Issuing and Paying Agency Agreement - Circus Circus Enterprises Inc. and The Chase Manhattan Bank
ISSUING AND PAYING AGENCY AGREEMENT
This Agreement, dated as of October 9, 1997, by and
between Circus Circus Enterprises, Inc. (the Issuer ) and The
Chase Manhattan Bank ( Chase ), amends and restates in its
entirety the existing agreement relating to Chase s services as
issuing and paying agent with respect to the Issuer s commercial
paper program.
1. APPOINTMENT AND ACCEPTANCE
The Issuer hereby appoints Chase as its issuing
and paying agent in connection with the issuance and payment of
certain short-term promissory notes of the Issuer (the Notes ),
as further described herein, and Chase agrees to act as such
agent upon the terms and conditions contained in this Agreement.
2. COMMERCIAL PAPER PROGRAMS
The Issuer may establish one or more commercial
paper programs under this Agreement by delivering to Chase a
completed program schedule (the Program Schedule ), with respect
to each such program. Chase has given the Issuer a copy of the
current form of Program Schedule and the Issuer has completed and
returned its first Program Schedule to Chase prior to or
simultaneously with the execution of this Agreement. In the
event that any of the information provided in, or attached to, a
Program Schedule shall change, the Issuer shall promptly inform
Chase of such change in writing.
3. NOTES
All Notes issued by the Issuer under this
Agreement shall be short-term promissory notes, exempt from the
registration requirements of the Securities Act of 1933, as
amended, as indicated on the Program Schedules, and from
applicable state securities laws. The Notes may be placed by
dealers (the Dealers ) pursuant to Section 4 hereof. Notes
shall be issued in either certificated or book-entry form.
4. AUTHORIZED REPRESENTATIVES
The Issuer shall deliver to Chase a duly adopted
corporate resolution from the Issuer s Board of Directors
authorizing the issuance of Notes under each program established
pursuant to this Agreement and a certificate of incumbency, with
specimen signatures attached, of those officers, employees and
agents of the Issuer authorized to take certain actions with
respect to the Notes as provided in this Agreement (each such
person is hereinafter referred to as an Authorized
Representative ). Until Chase receives any subsequent incumbency
certificates of the Issuer, Chase shall be entitled to rely on
the last incumbency certificate delivered to it for the purpose
of determining the Authorized Representatives. The Issuer
represents and warrants that each Authorized Representative may
appoint other officers, employees and agents of the Issuer (the
Delegates ), including without limitation any Dealers, to issue
instructions to Chase under this Agreement, and take other
actions on the Issuer s behalf hereunder, provided that notice of
the appointment of each Delegate is delivered to Chase in
writing. Each such appointment shall remain in effect unless and
until revoked by the Issuer in a written notice to Chase.
5. CERTIFICATED NOTES
If and when the Issuer intends to issue
certificated notes ( Certificated Notes ), the Issuer and Chase
shall agree upon the form of such Notes. Thereafter, the Issuer
shall from time to time deliver to Chase adequate supplies of
Certificated Notes which will be in bearer form, serially
numbered, and shall be executed by the manual or facsimile
signature of an Authorized Representative. Chase will
acknowledge receipt of any supply of Certificated Notes received
from the Issuer, noting any exceptions to the shipping manifest
or transmittal letter (if any), and will hold the Certificated
Notes in safekeeping for the Issuer in accordance with Chase s
customary practices. Chase shall not have any liability to the
Issuer to determine by whom or by what means a facsimile
signature may have been affixed on Certificated Notes, or to
determine whether any facsimile or manual signature is genuine,
if such facsimile or manual signature resembles the specimen
signature attached to the Issuer s certificate of incumbency with
respect to such Authorized Representative. Any Certificated Note
bearing the manual or facsimile signature of a person who is an
Authorized Representative on the date such signature was affixed
shall bind the Issuer after completion thereof by Chase,
notwithstanding that such person shall have ceased to hold his or
her office on the date such Note is countersigned or delivered by
Chase.
6. BOOK-ENTRY NOTES
The Issuer s book-entry notes ( Book-Entry Notes )
shall not be issued in physical form, but their aggregate face
amount shall be represented by a master note (the Master Note )
in the form of Exhibit A executed by the Issuer pursuant to the
book-entry commercial paper program of The Depository Trust
Company ( DTC ). Chase shall maintain the Master Note in
safekeeping, in accordance with its customary practices, on
behalf of Cede & Co., the registered owner thereof and nominee of
DTC. As long as Cede & Co. is the registered owner of the Master
Note, the beneficial ownership interest therein shall be shown
on, and the transfer of ownership thereof shall be effected
through, entries on the books maintained by DTC and the books of
its direct and indirect participants. The Master Note and the
Book-Entry Notes shall be subject to DTC s rules and procedures,
as amended from time to time. Chase shall not be liable or
responsible for sending transaction statements of any kind to
DTC s participants or the beneficial owners of the Book-Entry
Notes, or for maintaining, supervising or reviewing the records
of DTC or its participants with respect to such Notes. In
connection with DTC s program, the Issuer understands that as one
of the conditions of its participation therein, it shall be
necessary for the Issuer and Chase to enter into a Letter of
Representations, in the form of Exhibit B hereto, and for DTC to
receive and accept such Letter of Representations. In accordance
with DTC s program, Chase shall obtain from the CUSIP Service
Bureau a written list of CUSIP numbers for Issuer s Book-Entry
Notes, and Chase shall deliver such list to DTC. The CUSIP
Service Bureau shall bill the Issuer directly for the fee or fees
payable for the list of CUSIP numbers for the Issuer s Book-Entry
Notes.
7. ISSUANCE INSTRUCTIONS TO CHASE; PURCHASE PAYMENTS
The Issuer understands that all instructions under
this Agreement are to be directed to Chase s Commercial Paper
Operations Department. Chase shall provide the Issuer, or, if
applicable, the Issuer s Dealers, with access to Chase s Money
Market Issuance System or other electronic means (collectively,
the System ) in order that Chase may receive electronic
instructions for the issuance of Notes. Electronic instructions
will be subject to a separate license agreement issued by Chase
in the event that the Issuer elects to use Chase s communications
software to access the System. Electronic instructions must be
transmitted in accordance with the procedures furnished by Chase
to the Issuer or its Dealers in connection with the System.
These transmissions shall be the equivalent to the giving of a
duly authorized written and signed instruction which Chase may
act upon without liability. In the event that the System is
inoperable at any time, an Authorized Representative or a
Delegate may deliver written, telephone or facsimile instructions
to Chase, which instructions shall be verified in accordance with
any security procedures agreed upon by the parties. Chase shall
incur no liability to the Issuer in acting upon instructions
believed by Chase in good faith to have been given by an
Authorized Representative or a Delegate. In the event that a
discrepancy exists between a telephonic instruction and a written
confirmation, the telephonic instruction will be deemed the
controlling and proper instruction. Chase may electronically
record any conversations made pursuant to this Agreement, and the
Issuer hereby consents to such recordings. All issuance
instructions regarding the Notes must be received by 1:00 P.M.
New York time in order for the Notes to be issued or delivered on
the same day.
(a) Issuance and Purchase of Book-Entry Notes.
Upon receipt of issuance instructions from the Issuer or its
Dealers with respect to Book-Entry Notes, Chase shall transmit
such instructions to DTC and direct DTC to cause appropriate
entries of the Book-Entry Notes to be made in accordance with
DTC s applicable rules, regulations and procedures for book-entry
commercial paper programs. Chase shall assign CUSIP numbers to
the Issuer s Book-Entry Notes to identify the Issuer s aggregate
principal amount of outstanding Book-Entry Notes in DTC s system,
together with the aggregate unpaid interest (if any) on such
Notes. Promptly following DTC s established settlement time on
each issuance date, Chase shall access DTC s system to verify
whether settlement has occurred with respect to the Issuer s
Book-Entry Notes. Prior to the close of business on such
business day, Chase shall deposit immediately available funds in
the amount of the proceeds due the Issuer (if any) to the
Issuer s account at Chase and designated in the applicable
Program Schedule (the Account ), provided, that Chase has
received DTC s confirmation that the Book-Entry Notes have
settled in accordance with DTC s applicable rules, regulations
and procedures. Chase shall have no liability to the Issuer
whatsoever if any DTC participant purchasing a Book-Entry Note
fails to settle or delays in settling its balance with DTC or if
DTC fails to perform in any respect.
(b) Issuance and Purchase of Certificated Notes.
Upon receipt of issuance instructions with respect to
Certificated Notes, Chase shall: (a) complete each Certificated
Note as to principal amount, date of issue, maturity date, place
of payment, and rate or amount of interest (if such Note is
interest bearing) in accordance with such instructions; (b)
countersign each Certificated Note; and (c) deliver each
Certificated Note in accordance with the Issuer s instructions,
except as otherwise set forth below. Whenever Chase is
instructed to deliver any Certificated Note by mail, Chase shall
strike from the Certificated Note the word ~Bearer," insert as
payee the name of the person so designated by the Issuer and
effect delivery by mail to such payee or to such other person as
is specified in such instructions to receive the Certificated
Note. The issuer understands that, in accordance with the custom
prevailing in the commercial paper market, delivery of
Certificated Notes shall be made before the actual receipt of
payment for such Notes in immediately available funds, even if
the Issuer instructs Chase to deliver a Certificated Note against
payment. Therefore, once Chase has delivered a Certificated Note
to the designated recipient, the Issuer shall bear the risk that
such recipient may fail to remit payment of such Note or return
such Note to Chase. Delivery of Certificated Notes shall be
subject to the rules of the New York Clearing House in effect at
the time of such delivery. Funds received in payment of
Certificated Notes shall be credited to the Account.
8. USE OF SALES PROCEEDS IN ADVANCE OF PAYMENT
Chase shall not be obligated to credit the
Issuer s Account unless and until payment of the purchase price
of each Note is received by Chase. From time to time, Chase, in
its sole discretion, may permit the Issuer to have use of funds
payable with respect to a Note prior to Chase s receipt of the
sales proceeds of such Note. If Chase makes a deposit, payment
or transfer of funds on behalf of the Issuer before Chase
receives payment for any Note, such deposit, payment or transfer
of funds shall represent an advance by Chase to the Issuer to be
repaid promptly, and in any event on the same day as it is made,
from the proceeds of the sale of such Note, or by the Issuer if
such proceeds are not received by Chase.
9. PAYMENT OF MATURED NOTES
On any day when a Note matures or is prepaid, the
Issuer shall transmit, or cause to be transmitted, to the
Account, prior to 2:30 P.M. New York time on the same day, an
amount of immediately available funds sufficient to pay the
aggregate principal amount of such Note and any applicable
interest due. Chase shall pay the interest (if any) and
principal on a Book-Entry Note to DTC in immediately available
funds, which payment shall be by net settlement of Chase s
account at DTC. Chase shall pay Certificated Notes upon
presentment. Chase shall have no obligation under the Agreement
to make any payment for which there is not sufficient, available
and collected funds in the Account, and Chase may, without
liability to the Issuer, refuse to pay any Note that would result
in an overdraft to the Account.
10. OVERDRAFTS
(a) Intraday overdrafts with respect to each
Account shall be subject to Chase s policies as in effect from
time to time.
(b) An overdraft will exist in an Account if
Chase, in its sole discretion, (i) permits an advance to be made
pursuant to Section 8 and, notwithstanding the provisions of
Section 8, such advance is not repaid in full on the same day as
it is made, or (ii) pays a Note pursuant to Section 9 in excess
of the available collected balance in such Account. Overdrafts
shall be subject to Chase s established banking practices,
including, without limitation, the imposition of interest, funds
usage charges and administrative fees. The Issuer shall repay
any such overdraft, fees and charges no later than the next
business day, together with interest on the overdraft at the rate
established by Chase for the Account, computed from and including
the date of the overdraft to the date of repayment.
11. NO PRIOR COURSE OF DEALING
No prior action or course of dealing on the part
of Chase with respect to advances of the purchase price or
payments of matured Notes shall give rise to any claim or cause
of action by the Issuer against Chase in the event that Chase
refuses to pay or settle any Notes for which the Issuer has not
timely provided funds as required by this Agreement.
12. RETURN OF CERTIFICATED NOTES
Chase will in due course cancel any Certificated
Note presented for payment and return such Note to the Issuer.
Chase shall also cancel and return to the Issuer any spoiled or
voided Certificated Notes. Promptly upon written request of the
Issuer or at the termination of this Agreement, Chase shall
destroy all blank, unissued Certificated Notes in its possession
and furnish a certificate to the Issuer certifying such actions.
13. INFORMATION FURNISHED BY CHASE
Upon the reasonable request of the Issuer, Chase
shall promptly provide the Issuer with information with respect
to any Note issued and paid hereunder, provided, that the Issuer
delivers such request in writing and, to the extent applicable,
includes the serial number or note number, principal amount,
payee, date of issue, maturity date, amount of interest (if any)
and place of payment of such Note.
14. REPRESENTATIONS AND WARRANTIES
The Issuer represents and warrants that: (i) it
has the right, capacity and authority to enter into this
Agreement; and (ii) it will comply with all of its obligations
and duties under this Agreement. The Issuer further represents
and agrees that each Note issued and distributed upon its
instruction pursuant to this Agreement shall constitute the
Issuer s representation and warranty to Chase that such Note is a
legal, valid and binding obligation of the Issuer, and that such
Note is being issued in a transaction which is exempt from
registration under the Securities Act of 1933, as amended, and
any applicable state securities law.
15. DISCLAIMERS
Neither Chase nor its directors, officers,
employees or agents shall be liable for any act or omission under
this Agreement except in the case of gross negligence or willful
misconduct. IN NO EVENT SHALL CHASE BE LIABLE FOR SPECIAL,
INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND WHATSOEVER
(INCLUDING BUT NOT LIMITED TO LOST PROFITS), EVEN IF CHASE HAS
BEEN ADVISED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE AND
REGARDLESS OF THE FORM OF ACTION. In no event shall Chase be
considered negligent in consequence of complying with DTC s
rules, regulations and procedures. The duties and obligations of
Chase, its directors, officers, employees or agents shall be
determined by the express provisions of this Agreement and they
shall not be liable except for the performance of such duties and
obligations as are specifically set forth herein and no implied
covenants shall be read into this Agreement against them.
Neither Chase nor its directors, officers, employees or agents
shall be required to ascertain whether any issuance or sale of
any Notes (or any amendment or termination of this Agreement) has
been duly authorized or is in compliance with any other agreement
to which the Issuer is a party (whether or not Chase is also a
party to such agreement).
16. INDEMNIFICATION
The Issuer agrees to indemnify and hold harmless
Chase, its directors, officers, employees and agents from and
against any and all liabilities, claims, losses, damages,
penalties, costs and expenses (including attorneys fees and
disbursements) suffered or incurred by or asserted or assessed
against Chase or any of them arising out of Chase or any of them
acting as the Issuer s agent under this Agreement, except for
such liability, claim, loss, damage, penalty, cost or expense
resulting from the gross negligence or willful misconduct of
Chase, its directors, officers, employees or agents. This
indemnity will survive the termination of this Agreement.
17. OPINION OF COUNSEL
The Issuer shall deliver to Chase all documents it
may reasonably request relating to the existence of the Issuer
and authority of the Issuer for this Agreement, including,
without limitation, an opinion of counsel satisfactory to Chase.
18. NOTICES
All notices, confirmations and other
communications hereunder shall (except to the extent otherwise
expressly provided) be in writing and shall be sent by first-
class mail, postage prepaid, by telecopier or by hand, addressed
as follows, or to such other address as the party receiving such
notice shall have previously specified to the party sending such
notice:
If to the Issuer: Circus Circus Enterprises, Inc.
2880 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: Glenn W. Schaeffer
Telephone: 702-691-5912
Facsimile: 702-691-5840
If to Chase concerning the daily issuance and
redemption of Notes:
Attention: Commercial Paper Operations
55 Water Street, 2nd Floor
New York NY 10041 -2413
Telephone: (212) 638-0441
Facsimile: (212) 638-7881
All other: Attention: Commercial Paper Service
Delivery Unit
450 West 33rd Street, 15th Floor
New York NY 10001-2697
Telephone: (212) 946-3108
Facsimile: (212) 946-8181
19. COMPENSATION
The Issuer shall pay compensation for services
pursuant to this Agreement in accordance with the pricing
schedules furnished by Chase to the Issuer from time to time and
upon such payment terms as the parties shall determine. The
Issuer shall also reimburse Chase for any fees and charges
imposed by DTC with respect to services provided in connection
with the Book-Entry Notes.
20. BENEFIT OF AGREEMENT
This Agreement is solely for the benefit of the
parties hereto and no other person shall acquire or have any
right under or by virtue hereof.
21. TERMINATION
This Agreement may be terminated at any time by
either party by written notice to the other, but such termination
shall not affect the respective liabilities of the parties
hereunder arising prior to such termination.
22. FORCE MAJEURE
In no event shall Chase be liable for any failure
or delay in the performance of its obligations hereunder because
of circumstances beyond Chase s control, including, but not
limited to, acts of God, flood, war (whether declared or
undeclared), terrorism, fire, riot, strikes or work stoppages for
any reason, embargo, government action, including any laws,
ordinances, regulations or the like which restrict or prohibit
the providing of the services contemplated by this Agreement,
inability to obtain material, equipment, or communications or
computer facilities, or the failure of equipment or interruption
of communications or computer facilities, and other causes beyond
Chase s control whether or not of the same class or kind as
specifically named above.
23. ENTIRE AGREEMENT
This Agreement, together with the exhibits
attached hereto, constitutes the entire agreement between Chase
and the Issuer with respect to the subject matter hereof and
supersedes in all respects all prior proposals, negotiations,
communications, discussions and agreements between the parties
concerning the subject matter of this Agreement.
24. WAIVERS AND AMENDMENTS
No failure or delay on the part of any party in
exercising any power or right under this Agreement shall operate
as a waiver, nor does any single or partial exercise of any power
or right preclude any other or further exercise, or the exercise
of any other power or right. Any such waiver shall be effective
only in the specific instance and for the purpose for which it is
given. No amendment, modification or waiver of any provision of
this Agreement shall be effective unless the same shall be in
writing and signed by the Issuer and Chase.
25. BUSINESS DAY
Whenever any payment to be made hereunder shall be
due on a day which is not a business day for Chase, then such
payment shall be made on Chase s next succeeding business day.
26. COUNTERPARTS
This Agreement may be executed in counterparts,
each of which shall be deemed an original and such counterparts
together shall constitute but one instrument.
27. HEADINGS
The headings in this Agreement are for purposes of
reference only and shall not in any way limit or otherwise affect
the meaning or interpretation of any of the terms of this
Agreement.
28. GOVERNING LAW
This Agreement and the Notes shall be governed by
and construed in accordance with the internal laws of the State
of New York, without regard to the conflict of laws provisions
thereof.
29. JURISDICTION AND VENUE
Each party hereby irrevocably and unconditionally
submits to the jurisdiction of the United States District Court
for the Southern District of New York and any New York State
court located in the Borough of Manhattan in New York City and of
any appellate court from any thereof for the purposes of any
legal suit, action or proceeding arising out of or relating to
this Agreement (a Proceeding ). Each party hereby irrevocably
agrees that all claims in respect of any Proceeding may be heard
and determined in such Federal or New York State court and
irrevocably waives, to the fullest extent it may effectively do
so, any objection it may now or hereafter have to the laying of
venue of any Proceeding in any of the aforementioned courts and
the defense of an inconvenient forum to the maintenance of any
Proceeding.
30. WAIVER OF TRIAL BY JURY
EACH PARTY HEREBY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO ANY OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
31. ACCOUNT CONDITIONS
Each Account shall be subject to Chase s account
conditions, as in effect from time to time.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on their behalf by duly authorized
officers as of the day and year first-above written.
THE CHASE MANHATTAN BANK CIRCUS CIRCUS ENTERPRISES, INC.
By: /s/ Lloyd A. Baggs By: /s/ Glenn W. Schaeffer
Name: Lloyd A. Baggs Name: Glenn W. Schaeffer
Title: Vice President Title: President and Chief
Financial Officer
Date: October 9, 1997 Date: October 9, 1997