Exhibit 4.19
STOCK PLEDGE AGREEMENT
(PARENT)
This STOCK PLEDGE AGREEMENT (this "Agreement"), dated as of
December 6, 2001, is entered into between Majestic Investor Holdings, LLC, a
Delaware limited liability company ("Pledgor"), and Foothill Capital
Corporation, a California corporation ("Secured Party"), with reference to the
following:
WHEREAS, Pledgor beneficially owns the specified Equity
Interests identified as Pledged Interests in the Persons identified as Issuers
on Schedule A attached hereto (or any addendum thereto);
WHEREAS, Borrowers, Pledgor, and Secured Party are,
contemporaneously herewith, entering into that certain Loan and Security
Agreement (the "Loan Agreement");
WHEREAS, Borrowers, Pledgor, Majestic Capital Corporation, a
Delaware corporation, and Secured Party are, contemporaneously herewith,
entering into that certain General Continuing Guaranty (the "Guaranty"); and
WHEREAS, to induce Secured Party to make the financial
accommodations provided to Borrowers pursuant to the Loan Agreement and to
collateralize Pledgor's obligations to Secured Party under the Guaranty, Pledgor
desires to pledge, grant, transfer, and assign to Secured Party a security
interest in the Collateral (as hereinafter defined) to secure the Secured
Obligations (as hereinafter defined), as provided herein.
NOW, THEREFORE, in consideration of the mutual promises,
covenants, representations, and warranties set forth herein and for other good
and valuable consideration, the parties hereto agree as follows:
1. DEFINITIONS AND CONSTRUCTION.
(a) Definitions.
All initially capitalized terms used herein and not otherwise
defined herein shall have the meaning ascribed thereto in the Loan Agreement. As
used in this Agreement:
"Agreement" shall have the meaning ascribed to such term in
the preamble of this Agreement.
"Borrower" and "Borrowers" shall have the meanings ascribed to
such terms in the Loan Agreement.
"Chief Executive Office" shall mean where Pledgor is deemed
located pursuant to the Code.
-1-
"Collateral" shall mean the Pledged Interests, the Future
Rights, and the Proceeds, collectively.
"Equity Interests" shall mean all shares, units, options,
warrants, interests, participations, or other equivalents (regardless of how
designated) of or in a corporation, partnership, limited liability company, or
equivalent entity, whether voting or nonvoting, including general partner
partnership interests, limited partner partnership interests, common stock,
preferred stock, or any other "equity security" (as such term is defined in Rule
3a11-1 of the General Rules and Regulations promulgated by the SEC under the
Exchange Act).
"Future Rights" shall mean: (a) all Equity Interests (other
than Pledged Interests) of the Issuers, and all securities convertible or
exchangeable into, and all warrants, options, or other rights to purchase,
Equity Interests of the Issuers; (b) to the extent of Pledgor's interest
therein, all shares of, all securities convertible or exchangeable into, and all
warrants, options, or other rights to purchase Equity Interests of any Person in
which Pledgor, after the date of this Agreement, acquires a direct equity
interest, irrespective of whether such Person is or becomes a Subsidiary of
Pledgor; and (c) the certificates or instruments representing such additional
Equity Interests, convertible or exchangeable securities, warrants, and other
rights and all dividends, cash, options, warrants, rights, instruments, and
other property or proceeds from time to time received, receivable, or otherwise
distributed in respect of or in exchange for any or all of such Equity
Interests.
"Holder" and "Holders" shall have the meanings ascribed to
such terms in Section 3 of this Agreement.
"Issuers" shall mean each of the Persons identified as an
Issuer on Schedule A attached hereto (or any addendum thereto), and any
successors thereto, whether by merger or otherwise.
"Loan Agreement" shall have the meaning ascribed to such term
in the recitals to this Agreement.
"Pledged Interests" shall mean all of the Equity Interests
identified as Pledged Interests on Schedule A attached hereto (or any addendum
thereto).
"Pledgor" shall have the meaning ascribed to such term in the
preamble of this Agreement.
"Proceeds" shall mean all proceeds (including proceeds of
proceeds) of the Pledged Interests and Future Rights including all: (a) rights,
benefits, distributions, premiums, profits, dividends, interest, cash,
instruments, documents of title, accounts, contract rights, inventory,
equipment, general intangibles, deposit accounts, chattel paper, and other
property from time to time received, receivable, or otherwise distributed in
respect of or in exchange for, or as a replacement of or a substitution for, any
of the Pledged Interests, Future Rights, or proceeds thereof (including any
cash, Equity Interests, or other
-2-
securities or instruments issued after any recapitalization, readjustment,
reclassification, merger or consolidation with respect to the Issuers and any
security entitlements, as defined in Section8102(a)(17) of the Code, with
respect thereto); (b) "proceeds," as such term is used in the Code; (c) proceeds
of any insurance, indemnity, warranty, or guaranty (including guaranties of
delivery) payable from time to time with respect to any of the Pledged
Interests, Future Rights, or proceeds thereof; (d) payments (in any form
whatsoever) made or due and payable to Pledgor from time to time in connection
with any requisition, confiscation, condemnation, seizure or forfeiture of all
or any part of the Pledged Interests, Future Rights, or proceeds thereof; and
(e) other amounts from time to time paid or payable under or in connection with
any of the Pledged Interests, Future Rights, or proceeds thereof.
"Secured Obligations" shall mean all liabilities, obligations,
or undertakings owing by Borrowers and Pledgor to Secured Party of any kind or
description arising out of or outstanding under, advanced or issued pursuant to,
or evidenced by the Loan Agreement, the Guaranty, this Agreement, or any other
Loan Document to which the Pledgor is a party, irrespective of whether for the
payment of money, whether direct or indirect, absolute or contingent, due or to
become due, voluntary or involuntary, whether now existing or hereafter arising,
and including all interest (including interest that accrues after the filing of
a case under the Bankruptcy Code) and any and all costs, fees (including
attorneys' fees), and expenses which Borrowers and Pledgor are required to pay
pursuant to any of the foregoing, by law, or otherwise.
"Secured Party" shall have the meaning ascribed to such term
in the preamble of this Agreement, together with its successors or assigns.
"Securities Act" shall have the meaning ascribed to such term
in Section 9(c) of this Agreement.
(b) Construction.
(i) Unless the context of this Agreement clearly
requires otherwise, references to the plural include the singular and to the
singular include the plural, the part includes the whole, the term "including"
is not limiting, and the term "or" has, except where otherwise indicated, the
inclusive meaning represented by the phrase "and/or." The words "hereof,"
"herein," "hereby," "hereunder," and other similar terms in this Agreement refer
to this Agreement as a whole and not exclusively to any particular provision of
this Agreement. Article, section, subsection, exhibit, and schedule references
are to this Agreement unless otherwise specified. All of the exhibits or
schedules attached to this Agreement shall be deemed incorporated herein by
reference. Any reference to any of the following documents includes any and all
alterations, amendments, restatements, extensions, modifications, renewals, or
supplements thereto or thereof, as applicable: this Agreement, the Guaranty, or
any of the other Loan Documents.
(ii) Neither this Agreement nor any uncertainty or
ambiguity herein shall be construed or resolved against Secured Party or
Pledgor, whether under any
-3-
rule of construction or otherwise. On the contrary, this Agreement has been
reviewed by both of the parties and their respective counsel and shall be
construed and interpreted according to the ordinary meaning of the words used so
as to fairly accomplish the purposes and intentions of the parties hereto.
(iii) In the event of any direct conflict between the
express terms and provisions of this Agreement and of the Loan Agreement, the
terms and provisions of the Loan Agreement shall control.
2. PLEDGE. As security for the prompt payment and performance of the Secured
Obligations when due, whether at stated maturity, by acceleration or otherwise
(including amounts that would become due but for the operation of the provisions
of the Bankruptcy Code), Pledgor hereby pledges, grants, transfers, and assigns
to Secured Party a security interest in all of Pledgor's right, title, and
interest in and to the Collateral.
3. DELIVERY AND REGISTRATION OF COLLATERAL.
(a) All certificates or instruments representing or evidencing
the Collateral shall be promptly delivered by Pledgor to Secured Party, or
Secured Party's designee pursuant hereto at a location designated by Secured
Party and shall be held by or on behalf of Secured Party pursuant hereto, and
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.
(b) Upon the occurrence and during the continuance of an Event
of Default, Secured Party shall have the right, at any time in its discretion
and without notice to Pledgor, to transfer to or to register on the books of the
Issuers (or of any other Person maintaining records with respect to the
Collateral) in the name of Secured Party or any of its nominees any or all of
the Collateral. In addition, Secured Party shall have the right at any time to
exchange certificates or instruments representing or evidencing Collateral for
certificates or instruments of smaller or larger denominations.
(c) If, at any time and from time to time, any Collateral
(including any certificate or instrument representing or evidencing any
Collateral) is in the possession of a Person other than Secured Party or Pledgor
(a "Holder"), then Pledgor shall immediately, at Secured Party's option, either
cause such Collateral to be delivered into Secured Party's possession, or
execute and deliver to such Holder a written notification/instruction, and take
all other steps necessary to perfect the security interest of Secured Party in
such Collateral, including obtaining from such Holder a written acknowledgement
that such Holder holds such Collateral for Secured Party, all pursuant to the
Code or other applicable law governing the perfection of Secured Party's
security interest in the Collateral in the possession of such Holder. Each such
notification/instruction and acknowledgement shall be in form and substance
satisfactory to Secured Party.
-4-
(d) Any and all Collateral (including dividends, interest, and
other cash distributions) at any time received or held by Pledgor shall be so
received or held in trust for Secured Party, shall be segregated from other
funds and property of Pledgor and shall be forthwith delivered to Secured Party
in the same form as so received or held, with any necessary endorsements;
provided that cash dividends or distributions received by the Pledgor, if and to
the extent that they are not prohibited by the Loan Agreement may be retained by
the Pledgor in accordance with Section 4 and used in the ordinary course of
Pledgor's business.
(e) If, at any time and from time to time, any Collateral
consists of an uncertificated security or a security in book entry form, then
Pledgor shall immediately cause such Collateral to be registered or entered, as
the case may be, in the name of Secured Party, or otherwise cause Secured
Party's security interest thereon to be perfected in accordance with applicable
law.
4. VOTING RIGHTS AND DIVIDENDS.
(a) So long as no Event of Default shall have occurred and be
continuing, Pledgor shall be entitled to exercise any and all voting and other
consensual rights pertaining to the Collateral or any part thereof for any
purpose not inconsistent with the terms of the Loan Documents and shall be
entitled to receive and retain any cash dividends or distributions paid in
respect of the Collateral, if and to the extent they are not prohibited by the
Loan Agreement.
(b) Upon the occurrence and during the continuance of an Event
of Default, all rights of Pledgor to exercise the voting and other consensual
rights pertaining to the Collateral to receive and retain cash dividends or
distributions that it would otherwise be entitled to exercise or receive and
retain, as applicable pursuant to Section 4(a), shall cease, and all such rights
shall thereupon become vested in Secured Party, who shall thereupon have the
sole right to exercise such voting or other consensual rights and to receive and
retain such cash dividends and distributions. Pledgor shall execute and deliver
(or cause to be executed and delivered) to Secured Party all such proxies and
other instruments as Secured Party may reasonably request for the purpose of
enabling Secured Party to exercise the voting and other rights which it is
entitled to exercise and to receive the dividends and distributions that it is
entitled to receive and retain pursuant to the preceding sentence.
5. REPRESENTATIONS AND WARRANTIES. Pledgor represents, warrants, and covenants
as follows:
(a) Pledgor has taken all steps it deems necessary or
appropriate to be informed on a continuing basis of changes or potential changes
affecting the Collateral (including rights of conversion and exchange, rights to
subscribe, payment of dividends, reorganizations or recapitalization, tender
offers and voting rights), and Pledgor agrees that Secured Party shall have no
responsibility or liability for informing Pledgor of any such
-5-
changes or potential changes or for taking any action or omitting to take any
action with respect thereto;
(b) All information herein or hereafter supplied to Secured
Party by or on behalf of Pledgor in writing with respect to the Collateral is,
or in the case of information hereafter supplied will be, accurate and complete
in all material respects;
(c) Pledgor is and will be the sole legal and beneficial owner
of the Collateral (including the Pledged Interests and all other Collateral
acquired by Pledgor after the date hereof) free and clear of any adverse claim,
Lien, or other right, title, or interest of any party, other than the Liens in
favor of Secured Party;
(d) This Agreement and the delivery to Secured Party of the
Pledged Interests representing Collateral (or the delivery to all Holders of the
Pledged Interests representing Collateral of the notification/instruction
referred to in Section 3 of this Agreement), creates a valid, perfected, and
first priority security interest in one hundred percent (100%) of the Pledged
Interests in favor of Secured Party, securing payment of the Secured
Obligations, and all actions necessary to achieve such perfection have been duly
taken;
(e) Schedule A to this Agreement is true and correct and
complete in all material respects; without limiting the generality of the
foregoing: (i) all the Pledged Interests are in certificated form (except as
otherwise noted on Schedule A), and, except to the extent registered in the name
of Secured Party or its nominee pursuant to the provisions of this Agreement,
are registered in the name of Pledgor; and (ii) the Pledged Interests as to each
of the Issuers constitute at least the percentage of all the fully diluted
issued and outstanding Equity Interests of such Issuer as set forth in Schedule
A to this Agreement;
(f) There are no presently existing Future Rights or Proceeds
owned by Pledgor;
(g) The Pledged Interests have been duly authorized and
validly issued and are fully paid and nonassessable; and
(h) Neither the pledge of the Collateral pursuant to this
Agreement nor the extensions of credit represented by the Secured Obligations
violates Regulation T, U or X of the Board of Governors of the Federal Reserve
System.
6. FURTHER ASSURANCES.
(a) Pledgor agrees that from time to time, at the expense of
Pledgor, Pledgor will promptly execute and deliver all further instruments and
documents, and take all further action that may be necessary or reasonably
desirable, or that Secured Party may request, in order to perfect and protect
any security interest granted or purported to be granted hereby or to enable
Secured Party to exercise and enforce its rights and remedies hereunder with
respect to any Collateral. Without limiting the generality of the foregoing,
Pledgor will: (i)
-6-
at the request of Secured Party, xxxx conspicuously each of its records
pertaining to the Collateral with a legend, in form and substance reasonably
satisfactory to Secured Party, indicating that such Collateral is subject to the
security interest granted hereby; (ii) execute and file such financing or
continuation statements, or amendments thereto, and such other instruments or
notices, as may be necessary or reasonably desirable, or as Secured Party may
request, in order to perfect and preserve the security interests granted or
purported to be granted hereby; (iii) allow inspection of the Collateral by
Secured Party or Persons designated by Secured Party; and (iv) appear in and
defend any action or proceeding that may affect Pledgor's title to or Secured
Party's security interest in the Collateral.
(b) Pledgor hereby authorizes Secured Party to file one or
more financing or continuation statements, and amendments thereto, relative to
all or any part of the Collateral without the signature of Pledgor where
permitted by law. A carbon, photographic, or other reproduction of this
Agreement or any financing statement covering the Collateral or any part thereof
shall be sufficient as a financing statement where permitted by law.
(c) Pledgor will furnish to Secured Party, upon the request of
Secured Party: (i) a certificate executed by an authorized officer of Pledgor,
and dated as of the date of delivery to Secured Party, itemizing in such detail
as Secured Party may request, the Collateral which, as of the date of such
certificate, has been delivered to Secured Party by Pledgor pursuant to the
provisions of this Agreement; and (ii) such statements and schedules further
identifying and describing the Collateral and such other reports in connection
with the Collateral as Secured Party may request.
7. COVENANTS OF PLEDGOR. Pledgor shall:
(a) Perform each and every covenant in any of the Loan
Documents applicable to Pledgor;
(b) At all times keep at least one complete set of its records
concerning substantially all of the Collateral at its Chief Executive Office as
set forth in Schedule B hereto, and not change the location of its Chief
Executive Office or such records without giving Secured Party at least thirty
(30) days prior written notice thereof;
(c) To the extent it may lawfully do so, use its best efforts
to prevent the Issuers from issuing Future Rights or Proceeds, except for cash
dividends and other distributions, if any, that are not prohibited by the terms
of the Loan Agreement to be paid by any Issuer to Pledgor; and
(d) Upon receipt by Pledgor of any material notice, report, or
other communication from any of the Issuers or any Holder relating to all or any
part of the Collateral, deliver such notice, report or other communication to
Secured Party as soon as possible, but in no event later than five (5) days
following the receipt thereof by Pledgor.
8. SECURED PARTY AS PLEDGOR'S ATTORNEY-IN-FACT.
-7-
(a) Pledgor hereby irrevocably appoints Secured Party as
Pledgor's attorney-in-fact, with full authority in the place and stead of
Pledgor and in the name of Pledgor, Secured Party or otherwise, from time to
time at Secured Party's discretion, to take any action and to execute any
instrument that Secured Party may reasonably deem necessary or advisable to
accomplish the purposes of this Agreement, including: (i) upon the occurrence
and during the continuance of an Event of Default, to receive, endorse, and
collect all instruments made payable to Pledgor representing any dividend,
interest payment or other distribution in respect of the Collateral or any part
thereof to the extent permitted hereunder and to give full discharge for the
same and to execute and file governmental notifications and reporting forms;
(ii) to issue any notifications/instructions Secured Party deems necessary
pursuant to Section 3 of this Agreement; or (iii) to arrange for the transfer of
the Collateral on the books of any of the Issuers or any other Person to the
name of Secured Party or to the name of Secured Party's nominee.
(b) In addition to the designation of Secured Party as
Pledgor's attorney-in-fact in subsection (a), Pledgor hereby irrevocably
appoints Secured Party as Pledgor's agent and attorney-in-fact to make, execute
and deliver any and all documents and writings which may be necessary or
appropriate for approval of, or be required by, any regulatory authority located
in any city, county, state or country where Pledgor or any of the Issuers engage
in business, in order to transfer or to more effectively transfer any of the
Pledged Interests or otherwise enforce Secured Party's rights hereunder.
9. REMEDIES UPON DEFAULT. Upon the occurrence and during the continuance of an
Event of Default:
(a) Secured Party may exercise in respect of the Collateral,
in addition to other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies of a secured party on default under
the Code (irrespective of whether the Code applies to the affected items of
Collateral), and Secured Party may also without notice (except as specified
below) sell the Collateral or any part thereof in one or more parcels at public
or private sale, at any exchange, broker's board or at any of Secured Party's
offices or elsewhere, for cash, on credit or for future delivery, at such time
or times and at such price or prices and upon such other terms as Secured Party
may deem commercially reasonable, irrespective of the impact of any such sales
on the market price of the Collateral. To the maximum extent permitted by
applicable law, Secured Party may be the purchaser of any or all of the
Collateral at any such sale and shall be entitled, for the purpose of bidding
and making settlement or payment of the purchase price for all or any portion of
the Collateral sold at any such public sale, to use and apply all or any part of
the Secured Obligations as a credit on account of the purchase price of any
Collateral payable at such sale. Each purchaser at any such sale shall hold the
property sold absolutely free from any claim or right on the part of Pledgor,
and Pledgor hereby waives (to the extent permitted by law) all rights of
redemption, stay, or appraisal that it now has or may at any time in the future
have under any rule of law or statute now existing or hereafter enacted. Pledgor
agrees that, to the extent notice of sale shall be required by law, at least ten
(10) calendar days notice to Pledgor of the
-8-
time and place of any public sale or the time after which a private sale is to
be made shall constitute reasonable notification. Secured Party shall not be
obligated to make any sale of Collateral regardless of notice of sale having
been given. Secured Party may adjourn any public or private sale from time to
time by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned. Secured Party is not obligated to cause any of the Collateral to be
registered to facilitate a public sale in compliance with the securities laws.
To the maximum extent permitted by law, Pledgor hereby waives any claims against
Secured Party arising because the price at which any Collateral may have been
sold at such a private sale was less than the price that might have been
obtained at such a public sale.
(b) Pledgor hereby agrees that any sale or other disposition
of the Collateral conducted in conformity with reasonable commercial practices
of banks, insurance companies, or other financial institutions in the County of
Los Angeles, State of California in disposing of property similar to the
Collateral shall be deemed to be commercially reasonable.
(c) Pledgor hereby acknowledges that the sale by Secured Party
of any Collateral pursuant to the terms hereof in compliance with the Securities
Act of 1933 as now in effect or as hereafter amended, or any similar statute
hereafter adopted with similar purpose or effect (the "Securities Act"), as well
as applicable "Blue Sky" or other state securities laws may require strict
limitations as to the manner in which Secured Party or any subsequent transferee
of the Collateral may dispose thereof. Pledgor acknowledges and agrees that in
order to protect Secured Party's interest it may be necessary to sell the
Collateral at a price less than the maximum price attainable if a sale were
delayed or were made in another manner, such as a public offering under the
Securities Act. Pledgor has no objection to sale in such a manner and agrees
that Secured Party shall have no obligation to obtain the maximum possible price
for the Collateral. Without limiting the generality of the foregoing, Pledgor
agrees that, upon the occurrence and during the continuation of an Event of
Default, Secured Party may, subject to applicable law, from time to time attempt
to sell all or any part of the Collateral by a private placement, restricting
the bidders and prospective purchasers to those who will represent and agree
that they are purchasing for investment only and not for distribution. In so
doing, Secured Party may solicit offers to buy the Collateral or any part
thereof for cash, from a limited number of investors deemed by Secured Party, in
its reasonable judgment, to be institutional investors or other responsible
parties who might be interested in purchasing the Collateral. If Secured Party
shall solicit such offers, then the acceptance by Secured Party of one of the
offers shall be deemed to be a commercially reasonable method of disposition of
the Collateral.
(d) If Secured Party shall determine to exercise its right to
sell all or any portion of the Collateral pursuant to this Section, Pledgor
agrees that, upon request of Secured Party, Pledgor will, at its own expense:
-9-
(i) use its best efforts to execute and deliver, and
cause the Issuers and the directors and officers thereof to execute and deliver,
all such instruments and documents, and to do or cause to be done all such other
acts and things, as may be necessary or, in the opinion of Secured Party,
advisable to register such Collateral under the provisions of the Securities
Act, and to cause the registration statement relating thereto to become
effective and to remain effective for such period as prospectuses are required
by law to be furnished, and to make all amendments and supplements thereto and
to the related prospectuses which, in the opinion of Secured Party, are
necessary or advisable, all in conformity with the requirements of the
Securities Act and the rules and regulations of the Securities and Exchange
Commission applicable thereto;
(ii) use its best efforts to qualify the Collateral
under the state securities laws or "Blue Sky" laws and to obtain all necessary
governmental approvals for the sale of the Collateral, as requested by Secured
Party;
(iii) cause the Issuers to make available to their
respective security holders, as soon as practicable, an earnings statement which
will satisfy the provisions of Section 11(a) of the Securities Act;
(iv) execute and deliver, or cause the officers and
directors of the Issuers to execute and deliver, to any person, entity or
governmental authority as Secured Party may choose, any and all documents and
writings which, in Secured Party's reasonable judgment, may be necessary or
appropriate for approval, or be required by, any regulatory authority located in
any city, county, state or country where Pledgor or the Issuers engage in
business, in order to transfer or to more effectively transfer the Pledged
Interests or otherwise enforce Secured Party's rights hereunder; and
(v) do or cause to be done all such other acts and
things as may be necessary to make such sale of the Collateral or any part
thereof valid and binding and in compliance with applicable law.
Pledgor acknowledges that there is no adequate remedy at law for failure by it
to comply with the provisions of this Section and that such failure would not be
adequately compensable in damages, and therefore agrees that its agreements
contained in this Section may be specifically enforced.
(e) PLEDGOR EXPRESSLY WAIVES TO THE MAXIMUM EXTENT PERMITTED
BY LAW: (i) ANY CONSTITUTIONAL OR OTHER RIGHT TO A JUDICIAL HEARING PRIOR TO THE
TIME SECURED PARTY DISPOSES OF ALL OR ANY PART OF THE COLLATERAL AS PROVIDED IN
THIS SECTION; (ii) ALL RIGHTS OF REDEMPTION, STAY, OR APPRAISAL THAT IT NOW HAS
OR MAY AT ANY TIME IN THE FUTURE HAVE UNDER ANY RULE OF LAW OR STATUTE NOW
EXISTING OR HEREAFTER ENACTED; AND (iii) EXCEPT AS SET FORTH IN SUBSECTION (a)
OF THIS SECTION, ANY REQUIREMENT OF NOTICE, DEMAND, OR ADVERTISEMENT FOR SALE.
-10-
10. APPLICATION OF PROCEEDS. Upon the occurrence and during the continuance of
an Event of Default, any cash held by Secured Party as Collateral and all cash
proceeds received by Secured Party in respect of any sale of, collection from,
or other realization upon all or any part of the Collateral pursuant to the
exercise by Secured Party of its remedies as a secured creditor as provided in
Section 9 shall be applied from time to time by Secured Party as provided in the
Loan Agreement.
11. DUTIES OF SECURED PARTY. The powers conferred on Secured Party hereunder are
solely to protect its interests in the Collateral and shall not impose on it any
duty to exercise such powers. Except as provided in Section 9207 of the Code,
Secured Party shall have no duty with respect to the Collateral or any
responsibility for taking any necessary steps to preserve rights against any
Persons with respect to any Collateral.
12. CHOICE OF LAW AND VENUE. THE VALIDITY OF THIS AGREEMENT, ITS CONSTRUCTION,
INTERPRETATION, AND ENFORCEMENT, AND THE RIGHTS OF THE PARTIES HERETO SHALL BE
DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF CALIFORNIA. THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING
IN CONNECTION WITH THIS AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN THE STATE
AND FEDERAL COURTS LOCATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA,
OR, AT THE SOLE OPTION OF SECURED PARTY, IN ANY OTHER COURT IN WHICH SECURED
PARTY SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER
JURISDICTION OVER THE MATTER IN CONTROVERSY. EACH OF PLEDGOR AND SECURED PARTY
WAIVES, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO
ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT
ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 12.
13. AMENDMENTS; ETC. No amendment or waiver of any provision of this Agreement
nor consent to any departure by Pledgor herefrom shall in any event be effective
unless the same shall be in writing and signed by Secured Party, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given. No failure on the part of Secured Party to
exercise, and no delay in exercising any right under this Agreement, any other
Loan Document, or otherwise with respect to any of the Secured Obligations,
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right under this Agreement, any other Loan Document, or otherwise with
respect to any of the Secured Obligations preclude any other or further exercise
thereof or the exercise of any other right. The remedies provided for in this
Agreement or otherwise with respect to any of the Secured Obligations are
cumulative and not exclusive of any remedies provided by law.
-11-
14. NOTICES. Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
shall be delivered in the manner set forth in the Loan Agreement.
15. CONTINUING SECURITY INTEREST. This Agreement shall create a continuing
security interest in the Collateral and shall: (i) remain in full force and
effect until the indefeasible payment in full of the Secured Obligations,
including the cash collateralization, expiration, or cancellation of all Secured
Obligations, if any, consisting of letters of credit, and the full and final
termination of any commitment to extend any financial accommodations under the
Loan Agreement; (ii) be binding upon Pledgor and its successors and assigns; and
(iii) inure to the benefit of Secured Party and its successors, transferees, and
assigns. Upon the indefeasible payment in full in cash of the Secured
Obligations, including the cash collateralization, expiration, or cancellation
of all Secured Obligations, if any, consisting of letters of credit, and the
full and final termination of any commitment to extend any financial
accommodations under the Loan Agreement, the security interests granted herein
shall automatically terminate and all rights to the Collateral shall revert to
Pledgor. Upon any such termination, Secured Party will, at Pledgor's expense,
execute and deliver to Pledgor such documents as Pledgor shall reasonably
request to evidence such termination. Such documents shall be prepared by
Pledgor and shall be in form and substance reasonably satisfactory to Secured
Party.
16. SECURITY INTEREST ABSOLUTE. To the maximum extent permitted by law, all
rights of Secured Party, all security interests hereunder, and all obligations
of Pledgor hereunder, shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of any of the
Secured Obligations or any other agreement or instrument relating thereto,
including any of the Loan Documents;
(b) any change in the time, manner, or place of payment of, or
in any other term of, all or any of the Secured Obligations, or any other
amendment or waiver of or any consent to any departure from any of the Loan
Documents, or any other agreement or instrument relating thereto;
(c) any exchange, release, or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to departure
from any guaranty for all or any of the Secured Obligations; or
(d) any other circumstances that might otherwise constitute a
defense available to, or a discharge of, Pledgor.
To the maximum extent permitted by law, Pledgor hereby waives any right to
require Secured Party to: (A) proceed against or exhaust any security held from
Pledgor; or (B) pursue any other remedy in Secured Party's power whatsoever.
-12-
17. HEADINGS. Section and subsection headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement or be given any substantive effect.
18. SEVERABILITY. In case any provision in or obligation under this Agreement
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
19. COUNTERPARTS; TELEFACSIMILE EXECUTION. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same Agreement. Delivery of an executed
counterpart of this Agreement by telefacsimile shall be equally as effective as
delivery of an original executed counterpart of this Agreement. Any party
delivering an executed counterpart of this Agreement by telefacsimile also shall
deliver an original executed counterpart of this Agreement but the failure to
deliver an original executed counterpart shall not affect the validity,
enforceability, or binding effect hereof.
20. WAIVER OF MARSHALING. Each of Pledgor and Secured Party acknowledges and
agrees that in exercising any rights under or with respect to the Collateral:
Secured Party (i) is under no obligation to marshal any Collateral; (ii) may, in
its absolute discretion, realize upon the Collateral in any order and in any
manner it so elects; and (iii) may, in its absolute discretion, apply the
proceeds of any or all of the Collateral to the Secured Obligations in any order
and in any manner it so elects. Pledgor and Secured Party waive any right to
require the marshaling of any of the Collateral.
21. WAIVER OF JURY TRIAL.
PLEDGOR AND SECURED PARTY HEREBY WAIVE THEIR RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. PLEDGOR AND SECURED PARTY REPRESENT THAT EACH HAS REVIEWED
THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF
THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
22. COMPLIANCE WITH GAMING LAWS. Secured Party acknowledges and agrees that:
(a) In the event that Secured Party exercises one or more of
the remedies set forth in this Agreement with respect to the Pledged Interests,
including foreclosure or transfer of the security interest in the Pledged
Interests and the exercise of any of the voting
-13-
and consensual rights afforded Secured Party hereunder, such exercise of
remedies shall be deemed a separate transfer of the Pledged Interests and shall
require the separate and prior approval of the applicable Gaming Authority
pursuant to Applicable Gaming Laws and the licensing of the Secured Party,
unless such licensing requirement is waived by the Gaming Authorities.
(b) The approval by the applicable Gaming Authority of this
Agreement shall not be, and shall not be construed as, the approval, either
express or implied, for the Secured Party to take any actions or steps provided
for in this Agreement for which approval by the Gaming Authorities is required,
without first obtaining such prior and separate approval of such Gaming
Authority, to the extent required by the Applicable Gaming Laws.
23. GAMING LAWS. All rights, remedies and powers provided in this Agreement or
any other agreement related to the Loan Agreement may be exercised only to the
extent that the exercise thereof does not violate any Applicable Gaming Laws and
all provisions of the Agreement are intended to be subject to the Applicable
Gaming Laws and to be limited solely to the extent necessary to not render the
provisions of this Agreement invalid or unenforceable, in whole or in part.
-14-
IN WITNESS WHEREOF, Pledgor and Secured Party have caused this
Agreement to be duly executed and delivered by their officers thereunto duly
authorized as of the date first written above.
MAJESTIC INVESTOR HOLDINGS, LLC,
a Delaware limited liability company
By /s/ Xxxxxxx X. Xxxxx
----------------------------------
Title: EVP, COO, CFO
FOOTHILL CAPITAL CORPORATION,
a California corporation
By /s/ Xxxxx X. Xxxxx
----------------------------------
Title: Sr. Vice President
