EXHIBIT 10.2
ENVIRONMENTAL INDEMNITY
THIS ENVIRONMENTAL INDEMNITY (this "Indemnity") is entered into as of
May 30, 1995, jointly and severally by CIRCUS CIRCUS ENTERPRISES, INC., a Nevada
corporation, and ELDORADO HOTEL ASSOCIATES LIMITED PARTNERSHIP, a Nevada limited
partnership ("Eldorado"), (each an "Indemnitor," and collectively, the
"Indemnitors"), to and for the benefit of Agent and Lenders (each as defined
below), and each of their respective successors and permitted assigns, and their
respective parent, subsidiary and affiliated corporations, and the respective
directors, officers, agents, attorneys, and employees of each of the foregoing
(each of which shall be referred to hereinafter individually as an "Indemnitee"
and collectively as the "Indemnitees"). As used herein, "Agent" means FIRST
INTERSTATE BANK OF NEVADA, N.A., acting in its capacity as agent for and
representative of the Lenders, and any successor in that capacity, and "Lenders"
means the Persons identified as "Lenders" and listed on the signature pages of
the Credit Agreement, as defined below, together with their successors and
permitted assigns.
RECITALS
A. Lenders have agreed to make certain Loans to CIRCUS AND ELDORADO
JOINT VENTURE, a Nevada general partnership ("Partnership") pursuant to that
certain Credit Agreement (as it may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement") of even date herewith by and
among Agent, as arranger and administrative agent, Partnership, Lenders, and
First Interstate Bank of Nevada, N.A., The Long-Term Credit Bank of Japan, Ltd.,
Los Angeles Agency, and Societe Generale, collectively, as managing agents
("Managing Agents") and Bank of America, N.T. & S.A., CIBC Inc. and Credit
Lyonnais, Los Angeles Branch, collectively, as co-agents ("Co-Agents") which
Loans are to be secured by, among other things, that certain Deed of Trust,
Fixture Filing and Security Agreement with Assignment of Rents, dated as of even
date herewith (the "Deed of Trust") executed by Partnership, as trustor, to
First American Title Company of Nevada, as trustee, in favor of Agent, as
beneficiary, which Deed of Trust encumbers, among other things that certain real
property described on Exhibit A attached hereto (the "Premises"), and the
Improvements thereon, whether now existing or hereafter constructed.
B. It is a condition of Lenders making the Loans that this Indemnity
be executed and delivered by Indemnitor. Lenders are making the Loans in
reliance upon this Indemnity.
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NOW, THEREFORE, based upon the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in order to induce Lenders, Managing Agents, Co-Agents and
Agent to enter into the Credit Agreement and to make the Loans thereunder,
Indemnitors jointly and severally agree as follows:
1. Each capitalized term which is used herein but which is not
defined herein shall have the meaning given to that term in the Credit
Agreement. As used in this Indemnity:
"Agreed Rate" means a rate per annum equal to the sum of two percent
(2%) plus the Base Rate, such rate to change as and when the Base Rate
changes.
"CERCLA" means the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. (S)(S) 9601 et seq.), as heretofore or
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hereafter amended from time to time.
"Environmental Losses" means Losses suffered or incurred by any
Indemnitee, arising out of or as a result of: (i) any Hazardous Material
Activity that occurs, or is alleged by any governmental agency or any
claimant other than an Indemnitee to have occurred, in whole or in part, on
or prior to the Transfer Date; (ii) any violation on or prior to the
Transfer Date of any applicable Environmental Laws relating to the Premises
or other portion of the Project or to the ownership, use, occupancy or
operation thereof; (iii) any investigation, inquiry, order, hearing,
action, or other proceeding by or before any governmental agency in
connection with any Hazardous Material Activity that occurs, or is alleged,
by any governmental agency or any claimant other than an Indemnitee to have
occurred, in whole or in part, on or prior to the Transfer Date; (iv) any
breach of any covenant of the Partnership set forth in Section 6.7
(Environmental Disclosure and Inspection) or Section 6.8 (Partnership's
Remedial Action Regarding Hazardous Materials) of the Credit Agreement; (v)
the existence, prior to the Transfer Date, in the aquifer underlying the
Premises and other portions of Reno, Nevada, or in soils affecting that
aquifer, of PCE (tetrachloroethylene) and hydrocarbons, or either of them,
insofar as the Losses arise out of or otherwise relate (whether physically
or economically) to the Premises or other portion of the Project; or (vi)
any claim, demand or cause of action, or any action or other proceeding,
whether meritorious or not, brought or asserted against any Indemnitee that
directly or indirectly relates to, arises from or is based on any of the
matters described in clauses (i), (ii), (iii), (iv) or (v) of this
definition or any allegation by any governmental agency or any claimant
other than an Indemnitee of any such matters. Environmental Losses shall
include Losses suffered or incurred by an Indemnitee after the Transfer
Date that would not have been incurred or
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suffered but for any matter described in clause (i), (ii), (iii), (iv) or (v) of
this definition that commenced prior to the Transfer Date or any allegation by
any governmental agency or any claimant other than an Indemnitee of any such
matters, including, but not limited to, Environmental Losses incurred by any
Indemnitee arising out of or as a result of (x) the introduction or release of a
Hazardous Material that is discovered or released at the Premises or any portion
thereof after the Transfer Date but that was introduced at the Premises prior to
the Transfer Date, or (y) the continuing migration onto, on or from the
Premises, or the release on or at the Premises, of any Hazardous Material
introduced in, on or under the Premises or the surrounding streets and sidewalks
prior to the Transfer Date.
"Hazardous Material Activity" means any actual, proposed or threatened use,
storage, holding, existence, release (including any spilling, leaking, pumping,
pouring, emitting, emptying, dumping, disposing into the environment, and the
continuing migration into or through soil, surface water, or groundwater),
emission, discharge, generation, processing, abatement, removal, disposition,
handling or transportation to or from the Premises or other portion of the
Project of any Hazardous Material from, under, in, into or on the Premises or
other portion of the Project (including, but not limited to, the surrounding
streets and sidewalks), including, without limitation, the movement or migration
of any Hazardous Material from surrounding property or groundwater in, into or
onto the Premises or other portion of the Project and any residual Hazardous
Material contamination on or under the Premises or other portion of the Project.
"Losses" means any and all costs and expenses actually incurred required to
comply with (and, in the case of investigation and response costs, costs
necessary to assure compliance with) applicable Environmental Laws and other
governmental requirements (including, without limitation, reasonable attorneys'
fees and disbursements) but only to the extent such costs and expenses
reasonably were required for such compliance; provided that Losses shall not
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include: (i) with respect to any particular Indemnitee and loss, that portion,
if any, of that loss which was caused by the gross negligence or wilful
misconduct Of (including any wilful violation of any Environmental Law by) that
Indemnitee, and (ii) any special assessments made by any special assessment
district formed pursuant to Nevada law for the purpose of investigating and
remediating pollution of the groundwater aquifer underlying downtown Reno,
Nevada, which become a lien on the Premises after foreclosure of the lien of the
Deed of Trust by or for the benefit of the Lenders, and (iii) any damages
measured by the diminution in the value of the Premises caused by any Hazardous
Material Activity (it being expressly understood and agreed, however, that this
exclusion shall not affect the obligation of Indemnitors to compensate
Indemnitees for actual damages
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reasonably incurred by them in complying with Environmental Laws except as
otherwise provided in clause (ii) above), and (iv) costs and expenses
incurred by any Indemnitee after indefeasible payment in full, in lawful
money of the United States, of the Loans and all other monetary Obligations
then due under the Loan Documents, expiration or cancellation of all
Letters of Credit and termination of the Commitments (it being expressly
understood and agreed that this clause (iv) shall not apply if foreclosure
of the lien of the Deed of Trust occurs).
"Transfer Date" means the later of: (i) the date on which any of
Lenders (or any of their affiliates) acquires, directly or through Agent,
fee title to the Premises and Improvements pursuant to the power of sale or
judicial foreclosure of the lien of the Deed of Trust, or by acceptance of
a deed in lieu of such foreclosure, and all redemption rights that
Partnership may have with respect thereto have expired, and (ii) the date
on which a period of ninety-one (91) days has elapsed since the date on
which fee title thereto has vested in any of Lenders or Agent (or any
affiliate thereof) and, during such period, no bankruptcy or other
insolvency proceeding has been filed by or against Partnership. If
Partnership should remain in possession of the Project after the Transfer
Date, or if Partnership should engage in any Hazardous Material Activity on
or at the Premises or other portion of the Project after the Transfer Date,
the Transfer Date shall be deemed to be the date after which Partnership is
no longer in possession of the Premises or other portion of the Project and
has ceased to engage in any Hazardous Material Activity on or at the
Premises or other portion of the Project (it being expressly understood and
agreed, however, that, solely for purposes of this definition, the presence
of any Hazardous Material on the Premises or other portion of the Project
after the Transfer Date, or the migration of such Hazardous Material
thereon, in either instance without the active involvement of Partnership
(whether directly or through any agent or contractor of Partnership) shall
not be deemed or construed to be engaging in any Hazardous Material
Activity on or at the Premises or other portion of the Project after the
Transfer Date).
2. Indemnitors jointly and severally hereby agree to indemnify,
defend, and hold harmless Indemnitees, and each of them, from and against any
and all Environmental Losses.
3. (a) Indemnitee shall notify Indemnitors of any claim or notice
of the commencement of any action, administrative or legal proceeding or
investigation as to which the indemnity provided for in Section 2 applies,
within a reasonable period of time after such claim, action, proceeding or
investigation becomes known to Indemnitee (it being expressly understood and
agreed, however, that no such notice shall be required to an Indemnitor if the
claim, action, proceeding or investigation has already become known to such
Indemnitor prior to or during that
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period). Indemnitors shall assume on behalf of such Indemnitee and conduct with
due diligence and in good faith the investigation and defense of such claim,
action, proceeding or investigation and the response thereto with counsel
reasonably satisfactory to Agent; provided, however, that such Indemnitee shall
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have the right to be represented by advisory counsel of its own selection and at
its own expense; and provided, further, that if any such claim, action,
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proceeding, or investigation involves both an Indemnitor and an Indemnitee, and
such Indemnitee shall have reasonably concluded that there may be legal defenses
available to it that are different from, additional to, or inconsistent with
those available to such Indemnitor, or that such Indemnitor is not adequately
investigating or defending such matter on behalf of Indemnitee, then the
Indemnitee shall have the right to select separate counsel to participate in the
investigation and defense of and response to such claim, action, proceeding or
investigation on its own behalf at Indemnitors' expense. In addition to the
foregoing, after foreclosure of the lien of the Deed of Trust by or on behalf of
Lenders, Indemnitee shall notify Indemnitors of Hazardous Material Activity not
previously known to Indemnitors and which may be the basis for a claim by
Indemnitee against Indemnitors hereunder within a reasonable period of time
after such newly discovered Hazardous Material Activity becomes known to
Indemnitee.
(b) If any claim, action, proceeding, or investigation arises as to
which the indemnity provided for in Section 2 applies, and Indemnitors fail to
assume promptly (and in any event within fifteen (15) days after being notified
of the claim, action, proceeding, or investigation) the defense of an
Indemnitee, then such Indemnitee may contest and settle the claim, action,
proceeding, or investigation at Indemnitors' expense using counsel selected by
such Indemnitee; provided, however, that after any such failure by Indemnitors
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no such contest need be made by such Indemnitee and settlement or full payment
of any claim may be made by such Indemnitee without Indemnitors' consent and
without releasing any of the Indemnitors from any obligations to such Indemnitee
under Section 2.
4. This Indemnity is given solely to protect Lenders and the other
Indemnitees against Environmental Losses, and not as additional security for, or
as a means of repayment of, the Loans. The obligations of Indemnitors under this
Indemnity are independent of, and shall not be measured or affected by (i) any
amounts at any time owing under the Loans or secured by the Deed of Trust, (ii)
the sufficiency or insufficiency of any collateral (including, without
limitation, the Premises) given to Lenders to secure repayment of the Loans,
(iii) the consideration given by Lenders or any other Person in order to acquire
the Project or any portion thereof, (iv) the modification, expiration or
termination of the Deed of Trust or any other document or instrument relating to
the Loans, or (v) except as otherwise expressly provided herein, the discharge
or repayment in full of the Loans (including, without limitation, by amounts
paid or credit bid at a foreclosure sale or by discharge in connection with a
deed in lieu of foreclosure).
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5. Indemnitors' obligations hereunder shall survive the sale or other
transfer of the Project or any portion thereof prior to the Transfer Date, and
shall remain in force beyond (i) the expiration of any statute of limitations
and (ii) payment or satisfaction in full of any single claim within the scope of
this Indemnity. The rights of each Indemnitee under this Indemnity shall be in
addition to any other rights and remedies of such Indemnitee against Indemnitors
or any of them under any other document or instrument now or hereafter executed
by Partnership, any of the Indemnitors or any Affiliate thereof, or at law or in
equity (including, without limitation, any right of reimbursement or
contribution pursuant to CERCLA), and shall not in any way be deemed a waiver of
any of such rights. Each Indemnitor agrees that it shall have no right of
contribution (including, without limitation, any right of contribution under
CERCLA) against any Indemnitee with respect to any matter covered by this
Indemnification, and hereby waives and relinquishes any such right excepting,
however, any right of contribution which such Indemnitor may have by reason of
the ownership or other interest in, or use of, by any Indemnitee of property,
other than the Premises, in Reno, Nevada. Indemnitor further agrees that it
shall have no right of subrogation to any right or claim of any Indemnitee
against any third Person until all obligations of such Indemnitor to such
Indemnitee hereunder with respect to such right or claim have been satisfied.
6. All obligations of Indemnitors hereunder shall be payable on
demand, and any amount due and payable hereunder to any Indemnitee by any
Indemnitor that is not paid within thirty (30) days after written demand
therefor from an Indemnitee with an explanation of the amounts demanded shall
bear interest from the date of such demand at the Agreed Rate.
7. If any action or proceeding is brought in connection with the
construction or enforcement of this Indemnity, the prevailing party in such
matter shall be entitled to reimbursement of its costs and expenses (including
reasonable attorneys' fees) in such matter. The obligations set forth in this
Section 7 are in addition to and not in lieu of other obligations set forth
herein and in other Loan Documents or any of them.
8. Each Indemnitor hereby waives, for the benefit of each
Indemnitee:
(a) any right to require Indemnitee, as a condition of payment or
performance by such Indemnitor, to (i) proceed against Partnership, any
guarantor of the Obligations or any other Person, (ii) proceed against or
exhaust any security held from Partnership, any other guarantor of the
Obligations or any other Person, (iii) proceed against or have resort to
any balance of any deposit account or credit on the books of Indemnitee in
favor of Partnership or any other Person, or (iv) pursue any other remedy
in the power of Indemnitee whatsoever;
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(b) any defense arising by reason of the incapacity, lack of authority
or any disability or other defense of Partnership including, without
limitation, any defense based on or arising out of the lack of validity or
the unenforceability of the Obligations or any agreement or instrument
relating thereto or by reason of the cessation of the liability of
Partnership from any cause other than indefeasible payment in full of the
Obligations;
(c) any defense based upon any statute or rule of law which provides
that the obligation of a surety must be neither larger in amount nor in
other respects more burdensome than that of the principal;
(d) any defense based upon any error or omission of any Person in the
administration of the Obligations, except, in the case of any particular
Indemnitee, behavior by such Indemnitee which amounts to bad faith by such
Indemnitee;
(e) any principles or provisions of law, statutory or otherwise, which
are or might be in conflict with the terms of this Indemnity and any legal
or equitable discharge of such Indemnitor's obligations hereunder, (i) the
benefit of any statute of limitations affecting such Indemnitor's liability
hereunder or the enforcement hereof, (ii) any rights to set-offs,
recoupments and counterclaims, and (iii) promptness, diligence and any
requirement that any Indemnitee protect, secure, perfect or insure any
security interest or lien or any property subject thereto;
(f) notices, demands, presentments, protests, notices of protest,
notices of dishonor and notices of any action or inaction, including
acceptance of this Indemnity, notices of default under the Credit Agreement
or any agreement or instrument related thereto, notices of any renewal,
extension or modification of the Obligations or any agreement related
thereto, notices of any extension of credit to Partnership and notices of
any of the matters referred to in Section 4 and any right to consent to any
thereof; and
(g) any defenses or benefits that may be derived from or afforded by
law which limit the liability of or exonerate guarantors or sureties, or
which may conflict with the terms of this Indemnity, including without
limitation the provisions of Nevada Revised Statutes Sections 40.430-
40.459, 40.475 and 40.485 as permitted by Nevada Revised Statutes Sections
40.495 (1993), and any successor provisions.
9. In order to induce Indemnitees to accept this Indemnity and to
induce Lenders and Agent to enter into the Credit Agreement and to make the
Loans thereunder, each Indemnitor hereby represents and warrants to each
Indemnitee that the following statements are true and correct:
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(a) Such Indemnitor is duly organized, validly existing and in good
standing under the laws of the State of Nevada, has the corporate (or, in the
case of Eldorado, the partnership) power to own its assets and to transact the
business in which it is now engaged and is duly qualified as a foreign
corporation (or, in the case of Eldorado, foreign partnership) and in good
standing under the laws of each jurisdiction where its ownership or lease of
property or the conduct of its business requires such qualification, except for
failures to be so qualified, authorized or licensed that would not in the
aggregate have a material adverse effect on the business, operations, assets or
financial condition of such Indemnitor and its Subsidiaries, taken as a whole;
(b) Such Indemnitor has the corporate (or, in the case of Eldorado,
partnership) power, authority and legal right to execute, deliver and perform
this Indemnity and all obligations required hereunder and has taken all
necessary corporate (or, in the case of Eldorado, partnership) action to
authorize its Indemnity hereunder on the terms and conditions hereof and its
execution, delivery and performance of this Indemnity and all obligations
required hereunder. No consent of any other Person including, without
limitation, stockholders, partners and creditors of such Indemnitor, and no
license, permit, approval or authorization of, exemption by, notice or report
to, or registration, filing or declaration with, any governmental authority is
required by such Indemnitor in connection with this Indemnity or the execution,
delivery, performance, validity or enforceability of this Indemnity and all
obligations required hereunder. This Indemnity has been, and each instrument or
document required hereunder will be, executed and delivered by a duly authorized
officer (or, in the case of Eldorado, general partner) of such Indemnitor, and
this Indemnity constitutes, and each instrument or document required hereunder
when executed and delivered hereunder will constitute, the legally valid and
binding obligation of such Indemnitor, enforceable against such Indemnitor in
accordance with its terms, except as enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws or
equitable principles relating to or limiting creditors' rights generally.
(c) The execution, delivery and performance of this Indemnity and the
documents or instruments required hereunder, will not violate any provision of
any existing law or regulation binding on such Indemnitor, or any order,
judgment, award or decree of any court, arbitrator or governmental authority
binding on such Indemnitor, or the certificate of incorporation or bylaws of
such Indemnitor or any securities issued by such Indemnitor, or any mortgage,
indenture, lease, contract or other agreement, instrument or undertaking to
which such Indemnitor is a party or by which such Indemnitor or any of its
assets may be bound, the violation of which would have a material adverse effect
on the business, operations, assets or condition
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(financial or otherwise) of such Indemnitor and its Subsidiaries, taken as
a whole, and will not result in, or require, the creation or imposition of
any Lien on any of its property, assets or revenues pursuant to the
provisions of any such mortgage, indenture, lease, contract or other
agreement, instrument or undertaking.
10. This Indemnity shall be binding upon Indemnitors, their
respective heirs, representatives, administrators, executors, successors and
assigns and shall inure to the benefit of and shall be enforceable by each
Indemnitee, and its successors, and permitted assigns (it being expressly
understood and agreed that the term "permitted assign" means any Person to which
any Lender assigns or sells all or any portion of its interest in the Loans in
accordance with the terms of the Credit Agreement, any "Eligible Assignee" as
defined in the Credit Agreement and any other Person to whom assignment by a
Lender or Agent of rights under the Credit Agreement or other Loan Document is
permitted thereby, and any Person to whom consent to an assignment thereto has
been given by the Indemnitor against whom enforcement is sought).
11. THIS INDEMNITY SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEVADA, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES.
12. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY INDEMNITOR ARISING
OUT OF OR RELATING TO THIS INDEMNITY MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN THE STATE OF NEVADA AND, BY EXECUTION AND
DELIVERY OF THIS INDEMNITY, EACH INDEMNITOR ACCEPTS FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION
OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH THIS INDEMNITY. Each Indemnitor hereby agrees that service of all process
in any such proceeding in any such court may be made by registered or certified
mail, return receipt requested, to at its address provided in Section 17, such
service being hereby acknowledged by such Indemnitor to be sufficient for
personal jurisdiction in any action against such Indemnitor in any such court
and to be otherwise effective and binding service in every respect. Nothing
herein shall affect the right to serve process in any other manner permitted by
law.
13. EACH INDEMNITOR AND, BY ITS ACCEPTANCE OF THE BENEFITS HEREOF,
INDEMNITEE EACH HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR
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CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS INDEMNITY. The scope of this
waiver is intended to be all-encompassing of any and all disputes that may be
filed in any court and that relate to the subject matter of this transaction,
including without limitation contract claims, tort claims, breach of duty claims
and all other common law and statutory claims. Indemnitor and, by its acceptance
of the benefits hereof, Indemnitee each (i) acknowledges that this waiver is a
material inducement for Indemnitors and the Lenders to enter into a business
relationship, that Indemnitors and Indemnitee have already relied on this waiver
in entering into this Indemnity or accepting the benefits thereof, as the case
may be, and that each will continue to rely on this waiver in their related
future dealings and (ii) further warrants and represents that each has reviewed
this waiver with its legal counsel, and that each knowingly and voluntarily
waives its jury trial rights following consultation with legal counsel. THIS
WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN
WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS INDEMNITY. In the event of litigation, this
Indemnity may be filed as a written consent to a trial by the court.
14. Every provision of this Indemnity is intended to be severable. If
any provision of this Indemnity or the application of any provision hereof to
any Person or circumstance is declared to be illegal, invalid or unenforceable
for any reason whatsoever by a court of competent jurisdiction, such invalidity
shall not affect the balance of the terms and provisions hereof or the
application of the provision in question to any other Person or circumstance,
all of which shall continue in full force and effect.
15. No failure or delay on the part of any Indemnitee to exercise any
power, right or privilege under this Indemnity shall impair or prejudice the
exercise by Indemnitee of any such power, right or privilege with respect to any
future claim, action, proceeding, investigation or Environmental Loss, or be
construed to be a waiver of any default or an acquiescence therein. No such
failure or delay shall impair or prejudice the exercise by Indemnitee of any
such power, right or privilege with respect to any claim, action, proceeding,
investigation or Environmental Loss existing at the time of such failure or
delay unless (and then only to the extent that) Indemnitor establishes by a
preponderance of the evidence that such failure or delay by Indemnitee
materially impaired the ability of Indemnitor to defend against or to limit its
liability with respect to the Environmental Loss for which such Indemnitee is
seeking indemnification hereunder. No single or partial exercise of such power,
right or privilege shall preclude other or further exercise thereof or of any
other right, power or privilege. No provision of this Indemnity may be changed,
waived, discharged or terminated except by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought. The rights, powers and remedies given to Indemnitees by
this Indemnity are
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cumulative and shall be in addition to and independent of all rights, powers and
remedies given to any of the Indemnitees by virtue of any statute or rule of law
or in any of the other Loan Documents or in any other agreement or document.
16. All notices, requests and demands to be made hereunder to the
parties hereto shall be in writing (at the respective address of the Person for
whom intended set forth below or hereafter provided in accordance with this
Section) and shall be given by any of the following means: (a) personal service;
(b) electronic communication, whether by telex, telegram or telecopying (if
confirmed in writing sent by registered or certified, first class mail, return
receipt requested); or (c) registered or certified, first class mail, return
receipt requested. Such addresses may be changed by notice to the other parties
given in the same manner as provided above. Any notice, demand or request sent
pursuant to either clause (a) or (b) hereof shall be deemed received upon such
personal service or upon dispatch by electronic means, and, if sent pursuant to
clause (c) shall be deemed received three (3) days following deposit in the
mail. Eldorado, HCM and REI shall designate a single address for themselves and
shall be entitled to only a single notice, request or demand addressed all of
them at that address.
To Agent: First Interstate Bank of Nevada, N.A.
3800 Howard Hughes Parkway
Suite 400
Las Vegas, Nevada 89109
Attention: Silver Legacy Loan Officer
To Indemnitors: Circus Circus Enterprises, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: Yvette Landau
Associate General Counsel
and to: Eldorado Hotel Associates Limited Partnership
c/o Eldorado Hotel Casino
345 North Virginia Street
Reno, Nevada 89501
Attention: Bob Jones
Chief Financial Officer
17. This Indemnity may be executed in counterparts each of which
shall be deemed an original and all of which shall constitute one and the same
Indemnity with the same effect as if all parties had signed the same signature
page. Any signature page of this Indemnity may be detached from any other
counterpart of this Indemnity and reattached to any other counterpart of this
Indemnity identical in form hereto but having attached to it one or more
additional signature pages.
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IN WITNESS WHEREOF, Indemnitor has executed this Indemnity as of the
day and year first written above.
Indemnitors: CIRCUS CIRCUS ENTERPRISES, INC.
a Nevada corporation
By: [SIGNATURE APPEARS HERE]
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Title: President
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ELDORADO HOTEL ASSOCIATES LIMITED PARTNERSHIP, a
Nevada general partnership
By: ,
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a Nevada ____________
Its: Managing Partner
By:
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Title:
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Accepted by:
FIRST INTERSTATE BANK OF NEVADA, N.A.,
on behalf of itself as Agent and
on behalf of all Managing Agents
and all Lenders
By:
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Title:
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IN WITNESS WHEREOF, Indemnitor has executed this Indemnity as of the
day and year first written above.
Indemnitors: CIRCUS CIRCUS ENTERPRISES, INC.
a Nevada corporation
By: [SIGNATURE APPEARS HERE]
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Title: President
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ELDORADO HOTEL ASSOCIATES LIMITED PARTNERSHIP, a
Nevada general partnership
By: Recreational Enterprises, Inc.
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a Nevada Corporation
Its: Managing Partner
By: /s/ Donald L. Carano
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Title: President
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Accepted by:
FIRST INTERSTATE BANK OF NEVADA, N.A.,
on behalf of itself as Agent and
on behalf of all Managing Agents
and all Lenders
By: [SIGNATURE APPEARS HERE]
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Title: Vice President
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S-1
EXHIBIT A
Legal Description of Real Property
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THE LAND REFERRED TO HEREIN IS SITUATED IN THE COUNTY OF WASHOE, STATE OF
NEVADA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
- --------
Beginning at the intersection of the Southern line of West Fifth Street
with the Western line of North Virginia Street; thence Southerly along said
Western line of North Virginia Street, 88.00 feet; thence Westerly parallel
with the Northern line of West Fourth Street 140.00 feet to the Eastern
line of alley; thence Northerly along the last mentioned line 88.00 feet to
said Southern line of West Fifth Street; thence Easterly along said
Southern line of West Fifth Street, 140.00 feet to the point of beginning.
PARCEL 2:
- --------
Beginning at the intersection of the West line of North Virginia Street
with the North line of Lot 10 in Block "B" of ORIGINAL TOWN, NOW CITY OF
RENO, according to the map thereof, filed in the office of the County
Recorder of Washoe County, State of Nevada, on June 27, 1871; thence
Northerly along the Westerly line of North Virginia Street, 12 feet, more
or less, to the Southeast corner of the parcel of land described in the
deed to Ivanhoe Corporation of record in Book 453, File No.278019, Deed
Records; thence Westerly along the Southern line of said Ivanhoe
Corporation parcel 140 feet to the Easterly line of an alley; thence
Southerly along the last mentioned line, 12 feet, more or less, to the
Northwest corner of said Lot 10; thence Easterly to the point of beginning.
PARCEL 3:
- --------
Lots 10, 11, 12 and the North 13 feet of Lot 13 in Block "B" of ORIGINAL
TOWN, NOW CITY OF RENO, according to the map thereof, filed in the office
of the County Recorder of Washoe County, State of Nevada, on June 27, 1871.
PARCEL 4:
- --------
The Northerly 9.25 feet of Lot 3 and all of Lots 4, 5, 6, 7 and 8 in Block
"B" of ORIGINAL TOWN, NOW CITY OF RENO, according to the map thereof, filed
in the office of the County Recorder of Washoe County, State of Nevada, on
June 27, 1871.
ALSO a parcel of land bounded on the South by the Southern line of the 40
foot alley as laid out on the map of the Town, now City of Reno, in said
Block "B", bounded on the West by the Eastern line of North Sierra Street,
bounded on the North by the Southern line of West Fifth Street and bounded
on the East by the Western line of the 20 foot alley running Northerly and
Southerly through said Block "B".
PARCEL 5:
- --------
The South 37 feet of Lot 13 in Block "B" of the "ORIGINAL TOWN, NOW CITY OF
RENO", according to the official map thereof, filed in the office of the
County Recorder of Washoe County, State of Nevada, on June 27, 1871.
A-1
PARCEL 6:
- --------
Lot 14 in Block B of ORIGINAL TOWN, NOW CITY OF RENO, according to the map
thereof, filed in the office of the County Recorder of Washoe County, State
of Nevada, on June 27, 1871.
PARCEL 7:
- --------
The West forty (40) feet of Lot Fifteen (15) in Block "B" fronting forty
(40) feet on the North line of Fourth Street, as designated on the official
map of said City of Reno, Nevada, on file and of record in the office of
the County Recorder in and for the said County of Washoe; the property
hereby conveyed being the same property described in a Deed from May J. A.
Nadon and others to Dale V. Clanton, dated November 18, 1920, and filed for
record on the 29th day of November, 1920, in the office of the County
Recorder in and for the County of Washoe, and therein recorded in Book 56
of Deeds, at Page 440.
PARCEL 8:
- --------
The East 100 feet of Lot 15 in Block B of original town, now City of Reno,
according to the map thereof, filed in the office of the County Recorder of
Washoe County, State of Nevada, on June 27, 1871.
PARCEL 9:
- --------
All of Lots 1 and 2, and the South 40.75 feet of Lot 3 in Block B of the
ORIGINAL TOWN, NOW CITY OF RENO, according to the map thereof, filed in the
office of the County Recorder of Washoe County, State of Nevada, on June
27, 1871.
PARCEL 10:
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The South 20 feet of Lot 10, and all of Lots 11, 12, 13, 14, 15 and 16, in
Block A, of ORIGINAL TOWN, NOW CITY OF RENO, according to the map thereof,
filed in the office of the County Recorder of Washoe County, State of
Nevada, on June 27, 1871.
TOGETHER WITH the East 1/2 of the North-South alley running through said
Block A, immediately adjoining Lots 11, 12, 13, 14, 15 and 16 on the West,
and more particularly described in those certain Orders of Abandonment
recorded January 19, 1977 in Book 1044, Page 521 as Document No. 445058,
and recorded November 14, 1985 in Book 2251, Page 933 as Document No.
1034253 of Official Records.
PARCEL 11:
- ---------
The East 78 feet of Lot 9 and the East 78 feet of the North 30 feet of Lot
10 in Block A of the ORIGINAL TOWN, NOW CITY OF RENO, according to the
Official Map thereof, filed in the office of the County Recorder of Washoe
County, State of Nevada, on June 27, 1871.
Together with that portion of the vacated alley lying Southerly of the
Southerly line of West Fifth Street and Westerly of the Westerly line of
North Sierra Street adjoining said Lot 9 at its most Northeasterly corner.
A-2
PARCEL 12:
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A portion of the Southwest 1/4 of the Northeast 1/4 of Section 11, Township
19 North, Range 19 East, M.D.B&M., lying and being in the City of Reno,
County of Washoe, State of Nevada, and more particularly described as
follows:
The Westerly 74 feet of Lot 9 and the Westerly 74 feet of the North 30 feet
of Lot 10, all in Block A of the ORIGINAL TOWN, NOW CITY OF RENO, according
to the official map thereof, filed in the office of the County Recorder of
Washoe County, State of Nevada, on June 27, 1871.
PARCEL 13:
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BEGINNING at the Northeast corner of Lot 8, Block A, as shown on the
official plat of the town, now City of Reno, Nevada, filed in the office of
the County Recorder of Washoe County, Nevada, on June 27, 1871; thence
Southerly along the Easterly lines of Lots 8 and 7 of said Block A to the
Southeast corner of Lot 7; thence Westerly along the Southerly line of Lot
7 and the Southerly line of Lot 7 projected to its intersection with the
Easterly line of West Street; thence Northerly along the Easterly line of
West Street to the Southerly line of West Fifth Street; thence Easterly
along the Southerly line of West Fifth Street to the point of beginning.
PARCEL 14:
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Lots 1, 2, 3, 4, 5, 6, in Block A, of ORIGINAL TOWN, NOW CITY OF RENO,
according to the map thereof, filed in the office of the County Recorder of
Washoe County, State of Nevada, on June 27, 1871, together with that parcel
immediately adjoining Lots 5 and 6 on the West, that is more particularly
described as follows:
BEGINNING at the Northeasterly corner of Lot 6, in Block A of ORIGINAL
TOWN, NOW CITY OF RENO, according to the map thereof, filed in the office
of the County Recorder of Washoe County, State of Nevada, on June 27, 1871;
thence Southerly along the Easterly line of said Lots 5 and 6, in Block A,
100 feet to the Southeasterly corner thereof; thence Westerly along the
Southerly line of said Lot 5 and the Southerly line of Lot 5 extended
Westerly to the Easterly line of West Street, as now located in the City of
Reno, a distance of 140 feet; thence Northerly along the Easterly line of
West Street 100 feet to a point which would be intersected by a line
extended Westerly from the Northeasterly corner of said Lot 6 and along the
Northerly line of said Lot 6; thence Easterly and along said line and the
Northerly line of said Lot 6, a distance of 140 feet to the Northeasterly
corner of said Lot 6, the point of beginning; said premises being Lots 5
and 6 in Block A of the TOWN OF RENO, according to the map above mentioned,
and that portion of the 40 foot alley around the Town of Reno, according to
the map above mentioned, lying Westerly of Lots 5 and 6 and East of the
East line of West Street, as now located and between the Northerly and
Southerly line of said Lots 5 and 6 if said lines were extended Westerly to
the Easterly line of West Street as now located.
TOGETHER WITH the West one-half of the North-South alley running through
said Block A, immediately adjoining said LOTS 1, 2, 3, 4, 5 and 6 on the
East, and more particularly described in those certain Orders of
Abandonment recorded January 19, 1977 in Book 1044, Page 521 as Document
No. 445058, and recorded on November 14, 1985 in Book 2251, Page 533 as
Document No. 1034253, Official Records, Washoe County, State of Nevada.
A-3
PARCEL 15:
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All that certain 20.0 ft. wide alley connecting West Fourth Street with
West Fifth Street, Reno, Nevada, lying within Block B of the original Town,
now City of Reno, according to the map thereof, filed in the Office of the
Washoe County Recorder on June 27, 1871, and within Block B of the Evans
North Addition, according to the map thereof, filed in the office of the
Washoe County Recorder on December 16, 1879.
PARCEL 16:
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All that certain 20.0 ft. wide alley lying between Lots 7, 8, 9 and 10 of
Block A of the Original Town, now City of Reno, according to the map
thereof, filed in the office of the Washoe County Recorder on June 27,
1871.
PARCEL 17: (Air Rights Only)
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All that certain piece or parcel of land located within a portion of the
Northeast 1/4 of Section 11, Township 19 North, Range 19 East, M.D.B.&M.
more particularly described as follows:
That certain air space located above Sierra Street commencing at an
elevation of 4,521 and extending vertically 32 feet to an elevation of
4,553 feet, which height is measured from the finished floor elevation of
the Silver Legacy Casino at 4,503 feet, and located directly over that
certain parcel of real property described as follows:
Commencing at the Southwest corner of Block B Reno Townsite as shown on
Record-of-Survey 2665, recorded January 27,1994,
thence North 13 degrees 48'48" West 97.13 feet to the True Point of
Beginning
thence North 13 degrees 48'48" West 223.17 feet
thence South 76 degrees 11 '12" West 80.00 feet thence South 13048'48" East
223.17 feet
thence North 76 degrees 11 '12" East 80.00 feet to the True Point of
Beginning
PARCEL 18: (Subterranean Rights Only)
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All that certain piece or parcel of land located within a portion of the
Northeast 1/4 of Section 11, Township 19 North, Range 19 East, M.D.B.&M.
more particularly described as follows:
That certain subterranean space located beneath Sierra Street commencing at
an elevation of 4,480 and extending vertically 20 feet to an elevation of
4,500 feet, which height is measured from the finished floor elevation of
the Silver Legacy Casino at 4,503 feet, and located directly below that
certain parcel of real property described as follows:
Commencing at the Southwest corner of Block B Reno Townsite as shown on
Record-of -Survey 2665, recorded January 27, 1994,
thence North 13 degrees 48'48" West 181.05 feet to the True Point of
Beginning
A-4
thence North 13(degrees)48'48" West 24.33 feet
thence South 76(degrees)11 '12" West 80.00 feet
thence South 13(degrees)48'48" East 24.33 feet
thence North 76(degrees)11'12" East 80.00 feet to the True Point of
Beginning
EXCEPTING THEREFROM the above Parcels 1 through 18, all those certain
parcels as conveyed to THE CITY OF RENO, a Nevada municipal corporation, by
Deed of Dedication recorded March 9, 1995 in Book 4259, Page 956 as
Document No. 1876631 of Official Records, and as amended by Deed of
Dedication recorded May 5, 1995 in Book 4297, Page 667 as Document
No. 1891266 of Official Records.
PARCEL 19:
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Together with the reciprocal easement rights, as contained in those certain
Bridge Easements dated May ___,1995 by and between CIRCUS AND ELDORADO
JOINT VENTURE, a Nevada general partnership and CIRCUS CIRCUS CASINO, INC.,
a Nevada corporation and ELDORADO HOTEL ASSOCIATES LIMITED PARTNERSHIP, a
Nevada limited partnership, recorded May ___,1995 as Document Numbers
________________ and ________________ Official Records, Washoe County,
Nevada.