BOND PURCHASE AGREEMENT
between
MIRAGE RESORTS, INCORPORATED
and
SOUTH JERSEY TRANSPORTATION AUTHORITY
Dated October 10, 1997
EXHIBIT 10.15
The following Table of Contents has been inserted for con-
venience only and does not constitute a part of this Agreement.
TABLE OF CONTENTS
Page
1. Background 1
2. Definitions 2
3. Agreement to Purchase Bonds; Purchase Price 5
4. Details of Bonds. 6
5. Escrow Agreement 9
6. Initial Issuance of Bonds] 9
7. Representations and Warranties of the Purchaser 10
8. Expenses 10
9. Conditions Precedent 10
10. No Oral Change; Assignment 11
11. Notices 11
12. Law Governing 11
13. Headings 11
14. Counterparts 11
15. Limitation of Liability of the Authority 11
16. Other Agreements 00
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XXXX XXXXXXXX AGREEMENT
THIS BOND PURCHASE AGREEMENT is dated October 10, 1997,
between MIRAGE RESORTS, INCORPORATED ("Mirage" or the
"Purchaser") and the SOUTH JERSEY TRANSPORTATION AUTHORITY (the
"Authority"), with respect to the purchase and sale of the
Authority's Road Development Special Revenue Bonds (Atlantic
City/Brigantine Connector Project - CRDA H-Tract Revenue Pledge
Agreement) (the "Bonds") in the maximum initial issuance amount
of $55,000,000 on the terms and subject to the conditions herein
set forth:
1. Background.
(A) The Authority was created pursuant to the South
Jersey Transportation Authority Act, L. 1991, C. 252, as amended
and supplemented (the "Act"), as a successor to the New Jersey
Expressway Authority and the Atlantic County Transportation
Authority, to provide more coordination of the region's
transportation system and to deal particularly with the highway
system, aviation facilities and the transportation problems of
Atlantic County through the acquisition, construction,
maintenance, operation and support of expressway and
transportation projects and economic development facilities
directly related to transportation projects authorized by the
Act. Pursuant to Section 7 of the Act, the Authority is
authorized, inter alia, to acquire, maintain, operate and support
projects, to acquire, construct, maintain and operate feeder
roads, to issue bonds or notes for the purposes of the Act and to
provide for the rights of the holders thereof as provided in the
Act.
(B) The Authority, the State of New Jersey, acting
through the Department of Transportation (the "State") and Mirage
propose to undertake a certain project (the "Project") consisting
of certain traffic infrastructure improvements to be constructed
in Atlantic City, New Jersey and, upon completion, to be
accepted, owned, maintained and operated by the Authority, all
pursuant to, as provided in and subject to the terms and
conditions of a Road Development Agreement, dated as of January
10, 1997, as amended (the "Road Development Agreement"), among
the Authority, the State and Mirage and thereafter assigned by
Mirage to Atlandia Design and Furnishings, Inc., a wholly owned
subsidiary of Mirage.
(C) Pursuant to the Road Development Agreement, a
portion of the financing for the Project is to be made available
by the Developer (as hereinafter defined), in a manner and on
terms and conditions satisfactory to the Developer, CRDA (as
hereinafter defined), the Authority and the State, repayable from
and collateralized by future investment alternative tax
obligations of casinos, whether owned by the Developer, any
affiliate of the Developer or others, on the Marina Land (as
hereinafter defined). The Developer, CRDA, the Authority and the
State have determined to effectuate the foregoing portion of the
financing for the Project through the issuance by the Authority
of the Bonds in the maximum initial issuance amount of
$55,000,000, which bonds shall be purchased by Mirage and/or its
permitted assignee(s) pursuant to the Road Development Agreement
and shall be payable and secured by a donation (the "Donation")
to be received by the Casino Reinvestment Development Authority
("CRDA") from a casino licensee as to which Mirage is or will
become a holding company under N.J.S.A. 5:12-26, alone or
together with other casino licensees operating casino hotels on
the Marina Land (collectively, the "Donors"), to be made if and
when the Donors become casino licensees, in an amount equal to
the aggregate principal amount of such bonds, plus the equivalent
of interest thereon at a rate per annum not in excess of the CRDA
Bond Rate (as hereinafter defined) from the purchase date of such
bonds to the date of their repayment, the amount of such Donation
to be applied as a credit against the Donors' respective Atlantic
City non-housing investment alternative obligations pursuant to
the terms of such Donation, the related Donation Agreements (as
hereinafter defined) and the other documents and agreements to be
executed and delivered in connection therewith.
(D) Mirage and the Authority are entering into this
Agreement to evidence their agreement to purchase and sell the
Bonds as aforesaid and to induce each other to proceed to the
Closing (as defined in the Road Development Agreement) and to
take other actions in connection with the financing of the
Project.
2. Definitions. Capitalized terms used but not defined in
this Agreement shall have the meanings given to them in the
Resolution (as hereinafter defined). In addition, for purposes
of this Agreement the following terms shall have the meanings
specified below:
"Act" means the South Jersey Transportation Authority Act,
Ch.252,L, 1991, as the same may be amended and supplemented from
time to time.
"Agreement" means this Bond Purchase Agreement, as the same
may be amended from time to time.
"Authority" means the South Jersey Transportation Authority,
a public body corporate and politic, with corporate succession,
which pursuant to Section 4 of the Act constitutes an
instrumentality of the State and in the exercise of the powers
conferred by the Act shall be deemed and held to be performing an
essential governmental function of the State.
"Authorized Officer" means any member of the Authority or
any officer or employee of the Authority authorized to perform
specific acts or duties by the Authority's by-laws or by
resolution.
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"Bond Counsel" means any lawyer or firm of lawyers
nationally recognized in the field of municipal finance and
satisfactory to the Authority.
"Bondholder" or "Holder" or "Owner" shall mean any person
who shall be the registered owner of any Bond or Bonds. In
addition, to the extent any payment of principal of or interest
on any Bonds shall have been made from the payments or drawings
made under the Guarantee or any Financing Facility, the issuer of
such Guarantee or Financing Facility shall be subrogated to the
rights of the Holders of such Bonds and shall be deemed to be a
Bondholder for all purposes of the Resolution.
"Bonds" means the Authority's Road Development Special
Revenue Bonds (Atlantic City/Brigantine Connector Project - CRDA
H-Tract Revenue Pledge Agreement) in the maximum initial issuance
amount of $55,000,000.
"Code" means the Internal Revenue Code of 1986, as amended,
or any successor thereof, and the Regulations promulgated
thereunder or applicable thereto, as the same may be in effect
from time to time and applicable to any Bonds issued under the
Resolution.
"Conversion Date" means January 1, 2005.
"Cost" or "Cost of the Project" means all or any part of the
expenses incurred in connection with the acquisition,
construction and maintenance of any real property, lands,
structures, real or personal property rights, rights-of-way,
franchises, easements, and interests acquired or used for the
Project; any financing charges and revenues for the payment of
principal or interest on the Bonds; the expenses of engineering,
appraisal, architectural, accounting, financial and legal
services; and other expenses as may be necessary or incident to
the acquisition, construction and maintenance of the Project, the
financing thereof and the placing of such Project into operation.
"CRDA" means Casino Reinvestment Development Authority, a
public body established in, but not of, the Department of the
Treasury of the State of New Jersey .
"CRDA Bond Rate" means (i) in the case of Bonds the
interest on which is, in the opinion of Bond Counsel to be
delivered simultaneously with the issuance and delivery of such
Bonds, excludable from gross income for federal income tax
purposes pursuant to Section 103 of the Code, the CRDA Tax-Exempt
Rate, and (ii) in all other cases, the CRDA Taxable Rate.
"CRDA Taxable Rate" means, as of any Delivery Date, an
interest rate per annum equal to sixty-six and two-thirds (66-
2/3%) percent of the average rate of Moodys' A-rated Utility
Index for bonds available for purchase during the last 26 weeks
preceding such Delivery Date.
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"CRDA Tax-Exempt Rate" means, as of any Delivery Date, an
interest rate per annum equal to sixty-six and two-thirds (66-
2/3%) percent of the average rate of the Bond Buyer weekly 25
Revenue Bond Index for bonds available for purchase during the
last 26 weeks preceding such Delivery Date.
"Debt Service Fund" means the Fund so designated and
established pursuant to the Resolution.
"Debt Service Requirement" means, with reference to any
Interest Payment Date, interest payable on the Bonds on such
Interest Payment Date.
"Delivery Date" shall mean, with respect to any Bond, the
date on which such Bond is delivered to the Purchaser upon
initial issuance.
"Developer" means Atlandia Design and Furnishings, Inc.
"Donation" means the donation or donations to be received
from time to time by CRDA from the Donors, in an aggregate amount
equal to the initial issuance amount of the Bonds, plus the
equivalent of interest thereon at a rate per annum equal to the
CRDA Bond Rate from each Delivery Date of the Bonds to the date
of their repayment.
"Donation Agreement" means the agreement or agreements
entered into or to be entered between CRDA and each Donor,
pursuant to which each Donor shall agree to make a donation to
CRDA as set forth in its Donation Agreement, the amount of such
donation to be applied as a credit against such Donor's
respective Atlantic City non-housing investment alternative
obligations.
"Donors" means (i) a casino licensee as to which Mirage is
or will become a holding company under N.J.S.A. 5:12-26 that
operates a casino hotel on the Marina Land, and (ii) each other
casino licensee operating a casino hotel on the Marina Land that
executes a Donation Agreement with CRDA, in each case if and when
such Donor becomes a casino licensee.
"Escrow Agreement" shall mean the Escrow Fund Agreement
entered into or to be entered into by and among the Authority,
the State, the Developer, and CoreStates Bank, N.A., as Escrow
Agent, as the same may be amended from time to time.
"Financing Facility" means any letter of credit or municipal
bond insurance policy securing the payment of principal of and
interest on the Bonds which may be obtained by Mirage or any
other Donor as provided in Section 4(E)(ii) of this Agreement.
"General Resolution" means the General Resolution of the
Authority entitled, "Resolution Authorizing Revenue Bonds and
Other Obligations" adopted December 3rd, 1992 as Resolution No.
1992-64, as amended and supplemented.
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"Guarantee" shall have the meaning given to such term in
Section 4(E)(ii) of this Agreement.
"Interest Payment Date" means the January 1, April 1, July 1
or October 1 next following the Conversion Date and each January
1, April 1, July 1 and October 1 thereafter.
"Marina Land" shall have the meaning set forth in the Road
Development Agreement..
"Mirage" means Mirage Resorts, Incorporated, a Nevada
corporation.
"Pledge Agreement" means the Pledge Agreement entered into
or to be entered by the Authority and CRDA, pursuant to which
CRDA shall pledge to the Authority, as security for the payment
of the principal, premium, if any, and interest on the Bonds, any
and all amounts received by CRDA pursuant to the Donation
Agreement.
"Pledged Property" means the Pledge Agreement, the Guarantee
or any Financing Facility, if any, the Revenues and all moneys
and securities from time to time on deposit in the Funds and
Accounts established under the Resolution, other than the Rebate
Fund, including Investment Securities held in any such Fund or
Account thereunder, together with all proceeds and revenues of
the foregoing and all of the Authority's right, title and
interest in and to the foregoing, and all other moneys,
securities or funds pledged for the payment of the Bonds in
accordance with the terms and provisions of the Resolution.
"Prepayment Date" means each January 1, April 1, July 1 and
October 1.
"Project" means the traffic infrastructure improvements to
be constructed in Atlantic City, New Jersey and, upon completion,
to be accepted, owned, maintained and operated by the Authority,
all pursuant to, as provided in and subject to the terms and
conditions of the Road Development Agreement.
"Purchaser" means Mirage.
"Resolution" means the resolution of the Authority adopted
on October 8, 1997 and entitled "RESOLUTION OF SOUTH JERSEY
TRANSPORTATION AUTHORITY AUTHORIZING ROAD DEVELOPMENT SPECIAL
REVENUE BONDS (Atlantic City/Brigantine Connector Project - CRDA
H-Tract Revenue Pledge Agreement), as amended and supplemented,
authorizing the issuance and sale of the Bonds.
"Revenues" means (i) all receipts, revenues, income and
other moneys received or receivable by or on behalf of the
Authority or the Trustee pursuant to the Pledge Agreement, (ii)
all receipts, revenues, income and other moneys received or
receivable by or on behalf of the Authority or the Trustee
pursuant to the Guarantee or any Financing Facility, if any, and
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(iii) all earnings on the investment of moneys in the Funds and
Accounts (other than the "Rebate Fund") established under the
Resolution.
"Road Development Agreement" means the Road Development
Agreement, dated as of January 10, 1997, among the Authority, the
State and Mirage, and thereafter assigned by Mirage to the
Developer, as the same has been and may be amended from time to
time.
"Series Certificate" means a certificate executed by an
Authorized Officer of the Authority making certain determinations
in connection with the issuance of a Series of Bonds pursuant to
the Resolution providing for, among other items, the issuance of
such Series of Bonds. Each Series Certificate, upon execution
and delivery, shall be deemed to be a part of the Resolution.
"State" means the State of New Jersey, acting through the
Department of Transportation.
"Trustee" means the Trustee appointed or to be appointed
under the Resolution, and its successor or successors, and any
other corporation which may at any time be substituted in its
place pursuant to the Resolution.
3. Agreement to Purchase Bonds; Purchase Price.
(A) Purchase and Sale of Bonds; Purchase Price.
Subject to the terms and conditions contained in this Agreement,
the Purchaser hereby agrees to purchase from the Authority, and
the Authority hereby agrees to sell to the Purchaser, the Bonds
in the maximum aggregate initial issuance amount of $55,000,000
at a purchase price, as to each Bond, equal to the "Total
Principal Amount" thereof as set forth in such Bond, without
discount or premium, when and if issued by the Authority. The
Bonds shall be issued in the form described in the Resolution and
shall be issued pursuant to the Resolution.
(B) Closing. The sale of each Series of the Bonds
shall take place on the applicable Delivery Date at the offices
of Xxxxx & Xxxxxx, P.A., 0 Xxxxxx Xxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx
00000 or at such other location as the Authority and the
Purchaser shall agree upon. The Purchaser shall make payment of
the purchase price for each Series of the Bonds on the applicable
Delivery Date of such Series of Bonds in immediately available
funds by wire transfer to the Trustee for the account of the
Authority, against delivery of one or more Bonds duly
authenticated by the Trustee having an aggregate "Total Principal
Amount" equal to such purchase price. Each Series of Bonds shall
be issued at such time and in such amount as shall be provided
for in the Road Development Agreement and the Escrow Agreement.
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4. Details of Bonds.
(A) Purpose of Bonds. The Bonds shall be issued in one
or more Series from time to time to pay for Costs of the Project.
(B) Denominations, Date, Issue Date, Interest Rate.
The Bonds shall be issued in denominations such that the Accreted
Value of each such Bond at the expiration of the Accretion Period
shall be $100,000 or any integral multiple of $5,000 in excess
thereof. During the Accretion Period, interest shall accrue on
the Bonds of each Series, commencing on the Delivery Date of the
Bonds of such Series, at the CRDA Bond Rate in effect on the
Delivery Date of the Bonds of such Series, and shall compound at
the CRDA Bond Rate in effect on the Delivery Date of such Series
on each Compounding Date. The Accreted Value of each Bond shall
accrue quarterly on the basis of a year of 360 days consisting of
twelve 30 day months. From and after the Conversion Date,
interest on the Principal Amount of each Bond shall accrue and
shall be payable on each Interest Payment Date, but only to the
extent that moneys are on deposit in the Debt Service Fund on
such Interest Payment Date, and on redemption prior to maturity,
at the CRDA Bond Rate in effect on the Delivery Date of such Bond
(calculated on the basis of a 360 day year consisting of twelve
30 day months). In the event that on any Interest Payment Date
there shall not be available on deposit in the Debt Service Fund
an amount sufficient to pay the interest payable on such Interest
Payment Date in full, interest shall accrue on the unpaid portion
of such interest at the CRDA Bond Rate in effect on the Delivery
Date of such Bond (calculated on the basis of a 360 day year
consisting of twelve 30 day months) until such unpaid interest is
paid in full. Prior to the Conversion Date, each Bond shall be
dated the Delivery Date thereof. Each Bond issued and
authenticated from and after the Conversion Date shall be dated
as of the Interest Payment Date next preceding the date of
authentication thereof by the Trustee, unless such date of
authentication shall be an Interest Payment Date, in which case
such Bond shall be dated as of such Interest Payment Date;
provided, however, that if, as shown by the records of the
Trustee, interest on the Bonds shall be in default, Bonds issued
in lieu of Bonds surrendered for transfer or exchange may be
dated as of the date to which interest has been paid in full on
the Bonds surrendered; provided, further, that if the date of
authentication shall be prior to the first Interest Payment Date
for the Bonds, each Bond authenticated after the Conversion Date
but before such first Interest Payment Date shall be dated the
Conversion Date.
If there shall occur a Determination of Taxability (as
defined below), the interest rate on the Bonds shall be increased
to the CRDA Taxable Rate, retroactive to the effective date of
such Determination of Taxability. "Event of Taxability" with
respect to the Bonds means a change of law or regulations or the
interpretation thereof or the occurrence of any other event or
the existence of any other circumstance (including without
limitation the fact that any representations or warranties of the
Authority made in connection with the issuance of the Bonds is or
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was untrue) which has the effect of causing interest payable on
the Bonds to be or become subject to federal income taxation.
"Determination of Taxability" with respect to Bonds the interest
on which is, in the opinion of Bond Counsel to be delivered
simultaneously with the issuance and delivery of such Bonds,
excludable from gross income for federal income tax purposes
pursuant to Section 103 of the Code shall be deemed to have been
made upon the first to occur of the following events:
(i) the date on which the Authority determines that an
Event of Taxability has occurred by filing with the Trustee
a statement to that effect supported by one or more tax
schedules, returns or documents which disclose that such an
Event of Taxability has occurred;
(ii) the date on which the Authority or the Trustee is
advised by private ruling, technical advice or any other
written communication from any authorized official of the
Internal Revenue Service that, based upon any filings of the
Authority or any other person or entity, or upon any review
or audit of the Authority or any other person or entity, or
upon any other grounds whatsoever, an Event of Taxability
has occurred;
(iii) the date on which the Trustee or the
Authority is advised that a court of competent jurisdiction
has issued an order, declaration, ruling or judgment to the
effect that an Event of Taxability has occurred;
(iv) the date the Trustee shall have received written
notice from any Bondholder that it has received a written
assertion or claim by any authorized official of the
Internal Revenue Service that an Event of Taxability has
occurred; or
(v) the date the Trustee shall have received written
notice of any change in law or regulations or the
interpretation thereof, or is notified that the Internal
Revenue Service has issued any private ruling, technical
advice or any other written communication, with or to the
effect that an Event of Taxability has occurred and, in
either case, receives a written opinion of nationally
recognized bond counsel satisfactory to the Trustee that an
Event of Taxability has occurred;
provided that no Determination of Taxability described in clause
(i) shall be deemed to have occurred unless the Trustee shall
have received a written opinion of nationally recognized bond
counsel satisfactory to the Trustee, in form and substance
satisfactory to the Trustee, to the effect that an Event of
Taxability has occurred, and provided further that if there shall
occur a Determination of Taxability described in clauses (ii),
(iii), (iv) and (v), the Authority shall have the right, but not
the obligation, to contest, at its own cost and expense, such
determination by appropriate proceedings, either through its own
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action (if permitted by law) or by or on behalf of the Trustee or
any Bondholder, and, in the event of any such contest, the
interest rate on the Bonds shall not increase to the CRDA Taxable
Rate unless and until such contest has been determined adversely
to the Authority by a final order of any administrative body or
court from which no appeal or review of right may be taken or
obtained by the Authority (whether by the lapse of time for
taking such appeal or applying for such review or otherwise);
provided, however, that if such Determination of Taxability is
retroactive, the interest on the Bonds shall increase to the CRDA
Taxable Rate as of the effective date of such Determination of
Taxability. The Trustee and the Bondholders shall cooperate with
the Authority in good faith in pursuing any contest of any
Determination of Taxability without expense or liability to the
Trustee or any Bondholder.
(C) Maximum Term. Forty (40) years.
(D) Redemption Provisions.
(i) Mandatory Sinking Fund Redemption. The Bonds
will be subject to quarterly mandatory sinking fund redemption on
each Prepayment Date, pro rata, at a redemption price equal to
the principal amount thereof, without premium, plus accrued
interest to the redemption date, to the extent the amount on
deposit in the Debt Service Fund on the immediately preceding
December 1, March 1, June 1 or September 1, as the case may be,
exceeds the Debt Service Requirement coming due on such
Prepayment Date. If so directed by the Authority, on the date
specified by the Authority, which date shall be at least thirty
days prior to the next Prepayment Date, the Trustee shall apply
any amount on deposit in the Debt Service Fund in excess of the
Debt Service Requirement coming due on such Prepayment Date to
the purchase of Bonds at prices not exceeding the outstanding
Principal Amount of such Bonds plus accrued interest, if any, and
such purchases shall be made by the Trustee as directed in
writing from time to time by the Authority.
(ii) Optional Redemption. The Bonds will be
subject to redemption at the option of the Authority, in whole at
any time or in part pro rata on any Interest Payment Date, at a
redemption price equal to the Principal Amount thereof, without
premium, plus accrued interest to the redemption date.
(E) Security for the Bonds. (i) The Bonds shall be
special, limited, obligations of the Authority payable solely
from the Pledged Property. THE BONDS SHALL NOT BE IN ANY WAY A
DEBT OR LIABILITY OF THE STATE OR OF ANY POLITICAL SUBDIVISION
THEREOF, INCLUDING CRDA, OTHER THAN THE AUTHORITY (TO THE LIMITED
EXTENT SET FORTH THEREIN AND IN THE RESOLUTION) AND SHALL NOT
CREATE OR CONSTITUTE ANY INDEBTEDNESS, LIABILITY OR OBLIGATION OF
THE STATE OR OF ANY POLITICAL SUBDIVISION THEREOF, INCLUDING
CRDA, OTHER THAN THE AUTHORITY (TO THE LIMITED EXTENT SET FORTH
THEREIN AND IN THE RESOLUTION) OR BE OR CONSTITUTE A PLEDGE OF
THE FAITH AND CREDIT OF THE STATE OR OF ANY POLITICAL SUBDIVISION
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THEREOF, INCLUDING CRDA. NEITHER THE STATE NOR ANY POLITICAL
SUBDIVISION THEREOF, INCLUDING CRDA, OTHER THAN THE AUTHORITY
(TO THE LIMITED EXTENT SET FORTH THEREIN AND IN THE RESOLUTION)
WILL BE OBLIGATED TO PAY THE PRINCIPAL OR REDEMPTION PRICE OF OR
INTEREST ON THE BONDS AND NEITHER THE FAITH AND CREDIT NOR THE
TAXING POWER OF THE STATE OR ANY POLITICAL SUBDIVISION THEREOF
WILL BE PLEDGED TO THE PAYMENT OF THE PRINCIPAL OR REDEMPTION
PRICE OF OR INTEREST ON THE BONDS. THE BONDS WILL BE SPECIAL,
LIMITED OBLIGATIONS OF THE AUTHORITY, PAYABLE SOLELY OUT OF THE
REVENUES OR OTHER RECEIPTS, FUNDS OR MONEYS OF THE AUTHORITY
PLEDGED UNDER THE RESOLUTION AND FROM ANY AMOUNTS OTHERWISE
AVAILABLE UNDER THE RESOLUTION FOR THE PAYMENT OF THE BONDS. THE
BONDS SHALL NEVER CONSTITUTE A CHARGE AGAINST THE GENERAL CREDIT
OR GENERAL REVENUES OF THE AUTHORITY. THE AUTHORITY HAS NO
TAXING POWER.
THE PURCHASER, BY ITS EXECUTION OF THIS AGREEMENT AND
PURCHASE OF THE BONDS, SHALL BE DEEMED TO AGREE AND ACKNOWLEDGE
THAT THE PAYMENTS TO BE MADE BY CRDA UNDER THE PLEDGE AGREEMENT
AND THE COLLECTION OF RECEIPTS TO MAKE SUCH PAYMENTS CANNOT BE
ACCELERATED FOR ANY REASON, AND THE AMOUNT OF RECEIPTS CANNOT BE
INCREASED TO ACCOMODATE SCHEDULED PAYMENTS ON THE BONDS OR FOR
ANY REASON. ACCORDINGLY, THE OBLIGATION OF THE AUTHORITY TO PAY
THE PRINCIPAL OR REDEMPTION PRICE OF AND INTEREST ON THE BONDS ON
EACH INTEREST PAYMENT DATE, PREPAYMENT DATE AND AT MATURITY SHALL
BE LIMITED TO THE AMOUNTS ON DEPOSIT IN THE DEBT SERVICE FUND ON
SUCH INTEREST PAYMENT DATE, PREPAYMENT DATE OR AT MATURITY, AS
THE CASE MAY BE.
(ii) Upon any sale of Bonds then held by a Donor,
such Donor shall have the right in its sole discretion, but not
the obligation, to deliver to the Trustee for the benefit of the
Bondholders, a guarantee of the payment of the principal of,
premium, if any, and interest on the Bonds executed by such
Donor and/or any of its affiliates (the "Guarantee") and/or a
Financing Facility, provided that such Donor shall first deliver
to the Trustee an opinion of Bond Counsel stating that the
execution and delivery of such Guarantee or Financing Facility
shall not adversely affect the exclusion from gross income of
interest on the Bonds for Federal income tax purposes. Any
Guarantee or Financing Facility executed and delivered to the
Trustee shall immediately become a part of the Pledged Property.
(iii) Nothing contained in this Agreement
shall be deemed a limitation upon the authority of the Authority
to issue bonds, notes or other obligations under the Act secured
by other income and funds other than the Pledged
Property. Without limiting the generality of the immediately
preceding sentence, Holders of the Bonds shall have no right or
claim on any of the revenues or other assets held by the trustee
under the General Resolution or any Special Project Bond
Resolution or pledged thereunder or be entitled to any of the
benefits of the General Resolution or any Special Project Bond
Resolution.
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(F) Tax Exemption. Interest on each Series of Bonds
shall, in the opinion of Bond Counsel to be delivered
simultaneously with the issuance and delivery of such Bonds, be
excludable from gross income for federal income tax purposes
pursuant to Section 103 of the Code.
5. Escrow Agreement. Mirage is simultaneously herewith
entering into the Escrow Agreement and depositing with the Escrow
Agent $110,000,000 to be held and applied as provided therein.
6. Initial Issuance of Bonds. The Authority shall, not
later than five (5) business days after the date hereof, appoint
a Trustee for the Bonds and cause its bond counsel to prepare and
furnish to the Purchaser a form of Tax Regulatory Agreement
setting forth the representations and procedures required in
order for bond counsel to render its opinion as to the exclusion
from gross income of interest on the Bonds for federal income tax
purposes.
7. Representations and Warranties of the Purchaser. By
its commitment to purchase of the Bonds, the Purchaser represents
and warrants to the Authority that:
(A) The Purchaser has such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of investments of the general character of the
Bonds. The Purchaser has made an independent investigation and
evaluation of the Project, or has caused such investigation and
evaluation to be made by persons it deems competent to do so. The
Purchaser hereby expressly waives the right to receive any
information pertaining to the Project, the State or CRDA from the
Authority, the State or CRDA and relieves the Authority, the
State and CRDA and their agents, representatives and attorneys of
any liability for failure to provide such information.
(B) This Agreement has been duly executed and
delivered by the Purchaser and constitutes a valid and binding
agreement of the Purchaser, enforceable in accordance with its
terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or similar laws of general application
affecting the rights of creditors and by the application of
general equity principles.
(C) The Purchaser has not offered or sold and will not
offer or sell the Bonds by means of any form of general
advertising or solicitation. The Purchaser is purchasing the
Bonds for its own account for investment and not with a view to
the distribution or resale thereof, provided that the Purchaser
reserves the right to dispose of the Bonds in compliance with
federal and state securities laws, if in the future it is deemed
desirable by the Purchaser to do so.
8. Expenses. Costs of issuance of the Bonds shall be paid
for as set forth in the Road Development Agreement.
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9. Conditions Precedent. The Purchaser's obligation to
purchase each Series of Bonds under this Agreement shall be
subject to the continued satisfaction on each Delivery Date of
the following conditions, unless waived in writing by the
Purchaser:
(A) The Road Development Agreement and the Escrow
Agreement and the funding obligations of the Purchaser and the
Authority, respectively, thereunder shall be in full force and
effect.
(B) The Purchaser and CRDA shall have entered into the
Donation Agreement, and the Donation Agreement shall be in full
force and effect.
(C) The Authority and CRDA shall have entered into the
Pledge Agreement, and the Pledge Agreement shall be in full force
and effect, and the Purchaser shall have received a certified
copy of the Pledge Agreement.
(D) All of the conditions precedent to the issuance of
the Bonds set forth in the Resolution shall have been satisfied.
(E) The Resolution shall not have been amended or
supplemented without the consent of the Purchaser.
(F) There shall be delivered an opinion of bond
counsel to the Authority, addressed to the Trustee, CRDA and the
Purchaser, substantially in the form annexed hereto as Exhibit A.
10. No Oral Change; Assignment.
(A) This Agreement may not be changed orally, but only
by an agreement in writing and signed by the party against whom
enforcement of any waiver, change, modification or discharge is
sought.
(B) The Authority may not assign any of its rights
under this Agreement without the prior express written consent of
the Purchaser. The Purchaser shall have the right to assign its
obligation under this Agreement in whole or in part to any
affiliate or subsidiary of the Purchaser or to any other casino
licensee operating a casino hotel on the Marina Land, provided
such assignee shall enter into a Donation Agreement with CRDA.
11. Notices. Whenever notice is required to be given
pursuant to the provisions of this Agreement, such notice shall
be in writing and shall be deemed given when mailed by certified
mail, return receipt requested (A) if to the Authority, at
Milepost 21.3, Xxxxxx Service Plaza, Atlantic City Expressway,
Xxxxxx, Xxx Xxxxxx 00000; or (B) if to the Purchaser, at 0000
Xxx Xxxxx Xxxx. Xx., Xxx Xxxxx, Xxxxxx 00000, Attention:
General Counsel with a copy to Xxxxxxx Xxxxxxxx Xxxxx Xxxxxxxxxxx
& Kuh, LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxxxxxxxxx, Esq.
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12. Law Governing. This Agreement shall be construed in
accordance with and governed by the laws of the State.
13. Headings. The headings of the paragraphs and subpara-
graphs of this Agreement are inserted for convenience only and
shall not be deemed to constitute a part of this Agreement.
14. Counterparts. This Agreement may be executed simultan-
eously in counterparts, by manual or facsimile signatures each of
which counterparts shall be deemed an original, and it shall not
be necessary in making proof of this Agreement to produce or
account for more than one such counterpart.
15. Limitation of Liability of the Authority. The
Authority's obligations hereunder are subject to the performance
by the Purchaser of its obligations hereunder, and there shall be
no recourse against the Authority (other than an action for
specific performance to compel the Authority to issue and sell
the Bonds as provided herein), the officers, members, agents and
employees of the Authority, as such, or any of the property now
or hereafter owned by it or them.
16. Other Agreements. Nothing contained in this Agreement
shall be deemed to limit the rights or remedies, at law or in
equity, or reduce the obligations, of any party hereto, under any
other agreement or instrument (including, without limitation, the
Road Development Agreement or the Escrow Agreement) to which the
parties hereto, or either of them, may be a party.
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IN WITNESS WHEREOF, the Purchaser and the Authority have
executed this Bond Purchase Agreement as of the day and year
first above written.
MIRAGE RESORTS, INCORPORATED
By: /s/ XXXXX X. XXXXX
--------------------------------
Name: XXXXX X. XXXXX
Title: VICE PRESIDENT
SOUTH JERSEY TRANSPORTATION
AUTHORITY
By: /s/ XXXXX X. XXXXXXXX
--------------------------------
Name: XXXXX X. XXXXXXXX
Title: EXECUTIVE DIRECTOR
