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EXHIBIT 10.47
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EXECUTION
LOAN AGREEMENT
Dated as of March 18, 1999
among
COAST HOTELS AND CASINOS, INC.
as Borrower,
The Lenders referred to herein
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Administrative Agent
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TABLE OF CONTENTS
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Article 1 DEFINITIONS AND ACCOUNTING TERMS................................................1
1.1 Defined Terms..............................................................1
1.2 Use of Defined Terms......................................................29
1.3 Accounting Terms..........................................................30
1.4 Rounding..................................................................30
1.5 Exhibits and Schedules....................................................30
1.6 References to "and its Subsidiaries"......................................30
1.7 References to Times.......................................................30
1.8 Miscellaneous Terms.......................................................30
Article 2 LOANS..........................................................................31
2.1 Loans-General.............................................................31
2.2 Base Rate Loans...........................................................32
2.3 LIBOR Loans...............................................................32
2.4 Letters of Credit.........................................................33
2.5 Voluntary Reduction of Commitment.........................................37
2.6 Scheduled Mandatory Reductions of Commitment..............................37
2.7 Other Mandatory Reductions of Commitment..................................37
2.8 Optional Increases to the Commitment....................................37
2.9 Administrative Agent's Right to Assume Funds Available for Advances.......39
2.10 Swing Line................................................................39
Article 3 PAYMENTS AND FEES..............................................................42
3.1 Principal and Interest....................................................42
3.2 Upfront Fees..............................................................43
3.3 Commitment Fees...........................................................43
3.4 Letter of Credit Fees.....................................................43
3.5 Agency Management Fees....................................................44
3.6 Construction Services Fees................................................44
3.7 Increased Commitment Costs................................................44
3.8 LIBOR Costs and Related Matters...........................................45
3.9 Late Payments.............................................................48
3.10 Computation of Interest and Fees..........................................48
3.11 Non-Banking Days..........................................................49
3.12 Manner and Treatment of Payments..........................................49
3.13 Funding Sources...........................................................50
3.14 Failure to Charge Not Subsequent Waiver...................................50
3.15 Administrative Agent's Right to Assume Payments Will be Made by Borrower..50
3.16 Fee Determination Detail..................................................51
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3.17 Survival..................................................................51
Article 4 REPRESENTATIONS AND WARRANTIES.................................................52
4.1 Existence and Qualification; Power; Compliance With Laws .................52
4.2 Authority; Compliance With Other Agreements and Instruments and
Government Regulations...................................................52
4.3 No Governmental Approvals Required........................................53
4.4 Subsidiaries..............................................................53
4.5 Financial Statements......................................................53
4.6 No Material Adverse Changes...............................................53
4.7 Title to Property.........................................................53
4.8 Intangible Assets.........................................................54
4.9 Public Utility Holding Company Act........................................54
4.10 Litigation................................................................54
4.11 Binding Obligations.......................................................54
4.12 No Default................................................................54
4.13 ERISA.....................................................................55
4.14 Regulations T, U and X; Investment Company Act............................55
4.15 Disclosure...............................................................55
4.16 Tax Liability.............................................................55
4.17 Projections...............................................................56
4.18 Hazardous Materials.......................................................56
4.19 Gaming Laws...............................................................56
4.20 Security Interests........................................................56
Article 5 AFFIRMATIVE COVENANTS (OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)..........................................................58
5.1 Payment of Taxes and Other Potential Liens................................58
5.2 Preservation of Existence.................................................58
5.3 Maintenance of Properties.................................................58
5.4 Maintenance of Insurance..................................................58
5.5 Compliance With Laws......................................................59
5.6 Inspection Rights - Completion of Construction............................59
5.7 Keeping of Records and Books of Account...................................59
5.8 Compliance With Agreements................................................59
5.9 Use of Proceeds...........................................................60
5.10 Hazardous Materials Laws..................................................60
5.11 Retirement of Debt........................................................60
5.12 Pledge of Stock...........................................................60
5.13 Sale of Barbary Coast.....................................................60
5.14 Merger of Coast West......................................................61
Article 6 NEGATIVE COVENANTS.............................................................62
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6.1 Prepayment of Indebtedness................................................62
6.2 Payment of Subordinated Obligations and the Former Partner Debt...........62
6.3 Disposition of Property...................................................62
6.4 Hostile Tender Offers.....................................................63
6.5 Mergers...................................................................64
6.6 Distributions.............................................................64
6.7 ERISA.....................................................................65
6.8 Change in Nature of Business..............................................65
6.9 Liens, Negative Pledges and Rights of Others..............................66
6.10 Indebtedness and Contingent Obligations...................................66
6.11 Transactions with Affiliates..............................................67
6.12 Senior Leverage Ratio.....................................................68
6.13 Total Leverage Ratio......................................................68
6.14 Fixed Charge Coverage Ratio...............................................68
6.15 Capital Expenditures......................................................68
6.16 Acquisitions and Investments..............................................69
6.17 New Subsidiaries..........................................................70
6.18 Changes to Certain Obligations............................................70
6.19 Construction of the New Project...........................................70
Article 7 INFORMATION AND REPORTING REQUIREMENTS.........................................74
7.1 Financial and Business Information........................................74
7.2 Compliance Certificates...................................................76
Article 8 CONDITIONS.....................................................................77
8.1 Initial Advances on the Closing Date......................................77
8.2 Any Advance...............................................................80
8.3 Conditions to Increase in Commitment......................................81
8.4 Conditions to Advances....................................................84
Article 9 EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT...........................85
9.1 Events of Default.........................................................85
9.2 Remedies Upon Event of Default............................................87
Article 10 THE ADMINISTRATIVE AGENT......................................................91
10.1 Appointment and Authorization.............................................91
10.2 Administrative Agent and Affiliates.......................................91
10.3 Proportionate Interest in any Collateral..................................91
10.4 Lenders' Credit Decisions.................................................92
10.5 Action by Administrative Agent............................................92
10.6 Liability of Administrative Agent.........................................93
10.7 Indemnification...........................................................94
10.8 Successor Administrative Agent............................................94
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10.9 Foreclosure on Collateral.................................................95
10.10 No Obligations of Borrower................................................95
10.11 Permitted Release of Collateral...........................................96
Article 11 MISCELLANEOUS.................................................................97
11.1 Cumulative Remedies; No Waiver............................................97
11.2 Amendments; Consents......................................................97
11.3 Costs, Expenses and Taxes.................................................98
11.4 Nature of Lenders' Obligations............................................99
11.5 Survival of Representations and Warranties................................99
11.6 Notices...................................................................99
11.7 Execution of Loan Documents...............................................99
11.8 Binding Effect; Assignment...............................................100
11.9 Right of Setoff..........................................................102
11.10 Sharing of Setoffs.......................................................102
11.11 Indemnity by Borrower....................................................103
11.12 Nonliability of the Lenders..............................................104
11.13 No Third Parties Benefited...............................................105
11.14 Confidentiality..........................................................105
11.15 Further Assurances.......................................................105
11.16 Integration..............................................................105
11.17 Governing Law............................................................106
11.18 Severability of Provisions...............................................106
11.19 Headings.................................................................106
11.20 Time of the Essence......................................................106
11.21 Foreign Lenders and Participants.........................................106
11.22 Hazardous Material Indemnity.............................................107
11.23 Gaming Boards............................................................108
11.24 Waiver of Right to Trial by Jury.........................................108
11.25 Purported Oral Amendments................................................108
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Schedules and Exhibits
Schedule 1.1 Lender Commitments
Schedule 4.3 Governmental Approvals
Schedule 4.8 Intangible Assets
Schedule 4.18 Hazardous Materials
Schedule 6.9 Existing Liens
Schedule 6.10 Existing Indebtedness
Schedule 6.16 Existing Investments
Exhibit A - Assignment Agreement
Exhibit B - Compliance Certificate
Exhibit C - Note
Exhibit D - Request for Letter of Credit
Exhibit E - Request for Loan
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LOAN AGREEMENT
Dated as of March 18, 1999
This Loan Agreement ("Agreement") is entered into by and among Coast
Hotels and Casinos, Inc., a Nevada corporation ("Borrower"), each lender whose
name is set forth on the signature pages of this Agreement and each lender which
may hereafter become a party to this Agreement pursuant to Sections 2.8 or 11.8
(collectively, the "Lenders" and individually, a "Lender") and Bank of America
National Trust and Savings Association, as Administrative Agent.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
Article 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the meanings set forth below:
"10-7/8% Indenture" means the Indenture, dated as of November
21, 1997, under which was issued Borrower's 10-7/8% First Mortgage Notes
Due 2001.
"10-7/8% First Mortgage Debt" means the Indebtedness outstanding
under the 10-7/8% Indenture.
"13% Indenture" means the Indenture, dated as of January 30,
1996, under which was issued Borrower's 13% First Mortgage Notes Due
2002.
"13% First Mortgage Debt" means the Indebtedness outstanding
under the 13% Indenture.
"1999 Indenture" means the Indenture, dated as of the Closing
Date, under which Borrower's 9.5% Senior Subordinated Notes Due 2009 are
to be issued substantially contemporaneously with the Closing Date.
"1999 Senior Subordinated Debt" means the Indebtedness
outstanding under the 1999 Indenture.
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"Acquisition" means any transaction, or any series of related
transactions, by which Borrower directly or indirectly (i) acquires any
going business or all or substantially all of the assets of any firm,
partnership, joint venture, limited liability company, corporation or
division thereof, whether through purchase of assets, merger or
otherwise, or (ii) acquires (in one transaction or as the most recent
transaction in a series of transactions) control of at least a majority
in ordinary voting power of the securities of a corporation which have
ordinary voting power for the election of directors, or (iii) acquires
control of a 50% or more ownership interest in any partnership, limited
liability company or joint venture.
"Administrative Agent" means Bank of America, when acting in its
capacity as the Administrative Agent under any of the Loan Documents, or
any successor Administrative Agent.
"Administrative Agent's Office" means the Administrative Agent's
address as set forth on the signature pages of this Agreement, or such
other address as the Administrative Agent hereafter may designate by
written notice to Borrower and the Lenders.
"Advance" means any advance made or to be made by any Lender to
Borrower as provided in Article 2, and includes each Base Rate Advance
and each LIBOR Advance.
"Affiliate" means, as to any Person, any other Person which
directly or indirectly controls, or is under common control with, or is
controlled by, such Person. As used in this definition, "control" (and
the correlative terms, "controlled by" and "under common control with")
shall mean possession, directly or indirectly, of power to direct or
cause the direction of management or policies (whether through ownership
of securities or partnership or other ownership interests, by contract
or otherwise); provided that, in any event, any Person that owns,
directly or indirectly, 10% or more of the securities having ordinary
voting power for the election of directors or other governing body of a
corporation that has more than 100 record holders of such securities, or
10% or more of the partnership or other ownership interests of any other
Person that has more than 100 record holders of such interests, will be
deemed to control such corporation, partnership or other Person.
"Aggregate Effective Amount" means, as of any date of
determination and with respect to all Letters of Credit, the sum of (a)
the aggregate effective face amounts of all outstanding Letters of
Credit plus (b) the aggregate amounts paid by the Issuing Lender under
Letters of Credit not then reimbursed to the Issuing Lender by Borrower
pursuant to Section 2.4(d) and not then the subject of Advances made
pursuant to Section 2.4(e).
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"Agreement" means this Loan Agreement, either as originally
executed or as it may from time to time be supplemented, modified,
amended, restated or extended.
"Assignment Agreement" means an Assignment Agreement
substantially in the form of Exhibit A.
"Bank of America" means Bank of America National Trust and
Savings Association, its successors and assigns.
"Banking Day" means any Monday, Tuesday, Wednesday, Thursday or
Friday, other than a day on which banks are authorized or required to be
closed in California or Nevada.
"Barbary Coast" means the Barbary Coast hotel and casino located
at the intersection of Flamingo Road and Las Vegas Boulevard in Las
Vegas, Nevada.
"Barbary Coast Ground Lease" means that certain Lease Agreement
dated May 1, 1992 by and between Empey Enterprises, a Nevada general
partnership, as landlord, and Barbary Coast Hotel & Casino, a Nevada
general partnership, as tenant, as assigned to the Borrower.
"Barbary Coast Parking Lease" means that certain Lease dated
November 1, 1982 by and between Nevada Power Company, a Nevada
corporation, as landlord, and Barbary Coast Hotel and Casino, a Nevada
general partnership, as tenant, as assigned to the Borrower.
"Barbary Coast Property" means the approximately 4 acres of real
property which is the subject of the Barbary Coast Ground Lease and the
Barbary Coast Parking Lease.
"Base Rate" means, as of any date of determination, the rate per
annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to
the higher of (a) the Reference Rate in effect on such date and (b) the
Federal Funds Rate in effect on such date plus 1/2 of 1%.
"Base Rate Advance" means an Advance made hereunder and
specified to be a Base Rate Advance in accordance with Article 2.
"Base Rate Loan" means a Loan made hereunder and specified to be
a Base Rate Loan in accordance with Article 2.
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"Base Rate Margin" means, for each Pricing Period, the
percentage set forth opposite the Total Leverage Ratio as of the last
day of the Fiscal Quarter ending two months prior to the first day of
that Pricing Period:
Total Leverage Ratio Base Rate Margin
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Greater than or equal to 4.50:1.00 1.50%
Less than 4.50:1.00 but greater 1.25%
than or equal to 4.00:1.00
Less than 4.00:1.00 but greater 0.75%
than or equal to 3.50:1.00
Less than 3.50:1.00 but greater 0.50%
than or equal to 3.00:1.00
Less than 3.00:1.00 but greater 0.25%
than or equal to 2.50:1.00
Less than 2.50:1.00 0.00%
"Borrower" means Coast Hotels and Casinos, Inc., a Nevada
corporation, its successors and permitted assigns.
"Budget" means the budget for design, development and
construction of the New Project submitted to and approved by the
Administrative Agent and the Lenders pursuant to Section 8.3, as amended
in accordance with Section 6.19 of this Agreement.
"Capital Expenditure" means any expenditure that is considered a
capital expenditure under Generally Accepted Accounting Principles,
including any amount which is required to be treated as an asset subject
to a Capital Lease Obligation.
"Capital Lease Obligations" means all monetary obligations of a
Person under any leasing or similar arrangement which, in accordance
with Generally Accepted Accounting Principles, is classified as a
capital lease.
"Cash" means, when used in connection with any Person, all
monetary and non-monetary items owned by that Person that are treated as
cash in accordance with Generally Accepted Accounting Principles,
consistently applied.
"Cash Equivalents" means, when used in connection with any
Person, that Person's Investments in:
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(a) Government Securities due within one year after
the date of the making of the Investment;
(b) readily marketable direct obligations of any
State of the United States of America or any political subdivision of
any such State or any public agency or instrumentality thereof given on
the date of such Investment a credit rating of at least Aa by Moody's
Investors Service, Inc. or AA by Standard & Poor's Ratings Group, in
each case due within one year from the making of the Investment;
(c) certificates of deposit issued by, bank deposits
in, eurodollar deposits through, bankers' acceptances of, and repurchase
agreements covering Government Securities executed by, any Lender or any
bank incorporated under the Laws of the United States of America, any
State thereof or the District of Columbia and having on the date of such
Investment combined capital, surplus and undivided profits of at least
$250,000,000, in each case due within one year after the date of the
making of the Investment;
(d) certificates of deposit issued by, bank deposits
in, eurodollar deposits through, bankers' acceptances of, and repurchase
agreements covering Government Securities executed by, any branch or
office located in the United States of America of a bank incorporated
under the Laws of any jurisdiction outside the United States of America
having on the date of such Investment combined capital, surplus and
undivided profits of at least $500,000,000, in each case due within one
year after the date of the making of the Investment; and
(e) readily marketable commercial paper of
corporations doing business in and incorporated under the Laws of the
United States of America or any State thereof or of any corporation that
is the holding company for a bank described in clause (c) or (d) above
given on the date of such Investment a credit rating of at least P-1 by
Moody's Investors Service, Inc. or A-1 by Standard & Poor's Ratings
Group, in each case due within 90 days after the date of the making of
the Investment.
"Certificate of a Responsible Official" means a certificate
signed by a Responsible Official of the Person providing the
certificate.
"Change of Control" means the occurrence of any of the
following:
(a) individuals who on the Closing Date constituted
the Board of Directors of Coast Resorts or Borrower (together with any
new or replacement directors whose election by the Board of Directors,
or whose nomination for election by the Board of Directors for election
by the Coast Resorts' or Borrower's stockholders was approved by a vote
of at least a majority of the directors then still in office who were
either members of the Board of Directors of Coast Resorts or Borrower,
as applicable, on the
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Closing Date or whose election or nomination for reelection was
previously so approved) cease for any reason to constitute a majority of
the directors then in office; or
(b) prior to the consummation of Coast Resorts' first Public
Equity Offering, (i) Michael J. Gaughan and his Related Parties cease to
be the "beneficial owners" (as such term is defined Rule 13d-3 and Rule
13d-5 under the Securities Exchange Act of 1934 (the "Exchange Act")) in
the aggregate of at least 25% of the Voting Stock of Coast Resorts, or
(ii) any Person or "group" (as used in Section 13(d)(3) or Section
14(d)(2) of the Exchange Act, including any group acting for the purpose
of acquiring, holding or disposing of securities within the meaning of
Rule 13d-5(b)(1) under the Exchange Act), becomes the "beneficial owner"
(as defined above) directly or indirectly, of more of the Voting Stock
of Coast Resorts than is beneficially owned by the Principals and their
Related Parties;
(c) after the consummation of Coast Resorts' first Public
Equity Offering any Person or group (as defined above), other than the
Principals or their Related Parties, becomes the beneficial owner (as
defined above), directly or indirectly, of (A) more than 40% of the
Voting Stock of Coast Resorts, and (B) more of the Voting Stock of Coast
Resorts than is at that time "beneficially owned" by the Principals and
their Related Parties in the aggregate, provided that in each case there
shall be excluded from the percentage of Voting Stock held by any group,
the Voting Stock owned by any Principal and his Related Parties who are
deemed to be members of that group, provided that such Principal and his
Related Parties own a majority of the total Voting Stock of Coast
Resorts held by such group; or
(d) any event which constitutes a "Change of Control" or
"Change in Control" or similar event with respect to Indebtedness of
Coast Resorts or any of its Subsidiaries in a principal amount which is
in excess of $5,000,000, in the aggregate which permits the holders
thereof to accelerate the maturity of such Indebtedness or require the
prepayment thereof prior to the stated or final maturity thereof.
"Closing Date" means the time and Banking Day on which the
conditions set forth in Section 8.1 are satisfied or waived. The
Administrative Agent shall notify Borrower and the Lenders of the date
that is the Closing Date.
"Coast Resorts" means Coast Resorts, Inc., a Nevada corporation
and direct parent corporation of Borrower.
"Coast Resorts Pledge Agreement" means a pledge agreement to
executed and delivered by Coast Resorts in accordance with Section 5.12,
in a form solely acceptable to the Administrative Agent, either as
originally executed or as it may from time to time be supplemented,
modified, amended, extended or supplanted. The collateral to be
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subject to the Coast Resorts Pledge Agreement includes, without
limitation, all capital stock in Borrower and all other Subsidiaries of
Coast Resorts.
"Coast Resorts Security Agreement" means a security agreement
executed and delivered by Coast Resorts as of the Closing Date in
accordance with Section 8.1, either as originally executed or as it may
from time to time be supplemented, modified, amended, extended or
supplanted.
"Code" means the Internal Revenue Code of 1986, as amended or
replaced and as in effect from time to time.
"Collateral" means all of the collateral covered by the
Collateral Documents.
"Collateral Documents" means, collectively, the Security
Agreement, the Coast Resorts Security Agreement, Coast Resorts Pledge
Agreement, the Deeds of Trust, the Guaranty, the Trademark Assignment
and any other security agreement, pledge agreement, deed of trust,
mortgage or other collateral security agreement hereafter executed and
delivered by Coast Resorts, Borrower or any other Obligor to secure the
Obligations.
"Commitment" means, subject to any increase or decrease in the
amount thereof pursuant to Sections 2.5, 2.6, 2.7 or 2.8, $75,000,000.
As of the Closing Date, the Commitments of the Lenders are set forth on
Schedule 1.1.
"Commitment Fee Rate" means, for each Pricing Period, the
percentage set forth opposite the Total Leverage Ratio as of the last
day of the Fiscal Quarter ending two months prior to the first day of
that Pricing Period:
Total Leverage Ratio Commitment Fee Rate
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Greater than or equal to 3.50:1.00 0.500%
Less than 3.50:1.00 but greater 0.375%
than or equal to 2.50:1.00
Less than 2.50:1.00 0.300%
"Commitment Increase Date" means the effective date of any
increase in the Commitment in accordance with Sections 2.8 and 8.3.
"Completion Date" means a date specified by Borrower and
approved by Lenders pursuant to Section 8.3 for completion of the New
Project.
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"Compliance Certificate" means a certificate in the form of
Exhibit B, properly completed and signed by a Senior Officer of
Borrower.
"Construction Progress Report" means a report prepared by CSC or
its designated representative in a form which is reasonably acceptable
to the Borrower and the Administrative Agent.
"Contingent Obligation" means, as to any Person, any (a)
guarantee by that Person of Indebtedness of, or other obligation
performable by, any other Person or (b) assurance given by that Person
to an obligee of any other Person with respect to the performance of an
obligation by, or the condition or maintenance of the financial
condition of, such other Person, whether direct, indirect or contingent,
including any purchase or repurchase agreement covering such obligation,
any interest rate swap agreement, forward contract or other arrangement
of such Person, or any collateral security therefor, any agreement to
provide funds (by means of loans, capital contributions or otherwise) to
such other Person, any agreement to support the solvency or level of any
balance sheet item of such other Person or any "keep-well" or other
arrangement of whatever nature given for the purpose of assuring or
holding harmless such obligee against loss with respect to any
obligation of such other Person; provided, however, that the term
Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of
any Contingent Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the related primary obligation (unless
the Contingent Obligation is limited by its terms to a lesser amount, in
which case to the extent of such amount) or, if not stated or
determinable, the maximum reasonably anticipated liability in respect
thereof as determined by the Person in good faith.
"Contractual Obligation" means, as to any Person, any provision
of any outstanding security issued by that Person or of any material
agreement, instrument or undertaking to which that Person is a party or
by which it or any of its Property is bound.
"Creditors" means, collectively, the Administrative Agent, the
Issuing Lender, the Swing Line Lender and the Lenders.
"CSC" means a Construction Services Consultant designated by the
Administrative Agent and reasonably acceptable to Borrower.
"Debtor Relief Laws" means the Bankruptcy Code of the United
States of America, as amended from time to time, and all other
applicable liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws from time to time in effect affecting the rights of
creditors generally.
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"Deeds of Trust" means the Orleans Deed of Trust, the Gold Coast
Deed of Trust and the New Project Deed of Trust, and each other mortgage
or deed of trust hereafter delivered pursuant to Section 8.3 or
otherwise under this Agreement.
"Default" means any event that, with the giving of any
applicable notice or passage of time specified in Section 9.1, or both,
would be an Event of Default.
"Default Rate" means the interest rate prescribed in Section
3.9.
"Designated Eurodollar Market" means, with respect to any LIBOR
Loan, (a) the London Eurodollar Market, (b) if prime banks in the London
Eurodollar Market are at the relevant time not accepting deposits of
Dollars or if the Administrative Agent determines in good faith that the
London Eurodollar Market does not represent at the relevant time the
effective pricing to the Lenders for deposits of Dollars in the London
Eurodollar Market, the Cayman Islands Eurodollar Market or (c) if prime
banks in the Cayman Islands Eurodollar Market are at the relevant time
not accepting deposits of Dollars or if the Administrative Agent
determines in good faith that the Cayman Islands Eurodollar Market does
not represent at the relevant time the effective pricing to the Lenders
for deposits of Dollars in the Cayman Islands Eurodollar Market, such
other Eurodollar Market as may from time to time be selected by the
Administrative Agent with the approval of Borrower and the Requisite
Lenders.
"Disbursement Account" means a deposit account to be maintained
by Borrower with Bank of America, as from time to time designated by
Borrower by written notification to the Administrative Agent.
"Disposition" means the voluntary sale, transfer or other
disposition of any asset of Borrower or any of its Subsidiaries other
than (a) Cash, Cash Equivalents, inventory or other assets sold, leased
or otherwise disposed of in the ordinary course of business of Borrower
or its Subsidiaries, (b) equipment (including any aircraft) sold or
otherwise disposed of where substantially similar equipment in
replacement thereof has theretofore been acquired, or thereafter within
90 days is acquired, by Borrower or its Subsidiaries, (c) leases of
retail space by Borrower, as lessor, in the ordinary course of the
business of Borrower and in a manner consistent with other similar
hotel-casinos, (d) a disposition to Borrower or any of its Subsidiaries,
and (e) Distributions permitted by Section 6.6. Unless and to the extent
expressly set forth in this definition, neither the granting of a Lien
or Right of Others otherwise permitted hereunder nor the making of any
Investment permitted by Section 6.16 shall be considered a Disposition.
"Distribution" means, with respect to shares of capital stock or
any warrant or option to purchase an equity security or other equity
security issued by a Person, (i) the retirement, redemption, purchase,
or other acquisition for Cash or for Property by such Person of any such
security, (ii) the declaration or (without duplication) payment by
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such Person of any dividend in Cash or in Property on or with respect to
any such security, (iii) any Investment by such Person in the holder of
5% or more of any such security if a purpose of such Investment is to
avoid characterization of the transaction as a Distribution, and (iv)
any other payment in Cash or Property by such Person constituting a
distribution under applicable Laws with respect to such security.
"Dollars" or "$" means United States dollars.
"EBITDA" means, for any fiscal period, the sum of (a) Net Income
for that period, plus (b) any extraordinary loss reflected in such Net
Income, minus (c) any extraordinary gain reflected in such Net Income,
plus (d) Interest Expense for that period, plus (e) the aggregate amount
of federal and state taxes on or measured by income of Coast Resorts and
its Subsidiaries for that period (whether or not payable during that
period), plus (f) depreciation, amortization and all other non-cash
expenses for that period including all non-cash rent expense, plus (g)
expenses classified as "pre-opening expenses" on the applicable
financial statements of Coast Resorts or its Subsidiaries for that
period, in each case determined in accordance with Generally Accepted
Accounting Principles and, in the case of items (d), (e), (f) and (g),
only to the extent deducted in the determination of Net Income for that
period, provided that for each of the first three full Fiscal Quarters
following the Opening, operating results of the New Project will be
annualized on a straight line basis.
"Eligible Assignee" means, (a) another Lender, (b) with respect
to any Lender, any Affiliate of that Lender, (c) any commercial bank
having a combined capital and surplus of $100,000,000 or more, (d) any
(i) savings bank, savings and loan association or similar financial
institution or (ii) insurance company engaged in the business of writing
insurance which, in either case (A) has a net worth of $200,000,000 or
more, (B) is engaged in the business of lending money and extending
credit under credit facilities substantially similar to those extended
under this Agreement and (C) is operationally and procedurally able to
meet the obligations of a Lender hereunder to the same degree as a
commercial bank and (e) any other financial institution (including a
mutual fund or other fund) having total assets of $250,000,000 or more
which meets the requirements set forth in subclauses (B) and (C) of
clause (d) above; provided that (I) each Eligible Assignee must either
(a) be organized under the Laws of the United States of America, any
State thereof or the District of Columbia or (b) be organized under the
Laws of the Cayman Islands or any country which is a member of the
Organization for Economic Cooperation and Development, or a political
subdivision of such a country, and (i) act hereunder through a branch,
agency or funding office located in the United States of America and
(ii) be exempt from withholding of tax on interest and deliver the
documents related thereto pursuant to Section 11.21 and (II) to the
extent required under applicable Gaming Laws, each Eligible Assignee
must be registered with, approved by, or not disapproved by (whichever
may be required under applicable Gaming Laws), all applicable Gaming
Boards.
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"ERISA" means the Employee Retirement Income Security Act of
1974, and any regulations issued pursuant thereto, as amended or
replaced and as in effect from time to time.
"Eurodollar Base Rate" means, with respect to any LIBOR Loan,
the interest rate per annum (rounded upward, if necessary, to the next
1/100 of 1%) at which deposits in Dollars are offered by the
Administrative Agent to prime banks in the Designated Eurodollar Market
at or about 11:00 a.m. local time in the Designated Eurodollar Market,
two Market Days before the first day of the applicable Interest Period
in an aggregate amount approximately equal to the amount of the Advance
made by the Bank of America with respect to such LIBOR Loan and for a
period of time comparable to the number of days in the applicable
Interest Period. The determination of the LIBOR Base Rate by the
Administrative Agent shall be conclusive in the absence of manifest
error.
"Eurodollar Market" means a regular established market located
outside the United States of America by and among banks for the
solicitation, offer and acceptance of Dollar deposits in such banks.
"Eurodollar Obligations" means eurocurrency liabilities, as
defined in Regulation D.
"Event of Default" shall have the meaning provided in Section
9.1.
"Federal Funds Rate" means, as of any date of determination, the
rate set forth in the weekly statistical release designated as
H.15(519), or any successor publication, published by the Federal
Reserve Board (including any such successor, "H.15(519)") for such date
opposite the caption "Federal Funds (Effective)". If for any relevant
date such rate is not yet published in H.15(519), the rate for such date
will be the rate set forth in the daily statistical release designated
as the Composite 3:30 p.m. Quotations for U.S. Government Securities, or
any successor publication, published by the Federal Reserve Bank of New
York (including any such successor, the "Composite 3:30 p.m. Quotation")
for such date under the caption "Federal Funds Effective Rate". If on
any relevant date the appropriate rate for such date is not yet
published in either H.15(519) or the Composite 3:30 p.m. Quotations, the
rate for such date will be the arithmetic mean of the rates for the last
transaction in overnight Federal funds arranged prior to 9:00 a.m. (New
York City time) on that date by each of three leading brokers of Federal
funds transactions in New York City selected by the Administrative
Agent. For purposes of this Agreement, any change in the Base Rate due
to a change in the Federal Funds Rate shall be effective as of the
opening of business on the effective date of such change.
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"FIRREA" means the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as it may be amended from time to time.
"Fiscal Quarter" means the fiscal quarter of Borrower consisting
of a three-month fiscal period ending on each March 31, June 30,
September 30 and December 31.
"Fiscal Year" means the fiscal year of Borrower consisting of a
twelve-month period ending on each December 31.
"Fixed Charge Coverage Ratio" means, as of any Fiscal Quarter
end, the ratio of (a) EBITDA for the four Fiscal Quarters then ending to
(b) the sum of (i) required payments of principal and interest and
mandatory prepayments made in Cash by Coast Resorts and its Subsidiaries
with respect to Indebtedness (other than mandatory prepayments made with
respect to the Obligations) made during such four Fiscal Quarter period,
(ii) Maintenance Capital Expenditures made during the same period (other
than those which are financed pursuant to Section 6.10(c)), (iii) taxes
paid or payable in cash with respect to income of Coast Resorts and its
Subsidiaries during the same period (including any Permitted Tax
Distributions), and (iv) Distributions made during that period pursuant
to Section 6.6(d).
"Former Partner Debt" means Borrower's 7.5% subordinated notes
due December 31, 2001 issued to certain former partners of the Barbary
Coast Hotel and Casino, a Nevada general partnership, and Gold Coast
Hotel and Casino, Nevada limited partnership, the principal amount of
which are $1,975,000 as of the Closing Date.
"Gaming Board" means, collectively, (a) the Nevada Gaming
Commission, (b) the Nevada State Gaming Control Board, and (c) any other
Governmental Agency that holds regulatory, licensing or permit authority
over gambling, gaming or casino activities conducted by Coast Resorts
and its Subsidiaries within its jurisdiction.
"Gaming Laws" means all Laws pursuant to which any Gaming Board
possesses regulatory, licensing or permit authority over gambling,
gaming or casino activities conducted by Coast Resorts and its
Subsidiaries within its jurisdiction.
"Generally Accepted Accounting Principles" means accounting
principles, as in effect on the Closing Date, as (a) set forth as
generally accepted in the currently effective Opinions of the Accounting
Principles Board of the American Institute of Certified Public
Accountants, (b) set forth as generally accepted in the currently
effective Statements of the Financial Accounting Standards Board or (c)
that are approved by such other entity as may be approved by a
significant segment of the accounting profession in the United States of
America. The term "consistently
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applied," as used in connection therewith, means that the accounting
principles applied are consistent in all material respects with those
applied at prior dates or for prior periods.
"Gold Coast" means the Gold Coast hotel, casino and
entertainment complex located at 4000 West Flamingo Road, Las Vegas,
Nevada.
"Gold Coast Deed of Trust" means the Deed of Trust, Assignment
of Rents and Fixture Filing executed and delivered by Borrower in favor
of the Lenders as of the Closing Date in accordance with Section 8.1
with respect to the Gold Coast Property, either as originally executed
or as it may from time to time be supplemented, modified, amended,
extended or supplanted.
"Gold Coast Property" means the approximately 25 acres of real
property on which the Gold Coast is located.
"Government Securities" means readily marketable (a) direct full
faith and credit obligations of the United States of America or
obligations guaranteed by the full faith and credit of the United States
of America, or (b) obligations of an agency or instrumentality of, or
corporation owned, controlled or sponsored by, the United States of
America that are generally considered in the securities industry to be
implicit obligations of the United States of America.
"Governmental Agency" means (a) any international, foreign,
federal, state, county or municipal government, or political subdivision
thereof, (b) any governmental or quasi-governmental agency, authority,
board, bureau, commission, department, instrumentality or public body,
or (c) any court or administrative tribunal of competent jurisdiction.
"Guarantors" means, collectively, Coast Resorts, each Subsidiary
of Coast Resorts (other than Borrower) which exists as of the Closing
Date, and each other direct or indirect Subsidiary of Coast Resorts
which hereafter becomes a Guarantor pursuant to Section 6.17.
"Guaranty" means the unconditional guaranty or guaranties of the
Obligations delivered by Guarantors, either as originally executed or as
it may from time to time be supplemented, modified, amended, or
supplanted.
"Hazardous Materials" means substances regulated as hazardous
substances pursuant to (a) the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et seq.,
or as hazardous or toxic wastes or pollutants pursuant to the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq.,
or (b)
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any other Law regulating hazardous substances or hazardous or toxic
wastes or pollutants or regulating the generation, use, storage,
treatment, handling or transportation of any such substances, in each
case as such Laws are amended from time to time.
"Hazardous Materials Laws" means all federal, state or local
laws, ordinances, rules or regulations governing the disposal, transfer,
generation, storage or treatment of Hazardous Materials applicable to
any of the Real Property.
"Indebtedness" means, as to any Person (without duplication),
(a) indebtedness of such Person for borrowed money or for the deferred
purchase price of Property (excluding trade and other accounts payable
in the ordinary course of business in accordance with customary trade
terms), including any Contingent Obligation for any such indebtedness,
(b) indebtedness of such Person of the nature described in clause (a)
that is non-recourse to the credit of such Person but is secured by
assets of such Person, to the extent of the value of such assets, (c)
Capital Lease Obligations of such Person, (d) indebtedness of such
Person arising under bankers' acceptance facilities or under facilities
for the discount of accounts receivable of such Person, (e) any direct
or contingent obligations of such Person under letters of credit issued
for the account of such Person and (f) any net obligations of such
Person under a Swap Agreement.
"Intangible Assets" means assets that are considered intangible
assets under Generally Accepted Accounting Principles, including
customer lists, goodwill, computer software, copyrights, trade names,
trademarks and patents.
"Interest Differential" means, with respect to any prepayment of
a LIBOR Loan on a day other than the last day of the applicable Interest
Period and with respect to any failure to borrow a LIBOR Loan on the
date or in the amount specified in any Request for Loan, (a) the per
annum interest rate payable (or, with respect to a failure to borrow,
the interest rate which would have been payable) pursuant to Section
3.1(c) with respect to the LIBOR Loan minus (b) the LIBOR on, or as near
as practicable to, the date of the prepayment or failure to borrow for a
LIBOR Loan with an Interest Period commencing on such date and ending on
the last day of the Interest Period of the LIBOR Loan so prepaid or
which would have been borrowed on such date.
"Interest Expense" means, as of the last day of any fiscal
period, the sum of (a) all interest, fees, charges and related expenses
paid or payable (without duplication) for that fiscal period to a lender
in connection with borrowed money or the deferred purchase price of
assets that are considered "interest expense" under Generally Accepted
Accounting Principles, plus (b) the portion of rent paid or payable
(without duplication) for that fiscal period under Capital Lease
Obligations that should be treated as interest in accordance with
Financial Accounting Standards Board Statement No. 13.
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"Interest Period" means, as to each LIBOR Loan, the period
commencing on the date specified by Borrower pursuant to Section 2.1(b)
and ending 1, 2, 3 or 6 months thereafter, as specified by Borrower in
the applicable Request for Loan; provided that:
(a) The first day of any Interest Period shall be a
Market Day;
(b) Any Interest Period that would otherwise end on
a day that is not a Market Day shall be extended to the next succeeding
Market Day unless such Market Day falls in another calendar month, in
which case such Interest Period shall end on the next preceding Market
Day;
(c) Borrower may not specify an Interest Period that
extends beyond any Reduction Date unless the sum of (i) the aggregate
principal amount of the LIBOR Loans having a Interest Period ending
after such Reduction Date plus (ii) the aggregate maximum amount
available for drawing under Letters of Credit for which the expiry date
is after such Reduction Date, does not exceed the Commitment (after
giving effect to any reduction thereto scheduled to be made on such
Reduction Date pursuant to Section 2.6); and
(d) No Interest Period shall extend beyond the
Maturity Date.
"Investment" means, when used in connection with any Person, any
investment by or of that Person, whether by means of purchase or other
acquisition of stock or other securities of any other Person or by means
of a loan, advance creating a debt, capital contribution, guaranty or
other debt or equity participation or interest in any other Person,
including any partnership and joint venture interests of such Person.
The amount of any Investment shall be the amount actually invested,
without adjustment for subsequent increases or decreases in the value of
such Investment.
"Issuing Lender" means Bank of America National Trust and
Savings Association, or any successor thereto.
"Laws" means, collectively, all federal, state and local
statutes, rules, regulations, ordinances, codes and administrative or
judicial precedents, or other matters having the force of law and
binding upon the parties hereto.
"Lenders" has the meaning set forth in the preamble hereto.
"Letters of Credit" means any of the Letters of Credit issued by
the Issuing Lender under the Commitment pursuant to Section 2.4, either
as originally issued or as the same may be supplemented, modified,
amended, renewed, extended or supplanted.
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"LIBOR" means, with respect to any LIBOR Loan, an interest rate
per annum (rounded upward, if necessary, to the nearest 1/100 of one
percent) determined pursuant to the following formula:
LIBOR = LIBOR Base Rate
--------------------------
1.00 - Reserve Percentage
"LIBOR Advance" means an Advance made hereunder and specified to
be a LIBOR Advance in accordance with Article 2.
"LIBOR Loan" means a Loan made hereunder and specified to be a
LIBOR Loan in accordance with Article 2.
"LIBOR Margin" means, for each Pricing Period, the percentage
set forth opposite the Total Leverage Ratio as of the last day of the
Fiscal Quarter ending two months prior to the first day of that Pricing
Period:
Total Leverage Ratio LIBOR Margin
- -------------------- -------------
Greater than or equal to 4.50:1.00 2.75%
Less than 4.50:1.00 but greater than 2.50%
or equal to 4.00:1.00
Less than 4.00:1.00 but greater than 2.00%
or equal to 3.50:1.00
Less than 3.50:1.00 but greater than 1.75%
or equal to 3.00:1.00
Less than 3.00:1.00 but greater than 1.50%
or equal to 2.50:1.00
Less than 2.50:1.00 1.25%
"LIBOR Office" means, as to each Lender, its office or branch so
designated by written notice the Administrative Agent as its LIBOR
Office. If no LIBOR Office is designated by a Lender, its LIBOR Office
shall be its office at its address for purposes of notices hereunder.
"License Revocation" means the revocation, failure to renew or
suspension of, or the appointment of a receiver, supervisor or similar
official with respect to, any casino, gambling or gaming license issued
by any Gaming Board covering any casino or gaming facility of Coast
Resorts or its Subsidiaries.
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"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment for security, security interest, encumbrance, lien or charge
of any kind, whether voluntarily incurred or arising by operation of Law
or otherwise, affecting any Property, including any agreement to grant
any of the foregoing, any conditional sale or other title retention
agreement, any lease in the nature of a security interest, and/or the
filing of or agreement to give any financing statement (other than a
precautionary financing statement with respect to a lease that is not in
the nature of a security interest or customary pre-filings of financing
statements in connection with any refinancing) under the Uniform
Commercial Code or comparable Law of any jurisdiction with respect to
any Property.
"Loan" means the aggregate of the Advances made at any one time
by the Lenders pursuant to Article 2.
"Loan Documents" means, collectively, this Agreement, the Notes,
the Swing Line Documents, the Collateral Documents, any Secured Swap
Agreement, each Request for Letters of Credit, each Request for Loan,
the letters described in Sections 3.2, 3.4, 3.5 and 3.6, each Compliance
Certificate, each Construction Progress Report and any other agreements
of any type or nature hereafter executed and delivered by Borrower or
any of its Subsidiaries or Affiliates to the Administrative Agent or to
any Lender in any way relating to or in furtherance of this Agreement,
in each case either as originally executed or as the same may from time
to time be supplemented, modified, amended, restated, extended or
supplanted.
"Maintenance Capital Expenditures" means any Capital Expenditure
for the maintenance, repair, restoration or refurbishment of (a) any
portion of The Orleans, the Barbary Coast or the Gold Coast existing as
of the Closing Date, (b) following the Opening, the New Project, or (c)
following the opening thereof, any other hotel, casino or resort
property maintained by Coast Resorts or any of its Subsidiaries, but not
any Capital Expenditure which adds to or further improves any such
property.
"Margin Stock" means "margin stock" as such term is defined in
Regulation T, U or X.
"Market Day" means any Banking Day on which dealings in Dollar
deposits are conducted by and among banks in the Designated Eurodollar
Market.
"Material Adverse Effect" means any set of circumstances or
events which (a) has or may reasonably be expected to have any material
adverse effect whatsoever upon the validity or enforceability of any
Loan Document, (b) is or may reasonably be expected to be material and
adverse to the condition (financial or otherwise), business operations
or prospects of Coast Resorts and its Subsidiaries, taken as a whole, or
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(c) materially impairs or may reasonably be expected to materially
impair the ability of Coast Resorts and its Subsidiaries, taken as a
whole, to perform the Obligations.
"Maturity Date" means March 31, 2004.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA.
"Negative Pledge" means a Contractual Obligation that contains a
covenant binding on Coast Resorts or any of its Subsidiaries that
prohibits Liens on any of its or their Property, other than (a) any such
covenant contained in a Contractual Obligation granting a Lien permitted
under Section 6.9 which affects only the Property that is the subject of
such permitted Lien and (b) any such covenant that does not apply to
Liens securing the Obligations.
"Net Cash Proceeds" means with respect to any Disposition or any
offerings of Indebtedness or equity securities of Coast Resorts or its
Subsidiaries, the gross sales proceeds received by Coast Resorts and its
Subsidiaries from such Disposition or offering in Cash and Cash
Equivalents net of brokerage commissions, legal expenses and other
transactional costs payable by Coast Resorts and its Subsidiaries with
respect to such Disposition and net of an amount determined in good
faith by Borrower to be the estimated amount of income taxes payable by
Coast Resorts attributable to such Disposition and any reserves required
to be established in accordance with Generally Accepted Accounting
Principles by Coast Resorts or its Subsidiaries as a reserve against any
liabilities associated with such Disposition, including without
limitation pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under
indemnification obligations associated with such Disposition.
"Net Income" means, with respect to any fiscal period, the
consolidated net income of Borrower and its Subsidiaries for that
period, determined in accordance with Generally Accepted Accounting
Principles, consistently applied.
"New Project Deed of Trust" means the Leasehold Deed of Trust,
Assignment of Rents and Fixture Filing executed and delivered by
Borrower in favor of the Administrative Agent for the benefit of the
Lenders as of the Closing Date in accordance with Section 8.1 with
respect to the New Project Property and improvements thereon, either as
originally executed or as it may from time to time be supplemented,
modified, amended, extended or supplanted.
"New Project Ground Lease" means that certain Ground Lease
Agreement dated October 28, 1994 by and between 21 Stars, Ltd., a Nevada
limited liability company, as landlord, and Barbary Coast Hotel and
Casino, a Nevada general
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partnership, as tenant, as assigned to Coast West, Inc., and which shall
be further assigned to Borrower on the Closing Date by operation of
merger.
"New Project" means the proposed design, development and
construction by Borrower of a hotel, casino and entertainment complex on
the New Project Property.
"New Project Property" means the approximately 50 acres of real
property located at the intersection of Rampart and Alta Nevada, which
is the subject of the New Project Ground Lease.
"Note" means any of the promissory notes made by Borrower to a
Lender evidencing Advances under that Lender's Pro Rata Share of the
Commitment, substantially in the form of Exhibit C, either as
originally executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or supplanted.
"Obligations" means all present and future obligations of every
kind or nature of Borrower or any other Obligor at any time and from
time to time owed to the Administrative Agent or the Lenders or any one
or more of them, under any one or more of the Loan Documents, whether
due or to become due, matured or unmatured, liquidated or unliquidated,
or contingent or noncontingent, including obligations of performance as
well as obligations of payment, and including interest that accrues
after the commencement of any proceeding under any Debtor Relief Law by
or against Borrower or any Subsidiary or Affiliate of Borrower.
"Obligor" means Borrower, Coast Resorts and each other future
guarantor of the Obligations.
"Opening" means the date upon which (a) the New Project,
together with each of the material amenities described in the Plans, is
open and ready to accommodate hotel guests and gaming patrons, (b) a
certificate of occupancy (including any temporary certificate of
occupancy) has been issued with respect to the New Project, and (c)
Borrower has delivered a certificate to the Administrative Agent,
executed by a Senior Officer of Borrower, stating that (i) the New
Project, including all related amenities described in the Plans, has
been substantially completed in accordance with applicable Laws, the
Plans and the Budget (each as amended from time to time in accordance
with Section 6.19), (ii) the New Project is free and clear of all record
Liens and encumbrances (other than Permitted Encumbrances, those
described in Schedule B to the title policy for the New Project Property
described in Section 8.3 and any Liens and encumbrances which relate to
claims in an aggregate amount not in excess of $10,000,000 which are
being contested in good faith by appropriate proceedings diligently
pursued and, to the extent in excess of $1,000,000 in the aggregate, are
the subject of bonds and indemnities which are reasonably acceptable to
the Administrative Agent) and Borrower has paid all known claims against
the New Project, and (iii)
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Borrower has obtained all necessary licenses, permits and approvals
(including without limitation all permits and licenses required under
Gaming Laws) for the operation of the New Project.
"Opinions of Counsel" means the favorable written legal opinions
of Gibson, Dunn & Crutcher LLP, special counsel to the Obligors, and
McDonald Carano Wilson McCune Bergin Frankovich & Hicks, special Nevada
counsel to all Obligors, in each case issued on the Closing Date and in
a form solely acceptable to the Administrative Agent, together with
copies of all factual certificates and legal opinions upon which such
counsel have relied.
"Orleans" means The Orleans hotel, casino and entertainment
complex located at the intersection of Tropicana Avenue and Arville
Street in Las Vegas, Nevada.
"Orleans Deed of Trust" means the Leasehold Deed of Trust,
Assignment of Rents and Fixture Filing executed and delivered by
Borrower in favor of the Lenders as of the Closing Date in accordance
with Section 8.1 with respect to The Orleans Property and improvements
thereon, either as originally executed or as it may from time to time be
supplemented, modified, amended, extended or supplanted.
"Orleans Ground Lease" means that certain Ground Lease dated
October 1, 1995 by and between The Tiberti Company, a Nevada general
partnership, as landlord, and Gold Coast Hotel and Casino, a Nevada
limited partnership, as tenant, as assigned to the Borrower.
"Orleans Property" means the approximately 80 acres of real
property which is the subject of the Orleans Ground Lease.
"Outstanding Obligations" means, as of each date of
determination, and giving effect to the making of any such credit
accommodations requested on that date, the sum of (i) the aggregate
principal amount of the outstanding Loans, plus (ii) the Swing Line
Outstandings, plus (iii) the Aggregate Effective Amount of all Letters
of Credit.
"Pass-through Entity" means any Person taxed as a partnership
for federal income tax purposes, any disregarded entity for federal
income tax purposes, including a qualified Subchapter S subsidiary, an
S-Corporation, or any other entity whose items of income and deductions
are passed through to its equityholders for federal income tax purposes
and retain the same characteristics in the hands of such equityholders.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereof established under ERISA.
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27
"Pension Plan" means any "employee pension benefit plan" (as
such term is defined in Section 3(2) of ERISA), other than a
Multiemployer Plan, which is subject to Title IV of ERISA and is
maintained by Borrower or any of its Subsidiaries or to which Borrower
or any of its Subsidiaries contributes or has an obligation to
contribute.
"Permitted Encumbrances" means:
(a) inchoate Liens incident to construction on or
maintenance of Real Property; or Liens incident to construction on or
maintenance of Real Property now or hereafter filed of record for which
adequate reserves have been set aside (or deposits made pursuant to
applicable Law) and which are being contested in good faith by
appropriate proceedings and have not proceeded to judgment, provided
that, by reason of nonpayment of the obligations secured by such Liens,
no such Real Property is subject to a material risk of loss or
forfeiture;
(b) Liens for taxes and assessments on Real Property
which are not yet past due; or Liens for taxes and assessments on Real
Property for which adequate reserves have been set aside and are being
contested in good faith by appropriate proceedings and have not
proceeded to judgment, provided that, by reason of nonpayment of the
obligations secured by such Liens, no such Real Property is subject to a
material risk of loss or forfeiture;
(c) minor defects and irregularities in title to any
Real Property which in the aggregate do not materially impair the fair
market value or use of the Real Property for the purposes for which it
is or may reasonably be expected to be held;
(d) easements, exceptions, licenses, reservations,
or other agreements for the purpose of pipelines, conduits, cables,
telecommunications, wire communication lines, power lines and
substations, streets, trails, walkways, drainage, irrigation, water, and
sewerage purposes, dikes, canals, ditches, the removal of oil, gas,
coal, or other minerals, and other like purposes affecting Real
Property, facilities, or equipment which in the aggregate do not
materially burden or impair the fair market value or use of such Real
Property for the purposes for which it is or may reasonably be expected
to be held;
(e) rights reserved to or vested in any Governmental
Agency to control or regulate, or obligations or duties to any
Governmental Agency with respect to, the use of any Real Property;
(f) rights reserved to or vested in any Governmental
Agency to control or regulate, or obligations or duties to any
Governmental Agency with respect to, any right, power, franchise, grant,
approval, license, or permit;
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(g) present or future zoning laws and ordinances or
other Laws and ordinances restricting the occupancy, use, or enjoyment
of Real Property;
(h) statutory Liens, other than those described in
clauses (a) or (b) above, arising in the ordinary course of business
with respect to obligations which are not delinquent or are being
contested in good faith by appropriate proceedings, provided that, if
delinquent, adequate reserves have been set aside with respect thereto
and, by reason of nonpayment, no Property is subject to a material risk
of loss or forfeiture;
(i) rights of tenants under leases and rental
agreements covering Real Property entered into in the ordinary course of
business of the Person owning such Real Property;
(j) Liens consisting of pledges or deposits to
secure obligations under workers' compensation laws or similar
legislation, including Liens of judgments thereunder which are not
currently dischargeable;
(k) other non-consensual Liens incurred in the
ordinary course of business but not in connection with an extension of
credit, which do not in the aggregate, when taken together with all
other Liens, materially impair the value or use of the Property of
Borrower and the Subsidiaries of Borrower, taken as a whole;
(l) the matters disclosed on Schedule B to any of
the ALTA lenders policies of title insurance delivered to the
Administrative Agent pursuant to Section 8; and
(m) any attachment or judgment Lien relating to a
judgment of less than $5,000,000 which is in existence less than 30 days
after the entry thereof or with respect to which (a) execution has been
stayed from the date of its entry, (b) payment is covered in full by
insurance, or (c) the Borrower or any of its Subsidiaries is in good
faith prosecuting an appeal or other appropriate proceedings for review
and has set aside cash reserves in the full amount of such judgment or
award.
"Permitted Right of Others" means a Right of Others consisting
of (a) an interest (other than a legal or equitable co-ownership
interest, an option or right to acquire a legal or equitable
co-ownership interest and any interest of a ground lessor under a ground
lease), that does not materially impair the value or use of Property for
the purposes for which it is or may reasonably be expected to be held,
(b) an option or right to acquire a Lien that would be a Permitted
Encumbrance, (c) any licenses or concessions to operate retail
businesses granted in accordance with industry customs,
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or any options to receive any such licenses or concessions, or (d) any
Right of Others granted in connection with a proposed Disposition
permitted by Section 6.3.
"Permitted Tax Distribution" means (a) payments to Coast Resorts
required to be made pursuant to the Tax Sharing Agreement and (b) if and
for so long as Borrower is treated as a Pass-through Entity,
distributions to Coast Resorts (or, if Coast Resorts is a Pass-through
Entity, its equityholders) in an amount not to exceed the Tax Amount;
provided that (i) prior to the first such distribution to equityholders,
Borrower and Coast Resorts deliver to the Administrative Agent an
opinion of counsel reasonably satisfactory to the Administrative Agent
confirming that (y) Borrower (and, in the appropriate case, Coast
Resorts) is a Pass-through Entity and (z) the Lenders will not recognize
income, gain or loss for federal income tax purposes as a result of the
transaction pursuant to which the Borrower or Coast Resorts becomes a
Pass-through Entity and will be subject to federal income tax in the
same manner and at the same times as would have been the case if such
transaction had not occurred and (ii) prior to any such distribution,
Borrower delivers to the Administrative Agent a certificate of
Borrower's Chief Financial Officer to the effect that the Borrower is
taxable as Pass-through Entity.
"Person" means any individual or entity, including a trustee,
corporation, limited liability company, general partnership, limited
partnership, joint stock company, trust, estate, unincorporated
organization, business association, firm, joint venture, Governmental
Agency, or other entity.
"Plans" means all drawings, plans and specifications prepared by
or for Borrower with respect to the New Project, and, if required,
submitted to and approved by the Clark County Building Department, which
Plans have been submitted to and approved by the Administrative Agent
and the Lenders pursuant to Section 8.3, as amended in accordance with
Section 6.19.
"Pricing Period" means (a) the period beginning on the Closing
Date and ending on May 31, 1999, and (b) each of the succeeding three
month periods beginning on each subsequent June 1, September 1, December
1 and March 1.
"Principals" means Michael J. Gaughan, J. Tito Tiberti, Jerry
Herbst and Franklin Toti.
"Project Site" shall mean each of the Orleans Property, the Gold
Coast Property, the Barbary Coast Property, the New Project and any
future hotel-casino sites which Coast Resorts or any of its Subsidiaries
hereafter maintains or operates.
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"Projections" means the financial projections dated December 29,
1998, prepared based on information provided by Borrower and previously
delivered to the Administrative Agent.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Pro Rata Share" means, as of each date of determination and
with respect to each Lender, the percentage of the Commitment owned by
that Lender (or, if the Commitment has been terminated, the percentage
of the Outstanding Obligations owned by that Lender). The records of the
Administrative Agent shall be presumed to correctly reflect the Pro Rata
Share of the Lenders then party to the Loan Agreement.
"Public Equity Offering" means an underwritten public offering
of the common stock of Coast Resorts which is registered under the
Securities Act of 1933 and results in net proceeds to Coast Resorts of
not less than $20,000,000.
"Quarterly Payment Date" means each March 31, June 30, September
30 and December 31 to occur following the date of this Agreement.
"Rancho Property" means the approximately 29 acres of
undeveloped land owned by Borrower and located at the intersection of
Rancho Drive and Carey Avenue in North Las Vegas, Nevada.
"Real Property" means, as of any date of determination, all real
Property then or theretofore owned, leased or occupied by Coast Resorts
or any of its Subsidiaries, including the Project Sites.
"Reduction Amount" means the amount set forth in the matrix
below opposite that Reduction Date in the column headed "Reduction
Amount ($75,000,000 Commitment)," or such lesser amount to which that
Reduction Amount may be reduced in accordance with the second sentence
of Section 2.5:
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Reduction Dates Reduction Amount Reduction Amount
- --------------- ---------------- ----------------
($75,000,000 Commitment) ($200,000,000 Commitment)
06/30/01 $ 2,100,000 $ 6,000,000
09/30/01 $ 2,100,000 $ 6,000,000
12/31/01 $ 2,100,000 $ 6,000,000
03/31/02 $ 2,100,000 $ 6,000,000
06/30/02 $ 3,200,000 $ 8,500,000
09/30/02 $ 3,200,000 $ 8,500,000
12/31/02 $ 3,200,000 $ 8,500,000
03/31/03 $ 3,200,000 $ 8,500,000
06/30/03 $ 4,300,000 $ 11,500,000
09/30/03 $ 4,300,000 $ 11,500,000
12/31/03 $ 4,300,000 $ 11,500,000
Maturity $40,700,000 $107,500,000
In the event that the Commitment is hereafter increased pursuant to
Section 2.8, then, as to each Reduction Date which occurs following such
increase, "Reduction Amount" shall mean the amount set forth in the
matrix above opposite that Reduction Date in the column headed
"Reduction Amount ($200,000,000 Commitment)," or such lesser amount to
which that Reduction Amount may thereafter be reduced in accordance with
the second sentence of Section 2.5, provided that if the increase to the
Commitment is to an amount (the "New Commitment") which is less than
$200,000,000, each such Reduction Amount shall be reduced in the same
proportion as the New Commitment bears to $200,000,000.
"Reduction Date" means June 30, 2001, and the last day of each
succeeding September, December, March and June through the Maturity
Date.
"Reference Rate" means the rate of interest publicly announced
from time to time by Bank of America in San Francisco, California, as
its "reference rate." It is a rate set by Bank of America based upon
various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above,
or below such announced rate. Any change in the Reference Rate announced
by Bank of America shall take effect at the opening of business on the
day specified in the public announcement of such change.
"Regulation D" means Regulation D, as at any time amended, of
the Board of Governors of the Federal Reserve System, or any other
regulation in substance substituted therefor.
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"Regulations T, U and X" means Regulations T, U and X, as at any
time amended, of the Board of Governors of the Federal Reserve System,
or any other regulations in substance substituted therefor.
"Related Parties" means, with respect to any Principal, (a) any
spouse, sibling, parent or lineal descendant of such Principal or any
spouse of any such sibling or lineal descendant, and (b) and trust,
corporation, partnership or other Person, the beneficiaries,
shareholders, partners, owners or Persons beneficially holding 80% or
more controlling interest of which consist of such Principal or Persons
of the type referred to in clause (a).
"Request for Letter of Credit" means a written request for a
Letter of Credit substantially in the form of Exhibit D, signed by a
Responsible Official of Borrower, on its behalf, and properly completed
to provide all information required to be included therein.
"Request for Loan" means a written request for a Loan
substantially in the form of Exhibit E, signed by a Responsible Official
of Borrower and properly completed to provide all information required
to be included therein.
"Requirement of Law" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any Law, or judgment, award,
decree, writ or determination of a Governmental Agency, in each case
applicable to or binding upon such Person or any of its Property or to
which such Person or any of its Property is subject.
"Requisite Lenders" means, as of each date of determination (a)
if the Commitment is then in effect, Lenders having Pro Rata Shares
constituting 51% of the Commitment, and (b) if the Commitment has then
been terminated and there are then any Obligations outstanding, Lenders
holding 51% or more of the Outstanding Obligations.
"Reserve Percentage" means, with respect to any LIBOR Loan, the
maximum reserve percentage (expressed as a decimal, rounded upward, if
necessary, to the nearest 1/100th of 1%) in effect on the date the LIBOR
Base Rate for that LIBOR Loan is determined (whether or not applicable
to any Lender) under regulations issued from time to time by the Federal
Reserve Board for determining the maximum reserve requirement (including
any emergency, supplemental or other marginal reserve requirement) with
respect to eurocurrency funding (currently referred to as "eurocurrency
liabilities") having a term comparable to the Interest Period for such
LIBOR Loan. The determination by the Administrative Agent of any
applicable Reserve Percentage shall be conclusive in the absence of
manifest error.
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"Responsible Official" means (a) when used with reference to a
Person other than an individual, any officer of such Person, general
partner of such Person, officer of a corporate general partner of such
Person, or corporate officer of a corporate general partner of a
partnership that is a general partner of such Person, or any other
responsible official thereof duly acting on behalf thereof, and (b) when
used with reference to a Person who is an individual, such Person. Any
document or certificate hereunder that is signed or executed by a
Responsible Official of another Person shall be conclusively presumed to
have been authorized by all necessary corporate, partnership and/or
other action on the part of such other Person.
"Right of Others" means, as to any Property in which a Person
has an interest, any legal or equitable right, title or other interest
(other than a Lien) held by any other Person in that Property, and any
option or right held by any other Person to acquire any such right,
title or other interest in that Property, including any option or right
to acquire a Lien.
"Secured Swap Agreement" means a Swap Agreement between Borrower
and a Lender.
"Security Agreement" means a security agreement executed and
delivered by Borrower in favor of the Lenders as of the Closing Date in
accordance with Section 8.1, either as originally executed or as it may
from time to time be supplemented, modified, amended, extended or
supplanted.
"Senior Debt" means, as of each date of determination, Total
Debt minus Subordinated Obligations.
"Senior Leverage Ratio" means, as of the last day of each Fiscal
Quarter, the ratio of (a) the average principal amount of the
outstanding Senior Debt as of the last day of each of the three
constituent calendar months in that Fiscal Quarter, to (b) EBITDA for
the four Fiscal Quarter period ending on such date.
"Senior Officer" means the (a) chief executive officer, (b)
president, (c) any vice president, (d) chief financial officer, (e)
treasurer or (f) assistant treasurer of the Person designated.
"Special LIBOR Circumstance" means the application or adoption
after the Closing Date of any Law or interpretation, or any change after
the Closing Date therein or thereof, or any change after the Closing
Date in the interpretation or administration thereof by any Governmental
Agency, central bank or comparable authority charged with the
interpretation or administration thereof, or compliance by any Lender or
its LIBOR Office with any request or directive (whether or not having
the force of Law) of any such Governmental Agency, central bank or
comparable authority issued after
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the Closing Date, or the existence or occurrence after the Closing Date
of circumstances affecting the Designated Eurodollar Market generally
that are beyond the reasonable control of the Lenders.
"Subordinated Obligations" means (a) the 1999 Senior
Subordinated Debt, and (b) any other Indebtedness of Borrower which is
subordinated in right of payment to the Obligations, the terms of which
are approved by the Administrative Agent, acting with the consent of the
Requisite Lenders, in writing. The Former Partner Debt is not a
Subordinated Obligation.
"Subsidiary" means, as of any date of determination and with
respect to any Person, any corporation, limited liability company or
partnership (whether or not, in either case, characterized as such or as
a "joint venture"), whether now existing or hereafter organized or
acquired: (a) in the case of a corporation or limited liability company,
of which a majority of the securities having ordinary voting power for
the election of directors or other governing body (other than securities
having such power only by reason of the happening of a contingency) are
at the time beneficially owned by such Person and/or one or more
Subsidiaries of such Person, or (b) in the case of a partnership, of
which a majority of the partnership or other ownership interests are at
the time beneficially owned by such Person and/or one or more of its
Subsidiaries.
"Subsidiary Guaranty" means an unconditional guaranty in full of
the Obligations delivered by a Subsidiary of Coast Resorts pursuant
hereto, such guaranty to be in substantially the form of the Guaranty,
with such modifications as may be designated by the Administrative
Agent.
"Subsidiary Pledge Agreement" means an agreement granting a
pledge in all property of a Subsidiary of Coast Resorts delivered by
such Subsidiary to secure the Obligations pursuant hereto, such pledge
agreement to be in substantially the form of the Coast Resorts Pledge
Agreement, with such modifications as may be designated by the
Administrative Agent.
"Subsidiary Security Agreement" means an agreement granting a
security interest in all property of a Subsidiary of Coast Resorts
delivered by such Subsidiary to secure the Obligations pursuant hereto,
such security agreement to be in substantially the form of the Coast
Resorts Security Agreement, with such modifications as may be designated
by the Administrative Agent.
"Swap Agreement" means a written agreement between Borrower and
one or more financial institutions providing for "swap", "cap", "collar"
or other interest rate protection with respect to any Indebtedness.
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"Swing Line" means the revolving line of credit established by
the Swing Line Lender in favor of Borrower pursuant to Section 2.10.
"Swing Line Advances" means loans made by the Swing Line Lender
to Borrower pursuant to Section 2.10.
"Swing Line Lender" means Bank of America, through its Nevada
Commercial Banking Group, or any successor thereto.
"Swing Line Documents" means the $7,500,000 promissory note of
even date herewith (as at any time amended) and any other documents
executed by Borrower in favor of the Swing Line Lender in connection
with the Swing Line.
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal Indebtedness of Borrower on all
Swing Line Loans then outstanding.
"Tax Agreement" means (a) the Tax Sharing Agreement, and (B) if
and for so long as Borrower and Coast Resorts are treated as a
Pass-Through Entities, any agreement among Borrower, Coast Resorts and
the equity holders of Coast Resorts with respect to distributions of the
Tax Amount.
"Tax Amount" means, with respect to any period during which
Borrower is a Pass-Through Entity, the federal, state and local tax
liability of equityholders of Borrower (or, if Coast Resorts is a
Pass-through Entity, its equityholders), assuming maximum rates, in
respect of their direct or indirect interests in the Borrower for such
period plus any additional amounts payable to such equityholders to
cover taxes arising from ownership of such equity interests.
"Tax Sharing Agreement" means that certain Tax Sharing Agreement
dated January 30, 1996, among Coast Resorts, the Company and Coast West,
Inc., as in existence on the Closing Date.
"Timetable" means the construction timetable for the New Project
specified by Borrower and approved by the Lenders pursuant to Section
8.3, as amended in accordance with Section 6.19.
"Title Company" means Commonwealth Land Title Insurance Company
or such other title insurance company as is reasonably acceptable to the
Administrative Agent.
"Total Debt" means, as of each date of determination, the
aggregate principal Indebtedness, without duplication, of Coast Resorts
and its Subsidiaries.
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"Total Leverage Ratio" means, as of the last day of each Fiscal
Quarter, the ratio of (a) the average principal amount of the
outstanding Total Debt as of the last day of each of the three
constituent calendar months in that Fiscal Quarter, to (b) EBITDA for
the four Fiscal Quarter period ending on such date.
"to the best knowledge of" means, when modifying a
representation, warranty or other statement of any Person, that the fact
or situation described therein is known by the Person (or, in the case
of a Person other than a natural Person, known by a Responsible Official
of that Person) making the representation, warranty or other statement,
or with the exercise of reasonable due diligence under the circumstances
(in accordance with the standard of what a reasonable Person in similar
circumstances would have done) would have been known by the Person (or,
in the case of a Person other than a natural Person, would have been
known by a Responsible Official of that Person).
"Trademark Assignment" means the Trademark Security Interest
Assignment, executed by Borrower and Parent on the Closing Date, either
as originally executed or as it may from time to time be supplemented,
modified, amended, extended or supplanted.
"type", when used with respect to any Loan or Advance, means the
designation of whether such Loan or Advance is a Base Rate Loan or
Advance, or a LIBOR Loan or Advance.
"Voting Stock" means, with respect to any Person, capital stock
of any class or kind ordinarily having the power to vote for the
election of directors, managers or other voting members of the governing
body of such Person.
1.2 Use of Defined Terms. Any defined term used in the
plural shall refer to all members of the relevant class, and any defined term
used in the singular shall refer to any one or more of the members of the
relevant class.
1.3 Accounting Terms. All accounting terms not specifically
defined in this Agreement shall be construed in conformity with, and all
financial data required to be submitted by this Agreement shall be prepared in
conformity with, Generally Accepted Accounting Principles as in effect on the
Closing Date, applied on a consistent basis.
1.4 Rounding. Any financial ratios required to be maintained
by Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed in this
Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
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1.5 Exhibits and Schedules. All Exhibits and Schedules to
this Agreement, either as originally existing or as the same may from time to
time be supplemented, modified or amended, are incorporated herein by this
reference. A matter disclosed on one Schedule shall be deemed disclosed on all
Schedules.
1.6 References to "and its Subsidiaries". Any reference
herein to "and its Subsidiaries" or the like shall refer solely to the subject
Person during such times as the subject Person shall have no Subsidiaries. No
use of the term "Subsidiary" or any derivative thereof in the Loan Documents
shall imply a right in any Person to make any Investments in or Acquisitions of
any other Person.
1.7 References to Times. Each reference to a time of day set
forth in the Loan Documents shall, unless expressly stated to the contrary, be a
reference to the then prevailing California local time.
1.8 Miscellaneous Terms. The term "or" is disjunctive; the
term "and" is conjunctive. The term "shall" is mandatory; the term "may" is
permissive. Masculine terms also apply to females; feminine terms also apply to
males. The term "including" is by way of example and not limitation.
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Article 2
LOANS
2.1 Loans-General.
(a) Subject to the terms and conditions set forth in
this Agreement, from time to time from the Closing Date through the
Maturity Date each Lender shall, pro rata according to that Lender's Pro
Rata Share of the then applicable Commitment, make revolving Advances to
Borrower under the Commitment in such amounts as Borrower may request
that do not result in the Outstanding Obligations being in excess of the
Commitment. Subject to the limitations set forth herein, Borrower may
borrow, repay and reborrow under the Commitment without premium or
penalty.
(b) Subject to the next sentence, each Loan shall be
made pursuant to a Request for Loan which shall specify the requested
(i) date of such Loan, (ii) type of Loan, (iii) amount of such Loan, and
(iv) in the case of a LIBOR Loan, the Interest Period for such Loan.
Unless the Administrative Agent has previously notified Borrower to the
contrary (which notice may be given in the sole and absolute discretion
of the Administrative Agent), Loans may be requested by telephone by a
Responsible Official of Borrower, in which case Borrower shall confirm
such request by promptly delivering a Request for Loan in person or by
telecopier conforming to the preceding sentence to the Administrative
Agent. Neither the Administrative Agent nor any Lender shall incur any
liability whatsoever hereunder in acting upon any telephonic request for
a Loan purportedly made by a Responsible Official of Borrower, which
hereby agrees to indemnify the Administrative Agent and the Lenders from
any loss, cost, expense or liability as a result of so acting.
(c) Promptly following receipt of a Request for
Loan, the Administrative Agent shall notify each Lender by telephone or
telecopier (and if by telephone, promptly confirmed by telecopier) of
the date and type of the Loan, the applicable Interest Period, and that
Lender's Pro Rata Share of the Loan. Not later than 11:00 a.m. on the
date specified for any Loan (which must be a Banking Day), each Lender
shall make its Pro Rata Share of the Loan in immediately available funds
available to the Administrative Agent at the Administrative Agent's
Office. Upon satisfaction or waiver of the applicable conditions set
forth in Article 8, all Advances shall be credited on that date in
immediately available funds to the Disbursement Account.
(d) Unless the Requisite Lenders otherwise consent,
each Loan shall be in an amount which is an integral multiple of
$1,000,000 and is not less than $2,000,000.
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(e) The Advances made by each Lender shall be
evidenced by that Lender's Note.
(f) A Request for Loan shall be irrevocable upon the
Administrative Agent's receipt thereof (or, in the case of a telephonic
request for Loan referred to in the second sentence of Section 2.1(b),
upon the Administrative Agent's receipt of that telephone call).
(g) If no Request for Loan (or telephonic request
for Loan referred to in the second sentence of Section 2.1(b), if
applicable) has been made within the requisite notice periods set forth
in Section 2.2 or 2.3 in connection with a Loan which, if made and
giving effect to the application of the proceeds thereof, would not
increase the outstanding principal Indebtedness evidenced by the Notes,
then Borrower shall be deemed to have requested, as of the date upon
which the related then outstanding Loan is due pursuant to Section
3.1(e), a Base Rate Loan in an amount equal to the amount necessary to
cause the outstanding principal Indebtedness evidenced by the Notes to
remain the same and the Lenders shall make the Advances necessary to
make such Loan notwithstanding Sections 2.1(b) and 2.2.
(h) If a Loan is to be made on the same date that
another Loan is due and payable, Borrower or the Lenders, as the case
may be, shall at the request of the Administrative Agent make available
to the Administrative Agent the net amount of funds giving effect to
both such Loans and the effect for purposes of this Agreement shall be
the same as if separate transfers of funds had been made with respect to
each such Loan.
2.2 Base Rate Loans. Each request by Borrower for a Base
Rate Loan shall be made pursuant to a Request for Loan (or telephonic or other
request for loan referred to in the second sentence of Section 2.1(b), if
applicable) received by the Administrative Agent, at the Administrative Agent's
Office, not later than 10:00 a.m. on the date (which must be a Banking Day) of
the requested Base Rate Loan. All Loans shall constitute Base Rate Loans unless
properly designated as LIBOR Loans pursuant to Section 2.3.
2.3 LIBOR Loans.
(a) Each request by Borrower for a LIBOR Loan shall
be made pursuant to a Request for Loan (or telephonic or other request
for Loan referred to in the second sentence of Section 2.1(b), if
applicable) received by the Administrative Agent, at the Administrative
Agent's Office, not later than 10:00 a.m. at least three Market Days
before the first day of the applicable Interest Period.
(b) On the date which is two Market Days before the
first day of the applicable Interest Period, the Administrative Agent
shall confirm its determination of
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the applicable LIBOR (which determination shall be conclusive in the
absence of manifest error) and promptly shall give notice of the same to
Borrower and the Lenders by telephone or telecopier (and if by
telephone, promptly confirmed by telecopier).
(c) Unless the Administrative Agent and the
Requisite Lenders otherwise consent, no more than ten LIBOR Loans shall
be outstanding at any one time.
(d) No LIBOR Loan may be requested where a Default
or Event of Default has occurred and remains continuing.
(e) Nothing contained herein shall require any
Lender to fund any LIBOR Advance in the Designated Eurodollar Market.
2.4 Letters of Credit.
(a) Subject to the terms and conditions hereof, at
any time and from time to time from the Closing Date through the Banking
Day immediately prior to the Maturity Date, the Issuing Lender shall
issue such Letters of Credit under the Commitment as Borrower may
request by a Request for Letter of Credit; provided that (i) giving
effect to all such Letters of Credit, the Outstanding Obligations do not
exceed the then applicable Commitment and (ii) the Aggregate Effective
Amount under all outstanding Letters of Credit shall not exceed
$10,000,000. Each Letter of Credit shall be in a form reasonably
acceptable to the Issuing Lender. Unless all the Lenders otherwise
consent in a writing delivered to the Administrative Agent, no Letter of
Credit shall have a term which exceeds one year or extends beyond the
Maturity Date.
(b) Each Request for Letter of Credit shall be
submitted to the Issuing Lender, with a copy to the Administrative
Agent, at least two Banking Days prior to the date upon which the
related Letter of Credit is proposed to be issued. The Administrative
Agent shall promptly notify the Issuing Lender whether such Request for
Letter of Credit, and the issuance of a Letter of Credit pursuant
thereto, conforms to the requirements of this Agreement. Upon issuance
of a Letter of Credit, the Issuing Lender shall promptly notify the
Administrative Agent, who shall promptly notify the Lenders, of the
amount and terms thereof.
(c) Upon the issuance of a Letter of Credit, each
Lender shall be deemed to have purchased a pro rata participation in
such Letter of Credit from the Issuing Lender in an amount equal to that
Lender's Pro Rata Share. Without limiting the scope and nature of each
Lender's participation in any Letter of Credit, to the extent that the
Issuing Lender has not been reimbursed by Borrower for any payment
required to be made by the Issuing Lender under any Letter of Credit,
each Lender shall, pro rata according to its Pro Rata Share, pay the
purchase price for such
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participation to the Issuing Lender through the Administrative Agent
promptly upon demand therefor. The obligation of each Lender to so pay
the participation purchase price to the Issuing Lender shall be absolute
and unconditional and shall not be affected by the occurrence of an
Event of Default or any other occurrence or event. Any such payment of
the purchase price shall not relieve or otherwise impair the obligation
of Borrower to reimburse the Issuing Lender for the amount of any
payment made by the Issuing Lender under any Letter of Credit together
with interest as hereinafter provided.
(d) Borrower agrees to pay to the Issuing Lender
through the Administrative Agent an amount equal to any payment made by
the Issuing Lender with respect to each Letter of Credit upon demand by
the Issuing Lender therefor, together with interest on such amount from
the date of any payment made by the Issuing Lender at the Default Rate.
The principal amount of any such payment shall be used to reimburse the
Issuing Lender for the payment made by it under the Letter of Credit
and, to the extent that the Lenders have not reimbursed the Issuing
Lender pursuant to Section 2.4(c), the interest amount of any such
payment shall be for the account of the Issuing Lender. Each Lender that
has paid the participation purchase price to the Issuing Lender pursuant
to Section 2.4(c) shall thereupon acquire a pro rata participation, to
the extent of such payment, in the claim of the Issuing Lender against
Borrower for reimbursement of principal and interest under this Section
2.4(d) and shall share, in accordance with that pro rata participation,
in any principal payment made by Borrower with respect to such claim and
in any interest payment made by Borrower (but only with respect to
periods subsequent to the date such Lender paid the participation
purchase price to the Issuing Lender) with respect to such claim.
(e) Borrower may, pursuant to a Request for Loan,
request that Advances be made pursuant to Section 2.1(a) to provide
funds for the payment required by Section 2.4(d) and, for this purpose,
the conditions precedent set forth in Article 8 shall not apply. The
proceeds of such Advances shall be paid directly to the Issuing Lender
to reimburse it for the payment made by it under the Letter of Credit.
(f) If Borrower fails to make the payment required
by Section 2.4(d) on a timely basis then, in lieu of the payment of the
participation purchase price to the Issuing Lender under Section 2.4(c),
the Issuing Lender may (but is not required to), without notice to or
the consent of Borrower, instruct the Administrative Agent to cause Base
Rate Advances to be made by the Lenders under their Pro Rata Shares of
the Commitment in an aggregate amount equal to the amount paid by the
Issuing Lender with respect to that Letter of Credit and, for this
purpose, the conditions precedent to Advances set forth in Article 8
shall not apply. The proceeds of such Advances shall be paid directly to
the Issuing Lender to reimburse it for the payment made by it under the
Letter of Credit.
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(g) The issuance of any supplement, modification,
amendment, renewal, or extension to or of any Letter of Credit shall be
treated in all respects the same as the issuance of a new Letter of
Credit, provided that this clause (g) shall not require the payment of
any letter of credit fees except to the extent that such
supplementation, modification, amendment, renewal or extension results
in an increase to the amount of the related Letter of Credit or any
extension of its tenor.
(h) The obligation of Borrower to pay to the Issuing
Lender the amount of any payment made by the Issuing Lender under any
Letter of Credit shall be absolute, unconditional, and irrevocable,
subject only to performance by the Issuing Lender of its obligations to
Borrower under Uniform Commercial Code Section 5109, as in effect in the
State of Nevada. Without limiting the foregoing, the obligations of
Borrower to the Issuing Lender shall not be affected by any of the
following circumstances:
(i) any lack of validity or enforceability
of the Letter of Credit, this Agreement, or any other Agreement
or instrument relating thereto;
(ii) any amendment or waiver of the terms of
the Letter of Credit, or any consent to departure from the
Letter of Credit, this Agreement, or any other Agreement or
instrument relating thereto;
(iii) the existence of any claim, setoff,
defense, or other rights which Borrower may have at any time
against any Creditor, any beneficiary of the Letter of Credit
(or any persons or entities for whom any such beneficiary may be
acting) or any other Person, whether in connection with the
Letter of Credit, this Agreement, or any other Agreement or
instrument relating thereto, or any unrelated transactions;
(iv) any demand, statement, or any other
document presented under the Letter of Credit proving to be
forged, fraudulent, invalid, or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect
whatsoever so long as any such document appeared to comply with
the terms of the Letter of Credit;
(v) payment by the Issuing Lender in good
faith under the Letter of Credit against presentation of a draft
or any accompanying document which does not strictly comply with
the terms of the Letter of Credit, except to the extent that the
making of such payment has been determined by a court or
arbitrator to result from the gross negligence of the Issuing
Lender;
(vi) the existence, character, quality,
quantity, condition, packing, value or delivery of any Property
purported to be represented by docu-
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ments presented in connection with any Letter of Credit or any
difference between any such Property and the character, quality,
quantity, condition, or value of such Property as described in
such documents;
(vii) the time, place, manner, order or
contents of shipments or deliveries of Property as described in
documents presented in connection with any Letter of Credit or
the existence, nature and extent of any insurance relative
thereto;
(viii) the solvency or financial responsibility
of any party issuing any documents in connection with a Letter
of Credit;
(ix) any failure or delay in notice of
shipments or arrival of any Property;
(x) any error in the transmission of any
message relating to a Letter of Credit, or any delay or
interruption in any such message, not caused by the Issuing
Lender;
(xi) any error, neglect or default of any
correspondent of the Issuing Lender in connection with a Letter
of Credit (but without prejudice to any claim by Borrower
against such correspondent);
(xii) any consequence arising from acts of
God, war, insurrection, civil unrest, disturbances, labor
disputes, emergency conditions or other causes beyond the
control of the Issuing Lender;
(xiii) so long as the Issuing Lender in good
faith determines that the contract or document appears to comply
with the terms of the Letter of Credit, the form, accuracy,
genuineness or legal effect of any contract or document referred
to in any document submitted to the Issuing Lender in connection
with a Letter of Credit; and
(xiv) where the Issuing Lender has acted in
good faith and observed general banking usage, any other
circumstances whatsoever.
(i) The Issuing Lender shall be entitled to the
protection accorded to the Administrative Agent pursuant to Article 10,
mutatis mutandis.
(j) The Uniform Customs and Practice for Documentary
Credits, as published in its most current version by the International
Chamber of Commerce, shall be deemed a part of this Section and shall
apply to all Letters of Credit to the extent not inconsistent with
applicable Law.
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2.5 Voluntary Reduction of Commitment. Borrower shall have
the right, at any time and from time to time, without penalty or charge, upon at
least five Banking Days' prior written notice by Borrower to the Administrative
Agent, to voluntarily reduce, permanently and irrevocably, in amounts which are
not less than $2,000,000 each and are integral multiples of $1,000,000, or to
terminate, all or a portion of the then undisbursed portion of the Commitment,
provided that any such reduction or termination shall be accompanied by payment
of all accrued and unpaid commitment fees with respect to the portion of the
Commitment being reduced or terminated. Concurrently with the making of any such
reduction in the Commitment, Borrower may specify that the Reduction Amounts for
one or more Reduction Dates will be reduced in an aggregate amount which is the
same as the amount of the reduction of the Commitment, provided that in the
absence of a timely specification to this effect by Borrower, each such
reduction shall be applied to Reduction Amounts in the inverse order of their
occurrence. The Administrative Agent shall promptly notify the Lenders of any
reduction or termination of the Commitment under this Section, and of any
changes to the Reduction Amounts.
2.6 Scheduled Mandatory Reductions of Commitment. The
Commitment shall automatically and permanently reduce on each Reduction Date by
the related Reduction Amount.
2.7 Other Mandatory Reductions of Commitment. The Commitment
shall be reduced in the manner and the amount provided in Section 5.13. In the
event of any such reduction, the terms and provisions of Section 2.5 following
the first proviso therein shall be applicable.
2.8 Optional Increases to the Commitment.
(a) Provided that no Default or Event of Default
then exists, Borrower may at any time prior to the first anniversary of
the Closing Date request in writing that the then effective Commitment
be increased to an amount which is not greater than $200,000,000 minus
the amount of any reductions to the Commitment which have then occurred
pursuant to Sections 2.5, 2.6 or 2.7, in accordance with the provisions
of this Section. Any request under this Section shall be submitted by
Borrower to the Lenders through the Administrative Agent not less than
thirty days prior to the proposed increase, specify the proposed
effective date and amount of such increase and be accompanied by (i) a
Certificate of a Responsible Official of Borrower, signed by a Senior
Officer of Borrower, stating that no Default or Event of Default exists
as of the date of the request or will result from the requested
increase, (ii) a written consent to the increase in the amount of the
Commitment executed by each Guarantor and (iii) the satisfaction of all
conditions precedent to such an increase specified in Section 8.3.
Borrower may also specify any fees offered to those Lenders which agree
to an increase in the amount of their Pro Rata Share of the Commitment
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(which fees may be variable based upon the amount which any such Lender
is willing to assume as an increase to the amount of its Pro Rata Share
of the increased Commitment). The consent of the Lenders, as such, shall
not be required for an increase in the amount of the Commitment pursuant
to this Section.
(b) Each Lender may approve or reject a request for
an increase in the amount of the Commitment in its sole and absolute
discretion and, absent an affirmative written response within fifteen
days after receipt of such request, shall be deemed to have rejected the
request. The rejection of such a request by any number of Lenders shall
not affect Borrower's right to increase the Commitment pursuant to this
Section. No Lender which rejects a request for an increase in the
Commitment shall be subject to removal as a Lender.
(c) In responding to a request under this Section,
each Lender which is willing to increase the amount of its Pro Rata
Share of the increased Commitment shall specify the amount of the
proposed increase which it is willing to assume. Each consenting Lender
shall be entitled to participate ratably (based on its Pro Rata Share of
the Commitment before such increase) in any resulting increase in the
Commitment, subject to the right of the Administrative Agent to adjust
allocations of the increased Commitment so as to result in the amounts
of the Pro Rata Shares of the Lenders being in integral multiples of
$1,000,000.
(d) If the aggregate principal amount offered to be
assumed by the consenting Lenders is less than the amount requested,
Borrower may (i) reject the proposed increase in its entirety, (ii)
accept the offered amounts or (iii) designate new lenders who qualify as
Eligible Assignees and which are reasonably acceptable to the
Administrative Agent as additional Lenders hereunder in accordance with
clause (e) of this Section (each, a "New Lender"), which New Lenders may
assume the amount of the increase in the Commitment that has not been
assumed by the consenting Lenders.
(e) Each New Lender designated by Borrower and
reasonably acceptable to the Administrative Agent shall become an
additional party hereto as a New Lender concurrently with the
effectiveness of the proposed increase in the Commitment upon its
execution of an instrument of joinder to this Agreement which is in form
and substance acceptable to the Administrative Agent and which, in any
event, contains the representations, warranties, indemnities and other
protections afforded to the Administrative Agent and the other Lenders
which would be granted or made by an Eligible Assignee by means of the
execution of a Commitment Assignment and Acceptance.
(f) Subject to the foregoing, any increase to the
Commitment requested under this Section shall be effective as of the
date proposed by Borrower and shall be in the principal amount equal to
(i) the amount which consenting Lenders are
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willing to assume as increases to the amount of their Pro Rata Share
plus (ii) the amount offered by any New Lenders. Upon the effectiveness
of any such increase, Borrower shall issue replacement Notes to each
affected Lender and new Notes to each New Lender, and the percentage Pro
Rata Shares of each Lender will be adjusted to give effect to the
increase in the Commitment and set forth in a new Schedule 1.1 issued by
the Administrative Agent.
2.9 Administrative Agent's Right to Assume Funds Available
for Advances. Unless the Administrative Agent shall have been notified by a
Lender no later than the Banking Day prior to the funding by the Administrative
Agent of any Loan that such Lender does not intend to make available to the
Administrative Agent such Lender's Pro Rata Share of that Loan, the
Administrative Agent may assume that such Lender has made such amount available
to the Administrative Agent on the date of the Loan and the Administrative Agent
may, in reliance upon such assumption, make available to Borrower a
corresponding amount. If the Administrative Agent has made funds available to
Borrower based on such assumption and such corresponding amount is not in fact
made available to the Administrative Agent by such Lender, the Administrative
Agent shall be entitled to recover such corresponding amount on demand from such
Lender. If such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent promptly shall
notify Borrower and Borrower shall pay such corresponding amount to the
Administrative Agent. The Administrative Agent also shall be entitled to recover
from such Lender interest on such corresponding amount in respect of each day
from the date such corresponding amount was made available by the Administrative
Agent to Borrower to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (a) the Federal Funds Rate
for the first two days following a demand by the Administrative Agent and (b)
thereafter, the rate of interest then payable by Borrower with respect to Base
Rate Advances. Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its share of the Commitment or to prejudice any rights
which the Administrative Agent or Borrower may have against any Lender as a
result of any default by such Lender hereunder.
2.10 Swing Line. Subject to the terms and conditions set
forth herein, from time to time through the day prior to the Maturity Date the
Swing Line Lender shall make Swing Line Advances to Borrower in such amounts as
Borrower may request that do not result in the Outstanding Obligations being in
excess of the then applicable Commitment, provided that (i) giving effect to
such Swing Line Advance, the Swing Line Outstandings shall not exceed $7,500,000
and (ii) without the consent of all of the Lenders, no Swing Line Advance may be
made during the continuation of a Default or an Event of Default. Borrower may
borrow, repay and reborrow under this Section. Unless the Swing Line Lender
otherwise agrees, each Swing Line Advance shall be in an amount which is an
integral multiple of $100,000 and shall be made pursuant to a telephonic request
by a Responsible Official of Borrower made to the Swing Line Lender not later
than 3:00 p.m., Las Vegas time, on the Banking Day of the requested borrowing
(which telephonic request shall be promptly confirmed in writing by telecopier
with a copy submitted by telecopier to the Administrative
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Agent). Promptly after receipt of such a request for borrowing, the Swing Line
Lender shall obtain telephonic verification from the Administrative Agent that,
giving effect to such request, availability for Loans will exist under Section
2.1 (and such verification shall be promptly confirmed in writing by
telecopier). Unless the Swing Line Lender otherwise agrees, each repayment of a
Swing Line Advance shall be in an amount which is an integral multiple of
$100,000. If Borrower instructs the Swing Line Lender to debit its demand
deposit account at the Swing Line Lender in the amount of any payment with
respect to a Swing Line Advance, or the Swing Line Lender otherwise receives
repayment, after 3:00 p.m., Las Vegas time, on a Banking Day, such payment shall
be deemed received on the next Banking Day. The Swing Line Lender shall promptly
notify the Administrative Agent of the Swing Line Outstandings each time there
is a change therein.
Swing Line Advances shall bear interest at a fluctuating rate
per annum equal to the Base Rate plus one quarter of one percent, payable upon
demand or at such intervals as may be specified by the Swing Line Lender and in
any event on the Maturity Date. The Swing Line Lender shall be responsible for
invoicing Borrower for such interest. The interest payable on Swing Line
Advances shall be solely for the account of the Swing Line Lender, except to the
extent that any Lender has funded the participation purchased by that Lender in
accordance with this Section.
The Swing Line Advances shall be payable five Business Days
following any demand made by the Swing Line Lender and in any event on the
Maturity Date.
Upon the making of a Swing Line Advance, each Lender shall be
deemed to have purchased from the Swing Line Lender a participation therein in
an amount equal to that Lender's Pro Rata Share times the amount of the Swing
Line Advance. Upon demand made by the Swing Line Lender through the
Administrative Agent, each Lender shall, according to its Pro Rata Share,
promptly provide to the Administrative Agent for the account of the Swing Line
Lender its purchase price therefor in an amount equal to its participation
therein. The obligation of each Lender to so provide its purchase price to the
Swing Line Lender with respect to any Swing Line Advance made in accordance with
the terms hereof shall be absolute and unconditional and shall not be affected
by the occurrence of a Default or Event of Default or any other occurrence or
event.
In the event that there are Swing Line Outstandings on three
consecutive Banking Days, then on the next Banking Day (unless Borrower has made
other arrangements acceptable to the Swing Line Lender to repay the Swing Line
Outstandings in full), Borrower shall request a Loan pursuant to Section 2.1(a)
in an amount complying with Section 2.1(d) and sufficient to repay the Swing
Line Outstandings in full. The Administrative Agent shall automatically provide
such amount to the Swing Line Lender (which the Swing Line Lender shall then
apply to the Swing Line Outstandings) and credit any balance of the Loan in
immediately available funds to the Disbursement Account. In the event that
Borrower fails to request a Loan within the time specified by Section 2.2 on any
such date, the Administrative
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Agent may, but is not required to, without notice to or the consent of Borrower,
cause Advances to be made by the Lenders under the Commitment in the amount
necessary to comply with Section 2.1(d) and sufficient to repay all Swing Line
Outstandings and, for this purpose, the conditions precedent set forth in
Article 8 shall not apply. The proceeds of such Advances shall be paid to the
Swing Line Lender for application to the Swing Line Outstandings.
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Article 3
PAYMENTS AND FEES
3.1 Principal and Interest.
(a) Interest shall be payable on the outstanding
daily unpaid principal amount of each Advance from the date thereof
until payment in full is made and shall accrue and be payable at the
rates set forth or provided for herein before and after default, before
and after maturity, before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law, with
interest on overdue interest at the Default Rate to the fullest extent
permitted by applicable Laws.
(b) Interest accrued on each Base Rate Loan on each
Quarterly Payment Date, and on the date of any prepayment of the Notes
pursuant to Section 3.1(f), shall be due and payable on that day. Except
as otherwise provided in Section 3.9, the unpaid principal amount of
each Base Rate Loan shall bear interest at a fluctuating rate per annum
equal to the Base Rate plus the Base Rate Margin. Each change in the
interest rate under this Section 3.1(b) due to a change in the Base Rate
shall take effect simultaneously with the corresponding change in the
Base Rate.
(c) Interest accrued on each LIBOR Loan which is for
a term of three months or less shall be due and payable on the last day
of the related Interest Period. Interest accrued on each other LIBOR
Loan shall be due and payable on the date which is three months after
the date such LIBOR Loan was made and on the last day of the related
Interest Period. Except as otherwise provided in Sections 3.1(d) and
3.9, the unpaid principal amount of any LIBOR Loan shall bear interest
at a rate per annum equal to the LIBOR for that LIBOR Loan plus the
LIBOR Margin.
(d) During the existence of a Default or Event of
Default, the Requisite Lenders may determine that any or all then
outstanding LIBOR Loans shall be converted to Base Rate Loans. Such
conversion shall be effective upon notice to Borrower from the Requisite
Lenders (or from the Administrative Agent on behalf of the Requisite
Lenders) and shall continue so long as such Default or Event of Default
continues to exist.
(e) If not sooner paid, the principal Indebtedness
evidenced by the Notes shall be payable as follows:
(i) the principal amount of each LIBOR Loan
shall be payable on the last day of the Interest Period for such
Loan (provided that such principal amount may be paid using the
proceeds of a Base Rate Loan made pursuant to Section 2.1(g));
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(ii) the amount, if any, by which the
Outstanding Obligations at any time exceed the Commitment shall
be payable immediately; and
(iii) the principal Indebtedness evidenced by
the Notes and the Swing Line Documents shall in any event be
payable on the Maturity Date.
(f) The Notes may, at any time and from time to
time, voluntarily be paid or prepaid in whole or in part without premium
or penalty, except that with respect to any voluntary prepayment under
this Section, (i) any partial prepayment shall be not less than
$1,000,000, (ii) the Administrative Agent shall have received written
notice of any prepayment by 10:00 a.m. on the Banking Day of such
prepayment (which must be a Banking Day) in the case of a Base Rate
Loan, and, in the case of a LIBOR Loan, three Market Days before the
date of prepayment, which notice shall identify the date and amount of
the prepayment and the Loans being prepaid, (iii) each prepayment of
principal shall be accompanied by payment of interest accrued to the
date of payment on the amount of principal paid and (iv) any payment or
prepayment of all or any part of any LIBOR Loan on a day other than the
last day of the applicable Interest Period shall be subject to Section
3.8(d).
3.2 Upfront Fees. On the Closing Date, Borrower shall pay to
the Administrative Agent upfront fees in the respective amounts heretofore
agreed upon by a letter agreement between Borrower and the Administrative Agent.
The fees are for the account of the Lenders as specified in such letter
agreement. The upfront fees are for the credit facilities provided to Borrower
under this Agreement, are fully earned as of the Closing Date and are
nonrefundable.
3.3 Commitment Fees. From the Closing Date, Borrower shall
pay to the Administrative Agent, for the ratable accounts of the Lenders
according to their Pro Rata Shares, a commitment fee equal to the then
applicable Commitment Fee Rate per annum times the average daily amount by which
(a) the Commitment exceeds (b) the sum of (i) the aggregate principal
Indebtedness outstanding under the Notes (exclusive of the Swing Line
Outstandings) plus (ii) the Aggregate Effective Amount. Commitment fees shall be
payable quarterly in arrears on each Quarterly Payment Date, on the date of any
termination of the Commitment, and on the Maturity Date.
3.4 Letter of Credit Fees. With respect to each Letter of
Credit, Borrower shall pay the following fees:
(a) to the Issuing Lender for its sole account, a
fronting fee payable in an amount and at such times as set forth in a
letter agreement between Borrower and the Issuing Lender;
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(b) on the issuance date of each Letter of Credit, a
risk participation fee in an amount equal to the face amount of the
Letter of Credit times the then applicable LIBOR Margin, which the
Administrative Agent shall promptly pay to the Lenders in accordance
with their Pro Rata Shares; and
(c) concurrently with each issuance, negotiation,
drawing or amendment of each Letter of Credit, to the Issuing Lender for
the sole account of the Issuing Lender, issuance, negotiation, drawing
and amendment fees in the amounts set forth from time to time as the
Issuing Lender's published scheduled fees for such services.
Each of the fees payable with respect to Letters of Credit under this Section is
earned when due and is nonrefundable.
3.5 Agency Management Fees. Borrower shall pay to the
Administrative Agent an agency management fee in such amounts and at such times
as heretofore agreed upon by letter agreement between Borrower and the
Administrative Agent. This fee is for the services to be performed by the
Administrative Agent in acting as Administrative Agent and is fully earned on
the date paid. The agency fee paid to the Administrative Agent is solely for its
own account and is nonrefundable.
3.6 Construction Services Fees. Borrower shall pay to Bank
of America a construction services fee in such amounts and at such times as may
hereafter be agreed upon by a letter agreement between Borrower and the
Administrative Agent entered into in accordance with Section 8.3(a)(17). All
such construction services fees will be for the services to be performed by CSC
and each installment is fully earned on the date paid. The construction services
fees will be solely for the account of CSC and nonrefundable.
3.7 Increased Commitment Costs. If any Lender shall
determine in good faith that the introduction after the Closing Date of any
applicable law, rule, regulation or guideline regarding capital adequacy, or any
change therein or any change in the interpretation or administration thereof by
any central bank or other Governmental Agency charged with the interpretation or
administration thereof, or compliance by such Lender (or its LIBOR Office) or
any corporation controlling the Lender, with any request, guideline or directive
regarding capital adequacy (whether or not having the force of law) of any such
central bank or other authority, affects or would affect the amount of capital
required or expected to be maintained by such Lender or any corporation
controlling such Lender and (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy and such Lender's
desired return on capital) determines in good faith that the amount of such
capital is increased, or the rate of return on capital is reduced, as a
consequence of its obligations under this Agreement, then, within ten Banking
Days after demand of such Lender, Borrower shall pay to such Lender, from time
to time as specified in good faith by such Lender, additional amounts sufficient
to compensate such Lender in light of such circumstances, to the extent
reasonably
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allocable to such obligations under this Agreement. Each Lender's determination
of such amounts shall be conclusive in the absence of manifest error.
3.8 LIBOR Costs and Related Matters.
(a) If, after the date hereof, the existence or
occurrence of any Special LIBOR Circumstance:
(1) shall subject any Lender or its LIBOR
Office to any tax, duty or other charge or cost with respect to
any LIBOR Advance, any of its Notes evidencing LIBOR Loans or
its obligation to make LIBOR Advances, or shall change the basis
of taxation of payments to any Lender attributable to the
principal of or interest on any LIBOR Advance or any other
amounts due under this Agreement in respect of any LIBOR
Advance, any of its Notes evidencing LIBOR Loans or its
obligation to make LIBOR Advances, excluding, in the case of
each Lender, the Administrative Agent and each Eligible
Assignee, and any Affiliate or LIBOR Office thereof, (i) taxes
imposed on or measured in whole or in part by its overall net
income, gross income or gross receipts or capital and franchise
taxes imposed on it, by (A) any jurisdiction (or political
subdivision thereof) in which it is organized or maintains its
principal office or LIBOR Office or (B) any jurisdiction (or
political subdivision thereof) in which it is "doing business"
(unless it would not be doing business in such jurisdiction (or
political subdivision thereof) absent the transactions
contemplated hereby), (ii) any withholding taxes or other taxes
based on gross income imposed by the United States of America
(other than withholding taxes and taxes based on gross income
resulting solely from or attributable to any change in any law,
rule or regulation or any change in the interpretation or
administration of any law, rule or regulation by any
Governmental Agency) or (iii) any withholding taxes or other
taxes based on gross income imposed by the United States of
America for any period with respect to which it has failed to
provide Borrower with the appropriate form or forms required by
Section 11.21, to the extent such forms are then required by
applicable Laws;
(2) shall impose, modify or deem applicable
any reserve not applicable or deemed applicable on the date
hereof (including, without limitation, any reserve imposed by
the Board of Governors of the Federal Reserve System, but
excluding the Reserve Percentage taken into account in
calculating the LIBOR), special deposit, capital or similar
requirements against assets of, deposits with or for the account
of, or credit extended by, any Lender or its LIBOR Office; or
(3) shall impose on any Lender or its LIBOR
Office or the Designated LIBOR Market any other condition
affecting any LIBOR Advance,
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any of its Notes evidencing LIBOR Loans, its obligation to make
LIBOR Advances or this Agreement, or shall otherwise affect any
of the same;
and the result of any of the foregoing, as determined in good faith by
such Lender, increases the cost to such Lender or its LIBOR Office of
making or maintaining any LIBOR Advance or in respect of any LIBOR
Advance, any of its Notes evidencing LIBOR Loans or its obligation to
make LIBOR Advances or reduces the amount of any sum received or
receivable by such Lender or its LIBOR Office with respect to any LIBOR
Advance, any of its Notes evidencing LIBOR Loans or its obligation to
make LIBOR Advances (assuming such Lender's LIBOR Office had funded 100%
of its LIBOR Advance in the Designated LIBOR Market), then, within five
(5) Banking Days after demand by such Lender (with a copy to the
Administrative Agent), Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender for such increased cost
or reduction (determined as though such Lender's LIBOR Office had funded
100% of its LIBOR Advance in the Designated LIBOR Market). Borrower
hereby indemnifies each Lender against, and agrees to hold each Lender
harmless from and reimburse such Lender within ten Banking Days after
demand for (without duplication) all costs, expenses, claims, penalties,
liabilities, losses, reasonable legal fees and damages incurred or
sustained by each Lender in connection with this Agreement, or any of
the rights, obligations or transactions provided for or contemplated
herein, as a direct result of the existence or occurrence of any Special
LIBOR Circumstance. A statement of any Lender claiming compensation
under this subsection and setting forth in reasonable detail the
additional amount or amounts to be paid to it hereunder shall be
conclusive in the absence of manifest error. Each Lender agrees to
endeavor promptly to notify Borrower of any event of which it has actual
knowledge, occurring after the Closing Date, which will entitle such
Lender to compensation pursuant to this Section, and agrees to designate
a different LIBOR Office if such designation will avoid the need for or
reduce the amount of such compensation and will not, in the good faith
judgment of such Lender, otherwise be materially disadvantageous to such
Lender. If any Lender claims compensation under this Section, Borrower
may at any time, upon at least four Market Days' prior notice to the
Administrative Agent and such Lender and upon payment in full of the
amounts provided for in this Section through the date of such payment
plus any prepayment fee required by Section 3.8(d), pay in full the
affected LIBOR Advances of such Lender or request that such LIBOR
Advances be converted to Base Rate Advances.
(b) If, after the date hereof, the existence or occurrence
of any Special LIBOR Circumstance shall, in the good faith opinion of
any Lender, make it unlawful or impossible for such Lender or its LIBOR
Office to make, maintain or fund its portion of any LIBOR Loan, or
materially restrict the authority of such Lender to purchase or sell, or
to take deposits of, Dollars in the Designated LIBOR Market, or to
determine or charge interest rates based upon the LIBOR, and such Lender
shall so notify the Administrative Agent, then such Lender's obligation
to make LIBOR
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Advances shall be suspended for the duration of such illegality or
impossibility and the Administrative Agent forthwith shall give notice
thereof to the other Lenders and Borrower. Upon receipt of such notice,
the outstanding principal amount of such Lender's LIBOR Advances,
together with accrued interest thereon, automatically shall be converted
to Base Rate Advances with Interest Periods corresponding to the LIBOR
Loans of which such LIBOR Advances were a part on either (1) the last
day of the Interest Period(s) applicable to such LIBOR Advances if such
Lender may lawfully continue to maintain and fund such LIBOR Advances to
such day(s) or (2) immediately if such Lender may not lawfully continue
to fund and maintain such LIBOR Advances to such day(s), provided that
in such event the conversion shall not be subject to pay ment of a
prepayment fee under Section 3.8(d). Each Lender agrees to endeavor
promptly to notify Borrower of any event of which it has actual
knowledge, occurring after the Closing Date, which will cause that
Lender to notify the Administrative Agent under this Section 3.8(b), and
agrees to designate a different LIBOR Office if such designation will
avoid the need for such notice and will not, in the good faith judgment
of such Lender, otherwise be materially disadvantageous to such Lender.
In the event that any Lender is unable, for the reasons set forth above,
to make, maintain or fund its portion of any LIBOR Loan, such Lender
shall fund such amount as a Base Rate Advance for the same period of
time, and such amount shall be treated in all respects as a Base Rate
Advance. Any Lender whose obligation to make LIBOR Advances has been
suspended under this Section 3.8(b) shall promptly notify the
Administrative Agent and Borrower of the cessation of the Special LIBOR
Circumstance which gave rise to such suspension.
(c) If, with respect to any proposed LIBOR Loan:
(1) the Administrative Agent reasonably determines
that, by reason of circumstances affecting the Designated LIBOR
Market generally that are beyond the reasonable control of the
Lenders, deposits in Dollars (in the applicable amounts) are not
being offered to any Lender in the Designated LIBOR Market for
the applicable Interest Period; or
(2) the Requisite Lenders advise the Administrative
Agent that the LIBOR as determined by the Administrative Agent
(i) does not represent the effective pricing to such Lenders for
deposits in Dollars in the Designated LIBOR Market in the
relevant amount for the applicable Interest Period, or (ii) will
not adequately and fairly reflect the cost to such Lenders of
making the applicable LIBOR Advances;
then the Administrative Agent forthwith shall give notice thereof to
Borrower and the Lenders, whereupon until the Administrative Agent
notifies Borrower that the circumstances giving rise to such suspension
no longer exist, the obligation of the Lenders to make any future LIBOR
Advances shall be suspended. If at the time of
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such notice there is then pending a Request for Loan that specifies a
LIBOR Loan, such Request for Loan shall be deemed to specify a Base Rate
Loan.
(d) Upon payment or prepayment of any LIBOR Advance
(other than as the result of a conversion required under Section
3.8(b)), on a day other than the last day in the applicable Interest
Period (whether voluntarily, involuntarily, by reason of acceleration,
or otherwise), or upon the failure of Borrower (for a reason other than
the failure of a Lender to make an Advance) to borrow on the date or in
the amount specified for a LIBOR Loan in any Request for Loan, Borrower
shall pay to the appropriate Lender within ten Banking Days after demand
a prepayment fee or failure to borrow fee, as the case may be
(determined as though 100% of the LIBOR Advance had been funded in the
Designated LIBOR Market) equal to the sum of:
(1) the principal amount of the LIBOR
Advance prepaid or not borrowed, as the case may be, times the
number of days between the date of prepayment or failure to
borrow, as applicable, and the last day in the applicable
Interest Period, divided by 360, times the applicable Interest
Differential (provided that the product of the foregoing formula
must be a positive number); plus
(2) all reasonable out-of-pocket expenses
incurred by the Lender reasonably attributable to such payment,
prepayment or failure to borrow.
Each Lender's determination of the amount of any prepayment fee payable
under this Section 3.8(d) shall be conclusive in the absence of manifest
error.
3.9 Late Payments. If any installment of principal or
interest or any fee or cost or other amount payable under any Loan Document to
the Administrative Agent or any Lender is not paid when due, it shall thereafter
bear interest at a fluctuating interest rate per annum at all times equal to the
sum of the Base Rate plus the Base Rate Margin plus 2%, to the fullest extent
permitted by applicable Laws. Accrued and unpaid interest on past due amounts
(including, without limitation, interest on past due interest) shall be
compounded monthly, on the last day of each calendar month, to the fullest
extent permitted by applicable Laws.
3.10 Computation of Interest and Fees. Computation of
interest on Base Rate Loans shall be calculated on the basis of a year of 365 or
366 days, as the case may be, and the actual number of days elapsed; computation
of interest on LIBOR Loans and all fees under this Agreement shall be calculated
on the basis of a year of 360 days and the actual number of days elapsed.
Borrower acknowledges that such latter calculation method will result in a
higher yield to the Lenders than a method based on a year of 365 or 366 days.
Interest shall accrue on each Loan for the day on which the Loan is made;
interest shall not
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accrue on a Loan, or any portion thereof, for the day on which the Loan or such
portion is paid. Any Loan that is repaid on the same day on which it is made
shall bear interest for one day.
3.11 Non-Banking Days. If any payment to be made by Borrower
or any other Obligor under any Loan Document shall come due on a day other than
a Banking Day, payment shall instead be considered due on the next succeeding
Banking Day and the extension of time shall be reflected in computing interest
and fees.
3.12 Manner and Treatment of Payments.
(a) Each payment hereunder (except payments pursuant
to Sections 2.10, 3.7, 3.8, 11.3, 11.11 and 11.22) or on the Notes, on
the Swing Line Documents or under any other Loan Document shall be made
to the Administrative Agent, at the Administrative Agent's Office, for
the account of each of the Lenders or the Administrative Agent, as the
case may be, in immediately available funds not later than 11:00 a.m. on
the day of payment (which must be a Banking Day). All payments received
after 11:00 a.m. on any Banking Day, shall be deemed received on the
next succeeding Banking Day. The amount of all payments received by the
Administrative Agent for the account of each Lender shall be immediately
paid by the Administrative Agent to the applicable Lender in immediately
available funds and, if such payment was received by the Administrative
Agent by 11:00 a.m. on a Banking Day and not so made available to the
account of a Lender on that Banking Day, the Administrative Agent shall
reimburse that Lender for the cost to such Lender of funding the amount
of such payment at the Federal Funds Rate. All payments shall be made in
lawful money of the United States of America.
(b) Each payment or prepayment on account of any
Loan (other than Swing Line Advances) shall be applied pro rata
according to the outstanding Advances made by each Lender comprising
such Loan.
(c) Each Lender shall use its best efforts to keep a
record of Advances made by it and payments received by it with respect
to each of its Notes and, subject to Section 10.6(g), such record shall,
as against Borrower, be presumptive evi dence of the amounts owing.
Notwithstanding the foregoing sentence, no Lender shall be liable to any
Obligor for any failure to keep such a record.
(d) Each payment of any amount payable by Borrower
or any other Obligor under this Agreement or any other Loan Document
shall be made free and clear of, and without reduction by reason of, any
taxes, assessments or other charges imposed by any Governmental Agency,
central bank or comparable authority, excluding, in the case of each
Lender, the Administrative Agent and each Eligible Assignee, and any
Affiliate or LIBOR Office thereof, (i) taxes imposed on or measured
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in whole or in part by its overall net income, gross income or gross
receipts or capital and franchise taxes imposed on it, (ii) any
withholding taxes or other taxes based on gross income imposed by the
United States of America (other than withholding taxes and taxes based
on gross income resulting solely from or attributable to any change in
any law, rule or regulation or any change in the interpretation or
administration of any law, rule or regulation by any Governmental
Agency) or (iii) any withholding taxes or other taxes based on gross
income imposed by the United States of America for any period with
respect to which it has failed to provide Borrower with the appropriate
form or forms required by Section 11.21, to the extent such forms are
then required by applicable Laws (all such non-excluded taxes,
assessments or other charges being hereinafter referred to as "Taxes").
To the extent that Borrower is obligated by applicable Laws to make any
deduction or withholding on account of Taxes from any amount payable to
any Lender under this Agreement, Borrower shall (i) make such deduction
or withholding and pay the same to the relevant Governmental Agency and
(ii) pay such additional amount to that Lender as is necessary to result
in that Lender's receiving a net after-Tax amount equal to the amount to
which that Lender would have been entitled under this Agreement absent
such deduction or withholding. If and when receipt of such payment
results in an excess payment or credit to that Lender on account of such
Taxes, that Lender shall promptly refund such excess to Borrower.
3.13 Funding Sources. Nothing in this Agreement shall be
deemed to obligate any Lender to obtain the funds for any Loan or Advance in any
particular place or manner or to constitute a representation by any Lender that
it has obtained or will obtain the funds for any Loan or Advance in any
particular place or manner.
3.14 Failure to Charge Not Subsequent Waiver. Any decision by
the Administrative Agent or any Lender not to require payment of any interest
(including interest arising under Section 3.9), fee, cost or other amount
payable under any Loan Document, or to calculate any amount payable by a
particular method, on any occasion shall in no way limit or be deemed a waiver
of the Administrative Agent's or such Lender's right to require full payment of
any interest (including interest arising under Section 3.9), fee, cost or other
amount payable under any Loan Document, or to calculate an amount payable by
another method that is not inconsistent with this Agreement, on any other or
subsequent occasion.
3.15 Administrative Agent's Right to Assume Payments Will be
Made by Borrower. Unless the Administrative Agent shall have been notified by
Borrower prior to the date on which any payment to be made by Borrower hereunder
is due that Borrower does not intend to remit such payment, the Administrative
Agent may, in its discretion, assume that Borrower has remitted such payment
when so due and the Administrative Agent may, in its discretion and in reliance
upon such assumption, make available to each Lender on such payment date an
amount equal to such Lender's share of such assumed payment. If Borrower has not
in fact remitted such payment to the Administrative Agent, each Lender shall
forthwith on demand repay to the Administrative Agent the amount of such assumed
payment made
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available to such Lender, together with interest thereon in respect of each day
from and including the date such amount was made available by the Administrative
Agent to such Lender to the date such amount is repaid to the Administrative
Agent at the Federal Funds Rate.
3.16 Fee Determination Detail. The Administrative Agent and
each Lender shall provide reasonable detail to Borrower regarding the manner in
which the amount of any payment of fees or costs to the Administrative Agent and
the Lenders, or that Lender, under Article 3 has been determined, concurrently
with demand for such payment.
3.17 Survival. All of Borrower's obligations under Sections
3.7, 3.8 and 11.22 shall survive for ninety days following the date on which the
Commitment is terminated, and all Loans hereunder are fully paid.
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Article 4
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to the Creditors that:
4.1 Existence and Qualification; Power; Compliance With
Laws. Borrower is a corporation duly formed, validly existing and in good
standing under the Laws of Nevada. Coast Resorts is a corporation duly formed,
validly existing and in good standing under the Laws of Nevada. Borrower and
each other Obligor is duly qualified or registered to transact business and is
in good standing in each other jurisdiction in which the conduct of its business
or the ownership or leasing of its Properties makes such qualification or
registration necessary, except where the failure so to qualify or register and
to be in good standing may not reasonably be expected to have Material Adverse
Effect. Borrower and each other Obligor has all requi site corporate or other
organizational power and authority to conduct its business, to own and lease its
Properties and to execute and deliver each Loan Document to which it is a party
and to perform its Obligations. All outstanding shares of the capital stock of
Borrower and each other Obligor are duly authorized and validly issued, fully
paid and non-assessable, and no holder thereof has any enforceable right of
rescission under any applicable state or federal securities Laws. Borrower and
each other Obligor is in compliance with all Laws and other legal requirements
applicable to its business, has obtained all authorizations, consents,
approvals, orders, licenses and permits from, and has accomplished all filings,
registrations and qualifications with, or obtained exemptions from any of the
foregoing from, any Governmental Agency that are necessary for the transaction
of its business, except where the failure so to comply, file, register, qualify
or obtain exemptions may not reasonably be expected to have a Material Adverse
Effect.
4.2 Authority; Compliance With Other Agreements and
Instruments and Government Regulations. The execution, delivery and performance
of the Loan Documents by Borrower and each other Obligor have been duly
authorized by all necessary corporate action, and do not and will not:
(a) Require any consent or approval not heretofore
obtained of any director, stockholder, security holder or (in the case
of any Creditor except where the failure to obtain any such creditor's
consent may not reasonably be expected to have any Material Adverse
Effect) any creditor of such Obligor;
(b) Violate or conflict with any provision of such
Obligor's articles of incorporation or bylaws;
(c) Except to the extent contemplated by the Loan
Documents, result in or require the creation or imposition of any Lien
or Right of Others upon or with respect to any Property now owned or
leased or hereafter acquired by such Obligor;
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(d) Violate any Requirement of Law applicable to
such Obligor in any material respect;
(e) Result in a breach of or constitute a default
under, or cause or permit the acceleration of any obligation owed under,
any indenture or loan or credit agreement or any other Contractual
Obligation involving Property or obligations in excess of $5,000,000 to
which such Obligor is a party or by which such Obligor or any of its
Property is bound or affected;
and neither Borrower nor any other Obligor is in violation of, or default under,
any Requirement of Law or Contractual Obligation, or any indenture, loan or
credit agreement described in Section 4.2(e), in any respect that may reasonably
be expected to have a Material Adverse Effect.
4.3 No Governmental Approvals Required. Except as set forth
in Schedule 4.3 or previously obtained or made, no material authorization,
consent, approval, order, license or permit from, or material filing,
registration or qualification with, any Governmental Agency is or will be
required to authorize or permit under applicable Laws the execution, delivery
and performance by Borrower or any other Obligor of the Loan Documents to which
it is a party. All authorizations from, or filings with, any Governmental Agency
described in Schedule 4.3 will be accomplished as of the Closing Date or such
other date as is specified in Schedule 4.3.
4.4 Subsidiaries. As of the Closing Date, Borrower does not
have any Subsidiaries and Borrower does not own any capital stock, equity
interest or debt security which is convertible, or exchangeable, for capital
stock or equity interests in any Person other than Coast West, Inc. As of the
Closing Date, Coast Resorts does not have any Subsidiaries other than Borrower
and Coast West, Inc.
4.5 Financial Statements. Borrower has furnished the audited
consolidated and consolidating financial statements of Coast Resorts and its
Subsidiaries for the Fiscal Year ended December 31, 1998, to the Administrative
Agent and the Lenders, which financial statements fairly present the financial
condition, results of operations and changes in financial position of Coast
Resorts and its Subsidiaries as of such dates and for such periods in conformity
with Generally Accepted Accounting Principles, consistently applied.
4.6 No Material Adverse Changes. As of the Closing Date, no
circumstance or event has occurred that constitutes a Material Adverse Effect
since December 31, 1998, or, as of any date subsequent to the Closing Date,
since the Closing Date.
4.7 Title to Property. On the Closing Date and on each
subsequent date, Borrower (a) holds valid title in fee simple to the Gold Coast
Property and all improvements
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located thereon, other than leased equipment, and (b) holds the lessee's
interest under the Barbary Coast Lease, the Barbary Coast Parking Lease, the
Orleans Lease and the New Lease, in each case, free and clear of all Liens and
Rights of Others, other than Liens or Rights of Others permitted by Section 6.9.
4.8 Intangible Assets. Each Obligor owns, or possesses the
right to use to the extent necessary in its respective business, all material
trademarks, trade names, copyrights, patents, patent rights, computer software,
licenses and other Intangible Assets that are necessary to complete and operate
the Project Sites or which are used in the conduct of its business as now
operated, and no such Intangible Asset, to the best knowledge of Borrower,
conflicts with the valid trademark, trade name, copyright, patent, patent right
or Intangible Asset of any other Person to the extent that such conflict may
reasonably be expected to have a Material Adverse Effect. Without limitation on
the foregoing, Borrower is not legally prohibited from using the names"Gold
Coast," "Barbary Coast," "The Orleans" in Las Vegas, Nevada in connection with
its hotel casinos. Each registered patent, trademark or copyright owned by any
Obligor, or as to which any Obligor is a licensee, is described on Schedule 4.8
or (to the extent acquired after the Closing Date and to the extent that
assignment of any such after-acquired rights to the Administrative Agent is not
legally prohibited), on a supplement to the Trademark Assignment.
4.9 Public Utility Holding Company Act. Neither Coast
Resorts nor any of its Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
4.10 Litigation. There are no actions, suits, proceedings or
investigations pending as to which Coast Resorts or any of its Subsidiaries have
been served or have received notice or, to the best knowledge of Borrower,
threatened against or affecting Coast Resorts or any of its Subsidiaries or any
Property of any of them (including the Real Property) before any Governmental
Agency, which may reasonably be expected to have a monetary impact which is in
excess of $1,000,000, and no such action, suit proceeding or investigation may
reasonably be expected to have a Material Adverse Effect.
4.11 Binding Obligations. Each of the Loan Documents to which
Borrower or any other Obligor is a party will, when executed and delivered by
such Obligor, constitute the legal, valid and binding obligation of such
Obligor, enforceable against such Obligor in accordance with its terms, except
as enforcement may be limited by Debtor Relief Laws, Gaming Laws or equitable
principles relating to the granting of specific performance and other equitable
remedies as a matter of judicial discretion.
4.12 No Default. No event has occurred and is continuing that
is a Default or Event of Default.
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4.13 ERISA.
(a) With respect to each Pension Plan:
(i) such Pension Plan complies in all
material respects with ERISA and any other applicable Laws to
the extent that noncompliance may reasonably be expected to have
a Material Adverse Effect;
(ii) such Pension Plan has not incurred any
"accumulated funding deficiency" (as defined in Section 302 of
ERISA) that may reasonably be expected to have a Material
Adverse Effect;
(iii) no "reportable event" (as defined in
Section 4043 of ERISA) has occurred that may reasonably be
expected to have a Material Adverse Effect; and
(iv) neither Coast Resorts nor any of its
Subsidiaries has engaged in any non-exempt "prohibited
transaction" (as defined in Section 4975 of the Code) that may
reasonably be expected to have a Material Adverse Effect.
(b) Neither Coast Resorts nor any of its
Subsidiaries has incurred or expects to incur any withdrawal liability
to any Multiemployer Plan that may reasonably be expected to have a
Material Adverse Effect.
4.14 Regulations T, U and X; Investment Company Act. No part
of the proceeds of any Loan hereunder will be used to purchase or carry, or to
extend credit to others for the purpose of purchasing or carrying, any Margin
Stock in violation of Regulations T, U and X. Neither Coast Resorts nor any of
its Subsidiaries is or is required to be registered as an "investment company"
under the Investment Company Act of 1940.
4.15 Disclosure. No statement made by Borrower or any of its
Affiliates to the Administrative Agent or any Lender in connection with this
Agreement, or in connection with any Loan, as of the date thereof contained any
untrue statement of a material fact or omitted a material fact necessary to make
the statement made not misleading in light of all the circumstances existing at
the date the statement was made, provided that no representation as to the
Projections is made in this Section (the Projections being the subject of
Section 4.17 hereof).
4.16 Tax Liability. Coast Resorts and its Subsidiaries have
filed all tax returns which are required to be filed, and have paid, or made
provision for the payment of, all taxes with respect to the periods, Property or
transactions covered by said returns, or pursuant to any assessment received by
Coast Resorts or any of its Subsidiaries, except (a) such taxes, if
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any, as are being contested in good faith by appropriate proceedings and as to
which adequate reserves have been established and maintained and (b) immaterial
taxes so long as no material item or portion of Property of Coast Resorts or any
of its Subsidiaries is in jeopardy of being seized, levied upon or forfeited.
4.17 Projections. As of the Closing Date, to the best
knowledge of Borrower, the assumptions set forth in the Projections are
reasonable and consistent with each other and with all facts known to Borrower,
and the Projections are reasonably based on such assumptions. Nothing in this
Section shall be construed as a representation or covenant that the Projections
in fact will be achieved.
4.18 Hazardous Materials. Except as described in Schedule
4.18 or except as would not individually or in the aggregate have a Material
Adverse Effect, (a) none of Coast Resorts nor any of its Subsidiaries nor any of
their affiliated predecessors in interest at any time has disposed of,
discharged, released or threatened the release of any Hazardous Materials on,
from or under any Project Site (or, to the best of Borrower's knowledge, any
other Real Property) in violation of any Hazardous Materials Law, (b) to the
best knowledge of Borrower, no condition exists that violates any Hazardous
Material Law affecting any Real Property, (c) no Project Site nor any portion
thereof (nor, to the best knowledge of Borrower, any other Real Property) is or
has been utilized by Coast Resorts or any of its Subsidiaries as a site for the
manufacture of any Hazardous Materials and (d) to the extent that any Hazardous
Materials are used, generated or stored by Coast Resorts or any of its
Subsidiaries on any Project Site, or transported to or from any Project Site,
such use, generation, storage and transportation are in compliance in all
material respects with all Hazardous Materials Laws.
4.19 Gaming Laws. Coast Resorts and its Subsidiaries are in
compliance in all material respects with all Gaming Laws that are applicable to
them.
4.20 Security Interests. Upon the execution and delivery
thereof, each of the Security Agreement, the Coast Resorts Security Agreement,
the Coast Resorts Pledge Agreement and the Trademark Assignment will create a
valid security interests in the Collateral described therein securing the
Obligations, and all action necessary to perfect the security interests so
created (including without limitation Borrower's ownership of, or license to
use, the marks described in Section 4.8), other than filing of the UCC-1
financing statements delivered to the Administrative Agent pursuant to Section
8.1 with the appropriate Governmental Agency and the filing of the Trademark
Assignment with the United States Patent and Trademark Office, shall have been
taken and completed to the fullest extent that such Liens may be perfected by
filing. Upon the making of such filings, the security interests granted to the
Administrative Agent by the Security Agreement, the Coast Resorts Security
Agreement, the Coast Resorts Pledge Agreement and the Trademark Assignment will
be perfected and of second priority, subject only to the Lien of the Trustee for
the 13% Indenture and the matters disclosed on Schedule 6.9 or permitted by
Section 6.9(e) and (f), to the fullest extent that such Liens may be perfected
by filing. Upon the execution and delivery of the
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Deeds of Trust, the Deeds of Trust will create a valid Lien in the Collateral
described therein to the extent constituting real property, improvements thereto
and fixtures securing the Obligations, other than those arising under Sections
4.18, 5.10 and 11.22 (subject only to Permitted Encumbrances and Permitted
Rights of Others), and all action necessary to perfect the Lien so created,
other than recordation or filing thereof with the appropriate Governmental
Agencies, will have been taken and completed.
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Article 5
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)
So long as any Advance remains unpaid, or any Letter of Credit
remains outstanding, or any other Obligation remains unpaid or unperformed, or
any portion of the Commitment remains in force, Borrower shall, and shall cause
each of its Subsidiaries and each other Obligor to, unless the Administrative
Agent (with the written approval of the Requisite Lenders) otherwise consents:
5.1 Payment of Taxes and Other Potential Liens. Pay and
discharge promptly all taxes, assessments and governmental charges or levies
imposed upon any of them, upon their respective Property or any part thereof and
upon their respective income or profits or any part thereof, except that Coast
Resorts and its Subsidiaries shall not be required to pay or cause to be paid
(a) any tax, assessment, charge or levy that is not yet past due, or is being
contested in good faith by appropriate proceedings so long as the relevant
entity has estab lished and maintains adequate reserves for the payment of the
same or (b) any immaterial tax so long as no material item or portion of
Property of Coast Resorts or any of its Subsidiaries is in jeopardy of being
seized, levied upon or forfeited.
5.2 Preservation of Existence. Preserve and maintain their
respective existences in the jurisdiction of their formation and all material
authorizations, rights, franchises, privileges, consents, approvals, orders,
licenses, permits, or registrations from any Governmental Agency that are
necessary for the transaction of their respective business, except where the
failure to so preserve and maintain the existence of any Subsidiary or such
authorizations would not constitute a Material Adverse Effect; and qualify and
remain qualified to transact business in each jurisdiction in which such
qualification is necessary in view of their respective business or the ownership
or leasing of their respective Properties except where the failure to so qualify
or remain qualified would not constitute a Material Adverse Effect. Borrower
shall at all times be a wholly-owned Subsidiary of Coast Resorts.
5.3 Maintenance of Properties. Maintain, preserve and
protect all of their respective depreciable Properties in good order and
condition, subject to wear and tear in the ordinary course of business, and not
permit any waste or unreasonable deterioration of their respective Properties,
except that the failure to maintain, preserve and protect a particular item of
depreciable Property that is not of significant value, either intrinsically or
to the operations of Coast Resorts and its Subsidiaries, taken as a whole, shall
not constitute a violation of this covenant.
5.4 Maintenance of Insurance. Maintain liability, casualty
and other insurance (subject to customary deductibles and retentions) with
responsible insurance
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companies in such amounts and against such risks as is carried by responsible
companies engaged in similar businesses and owning similar assets in the general
areas in which Coast Resorts and its Subsidiaries operate and, in any event,
such insurance as may be required under the Deed of Trust.
5.5 Compliance With Laws. Comply, within the time period, if
any, given for such compliance by the relevant Governmental Agency or Agencies
with enforcement authority, with all Requirements of Law noncompliance with
which constitutes a Material Adverse Effect, except that Coast Resorts and its
Subsidiaries need not comply with a Require ment of Law then being contested in
good faith by appropriate proceedings.
5.6 Inspection Rights - Completion of Construction Borrower
hereby agrees to engage the CSC to monitor the construction of the New Project
and, following the Commitment Increase Date, to prepare Construction Progress
Reports for submission to the Administrative Agent. The fees for such services
shall be as set forth in the letter agreement described in Section 8.3(a)(17).
From the Commitment Increase Date through the Opening, Borrower shall provide
CSC with such information and access to the New Project Property and the New
Project and individuals employed by Borrower, the project architect and the
project contractor as it may reasonably request, and shall permit CSC, the
Administrative Agent or any Lender, or any authorized employee, agent or
representative thereof, to examine, audit and make copies and abstracts from the
records and books of account of, and to visit and inspect the Properties of,
Borrower and its Subsidiaries and to discuss the affairs, finances and accounts
of Borrower and its Subsidiaries with any of their officers, key employees or
accountants. All rights of the Administrative Agent and CSC under this Section
may be exercised upon reasonable advance notice and at any time during regular
business hours and as often as reasonably requested (but not so as to materially
interfere with the business of Borrower or any of its Subsidiaries). Except for
the fees set forth in the letter agreement referred to in Section 8.3(a)(17),
the costs of all such monitoring, examining, auditing and inspection by and at
the requests of the Administrative Agent or any Lender shall be borne the
Administrative Agent or such Lender.
5.7 Keeping of Records and Books of Account. Keep adequate
records and books of account reflecting all financial transactions in conformity
with Generally Accepted Accounting Principles, consistently applied, and in
material conformity with all applicable requirements of any Governmental Agency
having regulatory jurisdiction over Coast Resorts or any of its Subsidiaries.
5.8 Compliance With Agreements. Promptly and fully comply
with all Contractual Obligations under all material agreements, indentures,
leases and/or instruments to which any one or more of them is a party, whether
such material agreements, indentures, leases or instruments are with a Lender or
another Person, except for any such Contractual Obligations (a) the performance
of which would cause a Default or (b) then being contested by
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any of them in good faith by appropriate proceedings or if the failure to comply
with such agreements, indentures, leases or instruments does not constitute a
Material Adverse Effect.
5.9 Use of Proceeds. Use the proceeds of the Loans solely
(a) to finance the repurchase and cancellation of the 10-7/8% First Mortgage
Debt and the 13% First Mortgage Debt as specified in Section 8.1(b), (b) to
finance capital improvements and expansion activities at The Orleans, the Gold
Coast and/or the Barbary Coast, (c) to finance development and construction
expenses at the New Project, provided that, until an increase in the Commitment
to not less than $175,000,000, no more than $20,000,000 shall be used for this
purpose and (d) for other working capital and other general corporate purposes.
5.10 Hazardous Materials Laws. Keep and maintain all Real
Property and each portion thereof in compliance in all material respects with
all applicable Hazardous Materials Laws and promptly notify the Administrative
Agent in writing (attaching a copy of any pertinent written material) of (a) any
and all material enforcement, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened in writing by a
Governmental Agency pursuant to any applicable Hazardous Materials Laws with
regard to the Real Property, (b) any and all material claims made or threatened
in writing by any Person against Coast Resorts or any of its Subsidiaries
relating to damage, contribution, cost recovery, compensation, loss or injury
resulting from any Hazardous Materials with regard to the Real Property, and (c)
any Senior Officer of Borrower receives written notice or other clear evidence
of any material occurrence or condition on any real property adjoining or in the
vicinity of such Real Property and affecting the Real Property that may
reasonably be expected to cause such Real Property or any part thereof to be
subject to any restrictions on the ownership, occupancy, transferability or use
of such Real Property under any applicable Hazardous Materials Laws.
5.11 Retirement of Debt. No later than January 31, 2001,
retire all remaining 13% First Mortgage Debt and make arrangements satisfactory
to the Administrative Agent for the termination of any deeds of trust, financing
statements and other security held with respect thereto.
5.12 Pledge of Stock. Proceed with diligence to obtain all
required governmental approval to the Coast Resorts Pledge Agreement, and in any
event cause Coast Resorts to execute and deliver the Coast Resorts Pledge
Agreement and deliver the certificates representing 100% of the issued and
outstanding capital stock of Borrower to the Administrative Agent in pledge not
later than 120 days following the Closing Date.
5.13 Sale of Barbary Coast. In the event that Borrower should
at any time dispose of the Barbary Coast as permitted by Section 6.3(c),
Borrower agrees to use, within the one year period following such Disposition,
an amount (the "Required Amount") equal to five times EBITDA (calculated solely
with respect to the Barbary Coast) for the 12 full calendar months immediately
preceding such Disposition (but not in excess of the amount of
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Net Cash Proceeds from such Disposition) either (a) to repay Obligations
hereunder and reduce a corresponding amount of the Commitment pursuant to
Section 2.7 hereof, or (b) to pay for Capital Expenditures at The Orleans, the
Gold Coast or the New Project (or some combination of the foregoing causes (a)
and (b) or other Capital Expenditures approved in writing by the Requisite
Lenders). Any Net Cash Proceeds from the Disposition of the Barbary Coast in
excess of the Required Amount may be used for Distributions in accordance with
Section 6.6(c), for Capital Expenditures, Investments or Acquisitions made in
accordance with Sections 6.15(d) or 6.16(i) or in accordance with the first
sentence of this Section.
5.14 Merger of Coast West. Cause the articles of merger of
Coast West with and into Borrower to be filed with the Nevada Secretary of State
within two Business Days following the Closing Date, and provide the
Administrative Agent with evidence thereof.
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Article 6
NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any Letter of Credit
remains outstanding or any other Obligation remains unpaid or unperformed, or
any portion of the Commitment remains in force, Borrower shall not, and shall
not permit any of its Subsidiaries or any other Obligor to, unless the
Administrative Agent (with the written approval of the Requisite Lenders or, if
required by Section 11.2, of all of the Lenders) otherwise consents:
6.1 Prepayment of Indebtedness. Other than as to the
Obligations or as required by Section 5.11, prepay any principal or interest on
any Indebtedness of Coast Resorts or any of its Subsidiaries prior to the date
when due, or make any payment or deposit with any Person that has the effect of
providing for the satisfaction of any Indebtedness of Coast Resorts or any of
its Subsidiaries prior to the date when due, in each case if a Default or Event
of Default then exists or would result therefrom.
6.2 Payment of Subordinated Obligations and the Former
Partner Debt. Except as expressly permitted in the last sentence of this Section
6.2, prepay any principal (including sinking fund payments) or any other amount
with respect to any Subordinated Obligation or the Former Partner Debt, or
purchase or redeem any Subordinated Obligation or the Former Partner Debt except
for (x) regularly scheduled payments of interest made with respect to the 1999
Senior Subordinated Debt in a manner consistent with the subordination
provisions of the 1999 Indenture (as in effect on the Closing Date), (y)
regularly scheduled payments of principal and interest with respect to the
Former Partner Debt in a manner consistent with the subordination provisions of
the Former Partner Debt, and (z) regularly scheduled payments of interest with
respect to other Subordinated Obligations, to the extent permitted by the
subordination provisions thereof. The principal amount of the 1999 Senior
Subordinated Debt may be prepaid or redeemed in a principal amount not to exceed
$62,500,000, but only (a) if (i) an Event of Default does not then exist, it
would not result therefrom and (ii) Borrower has not received written notice
from the Administrative Agent or a Lender that a Default has occurred and such
Default remains uncured; and (b) to the extent of an amount equal to the Net
Cash Proceeds from any public offering by Coast Resorts of its capital stock
provided that such prepayment or redemption is made within three months after
such public offering.
6.3 Disposition of Property. Make any Disposition of its
Property, whether now owned or hereafter acquired, except for the following
Dispositions (including any Right of Others consisting of an option granted with
respect to):
(a) Dispositions of obsolete, worn-out, or damaged
equipment or other personal property no longer necessary to the business
of Coast Resorts and its Subsidiaries;
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(b) Dispositions of easements or minor strips and
gores of property in connection with the construction of the New Project
or other improvements to Real Property and which are approved in advance
by the Administrative Agent as reasonably necessary to the construction
or maintenance thereof, provided that the Administrative Agent shall
concurrently receive any endorsements to its policy of title insurance
as it may reasonably request in connection therewith;
(c) subject to the requirements of Section 5.13, the
Disposition of the Barbary Coast and/or the Rancho Property;
(d) to the extent that the same constitute
Dispositions, Distributions contemplated by Section 6.6(b) and (c);
(e) Disposition of aircraft owned as of the Closing
Date; and
(f) additional Dispositions of equipment or other
Property (other than any Project Site or improvements thereon) having a
cumulative aggregate fair value not in excess of $10,000,000.
provided, however, that this Section shall not apply to prohibit a Disposition
to the extent necessary to prevent a License Revocation if (i) no Default or
Event of Default then exists which is not curable by such Disposition, (ii)
Borrower has notified the Administrative Agent in writing of the necessity to
invoke this proviso at least ten Banking Days (or such shorter period as may be
necessary in order to comply with a regulation or order of the relevant Gaming
Board) in advance and (iii) the Net Cash Proceeds from such Disposition are paid
to the Administrative Agent promptly after receipt and applied to reduce the
principal outstanding under the Notes (first, to Base Rate Loans and thereafter
to LIBOR Loans, shortest Interest Periods first, or to cash collateralize the
Notes in an interest bearing account with the Administrative Agent), and to
correspondingly reduce the Commitment (effective in the case of any cash
collateralization of LIBOR Loans upon the expiration of the related Interest
Period) and provided further that nothing in this Section shall apply to
restrict the Disposition of any of the equity securities of any Person that
holds, directly or indirectly through a holding company or otherwise, a license
under any Gaming Law to the extent such restriction is unlawful under that
Gaming Law.
6.4 Hostile Tender Offers. Make any offer to purchase or
acquire, or consummate a purchase or acquisition of, 5% or more of the capital
stock of any corporation or other business entity if the board of directors or
management of such corporation or business entity has notified Coast Resorts or
Borrower that it opposes such offer or purchase and such notice has not been
withdrawn or superseded.
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6.5 Mergers. Merge or consolidate with or into any Person,
except:
(a) mergers and consolidations of a Subsidiary of
Borrower into Borrower or another Subsidiary of Borrower (in the case of
any such merger or consolidation to which Borrower is a party, with
Borrower as the surviving entity), provided that Borrower and each of
such Subsidiaries have executed such amendments to the Loan Documents as
the Administrative Agent may reasonably determine are appropriate as a
result of such merger; and
(b) mergers or consolidations of Borrower or any of
its Subsidiaries with any other Person, provided that (i) either (A)
Borrower or such Subsidiary is the surviving entity, or (B) the
surviving entity is a corporation organized under the Laws of a State of
the United States of America or the District of Columbia and, as of the
date of such merger or consolidation, expressly assumes, by an
appropriate instrument, the Obligations of Borrower or such Subsidiary,
as the case may be, (ii) giving effect thereto on a pro-forma basis, no
Default or Event of Default exists or would result therefrom, and (iii)
as a result thereof, no Change of Control has occurred.
6.6 Distributions. Make any Distribution, whether from
capital, income or otherwise, and whether in Cash or other Property, other than:
(a) Distributions from any Subsidiary of Borrower to
Borrower;
(b) Provided that no Default or Event of Default
shall have occurred or be continuing or would result therefrom,
Distributions (by Borrower to Coast Resorts and by Coast Resorts,
without duplication) (i) made prior to the Opening in an aggregate
amount not to exceed $5,000,000, and (ii) made following the Opening,
during any Fiscal Year (including that in which the Opening occurs) in
an amount which does not exceed 40% of Net Income for the prior Fiscal
Year (minus in the case of the Fiscal Year in which the Opening occurs,
the amount actually distributed pursuant to clause (i)), provided that
in the case of any Distribution made pursuant to clause (ii) of this
paragraph, that (A) after giving pro forma effect to the making of such
Distribution as of the last day of the then most recent Fiscal Quarter,
Borrower is in pro forma compliance with the Fixed Charge Coverage
Ratio, and (B) as of the last day of the most recent Fiscal Quarter, the
Total Leverage Ratio is not greater than 4.00:1.00;
(c) Distributions from Borrower to Coast Resorts
permitted under the last sentence of Section 5.13;
(d) Distributions payable solely in capital stock of
Coast Resorts of the same class as to which such Distributions are
payable;
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(e) Dividends or other payments by Borrower to Coast
Resorts in an aggregate amount not to exceed $500,000 per fiscal year to
pay accounting, legal, corporate reporting and other administrative
expenses of Coast Resorts in the ordinary course of business;
(f) Payments of amounts required for any repurchase,
redemption, retirement or other acquisition of any Capital Stock of the
Borrower or Coast Resorts (and the payment of dividends by the Borrower
to Coast Resorts to fund any such payments) or any options or rights to
acquire such Capital Stock of the Borrower or Coast Resorts owned by any
director, officer or employee of the Borrower or any of its Subsidiaries
pursuant to any management equity subscription agreement, stock option
agreement or similar agreement, or otherwise upon the death, disability,
retirement or termination of employment or departure from the Borrower;
provided that the aggregate price paid for all such repurchased,
redeemed, retired or acquired Capital Stock of the Borrower or options
shall not exceed in the aggregate $2,000,000;
(g) Permitted Tax Distributions, provided that not
less than 10 Business Days prior to the making thereof, Borrower has
provided to the Administrative Agent calculations thereof which are in
form and detail reasonably acceptable to the Administrative Agent;
(h) Distributions to the former partners of the Gold
Coast Hotel and Casino, a Nevada partnership, or the Barbary Coast Hotel
and Casino, a Nevada partnership, in an aggregate amount not to exceed
$1,500,000 during the term of this Agreement to pay income tax liability
incurred as such partners and assessed after the Closing Date; and
(i) Distributions in an aggregate amount not to
exceed $1,000,000 during the term of this Agreement consisting of the
redemption or repurchase of any debt or equity securities of Coast
Resorts or any Subsidiary thereof required by, and in accordance with,
any order of any Gaming Board, provided that Coast Resorts or such
Subsidiary has used its reasonable best efforts to effect a disposition
of such securities to a third-party and has been unable to do so.
6.7 ERISA. At any time, permit any Pension Plan to: (i)
engage in any non-exempt "prohibited transaction" (as defined in Section 4975 of
the Code); (ii) fail to comply with ERISA or any other applicable Laws; (iii)
incur any material "accumulated funding deficiency" (as defined in Section 302
of ERISA); or (iv) terminate in any manner, which, with respect to each event
listed above, may reasonably be expected to result in a Material Adverse Effect,
or (b) withdraw, completely or partially, from any Multiemployer Plan if to do
so may reasonably be expected to result in a Material Adverse Effect.
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6.8 Change in Nature of Business. Make any material change
in the nature of the business of Coast Resorts and the its Subsidiaries, taken
as a whole.
6.9 Liens, Negative Pledges and Rights of Others. Create,
incur, assume or suffer to exist any Lien, Negative Pledge prohibiting the
granting of Liens to the Lenders or any Right of Others of any nature upon or
with respect to any of their respective Properties, or engage in any sale and
leaseback transaction with respect to any of their respective Properties,
whether now owned or hereafter acquired, except:
(a) Liens and Negative Pledges described on Schedule
6.9;
(b) Permitted Encumbrances and Permitted Rights of
Others;
(c) Liens and Negative Pledges held by the trustee
for the holders of the 13% Mortgage Debt securing 13% Mortgage Debt
permitted by Section 6.10(a)
(d) Liens and Negative Pledges in favor of the
Administrative Agent and the Lenders under the Loan Documents;
(e) To the extent that the same constitute Liens or
Rights of Others, the exceptions reflected on Schedule B to the ALTA
Lender's policies of title insurance described in Section 8.1;
(f) purchase money Liens securing Indebtedness,
including any interest or title of a lessor under any Capital Lease
Obligation and the obligations under any Swap Agreement so provided,
permitted by Section 6.10(c) on and limited to the Property acquired,
constructed or financed with the proceeds of such Indebtedness and
Negative Pledges in favor of the holders of such Indebtedness with
respect to such Property;
(g) Liens on Property acquired by Borrower and its
Subsidiaries following the Closing Date securing Indebtedness permitted
by Section 6.10, which are in existence at the time of such acquisition
and not created in contemplation thereof; and
(h) any Lien or Negative Pledge to the extent
constituting a renewal, extension, refunding, refinancing or replacement
of any Lien or Negative Pledge referred to in clauses (a), (f) or (g) of
this Section, provided that (i) such Lien or Negative Pledge relates
solely to the Property which was subject to the Lien or Negative Pledge
securing the obligation so renewed, extended, refunded, refinanced or
replaced and (ii) no Lien or Negative Pledge in favor of the Holders of
the 13% Mortgage Debt shall be so extended, refunded, refinanced or
replaced.
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6.10 Indebtedness and Contingent Obligations. Create, incur,
assume or suffer to exist any Indebtedness or Contingent Obligation except:
(a) Indebtedness and Contingent Obligations existing
on the Closing Date and disclosed in Schedule 6.10, and renewals,
extensions or amendments that do not increase the amount thereof,
provided that the 13% Mortgage Debt shall be retired when and as
required by Section 5.11;
(b) Indebtedness and Contingent Obligations under
the Loan Documents;
(c) purchase money Indebtedness and Capital Lease
Obligations incurred when no Default or Event of Default has occurred
and remains continuing, provided that the aggregate principal amount of
such Indebtedness and Capital Lease Obligations outstanding at any time
does not exceed $25,000,000 and Swap Agreements relating to any such
Indebtedness;
(d) Indebtedness consisting of one or more Swap
Agreements entered into with respect to the Obligations;
(e) Subordinated Obligations incurred when no
Default or Event of Default exists;
(f) amendments, renewals, extensions and
refinancings of any of the Indebtedness and Capital Lease Obligations
described in the foregoing clauses of this Section (other than
amendments, renewals, extensions and refinancings after the Closing Date
of the 13% Mortgage Debt), provided that the principal amount thereof is
not increased;
(g) unsecured Indebtedness in respect to
performance, surety, or appeal bonds, completion guarantees or similar
instruments provided in the ordinary course of business and in an
aggregate amount not to exceed $10,000,000; and
(h) unsecured Indebtedness (i) of Borrower and its
Subsidiaries to Coast Resorts and its Subsidiaries, and (ii) of Coast
Resorts and its other Subsidiaries to Borrower and its Subsidiaries to
the extent that the funding of such Indebtedness would have been
permitted by Section 6.6 had it been a Distribution, provided that in
the case of any Indebtedness permitted under this clause (ii), the
amount of Distributions permitted under Section 6.6 shall be reduced by
the principal amount of any such outstanding Indebtedness.
6.11 Transactions with Affiliates. Enter into any transaction
of any kind with any Affiliate of Borrower other than (a) salary, bonus and
other compensation arrangements,
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including employee benefit plans, with directors, officers, partners or
employees, and customary directors fees and indemnities, in each case in the
ordinary course of business and those no more favorable than those in existence
as of the Closing Date, (b) transactions between or among any of Coast Resorts
and its Subsidiaries, (c) transactions on overall terms at least as favorable to
Coast Resorts or its Subsidiaries as would be the case in an arm's-length
transaction between unrelated parties of equal bargaining power, (d) loans to
employees of Coast Resorts and its Subsidiaries in the ordinary course of their
business, provided that any loan in excess of $200,000 shall have been approved
by the disinterested members of the Board of Directors of Borrower; (e) any
Construction and Design Contract for the New Project approved by the
disinterested members of the board of directors of Coast Resorts and the
relevant Subsidiaries thereof, the terms of which are disclosed to the
Administrative Agent, (f) Distributions by Coast Resorts permitted by Section
6.6, and (g) any Tax Agreement providing for cash payments to the equityholders
of Coast Resorts not in excess of the Tax Amount.
6.12 Senior Leverage Ratio. Permit the Senior Leverage Ratio
as of the last day of any Fiscal Quarter to exceed 1.75:1.00 provided that,
should the Commitment be increased to the amount of at least $175,000,000 (a)
such required ratio shall immediately increase to 2.00:1.00, (b) Borrower may
elect, concurrently with the Commitment Increase Date, to have such required
ratio thereafter increased to 2.75:1.00 as of the last days of six consecutive
Fiscal Quarters (provided that no more than two of such selected Fiscal Quarters
end after the Completion Date) and (c) following such six Fiscal Quarters (and
in any event not later than the end of the second full Fiscal Quarter following
the Opening) such required ratio shall be changed to 2.50:1.00.
6.13 Total Leverage Ratio. Permit the Total Leverage Ratio as
of the last day of any Fiscal Quarter to exceed 4.50:1.00 provided that, should
the Commitment be increased to the amount of at least $175,000,000 (a) Borrower
may elect, concurrently with the Commitment Increase Date, to have such required
ratio thereafter increased to 5.00:1.00 for a period of five consecutive Fiscal
Quarters (provided that no more than one of such selected Fiscal Quarter ends
after the Completion Date) and (b) following such five Fiscal Quarter period
(and in any event not later than the end of the first full Fiscal Quarter
following the Opening) such required ratio shall be returned to 4.50:1.00.
6.14 Fixed Charge Coverage Ratio. Permit the Fixed Charge
Coverage Ratio as of the last day of any Fiscal Quarter to be less than
1.25:1.00.
6.15 Capital Expenditures. Make or commit to make any Capital
Expenditure other than:
(a) Maintenance Capital Expenditures not to exceed
$15,000,000 per annum, increasing, from and after the Opening, to
$22,000,000 per annum;
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(b) other Capital Expenditures in an aggregate
amount that do not, when aggregated with the outstanding amount of any
Acquisitions and Investments made under Section 6.16(i), exceed (i)
$40,000,000 between the Closing Date and the Maturity Date, plus (ii) an
additional $60,000,000 following the Opening;
(c) following an increase in the Commitment to an
amount of at least $175,000,000, other Capital Expenditures for the
development of the New Project in an amount not to exceed $150,000,000
(excluding capitalized interest);
(d) other Capital Expenditures in an amount
expressly permitted by the first sentence of Section 5.13, and
(e) following an increase in the Commitment to an
amount of at least $175,000,000, other Capital Expenditures in an amount
equal to any Net Cash Proceeds from the Disposition of the Rancho
Property and/or the Barbary Coast that are not used or to be used as
specified in the first sentence of Section 5.13.
6.16 Acquisitions and Investments. Make any Acquisition or
make or suffer to exist any Investment, other than:
(a) Investments consisting of Cash and Cash
Equivalents;
(b) Investments consisting of advances to officers,
directors, partners and employees of Borrower and its Subsidiaries for
travel, entertainment, relocation and analogous ordinary business
purposes;
(c) Investments in Subsidiaries engaged solely in
businesses reasonably related to the conduct of the business of the
Borrower's hotel and casino properties existing as of the Closing Date
(and/or the New Project) and which are made in compliance with Section
6.17; and
(d) Investments consisting of credit extended to
customers in the ordinary course of business and in accordance with past
practices;
(e) Investments existing as of the Closing Date and
described on Schedule 6.16 and renewals and extensions thereof, limited
to the amount of such Investment described on such Schedule;
(f) Advances and loans to employees of the Borrower
or any of its Subsidiaries in the ordinary course of business; provided
that the aggregate amount of such Investments does not exceed
$1,000,000;
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(g) Investments made as a result of the receipt of
non-cash consideration from any Disposition permitted under Section 6.1;
(h) Investments entered into in the ordinary course
of business consisting of (i) Swap Agreements not prohibited hereby,
(ii) utility or security deposits and similar prepaid expenses, and
(iii) stock, obligations or securities received in satisfaction of
judgments against third parties, foreclosure of Liens or good faith
settlement of litigation, disputes or other debts;
(i) Other Investments and Acquisitions made
following the Opening, provided that the aggregate amount of such
Investments outstanding at any time does not, when aggregated with
Capital Expenditures under Section 6.15(b), exceed $100,000,000; and
(j) Other Investments made following the Opening and
acquired solely in exchange for permanent equity capital stock of Coast
Resorts.
6.17 New Subsidiaries. Make or suffer to exist any Investment
in any Subsidiary, or form or acquire any Subsidiary, unless concurrently with
such Investment, acquisition or formation, (a) Borrower and each Affiliate of
Borrower has pledged its interest in the capital stock and debt securities of
such Subsidiary to the Administrative Agent and the Lenders, (b) such Subsidiary
has issued a guaranty of the Obligations and has granted perfected first
priority Liens in substantially all of its Property, in each case pursuant to a
Subsidiary Guaranty, a Subsidiary Security Agreement and/or a Subsidiary Pledge
Agreement which are in form and substance acceptable to the Administrative
Agent, and (c) Borrower and such Subsidiary have provided to the Administrative
Agent such other opinions, assurances and the like as the Administrative Agent
or the Requisite Lenders have reasonably requested.
6.18 Changes to Certain Obligations. Make any changes,
amendments or modifications to the terms of the 13% Indenture or the 1999
Indenture, or any other Subordinated Obligations which are materially adverse to
the interests of the Creditors.
6.19 Construction of the New Project. Each of the following
shall be applicable only following the Commitment Increase Date.
(a) Fail to proceed diligently and without material
interruption to construct and furnish the New Project in accordance in
all material respects with the Plans, the Budget and the Timetable (as
amended from time to time in accordance with the provisions of this
Section 6.19), and in any event on or before the Completion Date.
(b) Make any change to the Plans or Budget which
would (i) allocate or require the allocation of more than $2,000,000 (in
the aggregate of all
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such allocations) of the "contingency" line item in the Budget to any
line item not included in the Budget as of the Commitment Increase Date
without the prior written consent of the Requisite Lenders (not to be
unreasonably withheld or delayed), (ii) increase the overall Budget
(when established pursuant to Section 8.3) by more than 10%, or make any
change to the Timetable which would result in any benchmark described
therein being delayed for more than six months from the date established
therein, or, in any event make any change to the Plans, the Budget or
the Timetable which would cause the Completion Date to occur after
January 1, 2001, (iii) result in any change in the scope of the New
Project so that the square footage of the casino area would be decreased
by more than 5%, or (iv) delete or amend any of the material amenities
described in the Plans or Budget.
(c) Fail to construct the New Project in a good and
workmanlike manner in accordance with sound building practices and
without material deviation from the Plans, and comply in all material
respects with all existing Laws and requirements of all Governmental
Agencies having jurisdiction over the New Project Property or the New
Project and in all material respects with all future Laws and
requirements that become applicable to the New Project Property or the
New Project prior to the Completion Date.
(d) Purchase or contract for any materials,
equipment, furnishings, fixtures or articles of personal property to be
placed or installed on the New Project Property under any security
agreement or other agreement where the seller reserves or purports to
reserve title or the right of removal or repossession (except for such
reservations as may arise solely by operation of Law), or the right to
consider such materials personal property after their incorporation in
the work of construction (except to the extent permitted by Section 6.9
hereof), unless the Administrative Agent in each instance has authorized
Borrower to do so in writing.
(e) Fail to promptly pay prior to delinquency
(subject to applicable retentions) or otherwise discharge all claims and
Liens for labor done and materials and services furnished in connection
with the construction of the New Project, except for claims contested in
good faith by appropriate proceedings and without prejudice to the
Timetable, provided that any such claims are covered by such payment
bonds or title insurance policy endorsements as may be reasonably
requested by the Administrative Agent.
(f) Fail to promptly provide to the Administrative
Agent and CSC such information and documents respecting the New Project
as either may reasonably request from time to time, including detailed
identification of each significant subcontractor or supplier to the New
Project and the nature and dollar amount of the related subcontract or
supply contract.
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(g) Fail to properly obtain, comply with and keep in
effect all permits, licenses and approvals which are customarily
required to be obtained from Governmental Agencies in order to construct
and occupy the New Project as of the then current stage of construction,
and deliver copies of all such permits, licenses and approvals to the
Administrative Agent promptly following a written request therefor.
(i) Fail to provide any and all information which is
reasonably required for the preparation of a monthly Construction
Progress Report, to cooperate in the preparation of each Construction
Progress Report and, if requested by the Administrative Agent, cause the
New Project architect and general contractor to certify that the
improvements constructed as of the date of any Construction Progress
Report conform to the Plans in all material respects;
(j) Fail to maintain a full set of working drawings
at the New Project Property for review by CSC;
(k) Fail, within 15 days following any written
request by the Administrative Agent, to deliver (i) then current
construction plans for the New Project certified as true and correct by
the New Project architect and the project engineer, (ii) a then current
list of the names, addresses and telephone numbers of each contractor,
subcontractor and material supplier with respect to the New Project and
the dollar value and amounts paid with respect to the related contracts,
and (iii) then current versions of the construction schedule for all
uncompleted work on the New Project and all executed contracts and
subcontracts for such work;
(l) Fail to promptly notify the Administrative Agent
if it purchases any construction materials for the New Project having a
value in excess of $1,000,000 that are not located on the New Project
Property, or will not be delivered to the New Project Property within
fifteen days after purchase (describing such construction materials, the
purchase price therefor and the location thereof) and, if requested by
the Administrative Agent, provide to the Administrative Agent the
written acknowledgment of the Person having custody of such construction
materials of the existence of the Administrative Agent's Lien on such
construction materials and the right of the Administrative Agent to have
access to and to remove such construction materials when an Event of
Default has occurred and remains continuing.
(m) On or before the Opening, fail to provide the
Administrative Agent with a written certificate executed by the project
architect and contractor certifying that the New Project has been
completed in all material respects in accordance with the Plans and
complies in all material respects with all applicable zoning, building
and land use Laws and that the New Project is ready to be opened for
business together with a Certificate executed by a Senior Officer to
that effect.
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(n) Fail, as soon as practicable after completion of
the New Project, provide the Administrative Agent with an ALTA survey of
the New Project Property that (i) demonstrates compliance of the New
Project in all material respects with all applicable Laws and
requirements of Governmental Agencies, (ii) sets forth all recorded
easements and licenses burdening the New Project Property, (iii)
reflects no encroachments onto the New Project Property and no
encroachments by the New Project onto adjoining real property (other
than as reflected on the ALTA Survey described in the definition of New
Project Property) and (iv) certifies the legal description of the New
Project Property to be the same as that set forth in the title insurance
policy referred to in Section 8.3.
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Article 7
INFORMATION AND REPORTING REQUIREMENTS
7.1 Financial and Business Information. So long as any
Advance remains unpaid, or any Letter of Credit remains outstanding, or any
other Obligation remains unpaid or unperformed, or any portion of the Commitment
remains in force, Borrower shall, unless the Administrative Agent (with the
written approval of the Requisite Lenders) otherwise consents, at Borrower's
sole expense, deliver to the Administrative Agent, a sufficient number of copies
for all of the Lenders, of the following:
(a) As soon as practicable, and in any event within
45 days after the end of each Fiscal Quarter, (i) the consolidated and
consolidating balance sheet, statement of income and cash flows for the
portion of the Fiscal Year ended with such Fiscal Quarter, all in
reasonable detail, and (ii) a quarterly operating report with a
narrative description in a format which is mutually acceptable to
Borrower and the Administrative Agent. Such financial statements shall
be certified by the Chief Financial Officer or Treasurer of Coast
Resorts as fairly presenting the financial condition, results of
operations and cash flows of Coast Resorts and its Subsidiaries in
accordance with Generally Accepted Accounting Principles (other than
footnote disclosures), consistently applied, as at such date and for
such periods, subject only to normal year-end accruals and audit
adjustments;
(b) As soon as practicable, and in any event within
90 days after the end of each Fiscal Year, the consolidated and
consolidating balance sheet, statements of operations and cash flows, in
each case of Coast Resorts and its Subsidiaries for such Fiscal Year, in
each case as at the end of and for the Fiscal Year, all in reasonable
detail. Such financial statements shall be prepared in accordance with
Generally Accepted Accounting Principles, consistently applied, and such
consolidated balance sheet and consolidated statements shall be
accompanied by a report and opinion of independent public accountants of
recognized standing selected by Coast Resorts and reasonably
satisfactory to the Requisite Lenders, which report and opinion shall be
prepared in accordance with generally accepted auditing standards as at
such date, and shall not be subject to any qualifications or exceptions
which are not acceptable to the Requisite Lenders. Such accountants'
report shall be accompanied by a certificate stating that, in making the
examination pursuant to generally accepted auditing standards necessary
for the certification of such financial statements and such report, such
accountants have obtained no knowledge of any Default or, if, in the
opinion of such accountants, any such Default shall exist, stating the
nature and status of such Default, and stating that such accountants
have reviewed Borrower's financial calculations as at the end of such
Fiscal Year (which shall accompany such certificate) under Sections
6.12, 6.13, 6.14 and 6.15 have read such Sections (including the
definitions of all defined terms used therein) and that nothing has come
to the attention
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of such accountants in the course of such examination that would cause
them to believe that the same were not calculated by Borrower in the
manner prescribed by this Agreement;
(c) As soon as practicable, and in any event within
90 days after the commencement of each Fiscal Year, a budget and
projection by Fiscal Quarter for that Fiscal Year and by Fiscal Year for
the four succeeding Fiscal Years, including projected consolidated
balance sheets, statements of operations and statements of cash flow of
Coast Resorts and its Subsidiaries, all in reasonable detail;
(d) Promptly after the same are available, copies of
each material change to the Plans (whether such changes require the
consent of the Lenders or not). Without limitation on the foregoing,
Borrower shall promptly provide CSC with (i) copies of all change orders
with respect to the Plans including plans and specifications indicating
the proposed change, a written description of the proposed change and
related work drawings and a written estimate of the cost of the proposed
change and the time necessary to complete it, and (ii) any and all other
information and documents with respect thereto reasonably requested by
CSC;
(e) Promptly after request by the Administrative
Agent or any Lender, copies of any detailed audit reports, management
letters or recommendations submitted to Coast Resorts by independent
accountants in connection with the accounts or books of Coast Resorts or
any of its Subsidiaries, or any audit of any of them;
(f) Promptly after the same are available, copies of
each annual report, proxy or financial statement or other report or
communication sent to the stockholders of Coast Resorts, and copies of
all annual, regular, periodic and special reports and registration
statements which Borrower may file or be required to file with the
Securities and Exchange Commission under Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended, and not otherwise required
to be delivered to the Lenders pursuant to other provisions of this
Section 7.1;
(g) Promptly after the same are available, copies of
the Nevada "Regulation 6.090 Report" and "6-A Report" and copies of any
written communication to Borrower or any other Obligor from any Gaming
Board advising it of a violation of or non-compliance with any Gaming
Law by Borrower or any other Obligor;
(h) Promptly after request by the Administrative
Agent or any Lender, copies of any other material report or other
document that was filed by Coast Resorts or any of its Subsidiaries with
any Governmental Agency;
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(i) Promptly, and in any event within ten Banking
Days upon a Senior Officer becoming aware, of the occurrence of any (i)
"reportable event" (as such term is defined in Section 4043 of ERISA) or
(ii) "prohibited transaction" (as such term is defined in Section 406 of
ERISA or Section 4975 of the Code) in connection with any Pension Plan
or any trust created thereunder, telephonic notice specifying the nature
thereof, and, no more than five Banking Days after such telephonic
notice, written notice again specifying the nature thereof and
specifying what action Coast Resorts or any of its Subsidiaries is
taking or proposes to take with respect thereto, and, when known, any
action taken by the Internal Revenue Service with respect thereto;
(j) As soon as practicable, and in any event within
three Banking Days after a Senior Officer becomes aware of the existence
of any condition or event which constitutes a Default, telephonic notice
specifying the nature and period of existence thereof, and, no more than
two Banking Days after such telephonic notice, written notice again
specifying the nature and period of existence thereof and specifying
what action Borrower is taking or proposes to take with respect thereto;
(k) Promptly upon a Senior Officer becoming aware
that (i) any Person has commenced a legal proceeding with respect to a
claim against Coast Resorts or any of its Subsidiaries that is
$1,000,000 or more in excess of the amount thereof that is fully covered
by insurance, (ii) any creditor or lessor under a written credit
agreement involving Indebtedness in excess of $1,000,000 or a material
lease has asserted a default thereunder on the part of Coast Resorts or
any of its Subsidiaries, (iii) any Person has commenced a legal
proceeding with respect to a claim against Coast Resorts or any of its
Subsidiaries under a contract that is not a credit agreement or material
lease in excess of $1,000,000 or which otherwise may reasonably be
expected to result in a Material Adverse Effect, (iv) any labor union
has notified Coast Resorts or Borrower of its intent to strike Coast
Resorts or any of its Subsidiaries on a date certain and such strike
would involve more than 100 employees of Coast Resorts and its
Subsidiaries, or (v) any Gaming Board has indicated its intent to
consider or act upon a License Revocation or a fine or penalty of
$1,000,000 or more with respect to Coast Resorts or any of its
Subsidiaries, a written notice describing the pertinent facts relating
thereto and what action Coast Resorts or its Subsidiaries are taking or
propose to take with respect thereto; and
(l) Such other data and information as from time to
time may be reasonably requested by the Administrative Agent, any Lender
(through the Administrative Agent) or the Requisite Lenders.
7.2 Compliance Certificates. For so long as any Advance
remains unpaid, any Letter of Credit remains outstanding, any other Obligation
remains unpaid or unperformed, or any portion of the Commitment remains
outstanding, Borrower shall deliver to the
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Administrative Agent for distribution
by it to the Lenders concurrently with the financial statements required
pursuant to Sections 7.1(a) a properly completed Compliance Certificate signed
by a Senior Officer.
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Article 8
CONDITIONS
8.1 Initial Advances on the Closing Date. The obligation of
each Lender to make the initial Advance to be made by it on the Closing Date,
and the obligation of the Issuing Lender to issue the initial Letter of Credit,
are each subject to the following conditions precedent, each of which shall be
satisfied prior to the making of the initial Advances and the issuance of the
initial Letter of Credit (unless all of the Lenders, in their sole and absolute
discretion, shall agree otherwise):
(a) The Administrative Agent shall have received all
of the fol lowing, each of which shall be originals unless otherwise
specified, each properly executed by a Responsible Official of each
party thereto, each dated as of the Closing Date and each in form and
substance satisfactory to the Administrative Agent and its legal counsel
(unless otherwise specified or, in the case of the date of any of the
following, unless the Administrative Agent otherwise agrees or directs):
(1) executed counterparts of this Agreement,
sufficient in number for distribution to the Lenders and
Borrower;
(2) a Note executed by Borrower in favor of
Bank of America National Trust and Savings Association, in the
principal amount of $75,000,000;
(3) the Swing Line Documents executed by
Borrower in favor of the Swing Line Lender;
(4) the Deeds of Trust, executed and
acknowledged by Borrower;
(5) the Security Agreement executed by
Borrower and the Coast Resorts Security Agreement executed by
Coast Resorts;
(6) such financing statements on Form UCC-1
executed by Borrower and Coast Resorts with respect to the
Security Agreement and the Coast Resorts Security Agreement, as
the Administrative Agent may request;
(7) the Trademark Assignment, executed by
Borrower;
(8) the Guaranty, executed by the
Guarantors;
(9) an amendment to the Escrow Agreement
dated as of January 30, 1996 among Borrower, Coast Resorts, Bank
of America Nevada
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and American Bank National Association which is in form and
substance acceptable to the Administrative Agent;
(10) a certified execution copy of each of
the 13% Indenture, the 1999 Indenture, the Former Partner Debt,
the Orleans Lease, the New Lease, the Barbary Coast Lease, the
Barbary Coast Parking Lease and the Tax Sharing Agreement;
(11) the fee letters with respect to certain
fees as described in Article 3, executed by Borrower;
(12) such documentation with respect to
Borrower and each other Obligor as the Administrative Agent may
require to establish its due organization, valid existence and
good standing, its qualification to engage in business in each
material jurisdiction in which it is engaged in business or
required to be so qualified, its authority to execute, deliver
and perform the Loan Documents, the identity, authority and
capacity of each Responsible Official thereof authorized to act
on its behalf, including certified copies of articles of
incorporation and amendments thereto, bylaws and amendments
thereto, certificates of good standing and/or qualification to
engage in business, tax clearance certificates, certificates of
corporate resolutions, and incumbency certificates;
(13) an estoppel certificate and
nondisturbance agreement executed by the landlord for each of
the Orleans Lease and the New Lease (containing any
modifications to such leases reasonably required by the Lenders)
to ensure the Lenders' ability to realize its security interest
in such leasehold estates;
(14) a "Phase I" environmental report with
respect to the Gold Coast and The Orleans;
(15) a written appraisal by a qualified
independent appraiser acceptable to the Administrative Agent and
complying in all respects with FIRREA of each of The Orleans
that reflects a fair market value of $100,000,000;
(16) a certificate of insurance issued by
Borrower's insurance carrier or agent with respect to the
insurance required to be maintained pursuant to the Deeds of
Trust, including without limitation flood insurance and a policy
or policies of bailer's "all risk" insurance in non-reporting
form and in an amount not less than the then current value of
the improvements located on the Project Sites, on a replacement
cost basis, together with lenders' loss
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payable endorsements thereof on Form 438BFU or other form
acceptable to the Administrative Agent;
(17) assurances acceptable to the
Administrative Agent that Commonwealth Land Title Insurance
Company is prepared to issue its ALTA lenders policy, insuring
that Borrower (a) is the owner of the Gold Coast Property in fee
simple absolute, subject only to Permitted Encumbrances and (b)
holds the leasehold interest under each of the Orleans Lease and
the New Lease, and insuring the Lien of each Deed of Trust in an
amount not less than the amount of the Commitment, subject only
to the exceptions to title described on Schedule 6.9 and with
endorsements to coverage as are reasonably acceptable to the
Administrative Agent or as are reasonably requested by the
Requisite Lenders (including any endorsements providing coverage
as to exceptions to title described on Schedule 6.9 as may be
reasonably requested by the Administrative Agent with respect
thereto), with such assurances as the Administrative Agent may
reasonably require from title re-insurers acceptable to the
Administrative Agent;
(18) the Opinions of Counsel;
(19) evidence satisfactory to the Requisite
Lenders of such zoning (including variances and use permits) and
other land use entitlements as may be necessary to permit the
use of the New Project as a hotel, casino and resort property;
(20) such assurances as the Administrative
Agent deems appropriate that the relevant Gaming Boards have
approved the transactions contemplated by the Loan Documents
(other than as to the proposed pledge of the stock of Borrower
to the Administrative Agent) to the extent that such approval is
required by applicable Gaming Laws;
(21) a Certificate of a Responsible Official
signed by a Senior Officer of Borrower certifying that the
conditions specified in Sections 8.1(e) and 8.1(f) have been
satisfied;
(22) such other assurances, certificates,
documents, consents or opinions as the Administrative Agent
reasonably may require.
(b) Borrower shall concurrently purchase and cancel
not less than 90% of the outstanding principal amounts of the 13% First
Mortgage Debt and all of the 10-7/8% First Mortgage Debt pursuant to
agreements acceptable to the Administrative Agent, and for any such debt
that has been terminated in full, shall have
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made arrangements satisfactory to the Administrative Agent for the
termination of any deeds of trust, financing statements and other
security held with respect thereto.
(c) Evidence that the security interests of the
Administrative Agent in the personal property of Borrower are of first
priority, except as set forth in Section 4.20 or otherwise contemplated
by the Loan Documents.
(d) The reasonable costs and expenses of the
Administrative Agent in connection with the preparation of the Loan
Documents payable pursuant to Section 11.3, and invoiced to Borrower no
less than two days prior to the Closing Date, shall have been paid.
(e) The representations and warranties of Borrower
contained in Article 4 shall be true and correct.
(f) Borrower and any other Obligors shall be in
compliance with all the terms and provisions of the Loan Documents, and
after giving effect to the initial Advance, no Default or Event of
Default shall have occurred and be continuing.
(g) The fees due and payable on the Closing Date
pursuant to Article 3 shall have been paid.
(h) Borrower shall have received, or shall
concurrently receive, the net proceeds of the issuance of the 1999
Senior Subordinated Notes.
(i) All legal matters relating to the Loan Documents
shall be satisfactory to Sheppard, Mullin, Richter & Hampton, LLP,
special counsel to the Administrative Agent.
8.2 Any Advance. The obligation of each Lender to make any
Advance which would increase the outstanding principal Indebtedness evidenced by
the Notes, the obligation of the Lenders to make any LIBOR Loan, the obligation
of the Issuing Lender to issue any Letter of Credit, and the obligation of the
Swing Line Lender to make any Swing Line Advance, are each subject to the
conditions precedent that:
(a) except as disclosed by Borrower and approved in
writing by the Requisite Lenders, the representations and warranties
contained in Article 4 (other than the representations set forth in
Sections 4.4, 4.10 and 4.17) shall be true and correct on the date of
such Advance as though made on that date;
(b) There shall not be any pending or threatened
action, suit, proceeding or investigation affecting Coast Resorts or any
of its Subsidiaries before any Governmental Agency that constitutes a
Material Adverse Effect;
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(c) except as provided for in Section 2.1(g), the
Administrative Agent shall have timely received a Request for Loan in
compliance with Article 2 (or telephonic or other request for Loan
referred to in the second sentence of Section 2.1(b), if applicable) or
the Issuing Lender shall have received a Request for Letter of Credit,
as the case may be, in compliance with Article 2;
(d) no Default or Event of Default shall have
occurred and remain continuing or will result from such Advance or Swing
Line Advance or the issuance of such Letter of Credit;
(e) the Administrative Agent shall have received, in
form and substance satisfactory to the Administrative Agent, such other
assurances, certificates, documents or consents related to the foregoing
as the Administrative Agent or the Requisite Lenders reasonably may
require.
8.3 Conditions to Increase in Commitment. The effectiveness
of any increase in the Commitment above $75,000,000 is subject to the following
conditions precedent:
(a) The Administrative Agent shall have received all
of the following, each of which shall be originals unless otherwise
specified, each properly executed by a Responsible Official of each
party thereto, and each in form and substance satisfactory to the
Administrative Agent and its legal counsel:
(1) Replacement Notes executed by Borrower
in favor of each Lender, each in a principal amount equal to
that Lender's Pro Rata Share of the revised Commitment;
(2) A Leasehold Deed of Trust, Assignment of
Rents and Fixture Filing (the "Barbary Coast Deed of Trust")
executed and delivered by Borrower in favor of the Lenders with
respect to Borrower's interest under the Barbary Coast Ground
Lease and the Barbary Coast Parking Lease;
(3) If requested by the Lenders, an estoppel
certificate and non-disturbance agreement executed by the
landlord for each of the Barbary Coast Ground Lease and the
Barbary Coast Parking Lease (containing any modifications to
such lease as recently required by the Lenders) to ensure the
Lenders' ability to realize its security interest in such
leasehold estates (it being understood that the Administrative
Agent shall not require attornment agreements from tenants under
customary retail leases);
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(4) Such environmental reports and
assessments as may have been requested by the Administrative
Agent or the Lenders in connection with the New Project or the
Barbary Coast;
(5) Written appraisals of the Project Sites
conducted by appraisers acceptable to the Administrative Agent
showing that the aggregate fair market values of the Project
Sites (including any "as-built" appraisal of the New Project)
are not less than $300,000,000;
(6) A certificate of insurance issued by
Borrower's insurance carrier or agent with respect to the
insurance required to be maintained pursuant to the Barbary
Coast Deed of Trust, including without limitation, flood
insurance and a policy or policies of bailer's "all risk"
insurance in non-reporting form and in an amount not less than
the then current value of the improvements located on the
Barbary Coast Property, on a replacement cost basis, together
with lender's loss payable endorsements thereof on Form 438BFU
or other form acceptable to the Administrative Agent;
(7) Assurances acceptable to the
Administrative Agent that Commonwealth Land Title Insurance is
prepared to issue its ALTA lenders policies, insuring that
Borrower holds the leasehold interest under each of the Barbary
Coast Ground Lease and the Barbary Coast Parking Lease and
insuring the Lien of the Barbary Coast Deed of Trust in amount
not less than the amount of the Commitment (subject to tie-in
endorsements as to the policies referred to in the next
paragraph), subject only to Permitted Encumbrances and
exceptions acceptable to the Administrative Agent and with
endorsements to coverage as are acceptable to the Administrative
Agent, with such assurances as the Administrative Agent may
reasonably require from title re-insurers acceptable to the
Administrative Agent;
(8) Endorsements from applicable title
insurance companies with respect to any title insurance policies
otherwise held by the Lenders pursuant to the Loan Documents
increasing the insured amounts thereunder to the then effective
amount of the Commitment (subject to tie-in endorsements as to
the policies referred to in the preceding paragraph) and
otherwise as the Administrative Agent may reasonably require.
(9) Updates, restatements or replacements
for the Opinions of Counsel and the estoppels provided pursuant
to Section 8.1(a)(13) as the Administrative Agent may require.
(10) an ALTA survey which (i) shows all
"set-backs" and other restrictions applicable to the New Project
Property pursuant to
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requirements of Governmental Agencies and applicable covenants,
conditions and other private restrictions, (ii) shows all
easements, licenses and other rights of way, (iii) shows no
encroachments onto the New Project Property or from the New
Project Property onto adjoining property, and (iv) certifies the
legal description of the New Project Property as insured in the
Lenders' title policy with respect to the New Project Property.
(11) a certificate pursuant to which the
person who prepared such ALTA survey certifies to Lender and the
applicable title insurer that the survey was made on the ground
and in accordance with the Minimum Standard Detail Requirements
of Land Title Surveys established by the A.L.T.A. and A.C.S.M.,
and is correct and complete; that access to the New Project
Property, and utilities shown on the survey, are sufficient and
in accordance with applicable requirements; that the New Project
Property does not fall within a designated flood hazard area;
and as to such other matters as the Administrative Agent
requires.
(12) a Certificate of a Responsible Official
of Borrower stating that attached thereto and incorporated
therein by reference are true, correct and complete copies of
the architect contract for the New Project;
(13) The Timetable, the Budget, the Plans and
the Completion Date shall have been approved by the
Administrative Agent and the Lenders;
(14) a geotechnical report by a qualified
licensed soils engineer satisfactory to the Lenders and
certified as applicable to the improvements of the New Project
Property contemplated by the New Project;
(15) evidence satisfactory to the
Administrative Agent of such zoning (including variances and use
permits) and other land use entitlements as may be necessary to
permit the use of the improvements on the New Project Property
as a hotel, casino and resort property;
(16) Such assurances as the Administrative
Agent deems appropriate that the relevant Gaming Boards have
approved the increase in the Commitment and associated
transactions contemplated by any revisions to the Loan Documents
to the extent that such approval is required by applicable
Gaming Laws;
(17) A letter agreement with the
Administrative Agent setting forth the fees to be payable to CSC
in connection with the New Project (which fees shall be mutually
acceptable to the Administrative Agent and the Borrower);
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(18) A certificate of a Responsible Official
signed by a Senior Officer of Borrower certifying that the
conditions specified in Sections 8.2(a) and 8.2(d) have been
satisfied and setting forth (i) the six Fiscal Quarters selected
by Borrower for a 2.75:1.00 maximum Senior Leverage Ratio
requirement (as set forth in Section 6.12), and (ii) the five
Fiscal Quarters selected by Borrower for a 5.00:1.00 maximum
Total Leverage Ratio requirement (as set forth in Section 6.13);
(19) Such other assurances, certificates,
documents, consents or opinions as the Administrative Agent may
require;
(b) The reasonable costs and expenses of the
Administrative Agent in connection with its preparation and review of
materials associated with the increase in the Commitment shall have been
paid in accordance with Section 11.3.
(c) Borrower shall have paid to the Administrative
Agent, for the account of the Lenders, any fees as may have been agreed
upon in connection with any increase to the Commitment upon the
Commitment Increase Date (it being understood that such fees may not be
proportionately equal as to each Lender).
8.4 Conditions to Advances. Unless the Requisite Lenders
have otherwise agreed in writing, the making by any Lender of any Advance with
the knowledge that any condition to such Advance is not fulfilled shall
constitute a waiver of such condition only with respect to the Advance made, and
such condition shall be a condition to all further Advances until fulfilled. In
addition, and regardless of whether Borrower thereafter requests any further
Advance, the making by any Lender of any Advance requested by Borrower shall
obligate Borrower to promptly and diligently fulfill any conditions to such
Advance that were not fulfilled at the time such Advance was made.
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Article 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
9.1 Events of Default. The existence or occurrence of any
one or more of the following events, whatever the reason therefor and under any
circumstances whatsoever, shall constitute an Event of Default:
(a) Borrower (i) fails to pay any principal on any
of the Notes, or any portion thereof, on the date when due, (ii) fails
to make any payment with respect to any Letter of Credit when due, or
(iii) fails to make any payment of principal with respect to any Swing
Line Advance when due; or
(b) Borrower fails to pay any interest on any of the
Notes, or any fees under Sections 3.2, 3.3, 3.4, 3.5 or 3.6 or any
portion thereof, within two Banking Days after the date when due; or
fails to pay any other fee or amount payable to the Lenders under any
Loan Document, or any portion thereof, within five Banking Days after
demand therefor; or
(c) Borrower fails to comply with any of the
covenants contained in Article 6;
(d) Borrower or any other Obligor fails to perform
or observe any other covenant or Agreement (not specified in clauses
(a), (b) or (c) above) contained in any Loan Document on its part to be
performed or observed within twenty-five Banking Days after the giving
of notice by the Administrative Agent on behalf of the Requisite Lenders
of such Default; or
(e) Any representation or warranty of Borrower or
any other Obligor made in any Loan Document proves to have been
incorrect when made or reaffirmed, or in any certificate or other
writing delivered by Borrower pursuant to any Loan Document, proves to
have been incorrect when made or reaffirmed; or
(f) Coast Resorts or any of its Subsidiaries (i)
fails to pay the principal, or any principal installment, of any present
or future Indebtedness for borrowed money of $5,000,000 or more, or any
guaranty of present or future Indebtedness for borrowed money of
$5,000,000 or more, on its part to be paid, when due (or within any
stated grace period), whether at the stated maturity, upon acceleration,
by reason of required prepayment, the exercise of any "put" exercised by
the holder of such Indebtedness or otherwise or (ii) fails to perform or
observe any other term, covenant or Agreement on its part to be
performed or observed, or suffers any event to occur, in connection with
any present or future Indebtedness for borrowed money of $5,000,000 or
more, or of any guaranty of present or future indebtedness for
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borrowed money of $5,000,000 or more, if as a result of such failure or
sufferance any holder or holders thereof (or an agent or trustee on its
or their behalf) has the right to declare such indebtedness due before
the date on which it otherwise would become due; or
(g) Any event occurs which gives the holder or
holders of any Subordinated Obligation (or an agent or trustee on its or
their behalf) the right to declare such Subordinated Obligation due
before the date on which it otherwise would become due, or the right to
require the issuer thereof to redeem or purchase, or offer to redeem or
purchase, all or any portion of any Subordinated Obligation; or
(h) Any Loan Document, at any time after its
execution and delivery and for any reason other than the agreement of
the Lenders or satisfaction in full of all the Obligations ceases to be
in full force and effect or is declared by a court of competent
jurisdiction to be null and void, invalid or unenforceable in any
respect which, in any such event in the reasonable opinion of the
Requisite Lenders, is materially adverse to the interests of the
Lenders; or any Obligor thereto denies that it has any or further
liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind same; or
(i) A final judgment against Coast Resorts or any of
its Subsidiaries is entered for the payment of money in excess of
$5,000,000 (other than any money judgment covered in full by insurance)
and, absent procurement of a stay of execution, such judgment remains
unsatisfied for sixty calendar days after the date of entry of judgment,
or in any event later than five days prior to the date of any proposed
sale thereunder; or any writ or warrant of attachment or execution or
similar process is issued or levied against all or any part of the
Property of any such Person and is not released, vacated or fully bonded
within sixty calendar days after its issue or levy; or
(j) Coast Resorts or any of its Subsidiaries
institutes or consents to the institution of any proceeding under a
Debtor Relief Law relating to it or to all or any part of its Property,
or is unable or admits in writing its inability to pay its debts as they
mature, or makes an assignment for the benefit of creditors; or applies
for or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for
all or any part of its Property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed
without the application or consent of that Person and the appointment
continues undischarged or unstayed for sixty calendar days; or any
proceeding under a Debtor Relief Law relating to any such Person or to
all or any part of its Property is instituted without the consent of
that Person and continues undismissed or unstayed for sixty calendar
days; or
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(k) The occurrence of an Event of Default (as such
term is or may hereafter be specifically defined in any other Loan
Document) under any other Loan Document; or
(l) Any determination is made by a court of
competent jurisdiction that any Subordinated Obligation is not
subordinated in accordance with its terms to the Obligations; or
(m) Any Pension Plan maintained by Coast Resorts or
any of its Subsidiaries is determined to have an "accumulated funding
deficiency" as that term is defined in Section 302 of ERISA and the
result is a Material Adverse Effect; or
(n) The occurrence of any License Revocation that
continues for five consecutive calendar days at any of The Orleans, Gold
Coast, Barbary Coast, or New Project (after it begins operations);
provided that the Borrower or any of its Subsidiaries may relinquish a
Gaming License with respect to any of its hotel casinos other than The
Orleans, the Gold Coast or the New Project if such relinquishment is, in
the reasonable, good faith judgment of the Board of Directors of the
Borrower or any of its Subsidiaries, as applicable, both desirable in
the conduct of the business of the Borrower and its Subsidiaries, taken
as a whole, and not disadvantageous in any material respect to the
Administrative Agent or the Lenders;
(o) The occurrence of any Change of Control; or
(p) Any amendment is made to the terms of the 1999
Indenture or any instrument, document or Agreement governing
Subordinated Obligations in violation of Section 6.18, or any payment of
principal is made with respect to the 1999 Senior Subordinated Debt is
made in violation of the subordination provisions of the 1999 Indenture.
9.2 Remedies Upon Event of Default. Without limiting any
other rights or remedies of the Administrative Agent or the Lenders provided for
elsewhere in this Agreement, or the other Loan Documents, or by applicable Law,
or in equity, or otherwise:
(a) Upon the occurrence, and during the continuance,
of any Event of Default other than an Event of Default described in
Section 9.1(j):
(1) the Commitment to make Advances, the
obligation of the Issuing Lender to issue Letters of Credit, the
obligation of the Swing Line Lender to make Swing Line Advances
and all other obligations of the Creditors to the Obligors and
all rights of Borrower and the other Obligors under the Loan
Documents shall be suspended without notice to or demand upon
Borrower, which are expressly waived by Borrower, except that
all of the Lenders
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or the Requisite Lenders (as the case may be, in accordance with
Section 11.2) may waive an Event of Default or, without waiving,
determine, upon terms and conditions satisfactory to the Lenders
or Requisite Lenders, as the case may be, to reinstate the
Commitment and make further Advances, and cause the Issuing
Lender to issue further Letters of Credit, which waiver or
determination shall apply equally to, and shall be binding upon,
all the Lenders;
(2) the Issuing Lender may, with the
approval of the Administrative Agent on behalf of the Requisite
Lenders, demand immediate payment by Borrower of an amount equal
to the aggregate amount of all outstanding Letters of Credit to
be held by the Issuing Lender as cash collateral hereunder; and
(3) the Requisite Lenders may request the
Administrative Agent to, and the Administrative Agent thereupon
shall, terminate the Commitment and may declare all or any part
of the unpaid principal of the Notes, all interest accrued and
unpaid thereon and all other amounts payable under the Loan
Documents to be forthwith due and payable, whereupon the same
shall become and be forthwith due and payable, without protest,
present ment, notice of dishonor, demand or further notice of
any kind, all of which are expressly waived by Borrower.
(b) Upon the occurrence of any Event of Default
described in Section 9.1(j):
(1) the Commitment to make Advances, the
obligation of the Issuing Lender to issue Letters of Credit, the
obligation of the Swing Line Lender to make Swing Line Advances
and all other obligations of the Creditors to the Obligors and
all rights of Borrower and any other Obligors under the Loan
Documents shall terminate without notice to or demand upon
Borrower, which are expressly waived by Borrower, except that
all the Lenders may waive the Event of Default or, without
waiving, determine, upon terms and conditions satisfactory to
all the Lenders, to reinstate the Commitment and make further
Advances and to cause the Issuing Lender to issue further
Letters of Credit, which determination shall apply equally to,
and shall be binding upon, all the Lenders;
(2) an amount equal to the aggregate amount
of all outstanding Letters of Credit shall be immediately due
and payable to the Issuing Lender without notice to or demand
upon Borrower, which are expressly waived by Borrower, to be
held by the Issuing Lender in an interest-bearing account as
collateral hereunder; and
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(3) the unpaid principal of all Notes, all
interest accrued and unpaid thereon and all other amounts
payable under the Loan Documents shall be forthwith due and
payable, without protest, presentment, notice of dishonor,
demand or further notice of any kind, all of which are expressly
waived by Borrower.
(c) Upon the occurrence and during the continuance
of any Event of Default, the Lenders and the Administrative Agent, or
any of them, without notice to (except as expressly provided for in any
Loan Document) or demand upon Borrower, which are expressly waived by
Borrower (except as to notices expressly provided for in any Loan
Document), may proceed (but only with the consent of the Requisite
Lenders) to protect, exercise and enforce their rights and remedies
under the Loan Documents against Borrower and any other Obligor and such
other rights and remedies as are provided by Law or equity. Without
limitation upon the foregoing, if any Event of Default occurs after any
Commitment Increase Date and before the Opening and is continuing, the
Administrative Agent shall have the right (to the extent not prohibited
by applicable Laws) in the sole discretion of the Requisite Lenders to
enter and take possession of the New Project, whether in person, by
agent or by court-appointed receiver, and to take any and all actions
which the Administrative Agent in its sole discretion after consultation
with the Lenders may consider necessary to complete construction of the
New Project, including making changes in the Plans, work or materials
and entering into, modifying or terminating any contractual
arrangements, all subject to the Administrative Agent's and the Lenders'
right at any time to discontinue any work without liability, provided
that the Administrative Agent shall promptly discontinue the exercise of
the rights provided by this sentence if the Event of Default is cured to
the satisfaction of the Requisite Lenders. If the Administrative Agent
and the Requisite Lenders choose to complete the New Project, neither
the Administrative Agent nor the Lenders shall assume any liability to
Borrower or any other Person for completing the New Project, or for the
manner or quality of construction of the New Project, and Borrower
expressly waives any such liability not associated with the gross
negligence and willful misconduct of the Administrative Agent or the
Lenders. If the Administrative Agent exercises any of the rights or
remedies provided in this paragraph on behalf of the Lenders, that
exercise shall not make the Administrative Agent or the Lenders, or
cause the Administrative Agent or the Lenders to be deemed to be, a
partner or joint venturer of Borrower. The Administrative Agent in its
sole discretion may choose to complete construction in its own name. All
sums which are expended by the Administrative Agent and/or the Lenders
in completing construction shall be considered to have been disbursed to
Borrower and shall be secured by the Collateral; any sums of principal
shall be considered to be additional Loans to Borrower bearing interest
at the Default Rate, and shall be secured by the Collateral. For these
purposes the Administrative Agent, in its sole discretion, may
reallocate any line item or cost category of the Budget.
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(d) The order and manner in which the Lenders'
rights and remedies are to be exercised shall be determined by the
Requisite Lenders in their sole discretion, and all payments received by
the Administrative Agent and the Lenders, or any of them, shall be
applied first to the costs and expenses (including reasonable attorneys'
fees and disbursements and the reasonably allocated costs of attorneys
employed by the Administrative Agent or by any Lender) of the
Administrative Agent and of the Lenders, and thereafter paid pro rata to
the Lenders in the same proportions that the aggregate Obligations owed
to each Lender under the Loan Documents bear to the aggregate
Obligations owed under the Loan Documents to all the Lenders, without
priority or preference among the Lenders. Regardless of how each Lender
may treat payments for the purpose of its own accounting, for the
purpose of computing Borrower's Obligations hereunder and under the
Notes, payments shall be applied first, to the costs and expenses of the
Administrative Agent and the Lenders, as set forth above, second, to the
payment of accrued and unpaid interest due under any Loan Documents to
and including the date of such application (ratably, and without duplica
tion, according to the accrued and unpaid interest due under each of the
Loan Documents), and third, to the payment of all other amounts
(including principal and fees) then owing to the Administrative Agent or
the Lenders under the Loan Documents. No application of payments will
cure any Event of Default, or prevent acceleration, or continued
acceleration, of amounts payable under the Loan Documents, or prevent
the exercise, or continued exercise, of rights or remedies of the
Lenders hereunder or thereunder or at Law or in equity.
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Article 10
THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization. Subject to Section 10.8,
each Creditor hereby irrevocably appoints and authorizes the Administrative
Agent to take such action as administrative agent on its behalf and to exercise
such powers under the Loan Documents as are delegated to the Administrative
Agent by the terms thereof or are reasonably incidental, as determined by the
Administrative Agent, thereto. This appointment and authorization is intended
solely for the purpose of facilitating the servicing of the Loans and does not
constitute appointment of the Administrative Agent as a trustee or agent for any
Lender or as representative of any Lender for any other purpose and, except as
specifically set forth in the Loan Documents to the contrary, the Administrative
Agent shall take such action and exercise such powers only in an administrative
and ministerial capacity.
10.2 Administrative Agent and Affiliates. Bank of America
(and each successor Administrative Agent) has the same rights and powers under
the Loan Documents as any other Lender and may exercise the same as though it
were not the Administrative Agent, and the term "Lender" or "Lenders" includes
Bank of America in its individual capacity. Bank of America (and each successor
Administrative Agent) and its Affiliates may accept deposits from, lend money to
and generally engage in any kind of banking, trust or other business with
Borrower, any Subsidiary thereof, or any Affiliate of Borrower or any Subsidiary
thereof, as if it were not the Administrative Agent and without any duty to
account therefor to the other Creditors. Bank of America (and each successor
Administrative Agent) need not account to any other Creditor for any monies
received by it for reimbursement of its costs and expenses as Administrative
Agent hereunder, or for any monies received by it in its capacity as a Lender
hereunder. The Administrative Agent shall not be deemed to hold a fiduciary
trust or other special relationship or any other special relationship with any
other Creditor and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against the Administrative Agent.
10.3 Proportionate Interest in any Collateral. The
Administrative Agent, on behalf of all the Creditors, shall hold in accordance
with the Loan Documents all items of any collateral or interests therein
received or held by the Administrative Agent. Subject to the Administrative
Agent's right to reimbursement for its costs and expenses hereunder (including
reasonable attorneys' fees and disbursements and other professional services and
the reasonably allocated costs of attorneys employed by the Administrative
Agent) and subject to the application of payments in accordance with Section
9.2(d), each Lender shall have an interest in the Collateral or interests
therein in the same proportions that the aggregate Obligations owed such Lender
under the Loan Documents bear to the aggregate Obligations owed under the Loan
Documents to all the Lenders, without priority or preference among the Lenders,
except that Obligations owed to any Lender under a Secured Swap Agreement shall
be secured on a pari passu basis with all other Obligations up to an amount
equal to the Administrative
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Agent's then customary credit risk factor for Swap Agreements times the notional
amount of Indebtedness covered by such Secured Swap Agreement and shall be
secured on a subordinate basis as to amounts in excess of such amount.
10.4 Lenders' Credit Decisions. Each Creditor agrees that it
has, independently and without reliance any other Creditor or the directors,
officers, agents, employees or attorneys thereof, and instead in reliance upon
information supplied to it by or on behalf of Borrower and upon such other
information as it has deemed appropriate, made its own independent credit
analysis and decision to enter into this Agreement. Each Lender agrees that it
shall, independently and without reliance upon any other Creditor or the
directors, officers, agents, employees or attorneys thereof, continue to make
its own independent credit analyses and decisions in acting or not acting under
the Loan Documents.
10.5 Action by Administrative Agent.
(a) Absent actual knowledge of the Administrative
Agent of the existence of a Default or Event of Default, the
Administrative Agent may assume that no Default or Event of Default has
occurred and is continuing, unless the Administrative Agent has received
notice from Borrower stating the nature of the Default or has received
notice from a Lender stating the nature of the Default and that such
Lender considers the Default to have occurred and to be continuing.
(b) The Administrative Agent has only those
obligations under the Loan Documents as are expressly set forth therein.
(c) Except for any obligation expressly set forth in
the Loan Documents and as long as the Administrative Agent may assume
that no Event of Default has occurred and is continuing, the
Administrative Agent may, but shall not be required to, exercise its
discretion to act or not act, provided that (i) the Administrative Agent
shall be required to act or not act upon the instructions of the
Requisite Lenders (or of all the Lenders, to the extent required by
Section 11.2) and those instructions shall be binding upon the
Administrative Agent and all of the other Creditors, and (ii) the
Administrative Agent shall not be required to act or not act if to do so
would be contrary to any Loan Document or to applicable Law or would
result, in the reasonable judgment of the Administrative Agent, in
substantial risk of liability to the Administrative Agent.
(d) If the Administrative Agent has received a
notice specified in clause (a), the Administrative Agent shall
immediately give notice thereof to the Lenders and shall act or not act
upon the instructions of the Requisite Lenders (or of all the Lenders,
to the extent required by Section 11.2), provided that (i) the
Administrative Agent shall not be required to act or not act if to do so
would be contrary to any Loan Document or to applicable Law or would
result, in the reasonable
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judgment of the Administrative Agent, in substantial risk of liability
to the Administrative Agent, and (ii) if the Requisite Lenders (or all
the Lenders, if required under Section 11.2) fail, for five Banking Days
after the receipt of notice from the Administrative Agent, to instruct
the Administrative Agent, then the Administrative Agent, in its sole
discretion, may act or not act as it deems advisable for the protection
of the interests of the Lenders.
(e) The Administrative Agent shall have no liability
to any Creditor for acting, or not acting, as instructed by the
Requisite Lenders (or all the Lenders, if required under Section 11.2),
notwithstanding any other provision hereof.
10.6 Liability of Administrative Agent. Neither the
Administrative Agent nor any of its directors, officers, agents, employees or
attorneys shall be liable for any action taken or not taken by them under or in
connection with the Loan Documents, except for their own gross negligence or
willful misconduct. Without limitation on the foregoing, the Administrative
Agent and its directors, officers, agents, employees and attorneys:
(a) May treat the payee of any Note as the holder
thereof until the Administrative Agent receives notice of the assignment
or transfer thereof, in form satisfactory to the Administrative Agent,
signed by the payee, and may treat each Lender as the owner of that
Lender's interest in the Obligations for all purposes of this Agreement
until the Administrative Agent receives notice of the assignment or
transfer thereof, in form satisfactory to the Administrative Agent,
signed by that Lender.
(b) May consult with legal counsel (including
in-house legal counsel), accountants (including in-house accountants)
and other professionals or experts selected by it, or with legal
counsel, accountants or other professionals or experts for Coast Resorts
or its Subsidiaries or the Lenders, and shall not be liable for any
action taken or not taken by it in good faith in accordance with any
advice of such legal counsel, accountants or other professionals or
experts.
(c) Shall not be responsible to any Creditor for any
statement, warranty or representation made in any of the Loan Documents
or in any notice, certificate, report, request or other statement
(written or oral) given or made in connection with any of the Loan
Documents.
(d) Except to the extent expressly set forth in the
Loan Documents, shall have no duty to ask or inquire as to the
performance or observance by any Obligor of any of the terms, conditions
or covenants of any of the Loan Documents or to inspect any Collateral
or the Property, books or records of Obligor.
(e) Will not be responsible to any Creditor for the
due execution, legality, validity, enforceability, genuineness,
effectiveness, sufficiency or value of any
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Loan Document, any other instrument or writing furnished pursuant
thereto or in connection therewith, or any Collateral.
(f) Will not incur any liability by acting or not
acting in reliance upon any Loan Document, notice, consent, certificate,
statement, request or other instrument or writing believed by it to be
genuine and signed or sent by the proper party or parties.
(g) Will not incur any liability for any
arithmetical error in computing any amount paid or payable by any
Obligor or paid or payable to or received or receivable from any Lender
under any Loan Document, including, without limitation, principal,
interest, commitment fees, Advances and other amounts; provided that,
promptly upon discovery of such an error in computation, the
Administrative Agent, the Lenders and (to the extent applicable)
Borrower and/or its Subsidiaries or Affiliates shall make such
adjustments as are necessary to correct such error and to restore the
parties to the position that they would have occupied had the error not
occurred.
10.7 Indemnification. Each Lender shall, ratably in
accordance with its Pro Rata Share (if the Commitment is then in effect) or in
accordance with its proportion of the aggregate Indebtedness then evidenced by
the Notes (if the Commitment has then been terminated), indemnify and hold the
Administrative Agent, and each of its directors, officers, agents, employees and
attorneys harmless against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever (including, without limitation, attorneys' fees
and disbursements and reasonably allocated costs of attorneys employed by the
Administrative Agent) that may be imposed on, incurred by or asserted against it
or them in any way relating to or arising out of the Loan Documents (other than
losses incurred by reason of the failure of Borrower to pay the Indebtedness
represented by the Notes) or any action taken or not taken by such indemnitee
thereunder, except such as result from its own gross negligence or willful
misconduct. Without limitation on the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for that Lender's Pro Rata Share of any
out-of-pocket cost or expense incurred by the Administrative Agent in connection
with the negotiation, preparation, execution, delivery, amendment, waiver,
restructuring, reorganization (including a bankruptcy reorganization),
enforcement or attempted enforcement of the Loan Documents, to the extent that
Borrower or any other Obligor is required by Section 11.3 to pay that cost or
expense but fails to do so upon demand. Nothing in this Section 10.7 shall
entitle the Administrative Agent to recover any amount from the Lenders if and
to the extent that such amount has theretofore been recovered from Borrower or
any of its Subsidiaries. To the extent that the Administrative Agent is later
reimbursed such cost or expense by Borrower or any of its Subsidiaries, it shall
return the amounts paid to it by the Lenders in respect of such cost or expense.
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10.8 Successor Administrative Agent. The Administrative Agent
may, and at the request of the Requisite Lenders shall, resign as Administrative
Agent upon thirty days' notice to the Lenders and Borrower. If the
Administrative Agent resigns as Administrative Agent under this Agreement, the
Requisite Lenders shall appoint from among the Lenders a successor
administrative agent for the Lenders, which successor administrative agent shall
be approved by Borrower (and such approval shall not be unreasonably withheld or
delayed or, if any Event of Default exists, required). If no successor
administrative agent is appointed prior to the effective date of the resignation
of the Administrative Agent, the Administrative Agent may appoint, after
consulting with the Lenders and Borrower, a successor administrative agent from
among the Lenders. Upon the acceptance of its appointment as successor
administrative agent hereunder, such successor administrative agent shall
succeed to all the rights, powers and duties of the retiring Administrative
Agent and the term "Administrative Agent" shall mean such successor
administrative agent and the retiring Administrative Agent's appointment, powers
and duties as Administrative Agent shall be terminated. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article 10, and Sections 11.3, 11.11 and 11.22, shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent. If (a) the Administrative Agent has not been paid its
agency fees under Section 3.5 or has not been reimbursed for any expense
reimbursable to it under Section 11.3, in either case for a period of at least
one year and (b) no successor administrative agent has accepted appointment as
Administrative Agent by the date which is thirty days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the
Lenders shall perform all of the duties of the Administrative Agent hereunder
until such time, if any, as the Requisite Lenders appoint a successor
administrative agent as provided for above.
10.9 Foreclosure on Collateral. In the event of foreclosure
or enforcement of the Lien created by any of the Collateral Documents, title to
the Collateral covered thereby shall be taken and held by the Administrative
Agent (or any designee thereof) pro rata for the benefit of the Lenders in
accordance with their Pro Rata Share of the Commitment and shall be administered
in accordance with the standard form of collateral holding participation
agreement used by the Administrative Agent in comparable syndicated credit
facilities.
10.10 No Obligations of Borrower. Nothing contained in this
Article 10 shall be deemed to impose upon Borrower any obligation in respect of
the due and punctual performance by the Administrative Agent of its obligations
to the Lenders under any provision of this Agreement, and Borrower shall have no
liability to the Administrative Agent or any of the Lenders in respect of any
failure by the Administrative Agent or any Lender to perform any of its
obligations to the Administrative Agent or the Lenders under this Agreement.
Without limiting the generality of the foregoing, where any provision of this
Agreement relating to the payment of any amounts due and owing under the Loan
Documents provides that such payments shall be made by Borrower to the
Administrative Agent for the account of the Lenders, Borrower's obligations to
the Lenders in respect of such payments shall be deemed to
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be satisfied upon the making of such payments to the Administrative Agent in the
manner provided by this Agreement.
10.11 Permitted Release of Collateral. The Administrative
Agent is hereby authorized to release its Lien on any Collateral which is the
subject of a Disposition permitted hereunder, and each Lender shall confirm upon
request the authority of the Administrative Agent to make any such release of
Collateral.
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Article 11
MISCELLANEOUS
11.1 Cumulative Remedies; No Waiver. The rights, powers,
privileges and remedies of the Creditors provided herein, in the Notes and in
the other Loan Documents are cumulative and not exclusive of any right, power,
privilege or remedy provided by Law or equity. No failure or delay on the part
of any Creditor in exercising any right, power, privilege or remedy may be, or
may be deemed to be, a waiver thereof; nor may any single or partial exercise of
any right, power, privilege or remedy preclude any other or further exercise of
the same or any other right, power, privilege or remedy. The terms and
conditions of Article 8 are inserted for the sole benefit of the Creditors; the
same may be waived in whole or in part, with or without terms or conditions, in
respect of any Loan or Letter of Credit without prejudicing the Creditors'
rights to assert them in whole or in part in respect of any other Loan.
11.2 Amendments; Consents. No amendment, modification,
supplement, extension, termination or waiver of any provision of this Agreement
or any other Loan Document, no approval or consent thereunder, and no consent to
any departure by Borrower or any other Obligor therefrom, may in any event be
effective unless in writing signed or approved in writing by the Requisite
Lenders or by the Administrative Agent with the consent of the Requisite Lenders
(and, in the case of any amendment, modification or supplement to (i) Article
10, signed by the Administrative Agent, and (ii) to any Loan Document, signed by
the Obligors party thereto), and then only in the specific instance and for the
specific purpose given; and, without the approval in writing of all the Lenders
affected thereby, no amendment, modification, supplement, termination, waiver or
consent may be effective:
(a) Except as provided by Section 2.8, to amend or
modify the principal of, or the amount of principal, principal
prepayments or the rate of interest payable on, any Note, or the amount
of the Commitment or the Pro Rata Share of any Lender (except in
connection with any assignments made in accordance with Section 11.8
with the consent of all necessary parties) or to decrease the amount of
any commitment fee payable to any Lender, or to decrease any other fee
or amount payable to any Lender under the Loan Documents;
(b) To postpone any date fixed for any payment of
principal of, prepayment of principal of or any installment of interest
on, any Note or any installment of any commitment fee or letter of
credit fee, or to extend the term of the Commitment, or to release the
Guaranty (except as otherwise provided in any Loan Document);
(c) To permit the term of any Letter of Credit to
exceed one year or extend beyond the Maturity Date;
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(d) to release any portion of the Collateral having
an aggregate value in excess of $500,000 (except as expressly provided
in any Loan Document);
(e) To amend the provisions of the definition of
"Requisite Lenders", Section 8.2 or this Section 11.2; or
(f) To amend any provision of this Agreement that
expressly requires the consent or approval of all the Lenders.
Any amendment, modification, supplement, termination, waiver or consent pursuant
to this Section 11.2 shall apply equally to, and shall be binding upon, all of
the Creditors.
11.3 Costs, Expenses and Taxes. Borrower shall pay within
five Banking Days after demand, accompanied by an invoice therefor:
(a) the reasonable out-of-pocket costs and expenses
of the Administrative Agent in connection with the negotiation,
preparation, syndication, administration, execution and delivery of the
Loan Documents;
(b) the reasonable out-of-pocket costs and expenses
of the Administrative Agent in connection with any amendment to the Loan
Documents or any waiver of the terms thereof; and
(c) the reasonable costs and expenses of the
Administrative Agent and, after a Default, the Lenders in connection
with the refinancing, restructuring, reorganization (including a
bankruptcy reorganization) and enforcement or attempted enforcement of
the Loan Documents, and any matter related thereto.
The foregoing costs and expenses shall include the actual environmental review
fees, filing fees, recording fees, title insurance premiums and fees, appraisal
fees, search fees, and other out-of-pocket expenses and the reasonable fees and
out-of-pocket expenses of any legal counsel (including reasonably allocated
costs of legal counsel employed by the Administrative Agent or any Lender),
independent public accountants and other outside experts retained by the
Administrative Agent or any Lender, whether or not such costs and expenses are
incurred or suffered by the Administrative Agent or any Lender in connection
with or during the course of any bankruptcy or insolvency proceedings of any
Obligor. Such costs and expenses shall also include, in the case of any
amendment or waiver of any Loan Document requested by Borrower, the
administrative costs of the Administrative Agent reasonably attributable
thereto. Borrower shall pay any and all documentary, recording, stamp and other
taxes, and all costs, expenses, fees and charges payable or determined to be
payable in connection with the filing or recording of this Agreement, any other
Loan Document or any other instrument or writing to be delivered hereunder or
thereunder, or in connection with any transaction pursuant hereto or thereto.
Any amount payable to the Administrative Agent or any Lender under this
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Section 11.3 shall bear interest from the fifth Banking Day following the date
of demand for payment at the Default Rate.
11.4 Nature of Lenders' Obligations. The obligations of the
Lenders hereunder are several and not joint or joint and several. Nothing
contained in this Agreement or any other Loan Document and no action taken by
any Creditor pursuant hereto or thereto may, or may be deemed to, make any of
the Creditors a partnership, an association, a joint venture or other entity,
either among themselves or with Borrower or any Affiliate of Borrower. Each
Lender's obligation to make any Advance pursuant hereto is several and not joint
or joint and several, and in the case of the initial Advance only, is
conditioned upon the performance by all other Lenders of their obligations to
make initial Advances. A default by any Lender will not increase the Pro Rata
Share of the Commitment attributable to any other Lender. Any Lender not in
default may, if it desires, assume in such proportion as the nondefaulting
Lenders agree the obligations of any Lender in default, but is not obligated to
do so.
11.5 Survival of Representations and Warranties. All
representations and warranties contained herein or in any other Loan Document,
or in any certificate or other writing delivered by or on behalf of any one or
more of the Obligors, will survive the making of the Loans hereunder and the
execution and delivery of the Notes, and have been or will be relied upon by
each Creditor, notwithstanding any investigation made by the Creditors or on
their behalf.
11.6 Notices. Except as otherwise expressly provided in the
Loan Documents, all notices, requests, demands, directions and other
communications provided for hereunder or under any other Loan Document must be
in writing and must be mailed, telecopied, dispatched by commercial courier or
delivered to the appropriate party at the address set forth on the signature
pages of this Agreement or other applicable Loan Document or, as to any party to
any Loan Document, at any other address as may be designated by it in a written
notice sent to all other parties to such Loan Document in accordance with this
Section. Except as otherwise expressly provided in any Loan Document, if any
notice, request, demand, direction or other communication required or permitted
by any Loan Document is given by mail it will be effective on the earlier of
receipt or the third calendar day after deposit in the United States mail with
first class or airmail postage prepaid; if given by telecopier, when sent; if
dispatched by commercial courier, on the scheduled delivery date; or if given by
personal delivery, when delivered.
11.7 Execution of Loan Documents. Unless the Administrative
Agent otherwise specifies with respect to any Loan Document, (a) this Agreement
and any other Loan Document may be executed in any number of counterparts and
any party hereto or thereto may execute any counterpart, each of which when
executed and delivered will be deemed to be an original and all of which
counterparts of this Agreement or any other Loan Document, as the case may be,
when taken together will be deemed to be but one and the same
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instrument and (b) execution of any such counterpart may be evidenced by a
telecopier transmission of the signature of such party. The execution of this
Agreement or any other Loan Document by any party hereto or thereto will not
become effective until counterparts hereof or thereof, as the case may be, have
been executed by all the parties hereto or thereto.
11.8 Binding Effect; Assignment.
(a) This Agreement and the other Loan Documents to
which Borrower is a party will be binding upon and inure to the benefit
of Borrower and the Creditors, and their respective successors and
assigns, except that Borrower may not assign its rights hereunder or
thereunder or any interest herein or therein without the prior written
consent of all the Lenders. Each Lender represents that it is not
acquiring its Note with a view to the distribution thereof within the
meaning of the Securities Act of 1933, as amended (subject to any
requirement that disposition of such Note must be within the control of
such Lender). Any Lender may at any time pledge its Note or any other
instrument evidencing its rights as a Lender under this Agreement to a
Federal Reserve Bank, but no such pledge shall release that Lender from
its obligations hereunder or grant to such Federal Reserve Bank the
rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date,
each Lender may assign to one or more Eligible Assignees all or any
portion of its Pro Rata Share; provided that (i) such Eligible Assignee,
if not then a Lender or an Affiliate of the assigning Lender, shall be
approved by the Administrative Agent and Borrower (neither of which
approvals shall be unreasonably withheld or delayed), provided that the
consent of Borrower to assignments shall not be required when any
Default or Event of Default has occurred and remains continuing, (ii)
such assignment shall be evidenced by an Assignment Agreement, a copy of
which shall be furnished to the Administrative Agent as provided below,
(iii) except in the case of an assignment to an Affiliate of the
assigning Lender, to another Lender or of the entire remaining
Commitment of the assigning Lender, the assignment shall not assign a
Pro Rata Share of the Commitment equivalent to less than $10,000,000,
and (iv) the effective date of any such assignment shall be as specified
in the Assignment Agreement, but not earlier than the date which is five
Banking Days after the date the Administrative Agent has received the
Assignment Agreement. Upon the effective date of such Assignment
Agreement, the Eligible Assignee named therein shall be a Lender for all
purposes of this Agreement, with the Pro Rata Share therein set forth
and, to the extent of such Pro Rata Share, the assigning Lender shall be
released from its further obligations under the Loan Documents. Borrower
agrees that it shall execute and deliver (against delivery by the
assigning Lender to Borrower of its Note) to such assignee Lender, a
Note evidencing that assignee Lender's Pro Rata Share, and to the
assigning Lender, a Note evidencing the remaining balance Pro Rata Share
retained by the assigning Lender.
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(c) By executing and delivering an Assignment
Agreement, the Eligible Assignee thereunder acknowledges and agrees
that: (i) other than the representation and warranty that it is the
legal and beneficial owner of the Pro Rata Share being assigned thereby
free and clear of any adverse claim, the assigning Lender has made no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection
with this Agreement or the execution, legality, validity,
enforceability, genuineness or sufficiency of this Agreement or any
other Loan Document; (ii) the assigning Lender has made no
representation or warranty and assumes no responsibility with respect to
the financial condition of Borrower or the performance by Borrower of
the Obligations; (iii) it has received a copy of this Agreement,
together with copies of the most recent financial statements delivered
pursuant to Section 7.1 and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to
enter into such Assignment Agreement; (iv) it will, independently and
without reliance upon the Administrative Agent or any Lender and based
on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) it appoints and authorizes the
Administrative Agent to take such action and to exercise such powers
under this Agreement and the other Loan Documents as are delegated to
the Administrative Agent by this Agreement; and (vi) it will perform in
accordance with their terms all of the obligations which by the terms of
this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at the
Administrative Agent's Office a copy of each Assignment Agreement
delivered to it. After receipt of a completed Assignment Agreement
executed by any Lender and an Eligible Assignee, and receipt of an
assignment fee of $3,500 from such Eligible Assignee, the Administrative
Agent shall, promptly following the effective date thereof, provide to
Borrower and the Lenders a revised list of the Pro Rata Shares of the
Lenders giving effect thereto.
(e) Each Lender may from time to time grant
participations to one or more banks or other financial institutions
(including another Lender) in a portion of its Pro Rata Share; provided,
however, that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations, (iii)
the participating banks or other financial institutions shall not be a
Lender hereunder for any purpose except, if the participation Agreement
so provides, for the purposes of Sections 3.7, 3.8, 11.11 and 11.22 but
only to the extent that the cost of such benefits to Borrower does not
exceed the cost which Borrower would have incurred in respect of such
Lender absent the participation, (iv) Borrower, the Administrative Agent
and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations
under this Agreement, (v) the participation interest
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shall be expressed as a percentage of the granting Lender's Pro Rata
Share as it then exists and shall not restrict an increase in the
Commitment, or in the granting Lender's Pro Rata Share, so long as the
amount of the participation interest is not affected thereby and (vi)
the consent of the holder of such participation interest shall not be
required for amendments or waivers of provisions of the Loan Documents
other than those which (A) extend the Maturity Date or any other date
upon which any payment of money is due to the Lenders, (B) reduce the
rate of interest on the Notes, any fee or any other monetary amount
payable to the Lenders, (C) reduce the amount of any installment of
principal due under the Notes, (D) change the definition of "Requisite
Lenders" or (E) release any material portion of the Collateral.
(f) Notwithstanding anything in this Section 11.8 to
the contrary, the rights of the Lenders to make assignments of, and
grant participations in, their Pro Rata Shares of the Commitment shall
be subject to the approval of any Gaming Board (including the approval
of the identity of any proposed assignee or participant), to the extent
required by applicable Gaming Laws.
11.9 Right of Setoff. If an Event of Default has occurred and
is continuing, each Creditor may (but only with the consent of the Requisite
Lenders) exercise its rights under Article 9 of the Uniform Commercial Code and
other applicable Laws and, to the extent permitted by applicable Laws, apply any
funds in any deposit account maintained with it by Borrower or any Property of
Borrower in its possession against the Obligations.
11.10 Sharing of Setoffs. Each Lender severally agrees that if
it, through the exercise of any right of setoff, banker's lien or counterclaim
against Borrower, or otherwise, receives payment of the Obligations held by it
that is ratably more than any other Lender, through any means, receives in
payment of the Obligations held by that Lender, then, subject to applicable Laws
(a) the Lender exercising the right of setoff, banker's lien or counterclaim or
otherwise receiving such payment shall purchase, and shall be deemed to have
simultaneously purchased, from the other Lender a participation in the
Obligations held by the other Lender and shall pay to the other Lender a
purchase price in an amount so that the share of the Obliga tions held by each
Lender after the exercise of the right of setoff, banker's lien or counterclaim
or receipt of payment shall be in the same proportion that existed prior to the
exercise of the right of setoff, banker's lien or counterclaim or receipt of
payment; and (b) such other adjustments and purchases of participations shall be
made from time to time as shall be equitable to ensure that all of the Lenders
share any payment obtained in respect of the Obligations ratably in accordance
with each Lender's share of the Obligations immediately prior to, and without
taking into account, the payment; provided that, if all or any portion of a
disproportionate payment obtained as a result of the exercise of the right of
setoff, banker's lien, counterclaim or otherwise is thereafter recovered from
the purchasing Lender by Borrower or any Person claiming through or succeeding
to the rights of Borrower, the purchase of a participation shall be rescinded
and the purchase price thereof shall be restored to the extent of the recovery,
but without interest. Each Lender that purchases a participation
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in the Obligations pursuant to this Section 11.10 shall from and after the
purchase have the right to give all notices, requests, demands, directions and
other communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased. Bor rower expressly consents to
the foregoing arrangements and agrees that any Lender holding a participation in
an Obligation so purchased may exercise any and all rights of setoff, banker's
lien or counterclaim with respect to the participation as fully as if the Lender
were the original owner of the Obligation purchased.
11.11 Indemnity by Borrower. Borrower agrees to indemnify,
save and hold harmless the Creditors and their directors, officers, agents,
attorneys and employees (collec tively the "Indemnitees") from and against: (a)
any and all claims, demands, actions or causes of action, if the claim, demand,
action or cause of action arises out of or relates to any act or omission (or
alleged act or omission) of Borrower, any other Obligor, their respective
Affiliates or any of their respective partners, officers, directors or
stockholders relating to the Commitment, the use or contemplated use of proceeds
of any Loan, Letter of Credit or Swing Line Advance, or the relationship between
any such Person and the Creditors under this Agreement; (b) any administrative
or investigative proceeding by any Governmental Agency arising out of or related
to a claim, demand, action or cause of action described in clause (a) above; and
(c) any and all liabilities, losses, costs or expenses (including reasonable
attorneys' fees and the reasonably allocated costs of attorneys employed by any
Indemnitee and disbursements of such attorneys and other professional services)
that any Indemnitee suffers or incurs as a result of the assertion of any
foregoing claim, demand, action or cause of action; provided that no Indemnitee
shall be entitled to indemnification for any loss caused by its own gross
negligence or willful misconduct or as to any claim asserted by that Indemnitee
against Borrower to the extent that Borrower prevails on that claim in a final
and non-appealable determination by a court of competent jurisdiction or an
arbitrator appointed in accordance herewith. If any claim, demand, action or
cause of action is asserted against any Indemnitee, such Indemnitee shall
promptly notify Borrower, but the failure to so promptly notify Borrower shall
not affect Borrower's obligations under this Section unless such failure
materially prejudices Borrower's right to participate in the contest of such
claim, demand, action or cause of action, as hereinafter provided. Each
Indemnitee may contest the validity, applicability and amount of such claim,
demand, action or cause of action with counsel of its own choosing and shall
permit Borrower to participate in such contest. Any Indemnitee that proposes to
settle or compromise any claim or proceeding for which Borrower may be liable
for payment of indemnity hereunder shall give Borrower written notice of the
terms of such proposed settlement or compromise reasonably in advance of
settling or compromising such claim or proceeding. In connection with any claim,
demand, action or cause of action covered by this Section 11.11 against more
than one Indemnitee, all such Indemnitees shall be represented by the same legal
counsel (which may be a law firm engaged by the Indemnitees or attorneys
employed by an Indemnitee or a combination of the foregoing) selected by the
Indemnitees and reasonably acceptable to Borrower; provided, that if such legal
counsel deter mines in good faith that representing all such Indemnitees would
or could result in a conflict of
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interest under Laws or ethical principles applicable to such legal counsel or
that a defense or counterclaim is available to an Indemnitee that is not
available to all such Indemnitees, then to the extent reasonably necessary to
avoid such a conflict of interest or to permit unqualified assertion of such a
defense or counterclaim, each Indemnitee shall be entitled to separate
representation by legal counsel selected by that Indemnitee and reasonably
acceptable to Borrower, with all such legal counsel using reasonable efforts to
avoid unnecessary duplication of effort by counsel for all Indemnitees; and
further provided that the Administrative Agent (as an Indemnitee) shall at all
times be entitled to representation by separate legal counsel. Any obligation or
liability of Borrower to any Indemnitee under this Section 11.11 shall survive
the expiration or termination of this Agreement, the repayment of all Loans, the
expiration or termination of all Letters of Credit and the payment and
performance of all other Obligations owed to the Lenders.
11.12 Nonliability of the Lenders. Borrower acknowledges and
agrees that:
(a) Any inspections of any Property of Borrower made
by or through the Creditors are for purposes of administration of the
Loans and Letters of Credit only and Borrower is not entitled to rely
upon the same (whether or not such inspections are at the expense of
Borrower);
(b) By accepting or approving anything required to
be observed, performed, fulfilled or given to the Creditors pursuant to
the Loan Documents, no Creditor shall be deemed to have warranted or
represented the sufficiency, legality, effectiveness or legal effect of
the same, or of any term, provision or condition thereof, and such
acceptance or approval thereof shall not constitute a warranty or
representation to anyone with respect thereto by any Creditor;
(c) The relationship between each Obligor and
Creditors is, and shall at all times remain, solely that of borrower and
lenders; no Creditor shall under any circumstance be construed to be a
partner or joint venturer with Borrower or its Affiliates; no creditor
shall under any circumstance be deemed to be in a relationship of
confidence or trust or a fiduciary or other special relationship with
Borrower or its Affiliates, or to owe any fiduciary duty or other
special duty to Borrower or its Affiliates; no Creditor undertakes or
assumes any responsibility or duty to Borrower or its Affiliates to
select, review, inspect, supervise, pass judgment upon or inform
Borrower or its Affiliates of any matter in connection with their
Property or the operations of Borrower or its Affiliates; Borrower and
its Affiliates shall rely entirely upon their own judgment with respect
to such matters; and any review, inspection, supervision, exercise of
judgment or supply of information undertaken or assumed by the Creditors
in connection with such matters is solely for the protection of the
Creditors and neither Borrower nor any other Person is entitled to rely
thereon; and
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(d) The Creditors shall not be responsible or liable
to any Person for any loss, damage, liability or claim of any kind
relating to injury or death to Persons or damage to Property caused by
the actions, inaction or negligence of Borrower or its Affiliates and
Borrower hereby indemnifies and holds each Creditor harmless from any
such loss, damage, liability or claim.
11.13 No Third Parties Benefited. This Agreement is made for
the purpose of defining and setting forth certain obligations, rights and duties
of Borrower and the Creditors in connection with the Loans, Letters of Credit
and Swing Line Advances and is made for the sole benefit of Borrower, the
Creditors and the Creditors' successors and assigns. Except as provided in
Sections 11.8, 11.11 and 11.14, no other Person shall have any rights of any
nature hereunder or by reason hereof.
11.14 Confidentiality. Each Lender agrees to hold any
confidential information that it may receive from Borrower pursuant to this
Agreement in confidence, except for disclosure: (a) to other Lenders; (b) to
legal counsel and accountants for Borrower or any Lender; (c) to other
professional advisors to Borrower or any Lender, provided that the recipient has
accepted such information subject to a confidentiality Agreement substantially
similar to this Section 11.14; (d) to regulatory officials having jurisdiction
over that Lender; (e) to any Gaming Board having regulatory jurisdiction over
Coast Resorts or its Subsidiaries; (f) as required by Law or legal process or in
connection with any legal proceeding to which that Lender and Borrower are
adverse parties; and (g) to another financial institution in connection with a
disposition or proposed disposition to that financial institution of all or part
of that Lender's interests hereunder or a participation interest in its Note,
provided that the recipient has accepted such information subject to a written
confidentiality Agreement. For purposes of the foregoing, "confidential
information" shall mean any information respecting Borrower reasonably
considered by Borrower to be confidential, other than (i) information previously
filed with any Governmental Agency and available to the public, (ii) information
previously published in any public medium from a source other than, directly or
indirectly, that Lender, and (iii) information previously disclosed by Borrower
to any Person not associated with themselves without a confidentiality Agreement
or obligation substantially similar to this Section 11.14. Nothing in this
Section shall be construed to create or give rise to any fiduciary duty or other
special duty on the part of any Creditor to Borrower.
11.15 Further Assurances. Borrower covenants that Borrower and
each other Obligor shall, at their expense and without expense to the Creditors,
do, execute and deliver such further acts and documents as any Creditor from
time to time reasonably requires for the assuring and confirming unto the
Creditors of the rights hereby created or intended now or hereafter so to be, or
for carrying out the intention or facilitating the performance of the terms of
any Loan Document.
11.16 Integration. This Agreement, together with the other
Loan Documents and the letter agreements referred to in Article 3, comprises the
complete and integrated
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Agreement of the parties on the subject matter hereof and supersedes all prior
agreements, written or oral, on the subject matter hereof. In the event of any
conflict between the provisions of this Agreement and those of any other Loan
Document, the provisions of this Agreement shall control and govern; provided
that the inclusion of supplemental rights or remedies in favor of the Creditors
in any other Loan Document shall not be deemed a conflict with this Agreement.
Each Loan Document was drafted with the joint participation of the respective
parties thereto and shall be construed neither against nor in favor of any
party, but rather in accordance with the fair meaning thereof.
11.17 Governing Law. Except to the extent otherwise provided
therein, each Loan Document shall be governed by, and construed and enforced in
accordance with, the local Laws of California, without reference to the choice
of law or conflicts of laws provisions thereof.
11.18 Severability of Provisions. Any provision in any Loan
Document that is held to be inoperative, unenforceable or invalid as to any
party or in any jurisdiction shall, as to that party or jurisdiction, be
inoperative, unenforceable or invalid without affecting the remaining provisions
or the operation, enforceability or validity of that provision as to any other
party or in any other jurisdiction, and to this end the provisions of all Loan
Documents are declared to be severable.
11.19 Headings. Article and Section headings in this Agreement
and the other Loan Documents are included for convenience of reference only and
are not part of this Agreement or the other Loan Documents for any other
purpose.
11.20 Time of the Essence. Time is of the essence of the Loan
Documents.
11.21 Foreign Lenders and Participants. Each Lender, and each
holder of a participation interest herein, that is incorporated or otherwise
organized under the Laws of a jurisdiction other than the United States of
America or any State thereof or the District of Columbia shall deliver to
Borrower (with a copy to the Administrative Agent) on the Closing Date (or after
accepting an assignment or receiving a participation interest herein pursuant to
Section 11.8, if applicable) two duly completed copies, signed by a Responsible
Official, of either Form 1001 (relating to such Person and entitling it to a
complete exemption from with holding on all payments to be made to such Person
by Borrower pursuant to this Agreement) or Form 4224 (relating to all payments
to be made to such Person by Borrower pursuant to this Agreement) of the United
States Internal Revenue Service or such other evidence (including, if reasonably
necessary, Form W-9) satisfactory to Borrower and the Administrative Agent that
no withholding under the federal income tax laws is required with respect to
such Person. Thereafter and from time to time, each such Person shall (a)
promptly submit to Borrower (with a copy to the Administrative Agent) such
additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then
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current United States laws and regulations to avoid, or such evidence as is
satisfactory to Borrower and the Administrative Agent of any available exemption
from, United States with holding taxes in respect of all payments to be made to
such Person by Borrower pursuant to this Agreement and (b) take such steps as
shall not be materially disadvantageous to it, in the reasonable judgment of
such Lender, and as may be reasonably necessary (including the re-designation of
its LIBOR Office, if any) to avoid any requirement of applicable Laws that
Borrower make any deduction or withholding for taxes from amounts payable to
such Person.
11.22 Hazardous Material Indemnity. Borrower hereby agrees to
indemnify, hold harmless and defend (by counsel reasonably satisfactory to the
Administrative Agent) the Creditors and their respective directors, officers,
employees, agents, successors and assigns from and against any and all claims,
losses, damages, liabilities, fines, penalties, charges, administrative and
judicial proceedings and orders, judgments, remedial action requirements,
enforcement actions of any kind, and all reasonable costs and expenses incurred
in connection therewith (including but not limited to reasonable attorneys' fees
and the reasonably allocated costs of attorneys employed by any of the
Creditors, and expenses to the extent that the defense of any such action has
not been assumed by Borrower), arising directly or indirectly out of:
(a) the presence on, in, under or attributable to
any Real Property of any Hazardous Materials, or any releases or
discharges of any Hazardous Materials on, under or from any Real
Property; and
(b) any activity carried on or undertaken on any
Real Property by Borrower, any of its Subsidiaries, or any of their
respective predecessors in title, whether prior to or during the term of
this Agreement (but not after the Obligations are paid in full and the
Commitment terminated), and whether by Borrower, its Subsidiaries or any
predecessor in title or any employees, agents, contractors or
subcontractors of Borrower, its Subsidiaries or any predecessor in
title, or any third persons at any time prior to the payment in full of
the Obligations and the termination of the Commitment occupying or
present on any Real Property, in connection with the handling,
treatment, removal, storage, decontamination, clean-up, transport or
disposal of any Hazardous Materials at any time located or present on,
in, under or affecting any Real Property.
The foregoing indemnity shall further apply to any residual contamination
remaining on, in, under or affecting any Real Property, or affecting any natural
resources, and to any contamination of any Real Property or related natural
resources arising from the generation, use, handling, storage, transport or
disposal of any such Hazardous Materials, and irrespective of whether any of
such activities were or will be undertaken in accordance with applicable
Hazardous Materials Laws, but the foregoing indemnity shall not apply to
Hazardous Materials on any Real Property, the presence of which is caused by the
relevant Creditor. Borrower hereby acknowledges and agrees that, notwithstanding
any other provision of this Agreement or any of the other Loan Documents to the
contrary, the obligations of Borrower under this
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Section shall be unlimited obligations of Borrower and shall not be secured by
any mortgage or deed of trust on any Real Property. Any obligation or liability
of Borrower to any Indemnitee under this Section shall survive the expiration or
termination of this Agreement and the repayment of all of the Obligations until
(but not beyond) the date upon which the applicable statute of limitations for
the related cause of action shall have expired.
11.23 Gaming Boards. The Administrative Agent and each of the
Lenders agree to cooperate with all Gaming Boards in connection with the
administration of their regulatory jurisdiction over Coast Resorts and its
Subsidiaries, including the provision of such documents or other information as
may be requested by any such Gaming Board relating to Coast Resorts or any of
its Subsidiaries or to the Loan Documents.
11.24 Waiver of Right to Trial by Jury. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.
11.25 Purported Oral Amendments. BORROWER EXPRESSLY
ACKNOWLEDGES THAT THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY ONLY BE
AMENDED OR MODIFIED, OR THE PROVISIONS HEREOF OR THEREOF WAIVED OR SUPPLEMENTED,
BY AN INSTRUMENT IN WRITING THAT COMPLIES WITH SECTION 11.2. BORROWER AGREES
THAT IT WILL NOT RELY ON ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR ORAL
OR WRITTEN STATEMENTS BY ANY CREDITOR OR ITS REPRESENTATIVES THAT DOES NOT
COMPLY WITH SECTION 11.2 TO EFFECT AN AMENDMENT,
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MODIFICATION, WAIVER OR SUPPLEMENT TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
COAST HOTELS AND CASINOS, INC.,
a Nevada corporation
By: /s/ [Signature Illegible}
-------------------------------------
----------------------------------------
Printed Name and Title
Address for notices:
Coast Hotels and Casinos, Inc.
4500 West Tropicana Road
Las Vegas, Nevada 89103
Attention: Gage Parrish
Vice President and Chief
Financial Officer
702/365-7002 direct
702/365-7111 general
702/365-7566 FAX
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as
Administrative Agent
and Issuing Lender
By: /s/ JANICE HAMMONG
-------------------------------------
Janice Hammond
Vice President Agency Specialist
----------------------------------------
Printed Name and Title
Address:
Bank of America National Trust
and Savings Association
555 South Flower Street
Los Angeles, California 90071
Attn: Janice Hammond, Vice President
Telecopier: (213) 228-2299
Telephone: (213) 222-9861
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Lender
By: /s/ JON M. VARNELL
-------------------------------------
Jon M. Varnell, Managing Director
----------------------------------------
Printed Name and Title
Address:
Bank of America National Trust
and Savings Association
555 South Flower Street, #3283
Los Angeles, California 90071
Attn: Scott Faber, Vice President
Telecopier: (213) 228-2641
Telephone: (213) 228-2768
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With a copy to:
Bank of America National Trust and
Savings Association
555 South Flower Street (LA-5777)
Los Angeles, California 90071
Attn: William Newby, Managing Director
Telecopier: (213) 228-3145
Telephone: (213) 228-2438
-113-
120
Schedule 1.1
Lender Amount Pro Rata Share
- ------ ------ --------------
Bank of America National Trust
and Savings Association $75,000,000 100%
- ------------------------------------------------------------------------
Total $75,000,000 100%
-114-
121
SCHEDULE 4.3
GOVERNMENT APPROVALS
Gaming Board approval is required for Coast Resorts to pledge the capital
stock of the Borrower.
122
SCHEDULE 4.8
INTANGIBLE ASSETS
REGISTRATION REGISTRATION
MARK CLASS NUMBER DATE OWNER
- ---------------------- ----- ------------ ------------ -----
Gone Country 41 2,123,611 12/23/97 Coast Resorts
Super Sequential 41 2,163,477 06/08/98 Borrower
Party Poker 41 2,127,100 01/06/98 Borrower
Cajun Quarters 41 2,163,476 06/09/98 Borrower
Paycheck Party Machine 41 2,116,281 11/25/97 Borrower
Crawfish Quarters 41 2,127,099 01/06/98 Borrower
123
SCHEDULE 4.18
HAZARDOUS MATERIALS
Petroleum contamination exists in the groundwater in the far southwestern
corner of the real property located at the northeast corner of Rancho Drive and
Carey Avenue in North Las Vegas, Nevada. The contamination is emanating from a
facility located immediately west of the southern portion of the property.
124
SCHEDULE 6.9
EXISTING LIENS
Liens evidenced by the UCC financing statements listed on the attached
appendices to this Schedule 6.9 as filed against Coast Hotels and Casinos,
Inc., Coast Resorts, Inc. and Coast West, Inc. Copies of each filing referred
to herein have been provided to the Administrative Agent.
125
Secretary of State Nevada Uncertified UCC Search
-------------------------------------------------------------
LIST OF STATEMENTS FOR COAST HOTELS & CASINOS INC
DEBTOR NR: 123632 4OO W. FLAMINGO RD
TAX ID: 88-034-5706 LAS VEGAS NV 89103
FILE NBR DATE TIME PRINCIPAL DEBTOR
- -------- -------- ------- -----------------
96-01891 02/06/96 04:01PM COAST HOTELS & CASINOS INC
96-01892 02/06/96 04:03PM COAST HOTELS & CASINOS INC
96-13822 08/29/96 04:02PM COAST HOTELS & CASINOS
96-16306 10/07/96 09:17AM COAST HOTELS & CASINOS INC
96-17862 11/01/96 03:15PM COAST HOTELS & CASINOS INC
96-18737 11/18/96 04:54PM COAST HOTELS & CASINOS INC
96-18739 11/18/96 04:55PM COAST HOTELS & CASINOS INC
96-19027 11/22/96 04:43PM COAST HOTELS & CASINOS INC
97-00474 01/13/97 04:40PM COAST HOTELS & CASINOS
97-01280 01/24/97 04:32PM COAST HOTELS & CASINOS INC
97-01363 01/27/97 04:12PM COAST HOTELS & CASINOS INC
97-02388 02/11/97 04:26PM COAST HOTELS & CASINOS
97-03514 03/03/97 04:54PM COAST HOTELS & CASINOS INC
97-09283 05/30/97 01:20PM COAST HOTELS & CASINOS INC
97-12572 07/25/97 04:23PM COAST HOTELS & CASINOS INC
97-13797 08/12/97 02:33PM COAST HOTELS & CASINOS INC
97-14095 08/18/97 03:13PM COAST HOTELS & CASINOS INC
97-14635 08/27/97 01:54PM COAST HOTELS & CASINOS INC
97-14932 09/03/97 12:40PM COAST HOTELS & CASINOS INC
97-15184 09/08/97 04:01PM COAST HOTELS & CASINOS INC
97-15538 09/15/97 04:22PM COAST HOTELS & CASINOS INC
97-18303 11/03/97 02:15PM COAST HOTELS & CASINOS INC
97-18795 11/10/97 03:35PM COAST HOTELS & CASINOS INC
97-19409 11/21/97 02:02PM COAST HOTELS & CASINOS INC
97-19410 11/21/97 02:04PM COAST HOTELS & CASINOS INC
97-19515 11/24/97 03:32PM COAST HOTELS & CASINOS
97-20517 12/12/97 03:47PM COAST HOTELS & CASINOS
97-20932 12/22/97 03:00PM COAST HOTELS & CASINOS INC
98-00436 01/12/98 01:04PM COAST HOTELS & CASINOS INC
98-01387 01/26/98 02:08PM COAST HOTELS & CASINOS INC
98-01717 02/02/98 02:52PM COAST HOTELS & CASINOS INC
98-02435 02/17/98 01:50PM COAST HOTELS & CASINOS INC
98-03242 03/03/98 03:26PM COAST HOTELS & CASINOS INC
98-07013 05/04/98 02:01PM COAST HOTELS & CASINOS INC
98-09489 06/15/98 01:23PM COAST HOTELS & CASINOS INC
98-14306 09/08/98 02:25PM COAST HOTELS & CASINOS INC
98-14443 09/09/98 01:32PM COAST HOTELS & CASINOS INC
98-14745 09/15/98 01:07PM COAST HOTELS & CASINOS INC
98-18849 11/25/98 01:34PM COAST HOTELS & CASINOS INC
98-20354 12/28/98 03:22PM COAST HOTELS & CASINOS INC
______________
Page 1
126
SECRETARY OF THE NEVADA UNCERTIFIED UCC SEARCH
----------------------------------------------
FILING NR: 96 01891 FILED ON: 02/06/96 AT: 04:01PM EXPIRES: 02/06/01
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
TAX ID:88-034-5706 4000 W FLAMINGO RD
LAS VEGAS NV 89103
MICROFILM-ROLL 150 FRAME 570 PAGES 16
SECURED PARTY............. AMERICAN BANK AS TRUSTEE
101 E 5TH ST
ST PAUL MN 55101-1860
FILING NR: 96 01891 FILED ON: 02/06/96 AT: 04:01PM EXPIRES: 02/06/01
RELEASE.......11/01/96 09:26AM
0165 0125 002
FILING NR: 96 01892 FILED ON: 02/06/96 AT: 04:03PM EXPIRES: 02/06/01
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
TAX ID:88-034-5706 4000 W FLAMINGO RD
LAS VEGAS NV 89103
MICROFILM-ROLL 150 FRAME 571 PAGES 5
SECURED PARTY............. AMERICAN BANK AS TRUSTEE
101 E 5TH ST
ST PAUL MN 55101-1860
FILING NR: 96 01892 FILED ON: 02/06/96 AT: 04:03PM EXPIRES: 02/06/01
RELEASE.......11/01/96 09:26AM
0165 0126 002
AMENDMENT.....11/12/96 02:08PM AMEND COLLATERAL
0167 1150 003
RELEASE.......11/12/96 02:08PM
0167 1150 003
FILING NR: 96 13822 FILED ON: 08/29/96 AT: 04:02PM EXPIRES: 08/29/01
THERE IS 1 ADDITIONAL DEBTOR
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS
TAX ID:88-034-5706 4000 W FLAMINGO RD
LAS VEGAS NV 89103
MICROFILM-ROLL 160 FRAME 622 PAGES 1
ADDITIONAL DEBTOR NR 18266 GOLD COAST HOTEL & CASINO (DBA)
4000 W FLAMINGO RD
LAS VEGAS NV 89103
SECURED PARTY............. SKIPCO INC
6029 W CHARLESTON BLVD
LAS VEGAS NV 89102
ASSIGNEE.................. BUSINESS CREDIT LEASING
115 W COLLEGE DR
MARSHALL MN 56258
----------
Page 2
127
SECRETARY OF STATE NEVADA UNCERTIFIED UCC SEARCH
------------------------------------------------
FILING NR: 96 16306 FILED ON: 10/07/96 AT: 09:17AM EXPIRES: 10/07/01
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
TAX ID: 88-034-5706 4000 W FLAMINGO RD
LAS VEGAS NV 89103
MICROFILM-ROLL 165 FRAME 127 PAGES 2
SECURED PARTY.............. SKIPCO INC
6029 W CHARLESTON BLVD
LAS VEGAS NV 89102
ASSIGNEE.................... BUSINESS CREDIT LEASING
115 W. COLLEGE DR
MARSHALL MN 56258
FILING NR: 96 17862 FILED ON: 11/01/96 AT: 03:15PM EXPIRES: 11/01/01
THERE IS 1 ADDITIONAL DEBTOR
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
TAX ID: 88-034-5706 4500 W TROPICANA AV
LAS VEGAS NV 89103
MICROFILM-ROLL 167 FRAME 1151 PAGES 2
ADDITIONAL DEBTOR NR 132292 ORLEANS HOTEL & CASINO, THE
4500 W TROPICANA AV
LAS VEGAS NV 89103
SECURED PARTY............... C I T GROUP EQUIPMENT FINANCING INC, THE
900 ASHWOOD PKWY 6TH FL
ATLANTA GA 30338
FILING NR: 96 17862 FILED ON: 11/01/96 AT: 03:15PM EXPIRES: 11/01/01
AMENDMENT.....01/28/97 04:09PM ADD ADDITIONAL DEBTOR & AMEND COLLATERAL
0171 0682 041
FILING NR: 96 18737 FILED ON: 11/18/96 AT: 04:54PM EXPIRES: 11/18/01
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
TAX ID:88-034-5706 4500 W TROPICANA AV
LAS VEGAS NV 89103
MICROFILM-ROLL 165 FRAME 1152 PAGES 3
SECURED PARTY.............. C I T GROUP EQUIPMENT FINANCING INC, THE
900 ASHWOOD PKWY 6TH FL
ATLANTA GA 30338
FILING NR: 96 18735 FILED ON: 11/18/96 AT: 04:55 PM EXPIRES: 11/18/01
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
TAX ID:88-034-5706 4500 W TROPICANA AV
LAS VEGAS NV 89103
MICROFILM-ROLL 167 FRAME 1153 PAGES 7
SECURED PARTY.............. C I T GROUP EQUIPMENT FINANCING INC, THE
900 ASHWOOD PKWY 6TH FL
ATLANTA GA 30338
FILING NR: 96 19027 FILED ON: 11/22/96 AT: 04:43 PM EXPIRES: 11/22/01
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
TAX ID:88-034-5706 4500 W TROPICANA AV
LAS VEGAS NV 89103
MICROFILM-ROLL 167 FRAME 1154 PAGES 3
SECURED PARTY.............. C I T GROUP EQUIPMENT FINANCING INC, THE
TAX ID:00-000-0536 900 ASHWOOD PKWY 6TH FL
ATLANTA GA 30338
---------------
Page 3
128
SECRETARY OF STATE NEVADA UNCERTIFIED UCC SEARCH
------------------------------------------------
FILING NR: 97 00474 FILED ON: 01/13/97 AT: 04:40PM EXPIRES: 01/13/02
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS
TAX ID:88-034-5706 4000 W FLAMINGO RD
LAS VEGAS NV 89103
MICROFILM-ROLL 171 FRAME 683 PAGES 1
SECURED PARTY.............. SKIPCO
6029 W CHARLESTON BLVD.
LAS VEGAS NV 89103
ASSIGNEE.................... BUSINESS CREDIT LEASING
115 W COLLEGE DR
MARSHALL MN 56258
FILING NR: 97 01280 FILED ON: 01/24/97 AT: 04:32PM EXPIRES: 01/24/02
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
TAX ID:88-034-5706 4000 W FLAMINGO AV
LAS VEGAS NV 89103
MICROFILM-ROLL 171 FRAME 684 PAGES 4
SECURED PARTY.............. SKIPCO INC
6029 W CHARLESTON BLVD.
LAS VEGAS NV 89102
ASSIGNEE.................... BUSINESS CREDIT LEASING
115 W COLLEGE DR
MARSHALL MN 56258
FILING NR: 97 01363 FILED ON: 01/27/97 AT: 04:12PM EXPIRES: 01/27/02
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
TAX ID:88-034-5706 4000 W FLAMINGO RD
LAS VEGAS NV 89103
MICROFILM-ROLL 171 FRAME 685 PAGES 2
SECURED PARTY.............. SKIPCO
6029 W CHARLESTON BLVD.
LAS VEGAS NV 89102
ASSIGNEE.................... BUSINESS CREDIT LEASING
115 W COLLEGE DR
MARSHALL MN 56258
FILING NR: 97 02388 FILED ON: 02/11/97 AT: 04:26PM EXPIRES: 02/11/02
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS
TAX ID:88-034-5706 4000 W FLAMINGO
LAS VEGAS NV 89103
MICROFILM-ROLL 171 FRAME 686 PAGES 1
SECURED PARTY.............. SKIPCO INC
6029 W CHARLESTON BLVD.
LAS VEGAS NV 89102
ASSIGNEE.................... BUSINESS CREDIT LEASING
115 W COLLEGE DR
MARSHALL MN 56258
---------------
Page 4
129
Secretary of State Nevada Uncertified UCC Search
-------------------------------------------------------
FILING NR: 97 03514 FILED ON: 03/03/97 AT: 04:54PM EXPIRES: 03/03/02
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
TAX ID: 88-034-5706 4000 W FLAMINGO
LAS VEGAS NV 89103
MICROFILM-ROLL 174 FRAME 63 PAGES 2
SECURED PARTY............. SKIPCO
6029 W CHARLESTON BLVD
LAS VEGAS NV 89102
ASSIGNEE................... BUSINESS CREDIT LEASING
115 W COLLEGE DR
MARSHALL MN 56258
FILING NR: 97 09283 FILED ON: 05/30/97 AT: 01:20PM EXPIRES: 05/30/02
THERE IS 1 ADDITIONAL DEBTOR
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
4000 W FLAMINGO RD
LAS VEGAS NV 89109
MICROFILM-ROLL 179 FRAME 1311 PAGES 1
ADDITIONAL DEBTOR NR 18267 GOLD COAST HOTEL & CASINO (DBA)
4000 W FLAMINGO
LAS VEGAS NV 89109
SECURED PARTY............... I G T
TAX ID:88-006-2109 9295 PROTOTYPE DR
RENO NV 89511
FILING NR: 97 12572 FILED ON: 07/25/97 AT: 04:23PM EXPIRES: 07/25/02
THERE IS 1 ADDITIONAL DEBTOR
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
3595 LAS VEGAS BLVD S
LAS VEGAS NV 89109
MICROFILM-ROLL 185 FRAME 616 PAGES 1
ADDITIONAL DEBTOR NR 3132 BARBARY COAST HOTEL & CASINO (DBA)
3595 LAS VEGAS BLVD S
LAS VEGAS NV 89109
SECURED PARTY............... I G T
TAX ID:88-006-2109 9295 PROTOTYPE DR
RENO NV 89511
FILING NR: 97 13797 FILED ON: 08/12/97 AT: 02:33PM EXPIRES: 08/12/02
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
TAX ID:88-034-5706 4000 W FLAMINGO RD
LAS VEGAS NV 89103
MICROFILM-ROLL 185 FRAME 617 PAGES 1
SECURED PARTY............... SKIPCO
6029 W CHARLESTON BLVD
LAS VEGAS NV 89102
ASSIGNEE.................... BUSINESS CREDIT LEASING
115 W COLLEGE DR
MARSHALL MN 56258
----------
Page 5
130
SECRETARY OF STATE NEVADA UNCERTIFIED UCC SEARCH
------------------------------------------------
FILING NR: 97 14095 FILED ON: 08/18/97 AT: 03:13PM EXPIRES: 08/18/02
THERE IS 1 ADDITIONAL DEBTOR
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
4000 W FLAMINGO RD
LAS VEGAS NV 89103
MICROFILM-ROLL 185 FRAME 618 PAGES 1
ADDITIONAL DEBTOR NR 18267 GOLD COAST HOTEL & CASINO (DBA)
4000 W FLAMINGO RD
LAS VEGAS NV 89103
SECURED PARTY............. I G T
TAX ID:88-006-2109 9295 PROTOTYPE DR
RENO NV 89511
FILING NR: 97 14635 FILED ON: 08/27/97 AT: 01:54PM EXPIRES: 08/27/02
THERE IS 1 ADDITIONAL DEBTOR
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
TAX ID:88-034-5706 4000 W FLAMINGO RD
LAS VEGAS NV 89103
MICROFILM-ROLL 185 FRAME 619 PAGES 3
ADDITIONAL DEBTOR NR 132292 ORLEANS HOTEL & CASINO
TAX ID:88-032-5706 4500 W TROPICANA
LAS VEGAS NV 89103
SECURED PARTY............. C D S GAMING CO
TAX ID: 88-032-3265 3300 BIRTCHER DR
LAS VEGAS NV 89118
FILING NR: 97 14932 FILED ON: 09/03/97 AT: 12:40PM EXPIRES: 09/03/02
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
4500 TROPICANA AV
LAS VEGAS NV 89103
MICROFILM-ROLL 185 FRAME 620 PAGES 3
SECURED PARTY............. C I T GROUP EQUIPMENT FINANCING INC, THE
TAX ID:00-000-0536 POB 27248
TEMPE AZ 85285-7248
FILING NR: 97 15184 FILED ON: 09/03/97 AT: 04:01PM EXPIRES: 09/08/02
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
TAX ID:88-034-5706 4000 W FLAMINGO
LAS VEGAS NV 89103
MICROFILM-ROLL 185 FRAME 621 PAGES 4
SECURED PARTY............. SKIPCO
6029 W CHARLESTON BLVD
LAS VEGAS NV 89102
ASSIGNEE.................. BUSINESS CREDIT LEASING
115 W COLLEGE DR
MARSHALL MN 56258
----------
Page 6
131
Secretary of State Nevada Uncertified UCC Search
-------------------------------------------------------
FILING NR: 97 15538 FILED ON: 09/15/97 AT: 04:22PM EXPIRES: 09/15/02
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
TAX ID: 88-034-5706 4000 W FLAMINGO RD
LAS VEGAS NV 89103
MICROFILM-ROLL 185 FRAME 622 PAGES 2
SECURED PARTY.............. SKIPCO
6029 W CHARLESTON BLVD
LAS VEGAS NV 89102
ASSIGNEE.................... BUSINESS CREDIT LEASING
115 W COLLEGE DR
MARSHALL MN 56258
FILING NR: 97 18303 FILED ON: 11/03/97 AT: 02:15PM EXPIRES: 11/03/02
THERE IS 1 ADDITIONAL DEBTOR
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
3598 LAS VEGAS BLVD S
LAS VEGAS NV 89103
MICROFILM-ROLL 191 FRAME 85 PAGES 1
ADDITIONAL DEBTOR NR 3132 BARBARY COAST HOTEL & CASINO (DBA)
3595 LAS VEGAS BLVD S
LAS VEGAS NV 89109
SECURED PARTY.............. I G T
TAX ID: 88-006-2109 9295 PROTOTYPE DR
RENO NV 89511
FILING NR: 97 18795 FILED ON: 11/10/97 AT: 03:35PM EXPIRES: 11/10/02
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
TAX ID: 88-034-5706 4000 W FLAMINGO RD
LAS VEGAS NV 89103
MICROFILM-ROLL 191 FRAME 86 PAGES 3
SECURED PARTY.............. SKIPCO INC
6029 W CHARLESTON BLVD
LAS VEGAS NV 89102
ASSIGNEE................... BUSINESS CREDIT LEASING
115 W COLLEGE DR
MARSHALL MN 56258
FILING NR: 97 19409 FILED ON: 11/21/97 AT: 02:02PM EXPIRES: 11/21/02
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
TAX ID: 88-034-5706 4500 W TROPICANA AV
LAS VEGAS NV 89103
MICROFILM-ROLL 191 FRAME 87 PAGES 3
SECURED PARTY.............. FIRSTAR BANK OF MINNESOTA TRUSTEE
101 E 5TH ST
ST PAUL MN 55101-1860
FILING NR: 97 19410 FILED ON: 11/21/97 AT: 02:04PM EXPIRES: 11/21/02
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
TAX ID: 88-034-5706 4500 W FLAMINGO RD
LAS VEGAS NV 89103
MICROFILM-ROLL 191 FRAME 88 PAGES 19
SECURED PARTY.............. FIRSTAR BANK OF MINNESOTA TRUSTEE
101 E 5TH ST
ST PAUL MN 55101-1860
------------
Page 7
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------------------------------------------------
FILING NR: 97 19515 FILED ON: 11/24/97 AT: 03:32PM EXPIRES: 11/24/02
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS
TAX ID: 88-034-5706 4000 W FLAMINGO AV
LAS VEGAS NV 89103
MICROFILM-ROLL 191 FRAME 89 PAGES 3
SECURED PARTY .............. SKIPCO
6029 W CHARLESTON BLVD
LAS VEGAS NV 89102
ASSIGNEE ................... BUSINESS CREDIT LEASING
115 W COLLEGE DR
MARSHALL MN 56258
FILING NR: 97 20517 FILED ON: 12/12/97 AT: 03:47PM EXPIRES: 12/12/02
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS
TAX ID: 88-034-5706 4000 W FLAMINGO RD
LAS VEGAS NV 89103
MICROFILM-ROLL 191 FRAME 90 PAGES 3
SECURED PARTY .............. SKIPCO INC
6029 W CHARLESTON BLVD
LAS VEGAS NV 89102
ASSIGNEE ................... BUSINESS CREDIT LEASING
115 W COLLEGE DR
MARSHALL MN 56258
FILING NR: 97 20932 FILED ON: 12/22/97 AT: 03:00PM EXPIRES: 12/22/02
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
TAX ID: 88-034-5706 4000 W FLAMINGO RD
LAS VEGAS NV 89103
MICROFILM-ROLL 193 FRAME 98 PAGES 2
SECURED PARTY .............. SKIPCO
6029 W CHARLESTON BLVD
LAS VEGAS NV 89102
ASSIGNEE ................... BUSINESS CREDIT LEASING
115 W COLLEGE DR
MARSHALL MN 56258
FILING NR: 98 00438 FILED ON: 01/12/98 AT: 01:04PM EXPIRES: 01/12/03
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
TAX ID: 88-034-5706 4000 W FLAMINGO AV
LAS VEGAS NV 89103
MICROFILM-ROLL 193 FRAME 99 PAGES 4
SECURED PARTY .............. SKIPCO INC
6029 W CHARLESTON BLVD
LAS VEGAS NV 89102
ASSIGNEE ................... BUSINESS CREDIT LEASING
115 W COLLEGE DR
MARSHALL MN 56258
-------------
Page 8
133
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-------------------------------------------------------
FILING NR: 98 01387 FILED ON: 01/26/98 AT: 02:08PM EXPIRES: 01/26/03
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
TAX ID: 88-034-5706 4500 W FLAMINGO RD
LAS VEGAS NV 89103
MICROFILM-ROLL 194 FRAME 1104 PAGES 3
SECURED PARTY............. SKIPCO
6029 W CHARLESTON BLVD
LAS VEGAS NV 89102
ASSIGNEE................... BUSINESS CREDIT LEASING
115 W COLLEGE DR
MARSHALL MN 56258
FILING NR: 98 01717 FILED ON: 02/02/98 AT: 02:52PM EXPIRES: 02/02/03
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
TAX ID: 88-034-5706 4000 W FLAMINGO AV
LAS VEGAS NV 89103
MICROFILM-ROLL 194 FRAME 1105 PAGES 1
SECURED PARTY............. SKIPCO INC
6029 W CHARLESTON BLVD
LAS VEGAS NV 89102
ASSIGNEE................... BUSINESS CREDIT LEASING
115 W COLLEGE DR
MARSHALL MN 56258
FILING NR: 98 02435 FILED ON: 02/17/98 AT: 01:50PM EXPIRES: 02/17/03
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
TAX ID: 88-034-5706 4000 W FLAMINGO AV
LAS VEGAS NV 89103
MICROFILM-ROLL 194 FRAME 1106 PAGES 3
SECURED PARTY............. SKIPCO
6029 W CHARLESTON BLVD
LAS VEGAS NV 89102
ASSIGNEE................... BUSINESS CREDIT LEASING
115 W COLLEGE DR
MARSHALL MN 56258
FILING NR: 98 03242 FILED ON: 03/03/98 AT: 03:26PM EXPIRES: 03/03/03
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
TAX ID: 88-034-5706 4000 W FLAMINGO RD
LAS VEGAS NV 89103
MICROFILM-ROLL 194 FRAME 1107 PAGES 2
SECURED PARTY............. SKIPCO
TAX ID: 00-000-1111 6029 W CHARLESTON BLVD
LAS VEGAS NV 89102
ASSIGNEE................... BUSINESS CREDIT LEASING
TAX ID: 00-000-0608 115 W COLLEGE DR
MARSHALL MN 56258
----------
Page 9
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-------------------------------------------------------
FILING NR: 98 07013 FILED ON: 05/04/98 AT: 02:01PM EXPIRES: 05/04/03
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
TAX ID:88-034-5706 4000 W FLAMINGO RD
LAS VEGAS NV 89103
MICROFILM-ROLL 203 FRAME 346 PAGES 2
SECURED PARTY............. SKIPCO INC
6029 W CHARLESTON BLVD
LAS VEGAS NV 89102
ASSIGNEE................... BUSINESS CREDIT LEASING
115 W COLLEGE DR
MARSHALL MN 56258
FILING NR: 98 09489 FILED ON: 06/15/98 AT: 01:23PM EXPIRES: 06/15/03
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
TAX ID:88-034-5706 4000 W FLAMINGO RD
LAS VEGAS NV 89103
MICROFILM-ROLL 203 FRAME 347 PAGES 2
SECURED PARTY............. SKIPCO
6029 W CHARLESTON BLVD
LAS VEGAS NV 89102
ASSIGNEE................... BUSINESS CREDIT LEASING
115 W COLLEGE DR
MARSHALL MN 56258
FILING NR: 98 14306 FILED ON: 09/08/98 AT: 02:25PM EXPIRES: 09/08/03
THERE IS 1 ADDITIONAL DEBTOR
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
4500 W TROPICANA AV
LAS VEGAS NV 89103
MICROFILM-ROLL 208 FRAME 834 PAGES 1
ADDITIONAL DEBTOR NR 132292 ORLEANS HOTEL & CASINO
4500 W TROPICANA AV
LAS VEGAS NV 89103
SECURED PARTY............... I G T
TAX ID:88-006-2109 9295 PROTOTYPE DR
RENO NV 89511
FILING NR: 98 14443 FILED ON: 09/09/98 AT: 01:32PM EXPIRES: 09/09/03
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
TAX ID:88-034-5706 4000 W FLAMINGO
LAS VEGAS NV 89103
MICROFILM-ROLL 208 FRAME 835 PAGES 3
SECURED PARTY............... SKIPCO INC
6029 W CHARLESTON BLVD
LAS VEGAS NV 89102
ASSIGNEE.................... B C L CAPITAL
115 W COLLEGE DR
MARSHALL MN 56258
----------
Page 10
135
SECRETARY OF THE NEVADA UNCERTIFIED UCC SEARCH
----------------------------------------------
FILING NR: 98 14745 FILED ON: 09/15/98 AT: 01:07PM EXPIRES: 09/15/03
THERE IS 1 ADDITIONAL DEBTOR
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
4500 W TROPICANA AV
LAS VEGAS NV 89103
MICROFILM-ROLL 208 FRAME 860 PAGES 1
ADDITIONAL DEBTOR NR 132292 ORLEANS HOTEL & CASINO
4500 W TROPICANA AV
LAS VEGAS NV 89103
SECURED PARTY............. I G T
TAX ID:88-006-2109 9295 PROTOTYPE DR
RENO NV 89511
FILING NR: 98 18849 FILED ON: 11/25/98 AT: 01:34PM EXPIRES: 11/25/03
THERE IS 1 ADDITIONAL DEBTOR
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
4000 W FLAMINGO RD
LAS VEGAS NV 89103
MICROFILM-ROLL FRAME PAGES
ADDITIONAL DEBTOR NR 18267 GOLD COAST HOTEL & CASINO
4000 W FLAMINGO
LAS VEGAS NV 89103
SECURED PARTY............. I G T
TAX ID:88-006-2109 9295 PROTOTYPE DR
RENO NV 89511
FILING NR: 98 20354 FILED ON: 12/28/98 AT: 03:22PM EXPIRES: 12/28/03
PRINCIPAL DEBTOR NR 123632 COAST HOTELS & CASINOS INC
TAX ID:88-034-5706 4000 W FLAMINGO RD
LAS VEGAS NV 89103
MICROFILM-ROLL FRAME PAGES
SECURED PARTY............. SKIPCO INC
6029 CHARLESTON BLVD
LAS VEGAS NV 89102
ASSIGNEE.................. B C L CAPITAL
115 W COLLEGE DR
MARSHALL MN 56258
----------
Page 11
136
SECRETARY OF STATE NEVADA UNCERTIFIED UCC SEARCH
-------------------------------------------------------
LIST OF STATEMENTS FOR COAST WEST INC
DEBTOR NR: 123633 4000 W FLAMINGO RD
TAX ID: 88-034-5708 LAS VEGAS NV 89103
FILE NBR DATE TIME PRINCIPAL DEBTOR
96-01893 02/06/96 04:04PM COAST WEST INC
96-01894 02/06/96 04:05PM COAST WEST INC
FILING NR: 96-01893 FILED ON: 02/06/96 AT: 04:04PM EXPIRES: 02/06/01
PRINCIPAL DEBTOR NR 123633 COAST WEST INC
TAX ID:88-034-5708 4000 W FLAMINGO RD
LAS VEGAS NV 89103
MICROFILM-ROLL 150 FRAME 572 PAGES 3
SECURED PARTY............. AMERICAN BANK AS TRUSTEE
101 E 5TH ST
ST PAUL MN 55101-1860
FILING NR: 96 01894 FILED ON: 02/06/96 AT: 04:05PM EXPIRES: 02/06/01
PRINCIPAL DEBTOR NR 123633 COAST WEST INC
TAX ID:88-034-5708 4000 W FLAMINGO RD
LAS VEGAS NV 89103
MICROFILM-ROLL 150 FRAME 573 PAGES 10
SECURED PARTY............. AMERICAN BANK AS TRUSTEE
101 E 5TH ST
ST PAUL MN 55101-1860
----------
Page 1
137
SECRETARY OF STATE NEVADA UNCERTIFIED UCC SEARCH
-------------------------------------------------------
LIST OF STATEMENTS FOR COAST RESORTS INC
DEBTOR NR: 123634 4000 W FLAMINGO RD
TAX ID: 41-012-2055 LAS VEGAS NV 89103
FILE NBR DATE TIME PRINCIPAL DEBTOR
96-01895 02/06/96 04:06PM COAST RESORTS INC
97-19411 11/21/97 02:05PM COAST RESORTS INC
FILING NR: 96-01895 FILED ON: 02/06/96 AT: 04:06PM EXPIRES: 02/06/01
PRINCIPAL DEBTOR NR 123634 COAST RESORTS INC
TAX ID:41-012-2055 4000 W FLAMINGO RD
LAS VEGAS NV 89103
MICROFILM-ROLL 150 FRAME 574 PAGES 2
SECURED PARTY............. AMERICAN BANK AS TRUSTEE
101 E 5TH ST
ST PAUL MN 55101-1860
FILING NR: 97 19411 FILED ON: 11/21/97 AT: 02:05PM EXPIRES: 11/21/02
PRINCIPAL DEBTOR NR 123634 COAST WEST INC
TAX ID:41-012-2055 4000 W TROPICANA AV
LAS VEGAS NV 89103
MICROFILM-ROLL 191 FRAME 91 PAGES 3
SECURED PARTY............. FIRSTAR BANK OF MINNESOTA TRUSTEE
101 E 5TH ST
ST PAUL MN 55101-1860
----------
Page 1
138
[LOGO]
CAPITOL DOCUMENT SERVICES, INC.
Date : FEBRUARY 9, 1999 Page 1
Subject : COAST HOTELS & CASINOS, INC.
Jurisdiction : CLARK CO., NV (LAS VEGAS)
Type of Search : UCC
Searched Through : JANUARY 14, 1999
- -------------------------------------------------------------------------------
File Date File Number Type of Filing Reference
- -------------------------------------------------------------------------------
THROUGH OUR CORRESPONDENT, A SEARCH OF THE UCC RECORDS HAS BEEN MADE REGARDING
THE ABOVE-NAMED DEBTOR. THIS SEARCH INDICATES THAT THERE ARE OUTSTANDING
FILINGS OF RECORD IN THIS SPECIFIC JURISDICTION.
JAN 30, 1996 BD 960130 DEED American Bank National Association
I 00397 St. Paul, MN.
PURSUANT TO INSTRUCTIONS RECEIVED, WE HAVE PROVIDED ONLY FIRST FIVE PAGES AND
LAST PAGE OF THE ABOVE DEED DOCUMENT.
JAN 30, 1996 BK 960130 UCC-1 American Bank NA, as Trustee
I 00399 St. Paul, MN
MAR 12, 1996 BK 960312 UCC-1 CDS Gaming Company
I 00892 Las Vegas, NV
NOV 4, 1996 BK 961104 UCC-1 The CIT Group/Equipment Financing, Inc.
I 00587 Atlanta, GA
NOV 26, 1996 BK 961126 AMENDMENT
I 01530
NOV 4, 1996 BK 961104 UCC-1 The CIT Group/Equipment Financing, Inc.
I 00588 Atlanta, GA
- -------------------------------------------------------------------------------
CAPITOL DOCUMENT SERVICES, INC. makes no representations, warranties or
guaranties as to the accuracy or completeness of this report. Because the
records are public information maintained by government officials, we cannot
independently verify their accuracy, and our involvement is limited to
assisting in expediting the retrieval of this information.
- -------------------------------------------------------------------------------
PO Box 3100 Carson City, NV 89702
(702) 884-0490
139
[LOGO]
CAPITOL DOCUMENT SERVICES, INC.
Date : FEBRUARY 9, 1999
Subject : COAST HOTEL & CASINOS, INC.
Jurisdiction : CLARK CO., NV (LAS VEGAS)
Type of Search : UCC
Search Through : JANUARY 14, 1999
- -------------------------------------------------------------------------------
File Date File Number Type of Filing Reference
- -------------------------------------------------------------------------------
NOV 26, 1996 BK 961126 AMENDMENT
I 01531
DEC 4, 1996 BK 961204 UCC-1 The CIT Group/Equipment Financing, Inc.
I 01585 Atlanta, GA
DEC 30, 1996 BK 961230 AMENDMENT The CIT Group/Equipment Financing, Inc.
I 00644 Atlanta, GA
NOV 21, 1997 BK 971121 DEED Firstar Bank of Minnesota, N.A.
I 00617 St. Paul, MN
PURSUANT TO INSTRUCTIONS RECEIVED, WE HAVE PROVIDED ONLY FIRST FIVE PAGES AND LAST PAGE OF THE ABOVE DEED DOCUMENT.
NOV 21, 1997 BK 971121 UCC-1 Firstar Bank of Minnesota, N.A. as Trustee
I 00619 St. Paul, MN
- -------------------------------------------------------------------------------
CAPITOL DOCUMENT SERVICES, INC. makes no representations, warranties or
guaranties as to the accuracy or completeness of this report. Because the
records are public information maintained by government officials, we cannot
independently verify their accuracy, and our involvement is limited to
assisting in expediting the retrieval of this information.
- -------------------------------------------------------------------------------
PO Box 3100 Carson City, NV 89702
(702) 884-0490
140
CAPITAL DOCUMENT SERVICES, INC.
Date : FEBRUARY 9, 1999 PAGE 1
Subject : COAST WEST, INC.
Jurisdiction : CLARK CO., NV (LAS VEGAS)
Type of Search : UCC
Searched Through : JANUARY 14, 1999
- --------------------------------------------------------------------------------
File Date File Number Type of Filing Reference
- --------------------------------------------------------------------------------
THROUGH OUR CORRESPONDENT, A SEARCH OF THE UCC RECORDS HAS BEEN MADE REGARDING
THE ABOVE-NAMED DEBTOR. THIS SEARCH INDICATES THAT THERE ARE OUTSTANDING FILINGS
OF RECORD IN THIS SPECIFIC JURISDICTION.
JAN 30, 1996 BK 960130 DEED American Bank National Association
I 00398 St. Paul, MN
PURSUANT TO INSTRUCTIONS RECEIVED, WE HAVE PROVIDED ONLY FIRST FIVE PAGES AND
LAST PAGE OF ABOVE DEED DOCUMENT
JAN 30, 1996 BK 960130 UCC-1 American Bank National Association
I 00400 St. Paul, MN
- --------------------------------------------------------------------------------
CAPITOL DOCUMENT SERVICES, INC. makes no representations, warranties or
guaranties as to the accuracy or completeness of this report. Because the
records are public information maintained by government officials, we cannot
independently verify their accuracy, and our involvement is limited to
assisting in expediting the retrieval of this information.
- --------------------------------------------------------------------------------
PO Box 3100 Carson City, NV 89702
(702) 884-0490
141
SCHEDULE 6.10
EXISTING INDEBTEDNESS
See UCC search results for each of Coast Hotels and Casinos, Inc., Coast
Resorts, Inc. and Coast West, Inc. as described in Schedule 6.9.
142
SCHEDULE 6.16
EXISTING INVESTMENTS
None.
143
EXHIBIT A
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT ("Agreement") dated as of
______________, _______is made with reference to that certain Loan Agreement
dated as of March 18, 1999 (as amended from time to time, the "Loan Agreement")
by and among Coast Hotels and Casinos, Inc., a Nevada corporation ("Borrower"),
the Lenders therein named, and Bank of America National Trust and Savings
Association, as Administrative Agent, and is entered into between the "Assignor"
described below, in its capacity as a Lender under the Loan Agreement, and the
"Assignee" described below.
Assignor and Assignee hereby represent, warrant and agree as
follows:
1. Definitions. Capitalized terms defined in the Loan
Agreement are used herein with the meanings set forth for such terms in the Loan
Agreement. As used in this Agreement, the following capitalized terms shall have
the meanings set forth below:
"Assignee" means ________________________.
"Assigned Pro Rata Share" means ______________% of the Commitment of the
Lenders under the Loan Agreement which equals $________________as of the date
hereof.
"Assignor" means ________________________.
"Effective Date" means ____________________, ______, the effective date
of this Agreement determined in accordance with Section 11.8 of the Loan
Agreement.
2. Representations and Warranties of the Assignor. The
Assignor represents and warrants to the Assignee as follows:
a. As of the date hereof, the Pro Rata Share of the
Assignor is _____% of the Commitment (without giving effect to assignments
thereof which have not yet become effective). The Assignor is the legal and
beneficial owner of the Assigned Pro Rata Share and the Assigned Pro Rata Share
is free and clear of any adverse claim.
b. As of the date hereof, the outstanding principal
balance of Advances made by the Assignor under the Assignor's Note is $________.
c. The Assignor has full power and authority, and
has taken all action necessary, to execute and deliver this Agreement and any
and all other documents required or permitted to be executed or delivered by it
in connection with this Agreement and to fulfill its obligations under, and to
consummate the transactions contemplated by, this
-1-
144
Agreement, and no governmental authorizations or other authorizations are
required in connection therewith; and
d. This Agreement constitutes the legal, valid and
binding obligation of the Assignor.
The Assignor makes no representation or warranty and assumes no responsibility
with respect to the financial condition of Borrower or the performance by
Borrower of the Obligations, and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the Loan
Agreement or the execution, legality, validity, enforceability, genuineness, or
sufficiency of the Loan Agreement or any Loan Document other than as expressly
set forth above.
3. Representations and Warranties of the Assignee. The
Assignee hereby represents and warrants to the Assignor as follows:
(a) The Assignee has full power and authority, and has taken
all action necessary, to execute and deliver this Agreement, and any and all
other documents required or permitted to be executed or delivered by it in
connection with this Agreement and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Agreement, and no governmental
authorizations or other authorizations are required in connection therewith;
(b) This Agreement constitutes the legal, valid and binding
obligation of the Assignee;
(c) The Assignee has independently and without reliance upon
the Administrative Agent or Assignor and based on such documents and information
as the Assignee has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. The Assignee will, independently and
without reliance upon the Administrative Agent or any Lender, and based upon
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Loan Agreement;
(d) The Assignee has received copies of such of the Loan
Documents delivered pursuant to Section 8.1 of the Loan Agreement as it has
requested, together with copies of the most recent financial statements
delivered pursuant to Section 7.1 of the Loan Agreement;
(e) The Assignee will perform in accordance with their
respective terms all of the obligations which by the terms of the Loan Agreement
are required to be performed by it as a Lender; and
(f) The Assignee is an Eligible Assignee.
-2-
145
4. Assignment. On the terms set forth herein, the Assignor,
as of the Effective Date, hereby irrevocably sells, assigns and transfers to the
Assignee all of the rights and obligations of the Assignor under the Loan
Agreement, the other Loan Documents and the Assignor's Note to the extent of the
Assigned Pro Rata Share, and the Assignee irrevocably accepts such assignment of
rights and assumes such obligations from the Assignor on such terms and
effective as of the Effective Date. Assignee acknowledges that the foregoing
assignment is subject to the approval of Administrative Agent and may be subject
to the approval of the Borrower pursuant to the Loan Agreement. As of the
Effective Date, the Assignee shall have the rights and obligations of a "Lender"
under the Loan Documents, except to the extent of any arrangements with respect
to payments referred to in Section 5 hereof. Assignee hereby appoints and
authorizes the Administrative Agent to take such action and to exercise such
powers under the Loan Agreement as are delegated to the Administrative Agent by
the Loan Agreement.
5. Payment. On the Effective Date, the Assignee shall pay
to the Assignor, in immediately available funds, an amount equal to the purchase
price of the Assigned Pro Rata Share, as agreed between the Assignor and the
Assignee pursuant to a letter agreement of even date herewith. Such letter
agreement also sets forth the agreement between the Assignor and the Assignee
with respect to the amount of interest, fees, and other payments with respect to
the Assigned Pro Rata Share which are to be retained by the Assignor.
The Assignor and the Assignee hereby agree that if either
receives any payment of interest, principal, fees or any other amount under the
Loan Agreement, their respective Notes or any other Loan Documents which is for
the account of the other, it shall hold the same in trust for such party to the
extent of such party's interest therein and shall promptly pay the same to such
party.
6. Principal, Interest, Fees, etc. Any principal that would
be payable and any interest, fees and other amounts that would accrue from and
after the Effective Date to or for the account of the Assignor pursuant to the
Loan Agreement and the Note shall be payable to or for the account of the
Assignor and the Assignee, in accordance with their respective interests as
adjusted pursuant to this Agreement.
7. Notes. The Assignor and the Assignee shall make
appropriate arrangements with Borrower concurrently with the execution and
delivery hereof so that a replacement Note is issued to the Assignor and a new
Note is issued to the Assignee, in each case in principal amounts reflecting
their Pro Rata Shares of the Commitment or their outstanding Advances (as
adjusted pursuant to this Agreement).
8. Further Assurances. Concurrently with the execution of
this Agreement, the Assignor shall execute two counterpart original Requests for
Registration, in the form of Exhibit A to this Agreement, to be forwarded to the
Administrative Agent. The Assignor and the Assignee further agree to execute and
deliver such other instruments, and take such other action, as either party may
reasonably request in connection with the transac tions contemplated by this
Agreement, and the Assignor specifically agrees to cause the
-3-
146
delivery of (i) two original counterparts of this Agreement and (ii) the Request
for Registration, to the Administrative Agent for the purpose of registration of
the Assignee as a "Lender" pursuant to Section 11.8 of the Loan Agreement.
9. Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE A
CONTRACTUAL OBLIGATION UNDER, AND SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LOCAL LAWS OF THE STATE OF CALIFORNIA. FOR
ANY DISPUTE ARISING IN CONNECTION WITH THIS AGREEMENT, THE ASSIGNEE HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF
CALIFORNIA.
10. Notices. All communications among the parties or notices
in connection herewith shall be in writing, hand delivered or sent by registered
airmail, postage prepaid, or by telex, telegram or cable, addressed to the
appropriate party at its address set forth on the signature pages hereof. All
such communications and notices shall be effective upon receipt.
11. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and assigns;
provided, however, that the Assignee shall not assign its rights or obligations
under this Agreement without the prior written consent of the Assignor and any
purported assignment, absent such consent, shall be void. Nothing contained in
this Section shall restrict the assignment by Assignee of its rights under the
Loan Documents following the Effective Date.
12. Interpretation. The headings of the various sections
hereof are for convenience of reference only and shall not affect the meaning or
construction of any provision hereof.
-4-
147
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officials, officers or agents
thereunto duly authorized as of the date first above written.
"Assignor"" "Assignee"
- ------------------------------ ------------------------------
By: By:
--------------------------- ---------------------------
Title: Title:
------------------------ ------------------------
Address: Address:
- ------------------------------ ------------------------------
- ------------------------------ ------------------------------
- ------------------------------ ------------------------------
Telecopier: Telecopier:
------------------- -------------------
Telephone: Telephone:
-------------------- --------------------
-5-
148
Exhibit A to Assignment Agreement
REQUEST FOR REGISTRATION
To: Bank of America National Trust and Savings Association, as
Administrative Agent, and Coast Hotels and Casinos, Inc.
THIS REQUEST FOR REGISTRATION OF ASSIGNEE is made as of the date
of the enclosed Assignment Agreement with reference to that certain Amended and
Restated Loan Agreement of even date herewith by and among Coast Hotels and
Casinos, Inc., a Nevada corporation ("Borrower"), the Lenders therein named, and
Bank of America National Trust and Savings Association, as Administrative Agent
(as amended as of the date hereof, the "Loan Agreement").
The Assignor and Assignee described below hereby request that
Administrative Agent register the Assignee as a Lender pursuant to Section 11.8
of the Loan Agreement effective as of the Effective Date described in the
Assignment Agreement.
The Assignor and Assignee hereby jointly request that
Administrative Agent cause Borrower to issue a replacement Note, dated as of the
Effective Date, pursuant to Section 11.8 of the Loan Agreement in favor of
Assignor in the principal amount of the remainder of its Pro Rata Share of the
Commitment and a new Note in favor of the Assignee in the amount of the Assigned
Pro Rata Share.
The Assignee is concurrently making payment of the $3,500 fee
payable to the Administrative Agent pursuant to Section 11.8 of the Loan
Agreement.
-6-
149
IN WITNESS WHEREOF, the Assignor and Assignee have executed this
Request for Registration by their duly authorized officers as of even date with
the enclosed Assignment Agreement.
"Assignor"" "Assignee"
- ------------------------------ ------------------------------
By: By:
--------------------------- ---------------------------
Title: Title:
------------------------ ------------------------
-7-
150
CONSENT OF ADMINISTRATIVE AGENT AND BORROWER
[When Required Pursuant to Loan Agreement]
TO: The Assignor and Assignee referred to in the above Request for
Registration
When countersigned by both Borrower and Administrative Agent below, this
document shall certify that:
1. Borrower has consented, pursuant to the terms of the Loan Documents,
to the assignment by the Assignor to the Assignee of the Assigned Pro Rata
Share.
2. Administrative Agent has registered the Assignee as a Lender under
the Loan Agreement, effective as of the Effective Date described above, with a
Pro Rata Share of the Commitment corresponding to the Assigned Pro Rata Share
and has adjusted the registered Pro Rata Share of the Commitment of the Assignor
to reflect the assignment of the Assigned Pro Rata Share.
Approved:
Coast Hotels and Casinos, Inc., Bank of America National Trust and
a Nevada corporation Savings Association, as Administrative
Agent
By: By:
----------------------------- -----------------------------
Its: Its:
---------------------------- ----------------------------
-8-
151
EXHIBIT B
COMPLIANCE CERTIFICATE
To: BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, AS
ADMINISTRATIVE AGENT
This Compliance Certificate is delivered with reference to the
Loan Agreement dated as of March 18, 1999, by and among Coast Hotels and
Casinos, Inc., as Borrower (the "Borrower"), the Lenders referred to therein,
and Bank of America National Trust and Savings Association, as Administrative
Agent (as amended, extended, renewed, supplemented or otherwise modified from
time to time, the "Loan Agreement"). Terms defined in the Loan Agreement and not
otherwise defined in this Compliance Certificate ("Certificate") shall have the
meanings defined for them in the Loan Agreement. Section references herein
relate to the Loan Agreement unless stated otherwise. In the event of any
conflict between the calculations set forth in this Certificate, and the manner
of calculation required by the Loan Agreement, the terms of the Loan Agreement
shall govern and control.
This Certificate is delivered in accordance with Section 7.2 of
the Loan Agreement by a Senior Officer of Borrower. This Certificate is
delivered with respect to the Fiscal Quarter (the "Test Fiscal Quarter") ended
______________, _____ (the "Test Date"). Computations indicating compliance with
respect to the covenants contained in Sections 6.12, 6.13, 6.14 and 6.15 of the
Loan Agreement are set forth below:
I. SECTION 6.12 - SENIOR LEVERAGE RATIO. As of the Test Date, the Senior
Leverage Ratio was ________: 1.00.
The Senior Leverage Ratio was computed as follows:
(a) the average principal amount of the outstanding Total Debt as of the last
day of each of the three constituent calendar months in the Test Fiscal Quarter
Month One $______________
Month Two $______________
Month Three $______________
Average Total Debt $______________
minus Subordinated Obligations
Month One $______________
Month Two $______________
Month Three $______________
Average Subordinated
Obligations $______________
equals Average Senior Debt $______________
divided by $______________
-1-
152
(b) EBITDA for the four Fiscal Quarter
period ending on the Test Date $______________
equals Senior Leverage Ratio [(a)/(b)] ____: 1.00
EBITDA - Calculation
In the calculation of EBITDA, for each of the first three full Fiscal
Quarters following the Opening, operating results of the New Project will be
annualized on a straight line basis. EBITDA for the four Fiscal Quarter period
ending on the Test Date (the "Test Period") was calculated as follows, in each
case as determined in accordance with Generally Accepted Accounting Principles:
(a) Net Income for the Test Period $_______________
plus (b) any extraordinary loss reflected in such Net Income, $_______________
minus (c) any extraordinary gain reflected in such Net Income, $_______________
plus (d) Interest Expense for the Test Period (to the extent
deducted in the determination of Net Income for the Period), $_______________
plus (e) the aggregate amount, if any, of federal and state taxes on
or measured by income of Coast Resorts and its Subsidiaries for the
Test Period (whether or not payable during the Test Period and to the
extent deducted in the determination of Net Income for the
Test Fiscal Period), $________________
plus (f) depreciation, amortization and all other non-cash expenses
for the Test Period (including all non-cash rent expense and to the
extent deducted in the determination of Net Income for
the Test Period), $________________
plus (g) expenses classified as "pre-opening expenses" on the
applicable financial statements of Coast Resorts or its Subsidiaries
for the Test Period (to the extent deducted in the
determination of Net Income for the Test Period) $________________
equals EBITDA [(a)+(b)-(c)+(d)+(e)+(f)+(g)] $________________
-------------
-2-
153
II. SECTION 6.13 - TOTAL LEVERAGE RATIO. As of the Test Date, the Total
Leverage Ratio was ________: 1.00.
The Total Leverage Ratio was computed as follows:
(a) the average principal amount of the outstanding Total Debt as of the last
day of each of the three constituent calendar months
in the Test Fiscal Quarter (as set forth in I above) $_______________
divided by
(b) EBITDA for the four Fiscal Quarter period
ending on the Test Date $_______________
equals Total Leverage Ratio [(a)/(b)] ____: 1.00
III. SECTION 6.14 - FIXED CHARGE COVERAGE RATIO. As of the Test Date, the
Fixed Charge Coverage Ratio was ________: 1.00.
Minimum Ratio Permitted 1.25:1.00
The Fixed Charge Coverage Ratio was computed as follows:
(a) EBITDA for the four Fiscal Quarter period ending on the Test Date $_______________
divided by (b) the sum of:
(i) required payment of principal and interest and
mandatory prepayments to the extent made in Cash by Coast
Resorts and its Subsidiaries with respect to Indebtedness
(other than mandatory prepayments made with respect to the
Obligations) during such four Fiscal Quarter period, $_______________
plus (ii) Maintenance Capital Expenditures made during such
four Fiscal Quarter period (other than those which are
financed pursuant to Section 6.10(c) of the Loan Agreement), $_______________
plus (iii) taxes paid or payable in cash with respect to
income of Coast Resorts and its Subsidiaries for such four
Fiscal Quarter period (including any Permitted Tax
Distributions), $_______________
plus (iv) Distributions made during such four Fiscal
Quarter period pursuant to Section 6.6(d) of the Loan
Agreement, $_______________
equals Fixed Charge Coverage Ratio [(a)/(b)] ____: 1.00
-3-
154
IV. SECTION 6.15 - CAPITAL EXPENDITURES.
A. Borrower has not made, or become legally obligated to make, any
Capital Expenditure except as permitted under subsections (a) through (e),
inclusive, of Section 6.15.
B. If the Test Date is before the Opening: As of the Test Date, the
aggregate amount of Maintenance Capital Expenditures made pursuant to Section
6.15(a) of the Loan Agreement during the Fiscal Year in which the Test Date
occurs is $___________.
Maximum Permitted: $15,000,000 in any Fiscal Year
C. If the Test Date is after the Opening: As of the Test Date, the
aggregate amount of Maintenance Capital Expenditures made pursuant to Section
6.15(a) of the Loan Agreement during the Fiscal Year in which the Test Date
occurs is $___________.
Maximum Permitted: $22,000,000 in any Fiscal Year
D. As of the Test Date, the aggregate amount of Capital
Expenditures made pursuant to Section 6.15(b) of the Loan Agreement is
$___________________ and, when aggregated with the outstanding amount of any
Acquisitions and Investments made pursuant to Section 6.16(i) of the Loan
Agreement, is $____________________.
Maximum Permitted: $40,000,000, increasing after the Opening to
$100,000,000
E. If the Test Date is after an increase in the Commitment to an
amount of at least $175,000,000: As of the Test Date, the aggregate amount of
Capital Expenditures made for the development of the New Project (excluding
capitalized interest) pursuant to Section 6.15(c), is $___________.
Maximum Permitted: $150,000,000
F. If the Test Date is after an increase in the Commitment to an
amount of at least $175,000,000: As of the Test Date, the aggregate amount of
Capital Expenditures expressly permitted by the first sentence of Section 5.13
of the Loan Agreement is $_______________.
Maximum Permitted: $_______________.
(fill in the Net Cash Proceeds
from the Disposition of the
Barbary Coast that are used in
accordance with the first
sentence of Section 5.13 of the
Loan Agreement)
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G. If the Test Date is after an increase in the Commitment to an
amount of at least $175,000,000: As of the Test Date, the aggregate amount of
Capital Expenditures other than those expressly permitted in accordance with the
first sentence of Section 5.13 of the Loan Agreement is
$_________________
Maximum Permitted: $__________________
(fill in the Net Cash Proceeds
from the Disposition of the
Barbary Coast that are NOT used
or to be used in the first
sentence of Section 5.13 of the
Loan Agreement)
V. A review of the activities of Borrower during the Test Fiscal Quarter
has been made under the supervision of the undersigned with a view to
determining whether during the Test Fiscal Quarter Borrower performed and
observed all of its obligations under the Loan Agreement and the Notes. To the
best knowledge of the undersigned, during the Test Fiscal Quarter, all covenants
and conditions have been so performed and observed and no Default or Event of
Default has occurred and is continuing, with the exceptions set forth below in
response to which Borrower has taken (or caused to be taken) or proposes to take
(or cause to be taken) the following actions (if none, so state).
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VI. The undersigned Senior Officer of Borrower certifies that the
calculations made and the information contained herein are derived from the
books and records of Borrower and that each and every matter contained herein
correctly reflects those books and records.
Dated: _______________, ______
COAST HOTELS AND CASINOS, INC.
By:
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Printed Name and Title
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EXHIBIT C
NOTE
$75,000,000 March 18, 1999
Los Angeles, California
FOR VALUE RECEIVED, the undersigned promises to pay to the order
of BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION ("Lender"), the
principal amount of SEVENTY FIVE MILLION DOLLARS ($75,000,000) or such lesser
aggregate amount of Advances as may be made by the Lender with respect to the
Commitment under the Loan Agreement referred to below, together with interest on
the principal amount of each Advance made hereunder and remaining unpaid from
time to time from the date of each such Advance until the date of payment in
full, payable as hereinafter set forth.
Reference is made to the Loan Agreement dated as of March 18,
1999, by and among the undersigned, as Borrower, and Bank of America National
Trust and Savings Association, as Administrative Agent and sole initial Lender
(the "Loan Agreement"). Terms defined in the Loan Agreement and not otherwise
defined herein are used herein with the meanings defined for those terms in the
Loan Agreement. This is one of the Notes referred to in the Loan Agreement, and
any holder hereof is entitled to all of the rights, remedies, benefits and
privileges provided for in the Loan Agreement as originally executed or as it
may from time to time be supplemented, modified or amended. The Loan Agreement,
among other things, contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events upon the terms and conditions
therein specified.
The principal indebtedness evidenced by this Note shall be
payable as provided in the Loan Agreement and in any event on the Maturity Date.
Interest shall be payable on the outstanding daily unpaid
principal amount of Advances from the date of each such Advance until payment in
full and shall accrue and be payable at the rates and on the dates set forth in
the Loan Agreement both before and after default and before and after maturity
and judgment, with interest on overdue principal and interest to bear interest
at the rate set forth in Section 3.9 of the Loan Agreement, to the fullest
extent permitted by applicable Law.
Each payment hereunder shall be made to the Administrative Agent
at the Administrative Agent's Office for the account of the Lender in
immediately available funds not later than 11:00 a.m., California local time, on
the day of payment (which must be a Banking Day). All payments received after
11:00 a.m., California
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local time, on any particular Banking Day shall be deemed received on the next
succeeding Banking Day. All payments shall be made in lawful money of the United
States of America.
The Lender shall use its best efforts to keep a record of
Advances made by it and payments received by it with respect to this Note, and
such record shall, be presumptive evidence of the amounts owing under this Note.
The undersigned hereby promises to pay all costs and expenses of
any holder hereof incurred in collecting the undersigned's obligations hereunder
or in enforcing or attempting to enforce any of such holder's rights hereunder,
including reasonable attorneys' fees and disbursements, whether or not an action
is filed in connection therewith.
The undersigned hereby waives presentment, demand for payment,
dishonor, notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
This Note shall be delivered to and accepted by the Lender in
the State of Nevada, and shall be governed by, and construed and enforced in
accordance with, the local Laws thereof.
COAST HOTELS AND CASINOS , INC.,
a Nevada corporation
By:
-------------------------------------
Gage Parrish, Vice President and Chief
Financial Officer
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SCHEDULE OF COMMITTED ADVANCES AND
PAYMENTS OF PRINCIPAL
Amount Amount of Unpaid
of Interest Principal Principal Notation
Date Advance Period Paid Balance Made by
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EXHIBIT D
REQUEST FOR LETTER OF CREDIT
This Request for Letter of Credit is executed and delivered by the
undersigned Borrower with reference to the Loan Agreement (as amended, modified
or extended, the "Loan Agreement") dated as of ________, 1999 by and among
Borrower, the Lenders therein named and Bank of America National Trust and
Savings Association, as Administrative Agent and Issuing Lender. Any terms used
herein and not defined herein shall have the meanings set forth for such terms
in the Loan Agreement.
The undersigned Borrower hereby requests that the Issuing Lender issue a
Letter of Credit pursuant to the Loan Agreement as follows:
AMOUNT OF REQUESTED LETTER OF CREDIT: _____________
DATE OF REQUESTED LETTER OF CREDIT: ________________
TENOR OF LETTER OF CREDIT: _________________
In connection with the request, the undersigned Borrower certifies that:
(a) Except as disclosed by Borrower and approved in writing
by the Requisite Lenders, the representations and warranties contained
in Article 4 of the Loan Agreement (other than the representations set
forth in Sections 4.4, 4.10 and 4.17) shall be true and correct on the
date of such Advance as though made on that date;
(b) There is not any pending or threatened action, suit,
proceeding or investigation affecting Borrower or any of its
Subsidiaries before any Governmental Agency that constitutes a Material
Adverse Effect; and
(c) The Loan requested herein will not cause Borrower to
violate the terms of the Indenture dated as of _______, 1999, among
Borrower, Coast Resorts, Inc., as Guarantor, and Firstar Bank of
Minnesota, N.A., as Trustee, including without limitation Section [__]
thereof.
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This Request for Letter of Credit is executed on __________, _____, by a
Responsible Official of the undersigned Borrower. The undersigned, in such
capacity, hereby certifies each and every matter contained herein to be true and
correct.
COAST HOTELS AND CASINOS, INC.,
a Nevada corporation
By:
-------------------------------------
Title:
----------------------------------
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EXHIBIT E
REQUEST FOR LOAN
1. This Request for Loan is executed and delivered by Coast
Hotels and Casinos, Inc., a Nevada corporation ("Borrower"), to Bank of America
National Trust and Savings Association, as Administrative Agent, pursuant to the
Loan Agreement (as amended, modified or extended, the "Loan Agreement") dated as
of March 18, 1999, among Borrower, the Lenders therein named, and Bank of
America National Trust and Savings Association, as Administrative Agent. Any
terms used herein and not defined herein shall have the meanings set forth for
such terms in the Loan Agreement.
2. Borrower hereby requests that the Lenders make a Loan
pursuant to the Loan Agreement as follows:
a. AMOUNT OF REQUESTED LOAN: $______________
b. DATE OF REQUESTED LOAN: _________________
c. TYPE OF REQUESTED LOAN (Check one box only):
[ ] BASE RATE
[ ] LIBOR, FOR AN INTEREST PERIOD OF
------------------
3. In connection with the request, Borrower certifies that:
a. Except as disclosed by Borrower and approved in
writing by the Requisite Lenders, the representations and warranties contained
in Article 4 of the Loan Agreement (other than the representations set forth in
Sections 4.4, 4.10 and 4.17) shall be true and correct on the date of such
Advance as though made on that date;
b. There is not any pending or threatened action,
suit, proceeding or investigation affecting Borrower or any of its Subsidiaries
before any Governmental Agency may reasonably be expected to have a Material
Adverse Effect; and
c. The Loan requested herein will not cause
Borrower to violate the terms of the Indenture dated as of March 23, 1999, among
Borrower, Coast Resorts, Inc., as Guarantor, and Firstar Bank of Minnesota,
N.A., as Trustee, including without limitation Section 4.07(a)(i) thereof.
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4. This Request for Loan is executed on __________, _____,
by a Responsible Official of Borrower. The undersigned, in such capacity, hereby
certifies each and every matter contained herein to be true and correct.
COAST HOTELS AND CASINOS, INC.,
a Nevada corporation
By:
-------------------------------------
Title:
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