COMPLETION GUARANTY
This Completion Guaranty ("Guaranty") is made as of September 25,
1996, by Station Casinos, Inc., a Nevada corporation (the "Guarantor"), in favor
of Bank of America National Trust and Savings Association, as Managing Agent,
for the benefit of the Lenders under the Loan Agreement described below.
Capitalized terms used but not defined herein shall have the meanings defined
for those terms in the Loan Agreement described below.
RECITALS
A. Pursuant to the Construction/Term Loan Agreement (the "Loan
Agreement") of even date herewith by and among Sunset Station, Inc., a Nevada
corporation and a wholly-owned Subsidiary of the Guarantor ("Borrower"), the
Lenders named therein, Bank of Scotland and Societe Generale as Co-Agents, and
Bank of America National Trust and Savings Association, as Managing Agent, the
Lenders have agreed to extend certain credit facilities to Borrower.
B. The Loan Agreement provides, as a condition precedent to the
Lenders' obligation to extend credit facilities to Borrower, that Guarantor
shall enter into this Guaranty, and shall guaranty completion of the Project,
all under the terms and conditions set forth in this Guaranty.
C. Guarantor expects to realize direct and indirect benefits as a
result of the availability of the aforementioned credit facilities.
D. This Guaranty is one of the Loan Documents described in the Loan
Agreement.
AGREEMENT
NOW, THEREFORE, in order to induce the Lenders to extend credit
facilities to Borrower under the Loan Agreement, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
Guarantor hereby agrees as follows:
1. COMPLETION GUARANTY AND AGREEMENT.
Guarantor hereby irrevocably and unconditionally guarantees that:
(a) Guarantor shall complete or cause to be completed in
accordance with SECTION 4.2 the construction of the Project in conformity
in all material respects with the Construction Plans, the Construction
Budget, the Construction Timetable and the Loan Agreement, free and clear
of material defects and, except for
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Permitted Encumbrances and Permitted Rights of Others and Liens
permitted under Section 6.8 of the Loan Agreement, Liens or claims for
Liens for material supplied or labor or services performed in connection
therewith.
(b) If the Construction Budget is insufficient to complete the
Project in accordance with the Construction Plans, the Guarantor shall
promptly after demand make or cause to be made Cash Equity Contributions to
Borrower in an amount sufficient to permit such completion.
(c) If the Completion Date does not occur on or before
September 30, 1997, the Guarantor shall promptly after demand make or cause
to be made Cash Equity Contributions to Borrower in an amount equal to
$86,000 multiplied by the number of days between September 30, 1997 and the
Completion Date.
2. PAYMENT PROVISIONS IN THE EVENT OF BANKRUPTCY.
In the event, prior to the Completion Date, that the Borrower becomes
insolvent or subject to an Insolvency Proceeding as defined below,
notwithstanding SECTION 1, but subject to confirmation by the Managing Agent
that any undisbursed Loans will be made pursuant to the Loan Agreement and
confirmation by the Equipment Lessors that any undisbursed advances for
equipment purchase prices will be made pursuant to the Equipment Lease, in each
case subject to the terms and conditions thereof (EXCLUDING the effect thereon
of such Insolvency Proceeding), Guarantor guarantees and agrees that:
(a) To the extent the Construction Budget is insufficient to
complete the Project in accordance with the Construction Plans, the
Guarantor shall make or cause to be made Cash payments into an interest-
bearing deposit account designated and controlled exclusively by the
Managing Agent (the "Deposit Account") in which the Managing Agent is
hereby granted a security interest for the benefit of the Lenders. The
Deposit Account is intended to be a "deposit account" for the purposes of
Nevada Revised Statutes ("NRS") 40.430.4(g). Such funds in the Deposit
Account shall only be available for, and used to complete, construction of
the Project.
(b) If the Completion Date does not occur on or before
December 31, 1997, the Guarantor shall make or cause to be made a Cash
payment into the Deposit Account in the amount required under SECTION
1(C). Such funds shall be held in the Deposit Account as additional
collateral for the Obligations under the Loan Agreement; PROVIDED that,
if requested by Borrower, such funds shall be applied, with the approval
of the Requisite Lenders (which shall not be unreasonably withheld) to
payment of such other obligations of Borrower incurred in the ordinary
course for the acquisition of goods or services which have enhanced or
maintained the value of the Collateral covered by the Collateral
Documents.
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(c) The Cash payments into the Deposit Account and the funds
therein shall be free and clear of any third party claims thereto,
including any claims by Borrower as a third party beneficiary under this
Guaranty. The Guarantor and the Managing Agent on behalf of the Lenders
specifically agree that Borrower is not an intended third party beneficiary
to this Guaranty and that Borrower has no rights under this Guaranty.
(d) If, notwithstanding SECTION 2(A) OR 2(B) above, Borrower
asserts in an Insolvency Proceeding that it holds the right under this
Guaranty to have Cash Equity Contributions made to it directly or that
funds in the Deposit Account deposited pursuant to SECTION 2(A) shall or
may be used for any purposes other than completion of the Project or that
funds in the Deposit Account deposited pursuant to SECTION 2(B) are not
collateral solely for the Obligations under the Loan Agreement, then
(a) Guarantor shall contest such assertion in such Insolvency Proceeding to
the best of its ability and (b) if Borrower prevails in such assertion, it
will promptly pay directly to the Managing Agent a further amount equal to
the affected Cash Equity Contributions.
(e) The term "Insolvency Proceeding" means any case or
proceeding, voluntary or involuntary, under the Bankruptcy Code, or any
similar existing or future law of any jurisdiction, state or federal,
relating to bankruptcy, insolvency reorganization or relief of debtors.
3. PERFORMANCE OF GUARANTY. In fulfilling its obligations
hereunder, Guarantor hereby irrevocably and unconditionally guarantees, promises
and agrees in accordance with SECTION 4.2 to cause Borrower to perform and
comply with all provisions and conditions of the Loan Agreement relating to
(a) the construction of the Project within the time and in the manner set forth
in Construction Plans and the Construction Timetable, (b) the payment of all
costs and expenses thereof, (c) the payment, satisfaction or discharge of all
Liens (other than Permitted Encumbrances and Permitted Rights of Others and
Liens under Section 6.8 of the Loan Agreement) that are or may be imposed upon
or asserted against Borrower, the Project or the Project Property in connection
with the construction of the Project, and (d) the defense and indemnification of
the Managing Agent and the Lenders against all such Liens (other then Permitted
Encumbrances and Permitted Rights of Others and Liens under Section 6.8 of the
Loan Agreement), whether arising from the furnishing of labor, materials,
supplies or equipment, from taxes, assessments, fees or other charges, from
injuries or damage to Persons or property, or otherwise in connection with the
construction of the Project. Without limiting the generality of the foregoing,
Guarantor agrees (w) to cause any and all costs of constructing and completing
the Project, including, without limitation, the costs of all labor, materials,
supplies and equipment related thereto, to be paid and satisfied as the same
shall become due, subject to Guarantor's right to remove any Liens arising
therefrom by securing bond(s) therefor, (x) to cause the net amount of cost
overruns to be directly or indirectly funded, paid and satisfied from
Guarantor's own resources, (y) directly or
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indirectly to cause the completion of the Project in a timely, good,
workmanlike and Lien-free manner (except for Permitted Encumbrances and
Permitted Rights of Others and Liens under Section 6.8 of the Loan
Agreement), in accordance in all material respects with the terms of the
Construction Plans, the Construction Budget and the Construction Timetable
and (z) to cause all pre-operating and carrying costs of the Project,
including, without limitation the payment of taxes, assessments, utilities,
insurance and maintenance expenses, to be funded, paid and satisfied as the
same shall become due throughout the term of this Guaranty.
4. PROCEDURES FOR COMPLETION.
4.1 In the event that Borrower fails to perform all of its
Obligations under the Loan Agreement relating to construction of the Project,
then in any such event or at any time thereafter, the Managing Agent may give
written notice to Guarantor of the occurrence of such event.
4.2 Within ten (10) days after the date on which the Managing
Agent gives any such notice to Guarantor, but subject to confirmation by the
Managing Agent that any undisbursed Loans will be made pursuant to the Loan
Agreement subject to the terms and conditions thereof and confirmation by the
Equipment Lessors that any undisbursed advances for equipment purchase prices
will be made pursuant to the Equipment Lease, Guarantor, at its sole cost
(exclusive of undisbursed Loans) shall commence to complete the construction of
the Project and diligently prosecute such construction to completion within the
time and in the manner specified in the Construction Timetable, free of Liens
(OTHER THAN Permitted Encumbrances and Permitted Rights of Others and Liens
under Section 6.8 of the Loan Agreement) and fully paid for, and shall defend,
indemnify and hold the Managing Agent and/or the Lenders harmless from all
losses, costs, liabilities and expenses, including reasonable attorneys' fees,
incurred in connection with such completion other than arising as a result of
the gross negligence or wilful misconduct of the Managing Agent or a Lender. If
at the date of such notice, there are no undisbursed Loans allocated to
construction of the Project, the Guarantor's obligations under this Section
shall be absolute. If on such date there are any such undisbursed Loans the
obligations of the Guarantor under this Section shall be that percentage of the
remaining costs to complete the Project equal to 100% minus the percentage
thereof represented by the undisbursed Loans.
4.3 If Guarantor fails to commence to complete the construction
of the Project or diligently to prosecute such construction to timely completion
as provided in SECTION 4.2 above, then the right of the Managing Agent to
recover under Section 5 shall not be affected or diminished by its exercise of
the rights and remedies that may be available to the Managing Agent under the
Loan Agreement and the other Loan Documents, at law or in equity, including:
(a) Managing Agent may, at the Managing Agent's option,
enter the Project Property to complete construction of the Project (either
itself or through any agent, contractor or
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subcontractor of its selection), which option of the Managing Agent
shall be exercisable whether or not the Managing Agent elects to proceed
judicially or non-judicially to foreclose on all or any portion of the
Collateral.
(b) The Managing Agent, at its option and in accordance
with the Loan Agreement and the other Loan Documents, shall have the right,
but shall have no obligation, to proceed judicially or non-judicially to
foreclose on all or any portion of the Collateral, exercisable whether or
not the Managing Agent elects to undertake to complete the construction of
the Project.
(c) If the Managing Agent elects to undertake to complete
the construction of the Project, and whether or not the Managing Agent
elects to proceed judicially or non-judicially to foreclose on all or any
portion of the Collateral, the Managing Agent shall have the right to
recover damages from Guarantor in an amount equal to the sum of:
(i) The costs reasonably incurred or reasonably estimated
to be incurred by the Managing Agent to complete the construction of
the Project as set forth in Paragraph 2 hereof minus any undisbursed
Loans allocated to construction of the Project (the "Cost to
Complete"), PROVIDED that with respect to damages recovered for costs
estimated to be incurred by the Managing Agent, such funds shall be
used for no purpose other than the construction of the Project and
PROVIDED FURTHER that should the total actual costs incurred by the
Managing Agent to complete the construction of the Project be less
than the Cost to Complete, the amount by which the Cost to Complete
recovered by the Managing Agent exceeds such actual construction costs
shall be remitted to Guarantor; plus
(ii) All unreimbursed costs and expenses, including
attorneys' fees, reasonably incurred by the Managing Agent in
protecting and preserving the Project and enforcing or defending the
interests of the Lenders under this Guaranty (the "Unreimbursed
Expenses").
(d) In any action or proceeding by the Managing Agent to
recover damages from Guarantor, the Managing Agent may exercise any and all
remedies available under applicable Law.
4.4 The remedy of specific performance, the recovery of damages
and all other rights and remedies under this Guaranty, under the Loan Agreement
and the other Loan Documents, at law or in equity are intended to be non-
exclusive and cumulative. The parties recognize that the choice of remedies by
the Managing Agent will necessarily and properly be a matter of business
judgment, which the passage of time and events may or may not prove to have been
the best choice to maximize recovery by the Managing Agent at the lowest cost to
either the Borrower or the Guarantor. Nevertheless, the choice of alternatives
by the Managing Agent shall not be
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subject to question or challenge by Guarantor or any other Person, nor shall
any such choice be asserted as a defense, set-off or basis for any claim of
failure to mitigate damages in any action or proceeding arising from this
Guaranty.
5. COMMENCEMENT OF LAWSUIT BY MANAGING AGENT; MEASURE OF DAMAGES.
At any time after the occurrence of an Event of Default under this Guaranty,
Managing Agent, on behalf of the Lenders, may commence a lawsuit against
Guarantor to compel Guarantor to perform its obligations under this Guaranty
and/or to recover damages under this Guaranty. The Lenders' damages under this
Guaranty shall include: (a) the costs of completing the Project and/or
correcting any construction defects, MINUS any undisbursed Loans allocated to
construction of the Project, (b) damages arising from any delay in completing
the Project, including interest, taxes and insurance premiums, and (c) the
Unreimbursed Expenses. Managing Agent need not perform any work on the Project
before commencing such a lawsuit. GUARANTOR EXPRESSLY ACKNOWLEDGES THAT THE
MEASURE OF THE LENDERS' DAMAGES FOR BREACH OF THIS GUARANTY SHALL BE BASED ON
THE COSTS OF COMPLETING THE PROJECT, NOT THE EXTENT TO WHICH COMPLETING THE
PROJECT WOULD INCREASE THE VALUE OF THE PROJECT PROPERTY.
6. RIGHTS OF THE MANAGING AGENT. Guarantor authorizes the Managing
Agent and the Lenders to perform any or all of the following acts at any time in
their sole discretion, all without notice to Guarantor and without affecting
Guarantor's obligations under this Guaranty:
(a) The Managing Agent and the Lenders may alter any terms of
the Loan Documents to which Guarantor is not a party (EXCEPT Article 7 of
the Loan Agreement), including renewing, compromising, extending or
accelerating, or otherwise changing the time for payment of, or increasing
or decreasing the rate of interest on, the Loans or any part of them.
(b) The Managing Agent and the Lenders may take and hold
security for the Loans or this Guaranty, accept additional or substituted
security for either, and subordinate, exchange, enforce, waive, release,
compromise, fail to perfect and sell or otherwise dispose of any such
security.
(c) The Managing Agent and the Lenders may direct the order and
manner of any sale of all or any part of any security now or later to be
held for the Loans or this Guaranty, and may also bid at any such sale.
(d) The Managing Agent and the Lenders may apply any payments or
recoveries from Borrower, Guarantor or any other source, and any proceeds
of any security, to Borrower's obligations under the Loan Documents in such
manner, order and priority as they may elect, whether or not those
obligations are guarantied by this Guaranty or secured at the time of the
application.
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(e) The Managing Agent and the Lenders may release Borrower of
its liability for the Loans or any portion thereof.
(f) The Managing Agent and the Lenders may substitute, add or
release any one or more guarantors or endorsers.
(g) In addition to the Loans the Managing Agent and the Lenders
may extend other credit to Borrower, and may take and hold security for the
credit so extended, all without affecting Guarantor's liability under this
Guaranty.
(h) The Managing Agent and the Lenders may approve modifications
to the Construction Contracts, Construction Budget and/or the Construction
Timetable.
(i) The Managing Agent and the Lenders may change the terms or
conditions of disbursement of the Loan.
(j) The Managing Agent and the Lenders may advance additional
funds to Borrower for purposes related to those of the Loan Documents.
7. GUARANTY TO BE ABSOLUTE. Guarantor expressly agrees that until
the Project is fully completed in all material respects in accordance with the
Construction Plans, the Construction Budget and the Construction Timetable and
each and every term, covenant and condition of this Guaranty is fully performed,
Guarantor shall not be released by or because of:
(a) Any act or event which might otherwise discharge, reduce,
limit or modify Guarantor's obligations under this Guaranty;
(b) Any waiver, extension, modification, forbearance, delay or
other act or omission of the Managing Agent or the Lenders, or any failure
to proceed promptly or otherwise as against Borrower, Guarantor or any
security;
(c) Any action, omission or circumstance which might increase
the likelihood that Guarantor may be called upon to perform under this
Guaranty or which might affect the rights or remedies of Guarantor as
against Borrower; or
(d) Any dealings occurring at any time between Borrower, the
Managing Agent or any Lender, whether relating to the Loans or otherwise.
Guarantor hereby expressly waives and surrenders any defense to its
liability under this Guaranty based upon any of the foregoing acts, omissions,
agreements, waivers or matters. It is the purpose and intent of this Guaranty
that the obligations of Guarantor under it shall be absolute and unconditional
under any and all circumstances.
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8. GUARANTOR'S WAIVERS. Guarantor waives:
(a) Any right it may have to require the Managing Agent or the
Lenders to proceed against Borrower, proceed against or exhaust any
security held from Borrower, or pursue any other remedy in their power to
pursue;
(b) Any defense based on any claim that Guarantor's obligations
exceed or are more burdensome than those of Borrower;
(c) Any defense based on: (i) any legal disability of Borrower,
(ii) any release, discharge, modification, impairment or limitation of the
liability of Borrower under the Loan Documents from any cause, whether
consented to by the Managing Agent or any Lender or arising by operation of
Law or from any Insolvency Proceeding, (iii) any rejection or disaffirmance
of the Loans or any security held for the Loans, in any Insolvency
Proceeding and (iv) Guarantor's rights under NRS 104.3605, Guarantor
specifically agreeing that this clause (iv) shall constitute a waiver of
discharge under NRS 104.3605;
(d) Any defense based on any action taken or omitted by the
Managing Agent or any Lender in any Insolvency Proceeding involving
Borrower, including any election to have a claim allowed as being secured,
partially secured or unsecured, any extension of credit by the Managing
Agent or any Lender to Borrower in any Insolvency Proceeding, and the
taking and holding by the Managing Agent or any Lender of any security for
any such extension of credit;
(e) All presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor, notices
of acceptance of this Guaranty and of the existence, creation, or incurring
of new or additional indebtedness, and demands and notices of every kind
except for any demand or notice expressly provided for in SECTION 1;
(f) Any defense based on or arising out of any defense that
Borrower may have to the payment or performance of the Loans or any portion
of the Loans; and
(g) Any defense or benefit based on NRS 40.430 and judicial
decisions relating thereto and NRS 40.451 ET SEQ. and judicial decisions
relating thereto, Guarantor agreeing that the waiver in this paragraph (h)
is intended to take advantage of the two (2) waivers permitted by
NRS 40.495 (1) and (2) to the maximum extent permitted.
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9. WAIVERS OF SUBROGATION AND OTHER RIGHTS.
(a) Upon the occurrence of any Event of Default, the Managing
Agent in its sole discretion, without prior notice to or consent of
Guarantor, may elect to: (i) foreclose either judicially or nonjudicially
against any real or personal property security for the Loans, (ii) accept a
transfer of any such security in lieu of foreclosure, (iii) compromise or
adjust the Loans or any part thereof or make any other accommodation with
Borrower or any other guarantor, or (iv) exercise any other remedy against
Borrower or any security. No such action by the Managing Agent or any
Lender shall release or limit the liability of Guarantor, who shall remain
liable under this Guaranty after the action, even if the effect of the
action is to deprive Guarantor of any subrogation rights, rights of
indemnity, or other rights to collect reimbursement from Borrower for any
sums paid to the Managing Agent or the Lenders, whether contractual or
arising by operation of Law or otherwise. Guarantor expressly waives any
defenses or benefits that may be derived from NRS Section 40.430 and
judicial decisions relating thereto and NRS 40.451, ET SEQ. and judicial
decisions relating thereto, or comparable provisions of Nevada Law which
are comparable to California Civil Procedure Sections 580a, 580b, 580d,
or 726 or comparable provisions of the Laws of any other jurisdiction, and
all other suretyship defenses they otherwise might or would have under
Nevada Law or other applicable Law. Guarantor expressly agrees that under
no circumstances shall it be deemed to have any right, title, interest or
claim in or to any real or personal property to be held by the Managing
Agent or any Lender or any third party after any foreclosure or transfer in
lieu of foreclosure of any security for the Loans.
(b) Regardless of whether Guarantor may have made any payments
to the Managing Agent or any Lender, Guarantor hereby waives: (i) all
rights of subrogation, all rights of indemnity, and any other rights to
collect reimbursement from Borrower for any sums paid to the Managing Agent
or any Lender, whether contractual or arising by operation of Law
(including the United States Bankruptcy Code or any successor or similar
statute) or otherwise, (ii) all rights to enforce any remedy that the
Managing Agent or any Lender may have against Borrower, and (iii) all
rights to participate in any security now or later to be held by the
Managing Agent or any Lender for the Loans. The waivers given in this
SUBSECTION 9(B) shall be effective until the Loans and all other
Obligations have been paid and performed in full and all Commitments have
been terminated.
(c) Guarantor understands and acknowledges that if the Managing
Agent or any Lender forecloses judicially or nonjudicially against any real
property security for the Loans that foreclosure could impair or destroy
any ability that Guarantor may have to seek reimbursement, contribution or
indemnification from Borrower or others based on any right Guarantor may
have of subrogation, reimbursement, contribution or indemnification for any
amounts paid by Guarantor under this Guaranty. Guarantor further
understands and
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acknowledges that in the absence of this SECTION 9, such potential
impairment or destruction of Guarantor's rights, if any, may entitle
Guarantor to assert a defense to this Guaranty. By executing this
Guaranty, Guarantor freely, irrevocably and unconditionally: (i) waives
and relinquishes that defense and agrees that Guarantor will be fully
liable under this Guaranty even though the Managing Agent or the Lenders
may foreclose judicially or nonjudicially against any real property
security for the Loans; (ii) agrees that Guarantor will not assert that
defense in any action or proceeding which the Managing Agent or the
Lenders may commence to enforce this Guaranty; and (iii) acknowledges
and agrees that the Managing Agent and the Lenders are relying on this
waiver in making the Loans, and that this waiver is a material part of
the consideration which they are receiving for making the Loans.
10. REVIVAL AND REINSTATEMENT. If the Lenders are required to pay,
return or restore to Borrower or any other person any amounts previously paid on
the Loans because of any Insolvency Proceeding of Borrower, any stop notice or
any other reason, to the extent that the source of such payment was a Cash
Equity Contribution from Guarantor pursuant to this Guaranty, the obligations of
Guarantor shall be reinstated and revived and the rights of the Managing Agent
and the Lenders shall continue with regard to such amounts, all as though they
had never been paid.
11. INFORMATION REGARDING BORROWER AND THE PROPERTY. Before signing
this Guaranty, Guarantor investigated the financial condition and business
operations of Borrower, the present and former condition, uses and ownership of
the Project Property, and such other matters as Guarantor deemed appropriate to
assure itself of Borrower's ability to discharge its obligations under the Loan
Documents. Guarantor assumes full responsibility for that due diligence, as
well as for keeping informed of all matters which may affect Borrower's ability
to pay and perform its obligations to the Managing Agent and the Lenders. The
Managing Agent and the Lenders have no duty to disclose to Guarantor any
information which they may have or receive about Borrower's financial condition
or business operations, the condition or uses of the Project Property, or any
other circumstances bearing on Borrower's ability to perform.
12. SUBORDINATION. Any rights of Guarantor, whether now existing or
later arising, to receive payment on account of any indebtedness (including
interest) owed to it by Borrower or any subsequent owner of the Property, or to
withdraw capital invested by it in Borrower, or to receive Distributions from
Borrower, shall at all times be subordinate as to lien and time of payment and
in all other respects to the full and prior repayment to the Managing Agent and
the Lenders of the Loans and the other Obligations of Borrower, EXCEPT to the
extent that such payments or Distributions are expressly contemplated by the
Loan Agreement. Guarantor shall not be entitled to enforce or receive payment
of any sums hereby subordinated until the Loans and all other Obligations have
been paid and performed in full and all Commitments have been terminated and any
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such sums received in violation of this Guaranty shall be received by Guarantor
in trust for the Lenders.
13. FINANCIAL INFORMATION. Guarantor shall keep true and correct
financial books and records, using generally accepted accounting principles
consistently applied. Guarantor shall provide to the Lenders such financial
statements and other information respecting Guarantor as is required under
SECTION 8.1(G) of the Loan Agreement and such other information concerning its
affairs and properties as the Managing Agent or any Lender may reasonably
request. Any confidential information of Guarantor so furnished shall be
subject to the provisions of SECTION 12.14 of the Loan Agreement.
14. GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents
and warrants that:
(a) All financial statements and other financial information
furnished or to be furnished to the Managing Agent or the Lenders by
Guarantor are or will be true and correct and do or will fairly represent
the financial condition of Guarantor as of the dates and for the periods
covered thereby;
(b) All such financial statements were or will be prepared in
accordance with Generally Accepted Accounting Principles, consistently
applied;
(c) There has been no material adverse change in Guarantor's
financial condition since the dates of the statements most recently
furnished to the Lenders; and
(d) The performance of this Guaranty will not violate any
indenture, credit agreement or other material agreement to which Guarantor
is a party.
15. EVENTS OF DEFAULT. The Managing Agent may declare Guarantor to
be in default under this Guaranty upon the occurrence of any of the following
events ("Events of Default"):
(a) Guarantor fails to perform any of its obligations under this
Guaranty; or
(b) Guarantor revokes this Guaranty or disputes the validity
thereof or this Guaranty becomes ineffective for any reason; or
(c) Any representation or warranty made or given by Guarantor in
any Loan Document proves to be false or misleading in any material respect;
or
(d) Guarantor becomes insolvent or the subject of any case or
proceeding, voluntary or involuntary, under the Bankruptcy Code or any
similar existing or future law of any jurisdiction, state
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or federal, relating to bankruptcy, insolvency, reorganization or relief
of debtors and, in the case of an involuntary case or proceeding, the
same continues undismissed or unstayed for ninety (90) calendar days; or
(e) Guarantor dissolves or liquidates.
16. AUTHORIZATION; NO VIOLATION. Guarantor is authorized to execute,
deliver and perform under this Guaranty, which is a valid and binding obligation
of Guarantor enforceable against Guarantor in accordance with its terms, except
as enforcement may be limited by Debtor Relief Laws, Gaming Laws or equitable
principles relating to the granting of specific performance and other equitable
remedies as a matter of judicial discretion. No provision or obligation of
Guarantor contained in this Guaranty violates any Requirement of Law applicable
to Guarantor. No such provision or obligation conflicts with, or constitutes a
breach or default under, any agreement to which any Guarantor is a party.
17. ADDITIONAL AND INDEPENDENT OBLIGATIONS. Guarantor's obligations
under this Guaranty are in addition to its obligations under any other existing
or future guaranties given in connection with the Loan Agreement, and they shall
remain in full force and effect until (a) they are performed in full or (b) they
terminate in accordance with SECTION 19. Guarantor's obligations under this
Guaranty are independent of those of Borrower under the other Loan Documents.
The Managing Agent may bring a separate action, or commence a separate reference
or arbitration proceeding against Guarantor without first proceeding against
Borrower or any other Guarantor any other person or any security that the
Managing Agent or the Lenders may hold, and without pursuing any other remedy.
The rights under this Guaranty shall not be exhausted by any action by the
Managing Agent or any Lender until the Loans have been paid and performed in
full.
18. NO WAIVER; CONSENTS; CUMULATIVE REMEDIES. Each waiver by the
Managing Agent and the Lenders must be in writing, and no waiver shall be
construed as a continuing waiver. No waiver shall be implied from the Managing
Agent's or any Lender's delay in exercising or failure to exercise any right or
remedy against Borrower, Guarantor or any security. Consent by the Managing
Agent or any Lender to any act or omission by Borrower or Guarantor shall not
be construed as a consent to any other or subsequent act or omission, or as a
waiver of the requirement for their consent to be obtained in any future or
other instance. All remedies of the Managing Agent and the Lenders against
Borrower and Guarantor are cumulative.
19. RELEASE. This Guaranty shall automatically terminate upon
satisfaction of the Obligations. Absent such termination, Guarantor shall not
be released from its obligations under this Guaranty except by a writing signed
by the Managing Agent with the consent of such percentage of the Lenders as is
required under the Loan Agreement or upon delivery and acceptance by the
Managing Agent and CSG of the Completion Certificates specified in SECTION 7.14
of the Loan Agreement.
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20. SUCCESSORS AND ASSIGNS; PARTICIPATIONS. The terms of this
Guaranty shall bind and benefit the legal representatives, successors and
assigns of the Managing Agent, the Lenders and the Guarantor; provided, however,
that Guarantor may not assign this Guaranty, or assign or delegate any of its
rights or obligations under this Guaranty, without the prior written consent of
the Managing Agent in each instance. The Lenders may sell or assign
participations or other interests in the Loans and this Guaranty, in accordance
with SECTION 12.8 of the Loan Agreement. Also without notice to or the consent
of Guarantor, the Managing Agent and the Lenders may disclose any and all
information in their possession concerning Guarantor, this Guaranty and any
security for this Guaranty to any actual or prospective purchaser of any
securities issued or to be issued by Lenders, and to any actual or prospective
purchaser or assignee of any participation or other interest in the Loan
Documents, all in accordance with SECTION 12.14 of the Loan Agreement.
21. GOVERNING LAW. This Guaranty shall be governed by, and construed
in accordance with, the local Laws of the State of California.
22. COSTS AND EXPENSES. If any lawsuit, reference or arbitration is
commenced which arises out of, or which relates to this Guaranty, the prevailing
party shall be entitled to recover from each other party such sums as the court,
referee or arbitrator may adjudge to be reasonable attorneys' fees (including
reasonably allocated costs for services of in-house counsel) in the action or
proceeding, in addition to costs and expenses otherwise allowed by Law. In all
other situations, including any Insolvency Proceeding, Guarantor agrees to pay
all of the Managing Agent's and the Lenders' reasonable costs and expenses,
including attorneys' fees (including reasonably allocated costs for services of
their respective in-house counsel) which may be incurred in any effort to
collect or enforce this Guaranty. From the time(s) demanded until paid in full,
all sums shall bear interest at the Default Rate.
23. INTEGRATION; MODIFICATIONS. This Guaranty (a) integrates all the
terms and conditions mentioned in or incidental to this Guaranty, (b) supersedes
all oral negotiations and prior writings with respect to its subject matter, and
(c) is intended by Guarantor, the Managing Agent and the Lenders as the final
expression of the agreement with respect to the terms and conditions set forth
in this Guaranty and as the complete and exclusive statement of the terms agreed
to by Guarantor, the Managing Agent and the Lenders. No representation,
understanding, promise or condition shall be enforceable against any party
unless it is contained in this Guaranty.
24. WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS GUARANTY
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTY HERETO OR ANY OF THEM WITH
RESPECT TO THIS GUARANTY, THE LOAN AGREEMENT AND ANY OTHER LOAN DOCUMENT, OR
THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY
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SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY, AND THAT ANY PARTY TO THIS GUARANTY 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.
25. NOTICES. Notices hereunder shall be in writing and shall be
delivered in the manner prescribed for notices in the Loan Agreement.
26. MISCELLANEOUS. The illegality or unenforceability of one or more
provisions of this Guaranty shall not affect any other provision.
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IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the
date first written above by its respective duly authorized officer.
"Guarantor"
STATION CASINOS, INC.
a Nevada corporation
By: /s/ Xxxxx X. Xxxxxxxxxxx
----------------------------
Xxxxx X. Xxxxxxxxxxx
Executive Vice President,
Chief Financial Officer
and Treasurer
Address for Guarantor:
0000 Xxxx Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Accepted:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Managing Agent and as a Lender
By: /s/ Xxxxx Xxxxx
--------------------------
Xxxxx Xxxxx, Vice President
Address:
Bank of America National Trust and
Savings Association
000 Xxxxx Xxxxxx Xxxxxx, # 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxx, Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
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