EXHIBIT 10.51
PLEDGE AGREEMENT
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This PLEDGE AGREEMENT ("Agreement"), dated as of September 24, 1999,
is made by COAST RESORTS, INC., a Nevada corporation, as Grantor, in favor of
and for the benefit of BANK OF AMERICA, N.A., as Administrative Agent under the
Amended and Restated Loan Agreement hereafter referred to, and in favor of each
of the Lenders therein named, collectively as Secured Party, with reference to
the following facts:
RECITALS
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A. Pursuant to the Amended and Restated Loan Agreement dated as of
September 9, 1999 among Coast Hotels and Casinos, Inc., a Nevada corporation
("Borrower"), the lenders from time to time a party thereto (collectively, the
"Lenders" and individually, a "Lender") and Bank of America, N.A., as
Administrative Agent (as such agreement may from time to time be extended,
modified, renewed, restated, supplemented or amended, the "Loan Agreement"), the
Lenders have agreed to extend certain credit facilities to Borrower.
B. The Loan Agreement requires Grantor to enter into this Agreement,
and to pledge certain Pledged Collateral to Secured Party, all under the terms
and conditions set forth in this Agreement.
C. Grantor expects to realize direct and indirect benefits as a
result of the availability of the aforementioned credit facilities.
AGREEMENT
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NOW, THEREFORE, in order to induce the Lenders to extend credit
facilities to Borrower under the Loan Agreement, and for other good and valuable
consideration, the receipt and adequacy of which hereby are acknowledged,
Grantor hereby represents, warrants, covenants, agrees, and pledges as follows:
1. Definitions. This Agreement is the Coast Resorts Pledge Agreement
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referred to in the Loan Agreement. Terms defined in the Loan Agreement and not
otherwise defined in this Agreement shall have the meanings given those terms in
the Loan Agreement as though set forth herein in full. The following terms shall
have the meanings respectively set forth after each:
"Agreement" means this Pledge Agreement, and any extensions,
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modifications, renewals, restatements, supplements or amendments hereof.
"Certificates" means all certificates, instruments or other documents
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now or
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hereafter representing or evidencing any Pledged Securities.
"Pledged Collateral" means the Pledged Securities, any Certificates
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representing or evidencing the same, any and all proceeds and products of
any of the foregoing, and any and all collections, dividends,
distributions, redemption payments, liquidation payments, interest or
premiums with respect to any of the foregoing (other than any dividends and
distributions which are Distributions made by Borrower in accordance with
the Loan Agreement).
"Pledged Securities" means (i) 100% of the shares of the issued and
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outstanding capital stock of Borrower, (ii) any and all securities now or
hereafter issued in substitution, exchange or replacement therefor, or with
respect thereto, and (iii) any and all warrants, options or other rights to
subscribe to or acquire any additional capital stock of Borrower.
"Secured Party" means the Administrative Agent (acting as the
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Administrative Agent and/or on behalf of the Lenders), and the Lenders, and
each of them, and any one or more of them. Subject to the terms hereof and
of the Loan Agreement, any right, remedy, privilege or power of Secured
Party may be exercised by the Administrative Agent, or by the Requisite
Lenders, or by any Lender acting with the consent of the Requisite Lenders.
2. Incorporation of Representations, Warranties, Covenants and Other
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Provisions of Loan Documents. This Agreement is one of the Loan Documents
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referred to in the Loan Agreement. All representations, warranties, affirmative
and negative covenants and other provisions contained in any Loan Document that
are applicable to Loan Documents generally are fully applicable to this
Agreement and are incorporated herein by this reference as though set forth in
full. Grantor further represents and warrants that, other than as permitted
under the Loan Agreement, Grantor has full title to the Pledged Collateral, free
and clear of any Lien, security interest, encumbrance or claim.
3. Creation of Security Interest.
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3.1 Pledge of Pledged Collateral. Grantor hereby pledges to
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Administrative Agent on behalf of Secured Party and grants to Administrative
Agent on behalf of Secured Party a security interest in and to all Pledged
Collateral for the benefit of Secured Party as security for the Obligations
specified in Section 4 below, together with all products, proceeds, dividends,
redemption payments, liquidation payments, instruments and other Property, and
any and all rights, titles, interests, privileges, benefits and preferences
appertaining or incidental to the Pledged Collateral. Grantor represents and
warrants that the security interests and pledge granted herein are in material
compliance with all applicable Laws, including without limitation all Gaming
Laws, and that any non-compliance with such Laws does not affect the Liens
granted hereby. The security interest and pledge created by this Section 3.1
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shall continue in effect so long as any Obligation is owed to Secured Party or
any commitment to extend credit to Borrower remains outstanding from Secured
Party.
3.2 Delivery of Certain Pledged Collateral. Pursuant to the Escrow
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Agreement, Grantor has heretofore delivered the Certificates evidencing 100% of
the capital stock of the Borrower to Secured Party to be held by the
Administrative Agent in the State of Nevada. Subject to compliance with Gaming
Laws, additional Pledged Collateral may from time to time be delivered to
Administrative Agent for the benefit of Secured Party by agreement between
Secured Party and Grantor. All Certificates at any time delivered to
Administrative Agent for the benefit of Secured Party shall be in suitable form
for transfer by delivery, or shall be accompanied by duly executed instruments
of transfer or assignment in blank, all in form and substance satisfactory to
Secured Party. Administrative Agent shall hold all Certificates pledged
hereunder pursuant to this Agreement unless and until released in accordance
with Section 3.3 of this Agreement.
3.3 Release of Pledged Collateral. Pledged Collateral that is
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required to be released from the pledge and security interest created by this
Agreement in order to permit Grantor to consummate any disposition of stock or
assets, merger, consolidation, amalgamation, acquisition, or dividend payment or
distribution that Grantor is entitled to consummate pursuant to the Loan
Documents, if any, shall be so released by Administrative Agent at such times
and to the extent necessary to permit Grantor to consummate such permitted
transactions promptly following the Administrative Agent's receipt of written
request therefor by Grantor specifying the purpose for which release is
requested and such further certificates or other documents as Administrative
Agent on behalf of Secured Party reasonably shall request in its discretion to
confirm that Grantor is permitted to consummate such permitted transaction and
to confirm Secured Party's replacement lien on appropriate collateral. Any
request for any permitted release shall be transmitted to Administrative Agent
on behalf of Secured Party. Subject to compliance with Gaming Laws,
Administrative Agent, at the expense of Grantor, promptly shall redeliver all
Certificates and shall execute and deliver to Grantor all documents requested by
Grantor that are reasonably necessary to release Pledged Collateral of record
whenever Grantor shall be entitled to the release thereof in accordance with
this Section 3.3.
4. Security for Obligations. This Agreement and the pledge and security
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interests granted herein secure the prompt payment, in full in cash, and full
performance of, all Obligations of Grantor, whether now existing or hereafter
arising under the Guaranty, this Agreement and the Loan Documents, and all
interest that accrues on all or any part of any of the obligations of Grantor
after the filing of any petition or pleading against Grantor or any other Person
for a proceeding under any Debtor Relief Law.
5. Subordinate Lien. Notwithstanding anything to the contrary contained
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in this Agreement, Administrative Agent shall hold all Pledged Securities
delivered to Administrative Agent hereunder for the benefit of Secured Party and
for the benefit of the
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Trustee for the 13% Indenture, with the understanding that the security
interests of Secured Party created hereunder shall be of second priority,
subject only to the Lien of the Trustee for the benefit of the holders of the
Notes under the 13% Indenture (to the extent such Indebtedness is permitted
under the Loan Agreement) as further provided in that certain Escrow Agreement
dated as of January 30, 1996 among Grantor, American Bank National Association,
as Trustee under the Indenture referred to in such agreement, and Bank of
America Nevada, as such agreement is amended by that certain Amendment to Escrow
Agreement dated as of March 18, 1999.
6. Further Assurances.
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6.1 Subject to compliance with applicable Gaming Laws, Grantor agrees
that at any time, and from time to time, at its own expense Grantor will
promptly execute, deliver and file or record all further financing statements,
instruments and documents, and will take all further actions, including, without
limitation, causing the Subsidiaries whose capital stock or other securities are
pledged hereunder to so execute, deliver, file or take other actions, that may
be necessary or desirable, or that Secured Party reasonably may request, in
order to perfect and protect any pledge or security interest granted hereby or
to enable Secured Party to exercise and enforce its rights and remedies
hereunder with respect to any Pledged Collateral and to preserve, protect and
maintain the Pledged Collateral, including, without limitation, payment of all
taxes, assessments and other charges imposed on or relating to the Pledged
Collateral, provided that nothing contained herein shall require the Lien of
this Agreement to be prior to that of the 13% Indenture and the collateral
documents securing the same to the extent that such Indebtedness is permitted by
the terms of the Loan Agreement. It is hereby acknowledged and agreed that,
notwithstanding anything contained herein or in any other Collateral Document,
Grantor shall not be required under any circumstance to take any further action
to perfect any interest granted to Secured Party in any cage cash, deposit
accounts, markers, instruments or other cash items which are used in connection
with the casino operations of Grantor. Subject to compliance with applicable
Gaming Laws, Grantor hereby consents and agrees that the issuers of, or obligors
on, the Pledged Collateral, or any registrar or transfer agent or trustee for
any of the Pledged Collateral, shall be entitled to accept the provisions of
this Agreement as conclusive evidence of the right of Secured Party to effect
any transfer or exercise any right hereunder, notwithstanding any other notice
or direction to the contrary heretofore or hereafter given by Grantor or any
other Person to such issuers or such obligors or to any such registrar or
transfer agent or trustee.
6.2 Grantor agrees to assist Administrative Agent in obtaining all
approvals of any Gaming Board or other Governmental Authority that are required
by law for or in connection with any action or transaction contemplated by this
Agreement and, at Secured Party's request after and during the continuance of an
Event of Default, to prepare, sign and file with the appropriate Gaming Board
the transferor's portion of any application or applications for consent to the
transfer of control thereof necessary or appropriate under applicable Gaming
Laws for approval of any sale or transfer of the Pledged Collateral
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pursuant to the exercise of Secured Party's remedies hereunder and under the
Loan Documents.
7. Voting Rights; Dividends; etc. So long as no Event of Default under
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the Loan Agreement occurs and remains continuing:
7.1 Voting Rights. Grantor shall be entitled to exercise any and all
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voting and other consensual rights pertaining to the Pledged Securities, or any
part thereof, for any purpose not inconsistent with the terms of this Agreement,
the Loan Agreement, or the other Loan Documents.
7.2 Interest, Dividend and Distribution Rights. Grantor shall be
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entitled to receive and to retain and use any and all interest, premiums,
dividends or distributions paid in respect of the Pledged Collateral; provided,
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however, that (subject to any inconsistent prior rights of the Trustee under the
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13% Indenture) any and all such dividends or distributions received in the form
of capital stock shall be, and the Certificates representing such capital stock
forthwith shall be delivered to Administrative Agent (or to Bank of America
Nevada on its behalf) to hold as, Pledged Collateral and shall, if received by
Grantor, be received in trust for the benefit of Secured Party, be segregated
from the other property of Grantor, and forthwith be delivered to Administrative
Agent for the benefit of Secured Party as Pledged Collateral in the same form as
so received (with any necessary endorsements). If Secured Party causes any
Certificates to be registered in the name of Secured Party, Secured Party agrees
to grant applicable proxies with respect to such Certificates in favor of
Grantor.
8. Rights During Event of Default. Following the occurrence of any Event
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of Default, but subject to compliance with Gaming Laws (subject to any
inconsistent prior rights of the Trustee under the 13% Indenture):
8.1 Voting and Distribution Rights. At the option of Secured Party,
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all rights of Grantor to exercise the voting and other consensual rights which
it would otherwise be entitled to exercise pursuant to Section 7.1 above, and to
receive the interest, premiums, dividends and distributions which it would
otherwise be authorized to receive and retain pursuant to Section 7.2 above,
shall cease, and all such rights shall thereupon become vested in Administrative
Agent for the benefit of Secured Party who shall thereupon, at the direction of
Administrative Agent, have the sole right to exercise such voting and other
consensual rights and to receive and to hold as Pledged Collateral such
dividends and distributions.
8.2 Distributions Held in Trust. All dividends and other
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distributions which are received by Grantor contrary to the provisions of this
Agreement shall be received in trust for the benefit of Secured Party, shall be
segregated from other funds of Grantor, and forthwith shall be paid over to
Administrative Agent for the account of Secured Party as Pledged Collateral in
the same form as so received (with any necessary endorsements).
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8.3 Irrevocable Proxy. Other than any such proxies heretofore granted
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to the Trustee under the 13% Indenture, Grantor hereby revokes all previous
proxies with regard to the Pledged Securities and, to the extent allowable under
applicable Law (including, without limitation, applicable Gaming Laws), appoints
Administrative Agent for the benefit of Secured Party as its proxy holder to
attend and vote at any and all meetings of the shareholders of the Subsidiaries
whose capital stock or other securities are pledged hereunder, and any
adjournments thereof, held on or after the date of the occurrence of an Event of
Default and prior to the termination of this proxy and to execute any and all
written consents of shareholders of such corporations executed on or after the
date of the occurrence of an Event of Default and prior to the termination of
this proxy, with the same effect as if Grantor had personally attended the
meetings or had personally voted its shares or had personally signed the written
consents; provided, however, that the proxy holder shall have rights hereunder
only upon the occurrence and during the continuance of an Event of Default under
the Loan Agreement and that such rights shall be subject to compliance with all
applicable Gaming Laws. Grantor hereby authorizes Administrative Agent,
following the occurrence of an Event of Default and the acceleration of the
Obligations under the Loan Agreement, to substitute another person as the proxy
holder and, thereupon to file this proxy and the substitution instrument with
the secretary of the appropriate corporation. This proxy is coupled with an
interest and is irrevocable until such time as no commitment to extend credit to
Borrower remains outstanding from Secured Party and until such time as all
Obligations have been paid and performed in full.
8.4 Suspension of Rights. Promptly after the cure or written waiver
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of the Event of Default giving rise to Secured Party's rights under this Section
8, and if no other Event of Default then exists, Secured Party shall confirm to
Grantor and Borrower upon their request of such waiver or cure and the further
exercise by Secured Party of the rights and remedies granted under this Section
8 shall thereafter be suspended unless a subsequent Event of Default occurs.
9. Transfers and Other Liens. Subject to compliance with Gaming Laws,
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Grantor agrees that, except as specifically permitted under the Loan Documents,
it will not (i) sell, assign, exchange, transfer or otherwise dispose of, or
contract to sell, assign, exchange, transfer or otherwise dispose of, or grant
any option with respect to, any of the Pledged Collateral, (ii) create or permit
to exist any Lien upon or with respect to any of the Pledged Collateral, or
(iii) take any action with respect to the Pledged Collateral which is
inconsistent with the provisions or purposes of this Agreement or any other Loan
Document.
10. Secured Party Appointed Attorney-in-Fact. Subject to compliance with
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Gaming Laws and to any inconsistent prior rights of the Trustee under the 13%
Indenture, Grantor hereby irrevocably appoints Administrative Agent for the
benefit of Secured Party as Grantor's attorney-in-fact, with full authority in
the place and stead of Grantor, and in the name of Grantor, or otherwise, from
time to time, in Secured Party's sole and absolute discretion to do any of the
following acts or things: (a) to do all acts and things and to execute
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all documents necessary or advisable to perfect and continue perfected the
security interests created by this Agreement and to preserve, maintain and
protect the Pledged Collateral; (b) if Grantor fails to take any action within
ten days after request, to do any and every act which Grantor is obligated to do
under this Agreement; (c) to prepare, sign, file and record, in Grantor's name,
any financing statement covering the Pledged Collateral; and (d) to endorse and
transfer the Pledged Collateral upon foreclosure by Secured Party; provided,
however, that Administrative Agent shall be under no obligation whatsoever to
take any of the foregoing actions, and neither Administrative Agent nor any
Secured Party shall have any liability or responsibility for any act (other than
Administrative Agent's or any Secured Party's own gross negligence or willful
misconduct) or omission taken with respect thereto. Grantor hereby agrees to
repay immediately upon demand all reasonable costs and expenses incurred or
expended by Secured Party in exercising any right or taking any action under
this Agreement, together with interest from the date which is two Business Days
following such demand thereof at the Default Rate.
11. Administrative Agent May Perform Obligations. If Grantor fails to
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perform any Obligation contained herein for ten days after demand,
Administrative Agent, subject to compliance with applicable Gaming Laws and the
prior inconsistent rights of the Trustee under the 13% Indenture), may, but
without any obligation to do so and without notice to or demand upon Grantor,
perform the same and take such other action as Secured Party may deem necessary
or desirable to protect the Pledged Collateral or Secured Party's security
interests therein, Administrative Agent being hereby authorized (without
limiting the general nature of the authority hereinabove conferred) to pay,
purchase, contest and compromise any Lien which in the reasonable judgment of
Secured Party appears to be prior or superior to Secured Party's security
interests, and in exercising any such powers and authority to pay necessary
expenses, employ counsel and pay reasonable attorneys' fees. Grantor hereby
agrees to repay immediately upon demand all sums so expended by Secured Party,
together with interest from the date which is two Business Days following demand
at the Default Rate. Neither Administrative Agent nor any Secured Party shall be
under any duty or obligation to (i) preserve, maintain or protect the Pledged
Collateral or any of Grantor's rights or interest therein, (ii) exercise any
voting rights with respect to the Pledged Collateral, or (iii) make or give any
notices of default, presentments, demands for performance, notices of
nonperformance or dishonor, protests, notices of protest or notice of any other
nature whatsoever in connection with the Pledged Collateral on behalf of Grantor
or any other Person having any interest therein; and neither Administrative
Agent nor any Secured Party assumes and none shall be obligated to perform the
obligations of Grantor, if any, with respect to the Pledged Collateral.
12. Reasonable Care. Administrative Agent shall be deemed to have
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exercised reasonable care in the custody and preservation of the Pledged
Collateral in its possession if the Pledged Collateral is accorded treatment
substantially similar to that which Administrative Agent accords its own
property, it being understood that Administrative Agent shall not have any
responsibility for (i) ascertaining or taking action with respect to maturities,
calls,
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conversions, exchanges, tenders or other matters relative to any Pledged
Collateral, whether or not Administrative Agent has or is deemed to have
knowledge of such matters, or (ii) taking any necessary steps to preserve rights
against any Person with respect to any Pledged Collateral. The Administrative
Agent shall comply with the conditions, if any, imposed by any Gaming Board in
connection with the approvals of the security interest granted hereunder by
Grantor, including, without limitation, any conditions requiring Administrative
Agent to permit representatives of the Gaming Board to inspect such securities
and Certificates. Administrative Agent shall not surrender possession of any
Pledged Collateral to any party other than Grantor without the prior approval of
the applicable Gaming Board or as otherwise permitted by applicable Gaming Laws.
13. Events of Default and Remedies.
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13.1 Rights Upon Event of Default. Upon the occurrence and during the
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continuance of an Event of Default under the Loan Agreement, Grantor shall be in
default hereunder and, subject to compliance with applicable Gaming Laws,
Secured Party shall have in any jurisdiction where enforcement is sought, in
addition to all other rights and remedies that Secured Party may have under this
Agreement and under applicable law or in equity, all of its rights and remedies
as a secured party under the Uniform Commercial Code as enacted in any such
jurisdiction, and in addition, subject to compliance with Gaming Laws, the
following rights and remedies, all of which may be exercised with or without
further notice to Grantor:
(1) to notify any issuer of any Pledged Collateral that the same
has been pledged to Administrative Agent for the benefit of Secured Party
and that all dividends and other payments thereon are to be made directly
and exclusively to Administrative Agent for the account of Secured Party;
to renew, extend, modify, amend, accelerate, accept partial payments on,
make allowances and adjustments and issue credits with respect to, release,
settle, compromise, compound, collect or otherwise liquidate, on terms
acceptable to Secured Party, in whole or in part, the Pledged Collateral
and any amounts owing thereon; to enter into any other agreement relating
to or affecting the Pledged Collateral; and to give all consents, waivers
and ratifications with respect to the Pledged Collateral and exercise all
other rights (including voting rights), powers and remedies and otherwise
act with respect thereto as if Secured Party were the owner thereof;
(2) to enforce payment and prosecute any action or proceeding
with respect to any and all of the Pledged Collateral and take or bring, in
Secured Party's name(s) or in the name of Grantor, all steps, actions,
suits or proceedings deemed by Secured Party necessary or desirable to
effect collection of or to realize upon the Pledged Collateral;
(3) in accordance with applicable Law (including, without
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limitation, applicable Gaming Laws), to take possession of the Pledged
Collateral with or without judicial process;
(4) to endorse, in the name of Grantor, all checks, notes,
drafts, money orders, instruments and other evidences of payment relating
to the Pledged Collateral;
(5) to transfer any or all of the Pledged Collateral into the
name of Secured Party or its nominee or nominees; and
(6) in accordance with all applicable Laws (including, without
limitation, applicable Gaming Laws), to foreclose the liens and security
interests created under this Agreement or under any other agreement
relating to the Pledged Collateral by any available judicial procedure or
without judicial process, and to sell, assign or otherwise dispose of the
Pledged Collateral or any part thereof, either at public or private sale or
at any broker's board or securities exchange, in lots or in bulk, for cash,
on credit or on future delivery, or otherwise, with or without
representations or warranties, and upon such terms as shall be acceptable
to Secured Party; all at the sole option of and in the sole discretion of
Secured Party.
13.2 Notice of Sale. Secured Party shall give Grantor at least ten
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days' written notice of sale of all or any part of the Pledged Collateral.
Subject to compliance with Gaming Laws, any sale of the Pledged Collateral shall
be held at such time or times and at such place or places as Secured Party may
determine in the exercise of its sole and absolute discretion. Secured Party may
bid (which bid may be, in whole or in part, in the form of cancellation of
Obligations) for and purchase for the account of Secured Party or any nominee of
Secured Party the whole or any part of the Pledged Collateral. Secured Party
shall not be obligated to make any sale of the Pledged Collateral if it shall
determine not to do so regardless of the fact that notice of sale of the Pledged
Collateral may have been given. Secured Party may, without notice or
publication, adjourn the sale from time to time by announcement at the time and
place fixed for sale, and such sale may, without further notice, be made at the
time and place to which the same was so adjourned.
13.3 Private Sales. Subject to compliance with Gaming Laws, upon the
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occurrence and during the continuance of an Event of Default under the Loan
Agreement, whether or not any of the Pledged Collateral has been effectively
registered under the Securities Act of 1933, as amended, or other applicable
Laws, Secured Party may, in its sole and absolute discretion, sell all or any
part of the Pledged Collateral at private sale in such manner and under such
circumstances as Secured Party may deem necessary or advisable in order that the
sale may be lawfully conducted. Without limiting the foregoing, Secured Party
may (i) approach and negotiate with a limited number of potential purchasers,
and (ii) restrict the prospective bidders or purchasers to Persons who will
represent and agree that they are
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purchasing the Pledged Collateral for their own account for investment and not
with a view to the distribution or resale thereof. In the event that any of the
Pledged Collateral is sold at private sale, Grantor agrees that if the Pledged
Collateral is sold for a price which Secured Party in good faith believes to be
reasonable, then (A) the sale shall not be deemed to be commercially
unreasonable by reason of price, (B) Grantor shall not be entitled to a credit
against the Obligations in an amount in excess of the purchase price, and (C)
Secured Party shall not incur any liability or responsibility to Grantor in
connection therewith, notwithstanding the possibility that a substantially
higher price might have been realized at a public sale. Grantor recognizes that
a ready market may not exist for Pledged Securities which are not regularly
traded on a recognized securities exchange or in another recognized market, and
that a sale by Secured Party of any such Pledged Securities for an amount
substantially less than a pro rata share of the fair market value of the
issuer's assets minus liabilities may be commercially reasonable in view of the
difficulties that may be encountered in attempting to sell a large amount of
Pledged Securities or Pledged Securities that are privately traded.
13.4 Title of Purchasers. Subject to applicable requirements of Law
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(including, without limitation, applicable Gaming Laws), upon consummation of
any sale of Pledged Collateral pursuant to this Section 13, Administrative Agent
on behalf of Secured Party shall have the right to assign, transfer and deliver
to the purchaser or purchasers thereof the Pledged Collateral so sold. Each such
purchaser at any such sale shall hold the Pledged Collateral sold absolutely
free from any claim or right on the part of Grantor, and Grantor hereby waives
all rights of redemption, stay and appraisal which it now has or may at any time
in the future have under any rule of Law or statute now existing or hereafter
enacted.
13.5 Disposition of Proceeds of Sale. The net cash proceeds resulting
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from the collection, liquidation, sale or other disposition of the Pledged
Collateral shall be applied, first, to the reasonable costs and expenses
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(including reasonable attorneys' fees) of retaking, holding, storing, processing
and preparing for sale, selling, collecting and liquidating the Pledged
Collateral, and the like; second, to the satisfaction of all Obligations, with
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application as to any particular Obligations to be in the order set forth in the
Loan Agreement or other Loan Documents; third, to all other indebtedness secured
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hereby in such order and manner as Secured Party in its sole and absolute
discretion may determine, and fourth, if any balance remains, to Grantor or
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Grantor's designee.
14. Regulatory Matters. Administrative Agent, on behalf of Secured Party,
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acknowledges and agrees that:
(1) In the event that Secured Party exercises one or more of the
remedies set forth in Section 13 of this Agreement, including but not
limited to reregistration of the Pledged Collateral pursuant to applicable
Gaming Laws, such exercise of remedies would be deemed a separate transfer
of the Pledged Collateral and would require the separate and prior approval
of the applicable Gaming Board pursuant to applicable Gaming Laws as in
effect on the date hereof.
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(2) The approval by the applicable Gaming Board of this Agreement
shall not act or be construed as the approval, either express or implied,
for Secured Party to take any actions or steps provided for in this
Agreement for which prior approval of the Gaming Board is required, without
first obtaining such prior and separate approval of the Gaming Board to the
extent then required by applicable Law.
15. Continuing Effect. This Agreement shall remain in full force and
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effect and continue to be effective should any petition be filed by or against
Grantor for liquidation or reorganization, should Grantor become insolvent or
make an assignment for the benefit of creditors or should a receiver or trustee
be appointed for all or any significant part of Grantor's assets.
16. Covenant Not to Issue Uncertificated Securities. Grantor represents
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and warrants to Secured Party that all of the capital stock of each of its
Subsidiaries is and will be in certificated form (as contemplated by Article 8
of the Uniform Commercial Code), and, subject to compliance with applicable
Gaming Laws, covenants to Secured Party that it will not cause or permit its
Subsidiaries to issue any capital stock in uncertificated form or seek to
convert all or any part of its existing capital stock into uncertificated form
(as contemplated by Article 8 of the Uniform Commercial Code). The foregoing
representations, warranties and covenants shall survive the execution and
delivery of this Agreement.
17. Covenant Not to Dilute Interests of Secured Party in Pledged
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Securities. Subject to compliance with applicable Gaming Laws and except as
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otherwise permitted by the Loan Agreement, Grantor represents, warrants and
covenants to Secured Party that it will not at any time cause or permit its
Subsidiaries to issue any additional capital stock, or any warrants, options or
other rights to acquire any additional capital stock, if the effect thereof
would be to dilute in any way the interests of Secured Party in any Pledged
Securities or any corporation whose securities constitute Pledged Securities.
18. Indemnity. Grantor agrees to indemnify and hold harmless Secured
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Party, and each of them, from and against any and all claims, demands, losses,
judgments and liabilities (including, without limitation liabilities for
penalties) of whatsoever kind or nature, and to reimburse Secured Party for all
costs and expenses, including without limitation reasonable attorneys' fees and
expenses and/or costs and expenses associated with obtaining required approvals
of any Gaming Board, arising out of or in connection with this Agreement or the
exercise by Secured Party of any right or remedy granted to it hereunder or
under the Loan Documents, other than arising from the gross negligence or
willful misconduct of Secured Party or as to any claim asserted by Secured Party
against Grantor or any of its Subsidiaries to the extent that Grantor or such
Subsidiaries prevails on that claim in a final and non-appealable determination
by a court of competent jurisdiction or an arbitrator appointed in accordance
with the Loan Agreement. In no event shall Secured Party be liable for any
matter or thing in connection with this Agreement other than to account for
monies actually received
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by it in accordance with the terms hereof. If and to the extent that the
agreements of Grantor under this Section 18 are unenforceable for any reason,
Grantor hereby agrees to make the maximum contribution to the payment and
satisfaction of such obligations which is permissible under applicable Law.
19. Governing Law. This Agreement shall be construed and enforced in
-------------
accordance with and governed by the Laws of the State of California and in
accordance with applicable Gaming Laws; provided that in the event of a conflict
of such laws, applicable Gaming Laws will prevail to the extent required by the
mandatory provisions of such Gaming Laws.
20. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original and all of which, taken
together, shall constitute one and the same agreement.
21. Additional Powers and Authorization. The Administrative Agent has been
-----------------------------------
appointed as the Administrative Agent hereunder pursuant to the Loan Agreement
and shall be entitled to the benefits of the Loan Agreement and the other Loan
Documents. Notwithstanding anything contained herein to the contrary, the
Administrative Agent may employ agents, trustees, or attorneys-in-fact and,
subject to compliance with applicable Gaming Laws, may vest any of them with any
property (including, without limitation, the Pledged Collateral), title, right
or power deemed necessary for the purposes of such appointment.
IN WITNESS WHEREOF, Grantor has caused this Agreement to be duly executed
as of the date first above written.
"Grantor"
COAST RESORTS, INC., a Nevada corporation
By: ___________________________
Xxxx Xxxxxxx, Vice President and Chief
Financial Officer
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SCHEDULE 1
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Class Stock Number Percentage
Stock of Certificate of of
Issuer Stock No(s). Shares Ownership
--------- ----- ------ ------ ---------
Coast Hotels and Casinos, Inc. Common 001 1,000 100%
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