptive
evidence of the principal amount owing under this Competitive
Advance Note.
The undersigned hereby promises to pay all costs and
expenses of any holder hereof incurred in collecting the
undersigned's obligations hereunder or in enforcing any of
holder's rights hereunder, including attorneys' fees and dis-
bursements (including allocated costs of legal counsel employed
by the Administrative Agent or the holder), whether or not an
action is filed in connection therewith.
The undersigned hereby waives presentment, demand for
payment, dishonor, notice of dishonor, protest, notice of
protest and any other notice or formality to the fullest extent
permitted by applicable Laws.
This Competitive Advance Note shall be delivered to
and accepted by the Bank, or by the Administrative Agent on its
behalf, in the State of Nevada, and shall be governed by, and
construed and enforced in accordance with, the local Laws
thereof.
CIRCUS CIRCUS ENTERPRISES, INC.,
a Nevada corporation
By ___________________________________
Its _______________________________
By ___________________________________
Its _______________________________
SCHEDULE OF
COMPETITIVE ADVANCES AND PAYMENTS OF PRINCIPAL
Date
Amount
of
Advance
Interest
Period
Amount of
Principal Paid
Unpaid
Principal
Balance
Notation
Made by
____________________________________________________________
____________________________________________________________
___________________________________________________________
_____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
[Exhibit D to Loan Agreement]
COMPETITIVE BID
Bank of America National Trust and
Savings Association, as Administrative Agent
Agency Management Services #5596
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: _______________________
Re: Competitive Bid Rate Loan Quote for
Circus Circus Enterprises, Inc.
Dear Ladies and Gentlemen:
Reference is made to the Loan Agreement dated as of
January 29, 1996 (as the same has been amended, modified or
extended, the "Agreement"; capitalized terms used herein
without definition shall have the meanings assigned to such
terms in the Agreement) by and among Circus Circus Enterprises,
Inc., a Nevada corporation (the "Borrower"), the Banks that are
parties thereto, The Long-Term Credit Bank of Japan, Ltd.,
Los Angeles Agency, First Interstate Bank of Nevada, N.A.,
Societe Generale, Credit Lyonnais Los Angeles Branch, Credit
Lyonnais Cayman Island Branch and Canadian Imperial Bank of
Commerce, as Co-Agents, and Bank of America National Trust and
Savings Association, as Administrative Agent.
In response to the Competitive Bid Request from
Borrower dated _______________, 199__, we hereby make the
following Competitive Bid on the following terms:
1. Quoting Bank:
_____________________________________________________
2. Person to contact at Quoting Bank and telephone number:
Name:________________________________________________
Telephone Number:____________________________________
3. Borrowing date of proposed Competitive Advance:
_____________________________________________________
4. We hereby offer to make Competitive Advances in the
following principal amounts, for the following durations
and at the following rates [insert only one applicable
rate on each line below]:
Duration of Foreign
Principal Competitive Absolute Eurodollar Currency
Amount Advance Rate Bid Margin Bid Margin Bid
$__________ ___________ __________% ___________% ___________%
$__________ ___________ __________% ___________% ___________%
$__________ ___________ __________% ___________% ___________%
provided that the aggregate Maximum Competitive Advance for
which this offer may be accepted shall not exceed
$________________.
If a Foreign Currency Margin Bid,
type of foreign currency provided: __________________________.
We understand and agree that the offer(s) set forth
above, subject to the satisfaction of the applicable conditions
set forth in the Agreement, irrevocably obligate(s) us to make
the Competitive Advance(s) for which any offer(s) is (are)
accepted, in whole or in part.
Very truly yours,
____________________________
[Name of Bank]
Date:__________________ By__________________________
Name:_______________________
Title:______________________
[Exhibit F to Loan Agreement]
COMPLIANCE CERTIFICATE
To: BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
Administrative Agent
This Compliance Certificate is delivered with
reference to that certain Loan Agreement dated as of
January 29, 1996, among Circus Circus Enterprises, Inc., a
Nevada corporation ("Borrower"), the Banks therein named, The
Long-Term Credit Bank of Japan, Ltd., Los Angeles Agency, First
Interstate Bank of Nevada, N.A., Societe Generale, Credit
Lyonnais Los Angeles Branch, Credit Lyonnais Cayman Island
Branch and Canadian Imperial Bank of Commerce, as Co-Agents,
and Bank of America National Trust and Savings Association, as
Administrative Agent (the "Loan Agreement"). Terms defined in
the Loan Agreement and not otherwise defined in this Compliance
Certificate ("Certificate") shall have the meanings defined for
them in the Loan Agreement.
This Certificate is delivered in accordance with
Section 7.2 of the Loan Agreement. This Compliance Certificate
is delivered with respect to the Fiscal Quarter ended
_____________, _____ (the "Test Fiscal Quarter"). Computations
indicating compliance with respect to the covenants contained
in Sections 6.3, 6.12, 6.13, 6.14 and 6.15 of the Loan
Agreement are set forth below:
Section 6.3 - Dispositions. The aggregate Net Proceeds of all
Dispositions made during the term of the Loan Agreement are
described as follows:
Disposition Net Proceeds
__________________________________________________$____________
__________________________________________________$____________
__________________________________________________$____________
__________________________________________________$____________
Total ____________________________________________$__________
Section 6.12 - Tangible Net Worth. As of the last day of the
Test Fiscal Quarter, Tangible Net Worth was calculated as
follows:
Actual Net Worth:
Stockholders' Equity of Borrower
and its Subsidiaries $____________
minus the aggregate Intangible Assets
of Borrower and its Subsidiaries ($___________)
Equals Tangible Net Worth $____________
Required Net Worth:
85% of Base Net Worth [$782,099,000] $664,784,150
plus 50% of Net Income earned in
each Fiscal Quarter ending after
November 1, 1995 (with no deduction
for a net loss in any such Fiscal
Quarter) $______________
plus (c) an amount equal to 50%
of the aggregate increases in
Stockholders' Equity after the
Closing Date by reason of the
issuance and sale of capital stock
by Borrower (including upon any
conversion of debt securities of
Borrower into such capital stock)
minus the aggregate amount, not to
exceed $300,000,000, then expended
by Borrower in Cash for purchase or
redemption of Common Stock
after November 1, 1995 $______________
Equals required Tangible Net Worth $______________
Section 6.13 - Interest Charge Coverage. As of the last day of
the Test Fiscal Quarter, Interest Charge Coverage was
calculated as follows:
Actual Interest Charge Coverage Ratio:
(a) Available Cash Flow for the
fiscal period consisting of the
Test Fiscal Quarter and the three
immediately preceding Fiscal Quarters
(the "Test Period") divided by $______________
(b) Interest Charges of Borrower
and its Restricted Subsidiaries
during the Test Period $______________
Interest Charge Ratio [(a):(b)] __________:1.00
Required Interest Charge Ratio:
Period Ratio
Closing Date through
January 31, 1998 2.50:1.00
April 30, 1998 through
January 31, 1999 2.75:1.00
April 30, 1999 and
thereafter 3.00:1.00
Interest Charge Coverage - Component Calculation
In the calculation set forth above, Available Cash Flow
and Interest Charges for the Test Period are calculated as
follows:
Available Cash Flow
EBITDA for the Test Period $___________
minus federal and state taxes
on or measured by income for Test
Period payable by Borrower and its
Restricted Subsidiaries in Cash
during the Test Period ($__________)
minus Maintenance Capital Expenditures
made during the Test Period ($__________)
minus to the extent that the same
exceeded $300,000,000 during the term
of the Loan Agreement (plus for each
year for which the term of the Loan
Agreement is extended, an additional
$60,000,000), Distributions
made by Borrower and the Restricted
Subsidiaries to Persons other than
Borrower or its Restricted Subsidiaries
during the Test Period ($__________)
equals Available Cash Flow for the
Test Period $___________
Interest Charges
All interest, fees, charges and
related expenses paid or payable
(without duplication) for the Test
Period to a lender in connection
with borrowed money or the deferred
purchase price of assets that are
considered "interest" under Generally
Accepted Accounting Principles $___________
plus the portion of rent paid or
payable (without duplication) for
the Test Period under Capital
Lease Obligations that should be
treated as interest in accordance
with Financial Accounting Standards
Board Statement No. 13 $____________
minus interest recorded (but not
paid or payable) by Borrower or its
Restricted Subsidiaries on their
financial statements with respect to
their share of any interest paid or
payable by any New Venture Entity
which is a joint venture with any
other Person which is not properly
consolidated with Borrower under
Generally Accepted Accounting Principles
to the extent included in interest
above ($___________)
equals Interest Charges for the
Test Period $____________
In the calculation set forth above, EBITDA for the Test
Period is calculated as follows:
EBITDA.
(a) Consolidated net income of Borrower
and its Restricted Subsidiaries
for the Test Fiscal Quarter ("Net
Income")* $___________
(b) plus any extraordinary loss
reflected in such Net Income* $___________
(c) minus any extraordinary gain
reflected in such Net Income* ($_________)
(d) plus depreciation, amortization
and all other non-cash expenses
for the Test Fiscal Quarter* $___________
(e) plus Interest Expense*
(i) all interest, fees, charges
and related expenses paid or
payable to a lender in connection
with borrowed money or the
deferred purchase price of assets
that are considered "interest
expense" under Generally Accepted
Accounting Principles
$_____________________
(ii) the portion of rent paid or payable
(without duplication) for the Test
Fiscal Quarter under Capital Lease
Obligations that should be treated
as interest in accordance with
Financial Accounting Standards Board
Statement No. 13.
$_____________________
Total Interest Expense = (i)+(ii)= $____________
(f) plus the aggregate amount of
federal and state taxes on or
measured by income for the Test
Fiscal Quarter (whether or not
payable during the Test Fiscal
Quarter)* $___________
(g) minus Net Income recognized by
any Subsidiary which is not a
Restricted Subsidiary but not
received by Borrower or its
Restricted Subsidiaries in Cash [$___________]
(*in each case as determined in accordance with
Generally Accepted Accounting Principles and,
in the case of items (d), (e) and (f), only to
the extent deducted in the determination
of Net Income for that period, provided that
EBITDA shall in any event exclude pre-opening
expenses reasonably determined by Borrower in a
manner consistent with the past accounting
practices of Borrower.
equals EBITDA $____________
Section 6.14 - Total Debt to EBITDA. As of the last day of the
Test Fiscal Quarter, the Total Debt to EBITDA Ratio was
calculated as follows:
(a) Average Daily Total Debt as of
that date (as detailed below) divided by $____________
(b) EBITDA for the fiscal period
consisting of that Test Fiscal Quarter
and the three immediately preceding
Fiscal Quarters (from Interest Charge
Coverage calculation set forth above) $____________
Actual Total Debt to EBITDA Ratio [(a):(b)] ________:1.00
Required Total Debt to EBITDA Ratio ________:1.00
Total Debt - Component Calculation
Funded Debt as of the last day of
the Test Fiscal Quarter (without duplication)
(a) all principal Indebtedness
of Borrower and its Restricted
Subsidiaries for borrowed money
(including debt securities issued
by Borrower or any of its Restricted
Subsidiaries) on that date
$__________________
plus (b) the aggregate amount of
all Capital Lease Obligations of
Borrower and its Restricted
Subsidiaries on that date
$___________________
plus (c) obligations in respect of
letters of credit or other similar
instruments which support Indebtedness
of the type described in clause (a) and
Capital Lease Obligations, to the extent
of the amount drawable under such letters
of credit or similar instruments
$___________________
equals Funded Debt [(a)+(b)] $____________
plus all Contingent Guaranties of
Borrower or any of its Restricted
Subsidiaries with respect to
Indebtedness of Persons $____________
equals Total Debt $____________
Sections 6.15 - New Venture Capital Expenditures and
Investments.
Actual aggregate amount of New Venture Capital
Expenditures and New Venture Investments
during the term of the Loan Agreement as
of the last day of the Test Fiscal Quarter $____________
Maximum Permitted $600,000,000
Description of New Venture Capital Expenditures and Investments
Project Amount
________________________________ $_______________
________________________________ $_______________
________________________________ $_______________
________________________________ $_______________
A review of the activities of Borrower and its
Subsidiaries during the fiscal period covered by this
Compliance Certificate has been made under the supervision of
the undersigned with a view to determining whether during such
fiscal period Borrower and its Significant Subsidiaries
performed and observed all of their respective Obligations. To
the best knowledge of the undersigned, during the fiscal period
covered by this Compliance Certificate, all covenants and
conditions have been so performed and observed and no Default
or Event of Default has occurred and is continuing, with the
exceptions set forth below in response to which Borrowers have
taken or propose to take the following actions (if none, so
state).
________________________________________________________________________
___________________________________________________________________________
_____________________________________________________________________________
Borrower certifies that the calculations made and the
information contained herein are derived from the books and
records of Borrower and that each and every matter contained
herein correctly reflects those books and records.
To the best knowledge of the undersigned no event or
circumstance has occurred that constitutes a Material Adverse
Effect since the date of the most recent Compliance Certificate
was executed and delivered, with the exceptions set forth below
(if none, so state).
_________________________________________________________________________
____________________________________________________________________________
___________________________________________________________________________
CIRCUS CIRCUS ENTERPRISES, INC., a
Nevada corporation
By:______________________________
______________________________
Printed Name and Title
[Exhibit G-1 to Loan Agreement]
OPINION OF COUNSEL
[Exhibit G-2 to Loan Agreement]
OPINION OF COUNSEL
[Exhibit H to Loan Agreement]
REQUEST FOR LETTER OF CREDIT
1. This REQUEST FOR LETTER OF CREDIT is executed and
delivered by Circus Circus Enterprises, Inc., a Nevada
corporation ("Borrower"), to Bank of America National Trust and
Savings Association, as the Administrative Agent
("Administrative Agent") pursuant to that certain Loan
Agreement (as amended, modified or extended, the "Agreement")
dated as of January 29, 1996, among Borrower, the Banks that
are parties thereto, The Long-Term Credit Bank of Japan, Ltd.,
Los Angeles Agency, First Interstate Bank of Nevada, N.A.,
Societe Generale, Credit Lyonnais Los Angeles Branch, Credit
Lyonnais Cayman Island Branch and Canadian Imperial Bank of
Commerce, as Co-Agents, and Administrative Agent. Any terms
used herein and not defined herein shall have the meanings
defined in the Agreement.
2. Borrower hereby requests that the Issuing Bank issue
a Letter of Credit as follows:
(a) Amount of Letter of Credit: $_______________.
(b) Date of Issuance: ________________, 19__.
(c) Type of Letter of Credit (Check one box only):
Commercial Letter of Credit
Standby Letter of Credit
(d) Beneficiary under Letter of Credit:
Name: _______________________________
Address: ____________________________
____________________________
____________________________
(e) Expiry Date: __________________, 19__.
(f) Purpose of Letter of Credit:
_____________________________________________
____________________________________________.
(g) Additional Information/Terms: ______________
____________________________________________.
3. The requested Letter of Credit is (check one box
only):
a new Letter of Credit in addition to Letters of
Credit already outstanding.
a supplement, modification, amendment, renewal,
or extension to or of the following outstanding
Letter(s) of Credit: [identify]
4. In connection with the issuance of the Letter of
Credit requested herein, Borrower represents, warrants and
certifies to the Banks that:
(a) Now and as of the date of the issuance of the
requested Letter of Credit, except (i) for representations
and warranties which expressly speak as of a particular
date or which are no longer true and correct as a result
of a change permitted by the Agreement or (ii) as dis-
closed by Borrower and approved in writing by the
Requisite Banks, each representation and warranty made by
Borrower in Article 4 of the Agreement (other than
Sections 4.4(a), 4.6 (first sentence), 4.10 and 4.17) will
be true and correct, both immediately before such Letter
of Credit is issued and after giving effect to such Letter
of Credit, as though such representations and warranties
were made on and as of the date of such Letter of Credit;
(b) There is not any action, suit, proceeding or
investigation pending as to which Borrower or the
Restricted Subsidiaries have been served or received
notice or, to the best knowledge of Borrower, threatened
against or affecting Borrower or any of the Restricted
Subsidiaries or any Property of any of them before any
Governmental Agency that constitutes a Material Adverse
Effect;
(c) Now and as of the date of the requested Letter
of Credit, no Default or Event of Default presently exists
or will have occurred and be continuing as a result of the
issuance of the Letter of Credit.
5. Attached hereto is an Application for Letter of
Credit on the form provided to Borrower by the Issuing Bank.
6. This Request for Letter of Credit is executed on
__________, 19___, by a Responsible Official of Borrower. The
undersigned, in such capacity, hereby certifies each and every
matter contained herein to be true and correct.
CIRCUS CIRCUS ENTERPRISES, INC., a
Nevada corporation
By:___________________________
Title:________________________
[Exhibit I to Loan Agreement]
REQUEST FOR LOAN
1. This Request for Loan is executed and delivered
by Circus Circus Enterprises, Inc., a Nevada corporation
("Borrower"), to Bank of America National Trust and Savings
Association, as the Administrative Agent ("Administrative
Agent") pursuant to that certain Loan Agreement (as amended,
modified or extended, the "Agreement") dated as of January 29,
1996, among Borrower, the Banks that are parties thereto, The
Long-Term Credit Bank of Japan, Ltd., Los Angeles Agency, First
Interstate Bank of Nevada, N.A., Societe Generale, Credit
Lyonnais Los Angeles Branch, Credit Lyonnais Cayman Island
Branch and Canadian Imperial Bank of Commerce, as Co-Agents,
and Administrative Agent. Any terms used herein and not
defined herein shall have the meanings defined in the
Agreement.
2. Borrower hereby requests that the Banks make a
Committed Loan pursuant to the Agreement as follows:
(a) AMOUNT OF REQUESTED COMMITTED LOAN:
$_________________________
(b) FUNDING DATE OF COMMITTED LOAN:
__________________________
(c) INTEREST PERIOD OF COMMITTED LOAN ENDS
__________________________
(d) TYPE OF COMMITTED LOAN (Check one box only):
/__/ ALTERNATE BASE RATE
/__/ EURODOLLAR RATE FOR AN INTEREST PERIOD OF
________ MONTHS
3. In connection with the request, Borrower certifies
that:
(a) If this Request for Loan is for a Committed Loan
which will increase the principal amount outstanding under
the Notes, now and as of the date of the requested
Committed Loan, except (i) for representations and
warranties which speak as of a particular date or are no
longer true and correct as a result of a change which is
permitted by the Loan Agreement and (ii) as disclosed by
Borrower and approved in writing by the Requisite Banks,
each representation and warranty made by Borrower in
Article 4 of the Agreement (other than Sections 4.4(a),
4.6 (first sentence), 4.10, 4.17 and, in the case of any
Committed Advance the proceeds of which shall be used to
directly refinance Commercial Paper Debt, the third
sentence of Section 4.6) will be true and correct, both
immediately before and after giving effect to such
Committed Loan, as though such representations and
warranties were made on and as of that date; and
(b) There is not any action, suit, proceeding
or investigation pending as to which Borrower or its
Restricted Subsidiaries have been served or received
notice or, to the best knowledge of Borrower, threatened
against or affecting Borrower or any of its Restricted
Subsidiaries or any Property of any of them before any
Governmental Agency that constitutes a Material Adverse
Effect.
4. This Request is executed on _________________ on
behalf of Borrower.
CIRCUS CIRCUS ENTERPRISES, INC., a
Nevada corporation
By:___________________________
Title:________________________
[Exhibit J to Loan Agreement]
SUBSIDIARY GUARANTY
This SUBSIDIARY GUARANTY ("Subsidiary Guaranty")
dated as of January 29, 1996, is made by each of the
corporations and partnerships listed on the signature pages
hereto, together with each other Person who may become a party
hereto pursuant to Section 18 of this Subsidiary Guaranty (each
a "Guarantor" and collectively "Guarantors"), jointly and
severally in favor of Bank of America National Trust and
Savings Association, as Administrative Agent, and the Banks
that are party to the Loan Agreement referred to below
(referred to herein collectively and individually, with their
successors and assigns, as "Lender"), with reference to the
following facts:
RECITALS
A. Pursuant to that certain Loan Agreement of even
date herewith entered into among Circus Circus Enterprises,
Inc., a Nevada corporation ("Borrower"), the Banks therein
named, The Long-Term Credit Bank of Japan, Ltd., Los Angeles
Agency, First Interstate Bank of Nevada, N.A., Societe
Generale, Credit Lyonnais Los Angeles Branch, Credit Lyonnais,
Cayman Island Branch and Canadian Imperial Bank of Commerce, as
Co-Agents, and Bank of America National Trust and Savings
Association, as Administrative Agent (said Loan Agreement, as
it may hereafter be amended, extended, renewed, supplemented,
or otherwise modified from time to time, being the "Loan
Agreement"), the Banks are making certain credit facilities
available to Borrower.
B. As a condition to the availability of such
credit facilities, Guarantors are required to enter into this
Subsidiary Guaranty and to guaranty the Guarantied Obligations
as hereinafter provided.
C. Guarantors expect to realize direct and indirect
benefits as the result of the availability of the aforemen-
tioned credit facilities to Borrower, as the result of
financial or business support which will be provided to the
Guarantors by Borrower.
AGREEMENT
NOW, THEREFORE, in order to induce Lender to extend
the aforementioned credit facilities, and for other good and
valuable consideration, the receipt and adequacy of which
hereby are acknowledged, Guarantors hereby represent, warrant,
covenant, agree and guaranty as follows:
1. Definitions. This Subsidiary Guaranty is the
Subsidiary Guaranty referred to in the Loan Agreement and is
one of the Loan Documents. Terms defined in the Loan Agreement
and not otherwise defined in this Subsidiary Guaranty shall
have the meanings given those terms in the Loan Agreement when
used herein and such definitions are incorporated herein as
though set forth in full. In addition, as used herein, the
following terms shall have the meanings respectively set forth
after each:
"Guarantied Obligations" means all Obligations
of Borrower or any Party at any time and from
time to time owed to Lender under one or more of
the Loan Documents (but not including
Obligations owed to Lender under this Subsidiary
Guaranty), whether due or to become due, matured
or unmatured, liquidated or unliquidated, or
contingent or noncontingent, including obliga-
tions of performance as well as obligations of
payment, and including interest that accrues
after the commencement of any bankruptcy or
insolvency proceeding by or against Borrower,
any Guarantor or any other Person.
"Guarantors" means the Significant Subsidiaries
of Borrower that are parties hereto as indicated
on the signature pages hereof, or that become
parties hereto as provided in Section 18 hereof,
and each of them, and any one or more of them,
jointly and severally.
"Lender" means the Administrative Agent (acting
as the Administrative Agent and/or on behalf of
the Banks), and the Banks, and each of them, and
any one or more of them, together with their
successors and assigns. Subject to the terms of
the Loan Agreement, any right, remedy, privilege
or power of Lender may be exercised by the
Administrative Agent, or by the Requisite Banks,
or by any Bank acting with the consent of the
Requisite Banks.
"Subsidiary Guaranty" means this Subsidiary
Guaranty, and any extensions, modifications,
renewals, restatements, reaffirmations, supple-
ments or amendments hereof, including, without
limitation, any documents or agreements by which
additional Guarantors become party hereto.
2. Guaranty of Guarantied Obligations. Guarantors
hereby, jointly and severally, irrevocably, unconditionally
guaranty and promise to pay and perform on demand the
Guarantied Obligations and each and every one of them, includ-
ing all amendments, modifications, supplements, renewals or
extensions of any of them, whether such amendments, modifica-
tions, supplements, renewals or extensions are evidenced by new
or additional instruments, documents or agreements or change
the rate of interest on any Guarantied Obligation or the
security therefor, or otherwise.
3. Nature of Guaranty. This Subsidiary Guaranty is
irrevocable and continuing in nature and relates to any
Guarantied Obligations now existing or hereafter arising. This
Subsidiary Guaranty is a guaranty of prompt and punctual pay-
ment and performance and is not merely a guaranty of
collection.
4. Relationship to Other Agreements. Nothing
herein shall in any way modify or limit the effect of terms or
conditions set forth in any other document, instrument or
agreement executed by any Guarantor or in connection with the
Guarantied Obligations, but each and every term and condition
hereof shall be in addition thereto. All provisions contained
in the Loan Agreement or any other Loan Document that apply to
Loan Documents generally are fully applicable to this
Subsidiary Guaranty and are incorporated herein by this
reference.
5. Subordination of Indebtedness of Borrower to
Guarantors to the Guarantied Obligations. To the fullest
extent it is permitted to do so under the indentures governing
the Existing Subordinated Debt as in effect on the Closing Date
and under Gaming Laws, each Guarantor agrees that:
(a) Any indebtedness of Borrower now or here-
after owed to any Guarantor hereby is subordinated to the
Guarantied Obligations.
(b) If Lender so requests, upon the occurrence
and during the continuance of any Event of Default, any
such indebtedness of Borrower now or hereafter owed to any
Guarantor shall be collected, enforced and received by
such Guarantor as trustee for Lender and shall be paid
over to Lender in kind on account of the Guarantied
Obligations, but without reducing or affecting in any
manner the obligations of such Guarantor under the other
provisions of this Subsidiary Guaranty.
(c) Should such Guarantor fail to collect or
enforce any such indebtedness of Borrower now or hereafter
owed to such Guarantor and pay the proceeds thereof to
Lender in accordance with Section 5(b) hereof, Lender as
such Guarantor's attorney-in-fact may do such acts and
sign such documents in such Guarantor's name as Lender
considers necessary or desirable to effect such
collection, enforcement and/or payment.
6. Statutes of Limitations and Other Laws. Until
the Guarantied Obligations shall have been paid and performed
in full, all the rights, privileges, powers and remedies
granted to Lender hereunder shall continue to exist and may be
exercised by Lender at any time and from time to time irres-
pective of the fact that any of the Guarantied Obligations may
have become barred by any statute of limitations. Each
Guarantor expressly waives the benefit of any and all statutes
of limitation, and any and all Laws providing for exemption of
property from execution or for evaluation and appraisal upon
foreclosure, to the maximum extent permitted by applicable
Laws.
7. Waivers and Consents. Each Guarantor acknowl-
edges that the obligations undertaken herein involve the guar-
anty of obligations of Persons other than such Guarantor and,
in full recognition of that fact, consents and agrees that
Lender may, at any time and from time to time, without notice
or demand, and without affecting the enforceability or continu-
ing effectiveness hereof: (a) supplement, modify, amend,
extend, renew or otherwise change the time for payment or the
terms of the Guarantied Obligations or any part thereof,
including any increase or decrease of the rate(s) of interest
thereon; (b) supplement, modify, amend or waive, or enter into
or give any agreement, approval or consent with respect to, the
Guarantied Obligations or any part thereof, or any of the Loan
Documents to which such Guarantor is not a party or any
additional security or guaranties, or any condition, covenant,
default, remedy, right, representation or term thereof or
thereunder; (c) accept new or additional instruments, documents
or agreements in exchange for or relative to any of the Loan
Documents or the Guarantied Obligations or any part thereof;
(d) accept partial payments on the Guarantied Obligations;
(e) receive and hold additional security or guaranties for the
Guarantied Obligations or any part thereof; (f) release,
reconvey, terminate, waive, abandon, fail to perfect,
subordinate, exchange, substitute, transfer and/or enforce any
security or guaranties, and apply any security and direct the
order or manner of sale thereof as Lender in its sole and
absolute discretion may determine; (g) release any Person from
any personal liability with respect to the Guarantied
Obligations or any part thereof; (h) settle, release on terms
satisfactory to Lender or by operation of applicable Laws or
otherwise liquidate or enforce any Guarantied Obligations and
any security or guaranty therefor in any manner, consent to the
transfer of any security and bid and purchase at any sale;
and/or (i) consent to the merger, change or any other restruc-
turing or termination of the corporate existence of Borrower,
any Guarantor or any other Person, and correspondingly
restructure the Guarantied Obligations, and any such merger,
change, restructuring or termination shall not affect the
liability of any Guarantor or the continuing effectiveness
hereof, or the enforceability hereof with respect to all or any
part of the Guarantied Obligations.
Upon the occurrence and during the continuance of any
Event of Default, Lender may enforce this Subsidiary Guaranty
independently as to each Guarantor and independently of any
other remedy or security Lender at any time may have or hold in
connection with the Guarantied Obligations. Each Guarantor
expressly waives any right to require Lender to marshal assets
in favor of Borrower, and agrees that Lender may proceed
against Borrower, or upon or against any security or remedy,
before proceeding to enforce this Subsidiary Guaranty, in such
order as it shall determine in its sole and absolute discre-
tion. Lender may file a separate action or actions against
Borrower and/or any Guarantor without respect to whether action
is brought or prosecuted with respect to any security or
against any other Person, or whether any other Person is joined
in any such action or actions. Guarantors agree that Lender
and Borrower and any Affiliates of Borrower may deal with each
other in connection with the Guarantied Obligations or other-
wise, or alter any contracts or agreements now or hereafter
existing between any of them, in any manner whatsoever, all
without in any way altering or affecting the security of this
Subsidiary Guaranty. Lender's rights hereunder shall be
reinstated and revived, and the enforceability of this
Subsidiary Guaranty shall continue, with respect to any amount
at any time paid on account of the Guarantied Obligations which
thereafter shall be required to be restored or returned by
Lender upon the bankruptcy, insolvency or reorganization of
Borrower or any other Person, or otherwise, all as though such
amount had not been paid. The rights of Lender created or
granted herein and the enforceability of this Subsidiary
Guaranty with respect to Guarantors at all times shall remain
effective to guaranty the full amount of all the Guarantied
Obligations even though the Guarantied Obligations, or any part
thereof, or any security or guaranty therefor, may be or
hereafter may become invalid or otherwise unenforceable as
against Borrower or any other guarantor or surety and whether
or not Borrower shall have any personal liability with respect
thereto. Each Guarantor expressly waives any and all defenses
now or hereafter arising or asserted by reason of (a) any
disability or other defense of Borrower with respect to the
Guarantied Obligations, (b) the unenforceability or invalidity
of any security or guaranty for the Guarantied Obligations or
the lack of perfection or continuing perfection or failure of
priority of any security for the Guarantied Obligations,
(c) the cessation for any cause whatsoever of the liability of
Borrower (other than by reason of the full payment and
performance of all Guarantied Obligations), (d) any failure of
Lender to marshal assets in favor of Borrower or any other
Person, (e) except as otherwise required by Law or as provided
in this Subsidiary Guaranty, any failure of Lender to give
notice of sale or other disposition of collateral to such
Guarantor or any other Person or any defect in any notice that
may be given in connection with any sale or disposition of
collateral, (f) except as otherwise required by Law or as
provided in this Subsidiary Guaranty, any failure of Lender to
comply with applicable Laws in connection with the sale or
other disposition of any collateral or other security for any
Guarantied Obligation, including without limitation, any
failure of Lender to conduct a commercially reasonable sale or
other disposition of any collateral or other security for any
Guarantied Obligation, (g) any act or omission of Lender or
others that directly or indirectly results in or aids the
discharge or release of Borrower or the Guarantied Obligations
or any security or guaranty therefor by operation of law or
otherwise, (h) any Law which provides that the obligation of a
surety or guarantor must neither be larger in amount nor in
other respects more burdensome than that of the principal or
which reduces a surety's or guarantor's obligation in
proportion to the principal obligation, (i) any failure of
Lender to file or enforce a claim in any bankruptcy or other
proceeding with respect to any Person, (j) the election by
Lender, in any bankruptcy proceeding of any Person, of the
application or non-application of Section 1111(b)(2) of the
United States Bankruptcy Code, (k) any extension of credit or
the grant of any Lien under Section 364 of the United States
Bankruptcy Code, (l) any use of cash collateral under
Section 363 of the United States Bankruptcy Code, (m) any
agreement or stipulation with respect to the provision of
adequate protection in any bankruptcy proceeding of any Person,
(n) the avoidance of any Lien in favor of Lender for any
reason, (o) any bankruptcy, insolvency, reorganization,
arrangement, readjustment of debt, liquidation or dissolution
proceeding commenced by or against any Person, including any
discharge of, or bar or stay against collecting, all or any of
the Guarantied Obligations (or any interest thereon) in or as a
result of any such proceeding, (p) to the extent permitted in
paragraph 40.495(4) of the Nevada Revised Statutes ("NRS"), the
benefits of the one-action rule under NRS Section 40.430, or
(q) any action taken by Lender that is authorized by this
Section or any other provision of any Loan Document. Each
Guarantor expressly waives all setoffs and counterclaims and
all presentments, demands for payment or performance, notices
of nonpayment or nonperformance, protests, notices of protest,
notices of dishonor and all other notices or demands of any
kind or nature whatsoever with respect to the Guarantied Obli-
gations (except as otherwise provided in the Loan Documents),
and all notices of acceptance of this Subsidiary Guaranty or of
the existence, creation or incurrence of new or additional
Guarantied Obligations.
8. Condition of Borrower and its Subsidiaries.
Each Guarantor represents and warrants to Lender that each
Guarantor has established adequate means of obtaining from
Borrower and its Subsidiaries, on a continuing basis, financial
and other information pertaining to the businesses, operations
and condition (financial and otherwise) of Borrower and its
Subsidiaries and their Properties, and each Guarantor now is
and hereafter will be completely familiar with the businesses,
operations and condition (financial and otherwise) of Borrower
and its Subsidiaries and their Properties. Each Guarantor
hereby expressly waives and relinquishes any duty on the part
of Lender (should any such duty exist) to disclose to any
Guarantor any matter, fact or thing related to the businesses,
operations or condition (financial or otherwise) of Borrower or
its Subsidiaries or their Properties, whether now known or
hereafter known by Lender during the life of this Subsidiary
Guaranty. With respect to any of the Guarantied Obligations,
Lender need not inquire into the powers of Borrower or any
Subsidiaries thereof or the officers or employees acting or
purporting to act on their behalf, and all Guarantied Oblig-
ations made or created in good faith reliance upon the pro-
fessed exercise of such powers shall be secured hereby.
9. Liens on Real Property. In the event that all
or any part of the Guarantied Obligations at any time are
secured by any one or more deeds of trust or mortgages or other
instruments creating or granting Liens on any interests in real
Property, each Guarantor authorizes Lender, upon the occurrence
of and during the continuance of any Event of Default, at its
sole option, without notice or demand and without affecting any
Guarantied Obligations of any Guarantor, the enforceability of
this Subsidiary Guaranty, or the validity or enforceability of
any Liens of Lender on any collateral, to foreclose any or all
of such deeds of trust or mortgages or other instruments by
judicial or nonjudicial sale. Each Guarantor expressly waives
any defenses to the enforcement of this Subsidiary Guaranty or
any rights of Lender created or granted hereby or to the
recovery by Lender against Borrower, any Guarantor or any other
Person liable therefor of any deficiency after a judicial or
nonjudicial foreclosure or sale, even though such a foreclosure
or sale may impair the subrogation rights of any Guarantor or
may preclude any Guarantor from obtaining reimbursement or
contribution from Borrower. Each Guarantor expressly waives
any defenses or benefits that may be derived from California
Code of Civil Procedure 580a, 580b, 580d or 726, or
comparable provisions of the Laws of any other jurisdiction,
including, without limitation, NRS Section 40.430 and judicial
decisions relating thereto, and NRS Sections 40.451, 40.455,
40.457 and 40.459, and all other suretyship defenses it
otherwise might or would have under California Law or other
applicable Law. Each Guarantor expressly waives any right to
receive notice of any judicial or nonjudicial foreclosure or
sale of any real Property or interest therein subject to any
such deeds of trust or mortgages or other instruments and any
Guarantor's or any other Person's failure to receive any such
notice shall not impair or affect Guarantors' Obligations or
the enforceability of this Subsidiary Guaranty or any rights of
Lender created or granted hereby.
10. Waiver of Rights of Subrogation. Notwith-
standing anything to the contrary elsewhere contained herein or
in any other Loan Document to which any Guarantor is a Party,
Guarantors hereby expressly waive with respect to Borrower and
its successors and assigns (including any surety) and any other
Person which is directly or indirectly a creditor of Borrower
or any surety for Borrower, any and all rights at Law or in
equity to subrogation, reimbursement, to exoneration, to con-
tribution (except as specifically provided in Section 11
below), to setoff or to any other rights that could accrue to a
surety against a principal, to a guarantor against a maker or
obligor, to an accommodation party against the party
accommodated, or to a holder or transferee against a maker, and
which Guarantors may have or hereafter acquire against Borrower
or any other such Person in connection with or as a result of
Guarantors' execution, delivery and/or performance of this
Subsidiary Guaranty or any other Loan Document to which any
Guarantor is a party. Guarantors agree that they shall not
have or assert any such rights against Borrower or their
successors and assigns or any other Person (including any
surety) which is directly or indirectly a creditor of Borrower
or any surety for Borrower, either directly or as an attempted
setoff to any action commenced against Guarantors by Borrower
(as borrower or in any other capacity), Lender or any other
such Person. Guarantors hereby acknowledge and agree that this
waiver is intended to benefit Borrower and Lender and shall not
limit or otherwise affect Guarantors' liability hereunder,
under any other Loan Document to which any Guarantor is a
party, or the enforceability hereof or thereof.
11. Right of Contribution. Each Guarantor hereby
agrees that to the extent that a Guarantor shall have paid more
than its proportionate share of all payments made hereunder,
provided that the Guarantied Obligations are then satisfied,
such Guarantor shall be entitled to seek and receive contribu-
tion from and against any other Guarantor hereunder who has not
paid its proportionate share of all such payments. The provi-
sions of this Section 11 shall in no respect limit the obliga-
tions and liabilities of any Guarantor to Lender, and, subject
to the provisions of Section 17 below, each Guarantor shall
remain liable to Lender for the full amount guaranteed by such
Guarantor hereunder. The "proportionate share" of any
Guarantor shall be a fraction (which shall in no event exceed
1.00) the numerator of which is the excess, if any, of the fair
value of the assets of such Guarantor over a fair estimate of
the liabilities of Guarantor and the denominator of which is
the excess (but not less than $1.00) of the fair value of the
aggregate assets (without duplication) of all Guarantors over a
fair estimate of the aggregate liabilities (without duplica-
tion) of all Guarantors. All relevant calculations shall be
made as of the date such Guarantor became a Guarantor.
12. Waiver of Discharge. Without limiting the
generality of the foregoing and to the extent otherwise
applicable, each Guarantor hereby waives discharge under NRS
Section 104.3605 by waiving all defenses based on suretyship or
impairment of collateral.
13. Understandings With Respect to Waivers and
Consents. Each Guarantor warrants and agrees that each of the
waivers and consents set forth herein are made with full
knowledge of their significance and consequences, with the
understanding that events giving rise to any defense or right
waived may diminish, destroy or otherwise adversely affect
rights which Guarantor otherwise may have against Borrower,
Lender or others, or against any collateral, and that, under
the circumstances, the waivers and consents herein given are
reasonable and not contrary to public policy or Law. Each
Guarantor acknowledges that it has either consulted with legal
counsel regarding the effect of this Subsidiary Guaranty and
the waivers and consents set forth herein, or has made an
informed decision not to do so. If this Subsidiary Guaranty or
any of the waivers or consents herein are determined to be
unenforceable under or in violation of applicable Law, this
Subsidiary Guaranty and such waivers and consents shall be
effective to the maximum extent permitted by Law.
14. Representations and Warranties. Each Guarantor
hereby makes each and every representation and warranty
applicable to such Guarantor set forth in Article 4 of the Loan
Agreement as if set forth in full herein.
15. Costs and Expenses. Each Guarantor agrees to
pay to Lender all costs and expenses (including, without limi-
tation, reasonable attorneys' fees and disbursements) incurred
by Lender in the enforcement or attempted enforcement of this
Subsidiary Guaranty, whether or not an action is filed in
connection therewith, and in connection with any waiver or
amendment of any term or provision hereof. All advances,
charges, costs and expenses, including reasonable attorneys'
fees and disbursements (including the reasonably allocated cost
of legal counsel employed by Lender), incurred or paid by
Lender in exercising any right, privilege, power or remedy
conferred by this Subsidiary Guaranty, or in the enforcement or
attempted enforcement thereof, shall be subject hereto and
shall become a part of the Guarantied Obligations and shall be
paid to Lender by each Guarantor, immediately upon demand,
together with interest thereon at the rate(s) provided for
under the Loan Agreement.
16. Construction of this Guaranty. This Subsidiary
Guaranty is intended to give rise to absolute and unconditional
obligations on the part of each Guarantor; hence, in any
construction hereof, this Subsidiary Guaranty shall be
construed strictly in favor of Lender in order to accomplish
its stated purpose.
17. Liability. Notwithstanding anything to the
contrary elsewhere contained herein or in any Loan Document to
which any Guarantor is a Party, the aggregate liability of all
Guarantors hereunder for payment and performance of the
Guarantied Obligations shall not exceed an amount which, in the
aggregate, is $1.00 less than that amount which if so paid or
performed would constitute or result in a "fraudulent
transfer", "fraudulent conveyance", or terms of similar import,
under applicable state or federal Law, including without
limitation, Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code.
The liability of each Guarantor hereunder is independent of any
other guaranties at any time in effect with respect to all or
any part of the Guarantied Obligations, and each Guarantor's
liability hereunder may be enforced regardless of the existence
of any such guaranties. Any termination by or release of any
guarantor in whole or in part (whether it be another Guarantor
under this instrument or not) shall not affect the continuing
liability of any Guarantor hereunder, and no notice of any such
termination or release shall be required. The execution hereof
by each Guarantor is not founded upon an expectation or
understanding that there will be any other guarantor of the
Guarantied Obligations.
18. Joinder. Any other Person may become a
Guarantor under and become bound by the terms and conditions of
this Subsidiary Guaranty by executing and delivering to Lender
an Instrument of Joinder substantially in the form attached
hereto as Exhibit A, accompanied by such documentation as
Lender may require to establish the due organization, valid
existence and good standing of such Person, its qualification
to engage in business in each material jurisdiction in which it
is required to be so qualified, its authority to execute,
deliver and perform this Subsidiary Guaranty, and the identity,
authority and capacity of each Responsible Official thereof
authorized to act on its behalf.
19. Release of Guarantors. If any Guarantor is
sold, transferred or otherwise disposed of after the Closing
Date in a transaction which does not violate the Loan
Agreement, the Administrative Agent shall, promptly following
request therefor by Borrower, release such Guarantor from this
Guaranty and shall endorse, execute, deliver, record and file
all instruments and documents, and do all other acts and
things, reasonably required to evidence or document the release
of Lender's rights arising under this Subsidiary Guaranty with
respect to such Guarantor at the sole expense of such
Guarantor. This Subsidiary Guaranty and all Obligations of
Guarantors hereunder shall also be released when all
Obligations of each Party to any Loan Document have been paid
in full in Cash or otherwise performed in full and when no
portion of the Commitment remains outstanding. Upon such
release of any or all such Guarantors' Obligations hereunder,
Administrative Agent shall endorse, execute, deliver, record
and file all instruments and documents, and do all other acts
and things, reasonably required to evidence or document the
release of Lender's rights arising under this Subsidiary
Guaranty, all as reasonably requested by, and at the sole
expense of, Guarantors.
20. WAIVER OF JURY TRIAL. EACH GUARANTOR AND LENDER
EXPRESSLY WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF
ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF OR RELATED TO THIS SUBSIDIARY GUARANTY, THE LOAN
AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEM-
PLATED HEREBY OR THEREBY IN ANY ACTION, PROCEEDING OR OTHER
LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST
ANY OTHER PARTY OR PARTIES, WHETHER NOW EXISTING OR HEREAFTER
ARISING AND WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE. EACH GUARANTOR AND LENDER AGREE THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE TRIED BY
A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING,
THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A
TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY
ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE
OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS
SUBSIDIARY GUARANTY, THE LOAN AGREEMENT OR THE OTHER LOAN
DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS SUBSIDIARY GUARANTY, THE LOAN
AGREEMENT AND THE OTHER LOAN DOCUMENTS. ANY PARTY HERETO MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
21. THIS SUBSIDIARY GUARANTY SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
LOCAL LAWS OF THE STATE OF NEVADA.
IN WITNESS WHEREOF, each Guarantor has executed this
Subsidiary Guaranty by its duly authorized officer as of the
date first written above.
"Guarantors"
CIRCUS CIRCUS CASINOS, INC., a Nevada
corporation
By: __________________________________
Title: _______________________________
SLOTS-A-FUN, INC., a Nevada corporation
By: __________________________________
Title: _______________________________
EDGEWATER HOTEL CORPORATION, a Nevada
corporation
By: __________________________________
Title: _______________________________
COLORADO BELLE CORP., a Nevada
corporation
By: __________________________________
Title: _______________________________
NEW CASTLE CORP., a Nevada corporation
By: __________________________________
Title: _______________________________
RAMPARTS, INC., a Nevada corporation
By: __________________________________
Title: _______________________________
CIRCUS CIRCUS MISSISSIPPI, INC., a
Mississippi corporation
By: __________________________________
Title: _______________________________
PINKLESS, INC., a Nevada corporation
By: __________________________________
Title: _______________________________
NEW WAY, INC., a Nevada Corporation
By: __________________________________
Title: _______________________________
CIRCUS CIRCUS DEVELOPMENT CORP., a
Nevada corporation
By: __________________________________
Title: _______________________________
GALLEON, INC., a Nevada corporation
By: __________________________________
Title: _______________________________
M.S.E. INVESTMENTS, INCORPORATED, a
Nevada corporation
By: __________________________________
Title: _______________________________
LAST CHANCE INVESTMENTS, INCORPORATED, a
Nevada corporation
By: __________________________________
Title: _______________________________
GOLDSTRIKE INVESTMENTS, INCORPORATED, a
Nevada corporation
By: __________________________________
Title: _______________________________
DIAMOND GOLD, INC., a Nevada corporation
By: __________________________________
Title: _______________________________
OASIS DEVELOPMENT COMPANY, INC., a
Nevada corporation
By: __________________________________
Title: _______________________________
GOLDSTRIKE FINANCE COMPANY, INC., a
Nevada corporation
By: __________________________________
Title: _______________________________
RAILROAD PASS INVESTMENT GROUP, a Nevada
partnership
By: M.S.E. INVESTMENTS, INCORPORATED
Its: general partner
By: _____________________________
Title: __________________________
XXXX DEVELOPMENT COMPANY, a Nevada
partnership
By: M.S.E. INVESTMENTS, INCORPORATED
Its: general partner
By: _____________________________
Title: __________________________
XXXX DEVELOPMENT WEST, a Nevada
partnership
By: M.S.E. INVESTMENTS, INCORPORATED
Its: general partner
By: _____________________________
Title: __________________________
NEVADA LANDING PARTNERSHIP, an Illinois
partnership
By: M.S.E. INVESTMENTS, INCORPORATED
Its: general partner
By: _____________________________
Title: __________________________
GOLD STRIKE L.V., a Nevada partnership
By: M.S.E. INVESTMENTS, INCORPORATED
Its: general partner
By: _____________________________
Title: __________________________
XXXX DEVELOPMENT NORTH, a Nevada
partnership
By: M.S.E. INVESTMENTS, INCORPORATED
Its: general partner
By: _____________________________
Title: __________________________
LAKEVIEW GAMING PARTNERSHIPS JOINT
VENTURE, a Nevada partnership
By: RAILROAD PASS INVESTMENT GROUP
Its: general partner
By: M.S.E. INVESTMENTS,
INCORPORATED
Its: general partner
By: ______________________
Title: ___________________
Address for Guarantors:
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
EXHIBIT A
TO
SUBSIDIARY GUARANTY
INSTRUMENT OF JOINDER
THIS INSTRUMENT OF JOINDER ("Joinder") is executed as
of _________________, 19___, by ______________________________,
a ___________________________ ("Joining Party"), and delivered
to Bank of America National Trust and Savings Association, as
Administrative Agent, pursuant to the Subsidiary Guaranty dated
as of January 29, 1996 made by Circus Circus Casinos, Inc.,
Slots-A-Fun, Inc., Edgewater Hotel Corporation, Colorado Belle
Corp., New Castle Corp., Ramparts, Inc., Circus Circus
Mississippi, Inc., Pinkless, Inc., New Way, Inc., Circus Circus
Development Corp., Galleon, Inc., M.S.E. Investments,
Incorporated, Last Chance Investments, Incorporated, Goldstrike
Investments, Incorporated, Diamond Gold, Inc., Oasis
Development Company, Inc., Goldstrike Finance Company, Inc.,
Railroad Pass Investment Group, Xxxx Development Company, Xxxx
Development West, Nevada Landing Partnership, Gold Strike L.V.,
Xxxx Development North, Lakeview Gaming Partnerships Joint
Venture, (each a "Guarantor" collectively "Guarantors") in
favor of the Administrative Agent and the Banks (the
"Guaranty"). Terms used but not defined in this Joinder shall
have the meanings defined for those terms in the Guaranty.
RECITALS
(a) The Guaranty was made by the Guarantors in favor
of the Administrative Agent for the benefit of the Banks that
are parties to that certain Loan Agreement dated as of January
29, 1996, by and among Circus Circus Enterprises, Inc., a
Nevada corporation, ("Borrower"), the Banks which are parties
thereto, The Long-Term Credit Bank of Japan, Ltd., Los Angeles
Agency, First Interstate Bank of Nevada, N.A., Societe
Generale, Credit Lyonnais Los Angeles Branch, Credit Lyonnais
Cayman Island Branch and Canadian Imperial Bank of Commerce, as
Co-Agents, and Bank of America National Trust and Savings
Association, as the Administrative Agent for the Banks.
(b) Joining Party has become a Significant
Subsidiary of Borrower, and as such is required pursuant to
Section 5.10 of the Loan Agreement to become a Guarantor.
(c) Joining Party expects to realize direct and
indirect benefits as a result of the availability to Borrower
of the credit facilities under the Loan Agreement.
NOW THEREFORE, Joining Party agrees as follows:
AGREEMENT
(1) By this Joinder, Joining Party becomes a
"Guarantor" under and pursuant to Section 18 of the Guaranty.
Joining Party agrees that, upon its execution hereof, it will
become a Guarantor under the Guaranty with respect to all
Guaranteed Obligations of Borrower as defined in the Guaranty
heretofore and hereafter incurred under the Loan Documents, and
will be bound by all terms, conditions, and duties applicable
to a Guarantor under the Guaranty.
(2) The effective date of this Joinder is _________.
199___.
"Joining Party"
_________________________________
a _________________________
By:_____________________________
Title:___________________________
ACKNOWLEDGED:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By:__________________________
Title:_______________________
