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Exhibit 4.2
COMPLETION
GUARANTY
This Completion
Guaranty (" Completion Guaranty
") is made as of October 5, 2007 by Station
Casinos, Inc., a Nevada corporation (" Station ") and G.C. Investments,
LLC, a Nevada limited liability company (" GC Investments " and
collectively with Station, the " Completion Guarantors "), jointly
and severally, in favor of Bank of America, N.A., as Administrative
Agent (" Administrative Agent
") under the Credit Agreement referred to below, and
for the benefit of the other Beneficiaries (as defined below).
Certain capitalized terms used herein have the meanings set forth
in the recitals hereto or in Section 1 of this Completion
Guaranty. Capitalized terms used but not defined herein shall have
the meanings defined for those terms in the Credit Agreement
described below.
RECITALS
A. Aliante
Gaming, LLC, a Nevada limited liability company ("
Borrower ") is a joint
venture of Station and certain Affiliates of GC Investments.
Pursuant to the Credit Agreement described below, the Lenders have
agreed to extend certain credit facilities to Borrower, the
proceeds of which shall be used, inter
alia , to construct the Aliante Station
Hotel and Casino in North Las Vegas, Nevada.
B. The
obligations of GC Investments hereunder are secured by a
pledge of $35,000,000 of cash or marketable securities acceptable
to the Administrative Agent pursuant to the Greenspun Pledge
Agreement. As of the date hereof, the obligations of Station
hereunder are unsecured.
C. This
Completion Guaranty is the "Completion Guaranty" referred to in the
Credit Agreement and is one of the "Loan Documents" described in
the Credit Agreement.
AGREEMENT
NOW, THEREFORE,
in order to induce the Lenders to extend the credit facilities to
Borrower under the Credit Agreement, and for other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Completion Guarantors hereby jointly and
severally agree as follows:
1.
Definitions.
"
Beneficiaries " means
collectively, the Administrative Agent, the Lenders, the Issuing
Lender, the Swing Line Lender, the Bank Products Banks and the
Hedge Banks. Each right, remedy, privilege or power of the
Beneficiaries shall be exercised solely by the Administrative Agent
on behalf of the Beneficiaries.
"
CG Event of Default "
means the occurrence of any of the following events:
-
(a) the
Completion Guarantors fail to make any payment required of them
hereunder on the date when such payment is due; or
(b) the
Completion Guarantors fail to perform any of their non-monetary
obligations under this Completion Guaranty within five Business
Days of written demand by the Administrative Agent; or
(c) either
Completion Guarantor revokes this Completion Guaranty or disputes
the validity hereof or this Completion Guaranty becomes ineffective
for any reason; or
(d) any
representation or warranty made or given by either Completion
Guarantor in any Loan Document proves to be false or misleading in
any material respect; or
(e) the
occurrence of any of the events described in Section 9.1(m) or
Section 9.1(n) of the Credit Agreement; or
1
"
Completion Guaranty Collateral
" means the $35,000,000 of cash or marketable
securities acceptable to the Administrative Agent pledged by
GC Investments or another Affiliate of the Greenspun
Corporation which is reasonably acceptable to the Administrative
Agent pursuant to the Greenspun Pledge Agreement.
"
Insolvency Proceeding "
means any case or proceeding, voluntary or involuntary, under any
Debtor Relief Law or any similar existing or future law of any
jurisdiction, state or federal, relating to bankruptcy, insolvency
reorganization or relief of debtors.
"
NRS " means the Nevada
Revised Statutes.
2.
Completion Guaranty and
Agreement.
-
(a) Completion
Guarantors hereby, jointly and severally, irrevocably and
unconditionally guarantee and agree that:
-
(i) at
all times prior to the Completion Date, the In-Balance Test will
continue to be satisfied; and
(ii) the
aggregate Project Costs shall not exceed $618,000,000 exclusive of
land acquisition costs and financing costs (or, $670,000,000
exclusive of such costs, but only to the extent that any such
increases to the Budget (A) have been financed by the making
of additional Cash Equity Contributions to the Borrower and
(B) have been made in a manner which complies with the Credit
Agreement).
In the event that the Administrative Agent
determines that either of the circumstances set forth in
Section 2(a)(i) or 2(a)(ii) has occurred and remains
continuing, then the Completion Guarantors (A) shall cause the
Borrower to continue to construct the Project, and (B) shall
make contributions of Cash Equity into the Operating Account in the
amount required for the payment of all Project Costs as
incurred, provided that:
-
(i) the
Completion Guarantors shall not be obligated to make any payments
hereunder sooner than five Business Days following written request
by the Administrative Agent; and
(ii) the
amount so contributed shall be equal to the greater of (1) the amount by
which the Remaining Costs exceed the Available Funds from time to
time, and (2) the amount by which the Aggregate Project Costs
exceed $618,000,000 (exclusive of land acquisition costs and
financing costs) from time to time (or, $670,000,000 exclusive of
such costs, but only to the extent that any such increases to the
Budget (A) have been financed by the making of additional Cash
Equity Contributions to the Borrower and (B) have been made in
a manner which complies with the Credit Agreement, but in each case
less any amounts previously funded hereunder).
The Completion Guarantors acknowledge that each
of the conditions set forth in Sections 2(a)(i) and 2(a)(ii)
are susceptible of repetition, and that their funding obligations
hereunder may re-occur as a result of such repetition.
(b) Subject
to the agreement of the Lenders set forth in Section 2(e),
Completion Guarantors shall in any event cause Borrower to perform
and comply with all provisions and conditions of the Credit
Agreement relating to (i) the construction of the Project and
the occurrence of the Opening Date and Completion Date within the
time and in the manner set forth in Construction Plans and the
Timetable, (ii) the payment of all costs and expenses thereof,
(iii) the payment, satisfaction or discharge of all Liens
(other than Permitted Liens) that are or may be imposed upon or
asserted against Borrower, the Project or the Site in connection
with the construction of the Project, and (iv) the defense and
indemnification of the Beneficiaries against all such Liens (other
than
2
Permitted Liens), whether arising from the
furnishing of labor, materials, supplies or equipment, from taxes,
assessments, fees or other charges, from injuries or damage to
Persons or property, or otherwise in connection with the
construction of the Project. Without limiting the generality of the
foregoing, Completion Guarantors jointly and severally agree
(A) to cause any and all costs of constructing and completing
the Project and causing the Opening Date and Completion Date to
occur in accordance with the terms of the Credit Agreement,
including, without limitation, the costs of all labor, materials,
supplies and equipment related thereto, to be paid and satisfied as
the same shall become due, subject to Completion Guarantors' right
to remove any Liens arising therefrom by securing bond(s) therefor,
(B) to cause the net amount of cost overruns to be directly or
indirectly funded, paid and satisfied from Completion Guarantors'
own resources, (C) directly or indirectly to cause the
completion of the Project in a timely, good, workmanlike and
Lien-free manner (except for Permitted Liens), in accordance in all
material respects with the terms of the Construction Plans, the
Budget and the Timetable and (D) to cause all pre-operating
and carrying costs of the Project, including, without limitation
the payment of taxes, assessments, utilities, insurance and
maintenance expenses, to be funded, paid and satisfied as the same
shall become due throughout the term of this Completion
Guaranty;
(c) subject
to a delay of not more than 90 days to the extent caused by
any one or more Force Majeure Events, the Opening Date shall occur
on or prior to March 31, 2009; and
(d) the
Completion Date shall occur within 180 days following the
Opening Date.
(e) The
Lenders hereby agree for the benefit of the Borrower that, subject
to the terms of the Credit Agreement, following the making of any
payments required by Section 2(a)above they shall thereafter
recommence the making of credit extensions under the Credit
Agreement to finance the construction of the Project. As it affects
the obligations of the Completion Guarantors hereunder, the Lenders
shall be conclusively presumed to have fully performed their
obligations under this clause (e) unless the Administrative
Agent shall have received thirty days prior written notice from the
Completion Guarantors of any circumstances which the Completion
Guarantors believe violate the obligations of the Lenders under
this clause (e), and the Lenders shall have failed, during
that period, to effectuate a cure by funding Project
Costs.
(f) The
Completion Guarantors acknowledge and agree that (i) all
amounts deposited into the Operating Account as Cash Equity shall
be expended for Project Costs and (ii) if the Completion
Guarantors fail to make any payment or to perform any covenant set
forth in this Completion Guaranty on or prior to the required date,
the Administrative Agent shall be entitled to apply any collateral,
including, without limitation, the Completion Guaranty Collateral,
held by the Administrative Agent to make such payment or perform
such covenant.
3.
Payment Provisions in the
Event of Bankruptcy. In the event that the Borrower becomes
subject to an Insolvency Proceeding prior to the Final Completion
Date, then the obligations of the Completion Guarantors hereunder
shall remain effective in respect of the construction of the
Project by any subsequent owner of the Project (whether the
Administrative Agent or another designee of the Lenders, a Person
purchasing the Project in a sale under Section 363 of the
United States Bankruptcy Code, or otherwise), and the Completion
Guarantors shall make the payments required hereunder in respect of
the construction of the Project, provided that either (a) the
Lenders shall provide funds in an amount which is equal to the
unfunded Commitments under the Credit Agreement (minus the
$10,000,000 portion of the Operating Reserve) for the construction
of the Project, or (b) the purchaser
3
or other owner of the Project shall provide
replacement capital for the construction of the Project in an
amount equal to such unfunded Commitments.
4.
Procedures for
Completion.
-
(a) In
the event that Borrower fails to (i) perform all of its
Obligations under the Credit Agreement relating to construction of
the Project or (ii) cause the Opening Date or Completion Date
to occur by the dates set forth in Section 2 (collectively,
the " Construction Obligations
"), then in any such event or at any time
thereafter, the Administrative Agent may give written notice to
Completion Guarantors of the occurrence of such event ("
Notice of Default ").
(b) Within
five days after the date on which the Administrative Agent gives
any Notice of Default to the Completion Guarantors, if and to the
extent that Borrower continues to fail to perform its Construction
Obligations, Completion Guarantors shall, at the Completion
Guarantors sole cost:
-
(i) commence
to complete the construction of the Project and do all things
reasonably required to cause the Opening Date and Completion Date
to occur promptly;
(ii) diligently
prosecute the construction of the Project to completion within the
time and in the manner specified in the Construction Plans and
Timetable and free of Liens (other than Permitted Liens) and
diligently cause the Opening Date and Completion Date to occur;
and
(iii) defend,
indemnify and hold each Beneficiary harmless from all losses,
costs, liabilities and expenses, including reasonable attorneys'
fees, incurred in connection with such completion of the Project
and such occurrence of the Opening Date and Completion Date, in
each case other than arising as a result of the gross negligence or
willful misconduct of such Beneficiary.
If and to the extent that, at any time following
the giving of any Notice of Default, the Completion Guarantors
remedy the failures of Borrower to comply with the Construction
Obligations in a manner which is acceptable to the Administrative
Agent in the exercise of its discretion (including without
limitation the funding of any construction over-runs from other
sources), and provided that no Default or Event of Default then
exists (other than (i) Defaults or Events of Default which
arise solely from the failure of Borrower to timely construct the
Project or to construct it in accordance with the Construction
Plans and Budget and which, in the determination of the
Administrative Agent, have been cured to the extent which is
commercially practicable), (ii) Events of Default arising
solely from the failure of Borrower to comply with any financial
covenant set forth in the Credit Agreement for any past compliance
period, provided that Borrower is in compliance with such financial
covenant and with all other financial covenants set forth in the
Credit Agreement for the then current compliance period, or
(iii) other Defaults or Events of Default to the extent that
the circumstances giving rise thereto have been cured or otherwise
addressed to the satisfaction of the Administrative Agent in its
sole and unfettered discretion), then, subject to the terms and
conditions of the Credit Agreement, the Administrative Agent and
the Lenders shall continue to make Loans and Letters of Credit
available to the Borrower for the completion of the Project (or, in
the event that the Completion Guarantors have assumed
responsibility for the construction of the Project in writing in a
manner which is reasonably acceptable to the Administrative Agent
and the Required Lenders, the Lenders s
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