EXHIBIT 4(a)
AMENDMENT NO. 3
This Amendment No. 3 to Loan Agreement dated as of June 22, 1999 is
executed with reference to the Amended and Restated Loan Agreement dated as
of May 23, 1997, among Circus Circus Enterprises, Inc., a Nevada corporation
now known as Mandalay Resort Group, the Banks, Managing Agents, as Co-Agents,
and Lead Managers named therein, and Bank of America National Trust and
Savings Association, as Issuing Bank and Administrative Agent. The
aforementioned Loan Agreement has previously been amended by an Amendment No.
1 thereto dated as of October 3, 1997, and by an Amendment No. 2 thereto
dated as of May 15, 1998 (as so amended, the "Loan Agreement"). Terms
defined in the Loan Agreement are used herein with the same meanings.
The parties hereto agree to amend the Loan Agreement as follows:
1. REVISED DEFINITION OF "CONTINGENT GUARANTY". Section 1.1 of the
Loan Agreement is amended so that the final sentence of the definition of
"Contingent Guaranty" reads in full as follows [with added text in bold]:
"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 determinable, the maximum reasonably anticipated
liability in respect thereof as determined by Borrower in good faith,
PROVIDED that (y) the amount of any Contingent Guaranty consisting of
a Completion Guaranty OR ANY GUARANTEE OR SIMILAR SURETYSHIP
ARRANGEMENT WITH RESPECT TO INDEBTEDNESS 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 or its Restricted Subsidiaries are required to make payment
with respect thereto (and shall thereafter be deemed to be the amount
required to be paid, but only during the period in which such payment
is required to be made)."
2. REVISED DEFINITION OF "TOTAL DEBT". Section 1.1 of the Loan
Agreement is amended so that clause (c) of the definition of "Total Debt"
reads in full as follows [with added text in bold]:
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"(c) obligations in respect of letters of credit or other similar
instruments for which Borrower or any of its Restricted Subsidiaries
are account parties or are otherwise obligated (other than trade
letters of credit and letters of credit in support of gaming tax and
other similar regulatory obligations), and in any event including any
such Letters of Credit or instruments which support Indebtedness of
the type described in clause (a) or Capital Lease Obligations, to the
extent of the amount drawable under such letters of credit or similar
instruments, PROVIDED THAT LETTERS OF CREDIT AND OTHER SIMILAR
INSTRUMENTS IN AN AGGREGATE AMOUNT NOT TO EXCEED $200,000,000 MAY BE
EXCLUDED FROM TOTAL DEBT FOR SO LONG AS THE SAME HAVE NOT BEEN DRAWN
UPON,"
3. DELETION OF SENIOR DEBT RATIO AND AVERAGE DAILY SENIOR DEBT
DEFINITIONS. The definitions of "Senior Debt Ratio" and "Average Daily Senior
Debt" (added by Amendment No. 2 to the Loan Agreement) are hereby deleted from
Section 1.1 of the Loan Agreement.
4. REVISED DEFINITION OF ELIGIBLE ASSIGNEE. The definition of
"Eligible Assignee" set forth in Section 1.1 of the Loan Agreement is hereby
amended to read in full as follows:
"ELIGIBLE ASSIGNEE" means (a) another Bank, (b) with respect to
any Bank, any Affiliate of that Bank, (c) any commercial bank having a
combined capital and surplus of $100,000,000 or more which is (i)
organized under the laws of the United States or any state thereof, or
(ii) the domestic branch or agency of any such commercial bank
organized under the laws of a country which is a member of the
Organization for Economic Cooperation and Development, (d) any (i)
savings bank, savings and loan association or similar financial
institution or (ii) insurance company engaged in the business of
writing insurance which, in either case (A) has a net worth of
$200,000,000 or more, (B) is engaged in the business of lending money
and extending credit under credit facilities substantially similar to
those extended under this Agreement and (C) is operationally and
procedurally able to meet the obligations of a Bank hereunder to the
same degree as a commercial bank and (e) any other financial
institution (INCLUDING a mutual fund or other fund) having total
assets of $250,000,000 or more which meets the requirements set forth
in subclauses (B) and (C) of clause (d) above; PROVIDED that each
Eligible Assignee must either (a) be organized under the Laws of the
United States of America, any State thereof or the District of
Columbia or (b) be organized under the Laws of the Cayman Islands or
any country which is a member of the Organization for Economic
Cooperation and Development, or a political subdivision of such a
country, and (i) act hereunder through a branch, agency or funding
office located in the United States of America and (ii) otherwise be
exempt from withholding of tax on interest and delivers Form 1001 or
Form 4224 pursuant to Section 11.21 at the time of any assignment
pursuant to Section 11.8."
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5. DELETION OF MATERIAL ADVERSE EFFECT REPRESENTATION. Section 4.6
of the Loan Agreement is hereby amended to read in full as follows:
"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
January 31, 1997."
6. INTRACOMPANY LIENS. Section 6.8 of the Loan Agreement is hereby
amended to add a new clause (m) thereto, to read in full as follows:
"(m) Liens on real property securing Indebtedness owed by any
Restricted Subsidiary to any other Restricted Subsidiary which is a
party to the Subsidiary Guaranty, PROVIDED that (i) such Indebtedness
is evidenced by promissory notes which bear a conspicuous legend
stating that such promissory notes may not be sold, transferred,
pledged, hypothecated or otherwise disposed of without the prior
written consent of all of the Lenders (and that any purported sale,
transfer, pledge, hypothecation or other disposition is VOID AB
INITIO, and (ii) the deeds of trust, mortgages and other security
documents creating such Liens are not recorded or otherwise perfected,
and (iii) that the originals of such notes, mortgages and other
security documents are deposited with the Administrative Agent's
counsel."
7. TOTAL DEBT RATIO. Section 6.11 of the Loan Agreement is hereby
amended to read in full as follows (to both modify the required Total Debt
Ratio and to eliminate the Senior Debt Ratio):
"6.11 TOTAL DEBT RATIO. Permit the Total Debt Ratio to exceed
5.00 to 1.00 as of the last day of each Fiscal Quarter ending prior to
April 30, 2002, with a step-down to 4.75 to 1.00 for the Fiscal
Quarter ending April 30, 2002, and each subsequent Fiscal Quarter."
8. CONSENT TO SHOPPING CENTER AND TIME SHARE TRANSACTIONS.
(a) The Banks hereby consent to Borrower's and its Subsidiaries'
lease of approximately 15 acres of land adjacent to the Luxor Hotel
and Casino and the Mandalay Bay Resort Hotel and Casino, together with
related easements, to a joint venture to be formed to construct and
operate a retail mall on such Property. In connection therewith,
Borrower and its Subsidiaries may subordinate their interest in
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the underlying fee to the Lien of any lender to such joint venture and
may grant a pledge of their interest in such joint venture to any
lender to that joint venture.
(b) The Banks further consent to (i) the sale, transfer or other
disposition by Borrower and its Subsidiaries of any interests (whether
consisting of estates for terms of years, condominium interests, joint
tenancies, tenancies in common, leases, licenses or other interests in
real property) in approximately 5 acres of currently undeveloped land
adjacent to the Mandalay Bay Resort Hotel & Casino, either to an
entity to be formed to construct a time share development on such real
property or directly to the purchasers of such time share interests,
and to (ii) subordination of Borrower's and its Subsidiaries' interest
in such real property to the Lien of any lender to such entity or
individual purchasers.
(c) None of the transactions contemplated by this Section shall
be deemed to constitute "Dispositions" within the meaning of the Loan
Agreement or to utilize any portion of the amount of the Dispositions
permitted by Section 6.2(b) of the Loan Agreement.
(d) Each of the Persons to be formed under Sections 8(a) and
8(b) of this Amendment shall be deemed to be "New Ventures."
9. CONDITIONS PRECEDENT. As conditions precedent to the effectiveness
of this Amendment, the Administrative Agent shall have received executed
counterparts of this Amendment from Borrower, consented to be each Subsidiary
Guarantor, and consents hereto from Banks comprising at least the Requisite
Banks.
10. COUNTERPARTS. This Amendment may be executed in counterparts in
accordance with Section 11.7 of the Loan Agreement.
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11. CONFIRMATION. In all other respects, the Loan Agreement is
confirmed.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above by their duly authorized representatives.
MANDALAY RESORT GROUP
By: XXXXX XXXXXXXXX
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Title: PRESIDENT
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By: XXXXXX XXXXXXX
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Title: Vice President
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The undersigned Subsidiaries of Borrower hereby consent to the execution,
delivery and performance of the foregoing amendment, and reaffirm the
Subsidiary Guaranty.
CIRCUS CIRCUS CASINOS, INC., a Nevada corporation
CIRCUS CIRCUS MISSISSIPPI, INC., a Mississippi corporation
COLORADO BELLE CORP., a Nevada corporation
EDGEWATER HOTEL CORPORATION, a Nevada corporation
GALLEON, INC., a Nevada corporation
NEW CASTLE CORP., a Nevada corporation
RAMPARTS, INC., a Nevada corporation
SLOTS-A-FUN, INC., a Nevada corporation
By: XXXXX XXXXXXXXX
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Xxxxx Xxxxxxxxx, as President of the foregoing
MANDALAY DEVELOPMENT CORP., a Nevada corporation
(formerly known as Circus Circus Development Corp.)
LAST CHANCE INVESTMENTS, INCORPORATED, a Nevada corporation
By: XXXXXXX X. XXXXXXXXXX
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Xxxxxxx X. Xxxxxxxxxx, as President of the foregoing
DIAMOND GOLD, INC., a Nevada corporation
OASIS DEVELOPMENT COMPANY, INC., a Nevada corporation
By: XXXXX X. XXXXX
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Xxxxx X. Xxxxx, as President of the foregoing
GOLD STRIKE INVESTMENTS, INCORPORATED, a Nevada corporation
By: XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx, as President
M.S.E. INVESTMENTS, INCORPORATED, a Nevada corporation
By: XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx, as President
PINKLESS, INC., a Nevada corporation
By: XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx, as Secretary
RAILROAD PASS INVESTMENT GROUP, a Nevada partnership
XXXX DEVELOPMENT COMPANY, a Nevada partnership
XXXX DEVELOPMENT WEST, a Nevada partnership
NEVADA LANDING PARTNERSHIP, an Illinois partnership
GOLD STRIKE L.V., a Nevada partnership
XXXX DEVELOPMENT NORTH, a Nevada partnership
LAKEVIEW GAMING PARTNERSHIPS JOINT VENTURE, a Nevada partnership
By: Railroad Pass Investment Group general partner of each of the
foregoing
By: M.S.E. Investments, Incorporated
Its: general partner
By: XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx, President
CIRCUS CIRCUS MICHIGAN, INC., a Michigan corporation
By: XXXXX XXXXXXXXX
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Title: President
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CONSENT OF BANK
This Consent of Bank is delivered with reference to the Amended and
Restated Loan Agreement dated as of May 23, 1997 among Circus Circus
Enterprises, Inc., a Nevada corporation now known as Mandalay Resort Group,
the Banks, Co-Agents, Managing Agents and Lead Managers referred to therein,
and Bank of America National Trust and Savings Association, as Issuing Bank
and Administrative Agent (as amended, the "Loan Agreement"). Capitalized
terms used but not defined herein are used with the meanings set forth for
those terms in the Loan Agreement.
The undersigned Bank hereby consents to the execution, delivery and
performance of the proposed Amendment No. 3 to Loan Agreement by the
Administrative Agent on behalf of the Banks, substantially in the form
presented to the undersigned as a draft.
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[Typed/Printed Name of Bank]
By: XXX XXXXXXX
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Managing Director
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[Typed/Printed Name and Title]
Dated: June 21, 1999
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