<PAGE>
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------
FORM 10-Q
(Mark One)
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
- --- ACT OF 1934
For the Quarterly Period Ended September 30, 1999
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
- --- EXCHANGE ACT OF 1934
For the Transition Period from to
---------------- -------------------
<TABLE>
<CAPTION>
Commission file number 333-4356
COAST RESORTS, INC.
(Exact name of registrant as specified in its charter)
<S> <C>
Nevada 88-0345704
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification number)
4500 West Tropicana Avenue, Las Vegas, Nevada 89103
(Address of principal executive offices) (Zip Code)
(702) 365-7000
(Registrant's telephone number, including area code)
None
(Former name, former address and former fiscal year, if changed since last report.)
</TABLE>
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
----- -----
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date.
Shares of Common Stock outstanding as of September 30, 1999: 1,478,978
===============================================================================
<PAGE>
Part I - FINANCIAL INFORMATION
Item 1. Financial Statements.
COAST RESORTS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(amounts in thousands, except share data)
<TABLE>
<CAPTION>
September 30, December 31,
1999 1998
------------------ -----------------------
(unaudited)
ASSETS
CURRENT ASSETS:
<S> <C> <C>
Cash and cash equivalents...................................... $ 39,635 $ 41,598
Accounts receivable, net....................................... 4,782 4,301
Other current assets........................................... 20,285 14,032
------------------ -----------------
TOTAL CURRENT ASSETS........................................... 64,702 59,931
PROPERTY AND EQUIPMENT, net..................................... 314,591 301,252
OTHER ASSETS.................................................... 8,854 5,644
------------------ -----------------
$ 388,147 $ 366,827
================== =================
LIABILITIES AND
STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable............................................... $ 10,697 $ 9,888
Accrued liabilities............................................ 29,896 25,769
Accrued interest expense................................... 8,702 1,207
Current portion of long-term debt.............................. 323 7,905
------------------ -----------------
TOTAL CURRENT LIABILITIES...................................... 49,618 44,769
LONG-TERM DEBT, less current portion............................ 231,199 199,954
DEFERRED INCOME TAXES........................................... 3,283 6,654
DEFERRED RENT................................................... 15,659 13,024
------------------ -----------------
TOTAL LIABILITIES.............................................. 299,759 264,401
------------------ -----------------
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY:
Preferred stock, $.01 par value, 500,000 shares authorized,
none issued and outstanding................................. -- --
Common stock, $.01 par value, 2,000,000 shares authorized,
1,478,978 shares issued and outstanding...................... 15 15
Additional paid-in capital..................................... 95,398 95,398
Treasury stock................................................. (1,538) --
Retained earnings (deficit).................................... (5,487) 7,013
------------------ -----------------
TOTAL STOCKHOLDERS' EQUITY..................................... 88,388 102,426
------------------ -----------------
$ 388,147 $ 366,827
================== =================
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
1
<PAGE>
COAST RESORTS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
For the Three Months and Nine Months Ended September 30, 1999 and 1998
(amounts in thousands, except share and per share amounts)
(unaudited)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
-------------------------------- --------------------------------
1999 1998 1999 1998
------------ ----------- ------------ -----------
OPERATING REVENUES:
<S> <C> <C> <C> <C>
Casino....................................... $ 64,813 $ 61,050 $ 195,435 $ 178,084
Food and beverage............................ 17,767 16,426 53,353 49,187
Hotel........................................ 7,157 6,919 22,489 21,145
Other........................................ 7,246 6,579 21,441 18,658
------------ ----------- ------------ -----------
GROSS OPERATING REVENUES................... 96,983 90,974 292,718 267,074
Less: promotional allowances................ (8,603) (7,903) (25,713) (23,006)
------------ ----------- ------------ -----------
NET OPERATING REVENUES..................... 88,380 83,071 267,005 244,068
------------ ----------- ------------ -----------
OPERATING EXPENSES:
Casino....................................... 33,097 31,967 97,195 93,851
Food and beverage............................ 12,929 11,794 37,359 35,356
Hotel........................................ 3,441 3,278 9,696 9,000
Other........................................ 6,405 6,080 18,352 16,068
General and administrative................... 16,549 16,090 47,570 43,925
Deferred rent................................ 519 1,004 2,398 3,013
Pre-opening expenses......................... 78 -- 78 --
Depreciation and amortization................ 5,528 5,193 16,056 15,398
------------ ----------- ------------ -----------
TOTAL OPERATING EXPENSES................... 78,546 75,406 228,704 216,611
------------ ----------- ------------ -----------
OPERATING INCOME.............................. 9,834 7,665 38,301 27,457
------------ ----------- ------------ -----------
OTHER INCOME (EXPENSES)
Interest expense, net........................ (5,097) (6,727) (16,583) (20,069)
Interest capitalized......................... 160 -- 160 --
Gain (loss) on disposal of assets............ (23) 15 (9) 157
------------ ----------- ------------ -----------
TOTAL OTHER INCOME (EXPENSES)................. (4,960) (6,712) (16,432) (19,912)
------------ ----------- ------------ -----------
INCOME BEFORE INCOME TAXES AND EXTRAORDINARY
ITEM 4,874 953 21,869 7,545
------------ ----------- ------------ -----------
Income tax provision.......................... 1,396 529 7,362 2,752
------------ ----------- ------------ -----------
NET INCOME BEFORE EXTRAORDINARY ITEM.......... 3,478 424 14,507 4,793
------------ ----------- ------------ -----------
Extraordinary item - loss on early retirement of
debt, net of applicable
income tax benefit ($14,543).................. -- -- (27,007) --
------------ ----------- ------------ -----------
NET INCOME (LOSS)............................. $ 3,478 $ 424 $ (12,500) $ 4,793
------------ ----------- ------------ -----------
Basic and diluted income before extraordinary
item......................................... $ 2.35 $ .28 $ 9.76 $ 3.21
------------ ----------- ------------ -----------
Basic and diluted net income (loss)........... $ 2.35 $ .28 $ (8.41) $ 3.21
------------ ----------- ------------ -----------
SHARES USED IN COMPUTATION
OF BASIC AND DILUTED INCOME (LOSS) PER SHARE.. 1,481,572 1,494,353 1,487,452 1,494,353
============ =========== ============ ===========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
2
<PAGE>
COAST RESORTS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Nine Months Ended September 30, 1999 and 1998
(amounts in thousands)
(unaudited)
<TABLE>
<CAPTION>
Nine Months Ended
September 30,
-------------------------------------------
1999 1998
---------------- ---------------------
CASH FLOWS FROM OPERATING ACTIVITIES:
<S> <C> <C>
Net income (loss).......................................................... $ (12,500) $ 4,793
---------------- ----------------
ADJUSTMENTS TO RECONCILE NET INCOME (LOSS) TO NET
CASH PROVIDED BY OPERATING ACTIVITIES:
Depreciation and amortization............................................ 16,056 15,398
Provision for bad debts.................................................. 186 352
Loss (gain) on disposal of assets........................................ 9 (157)
Deferred income taxes.................................................... (3,578) (180)
Deferred rent............................................................ 2,635 3,013
Loss on early retirement of debt......................................... 41,550 --
Other non-cash expenses.................................................. 124 484
Changes in assets and liabilities:
Net (increase) decrease in accounts receivable and other assets........ (6,856) 851
Net increase in accounts payable and accrued liabilities............... 12,431 4,042
---------------- ----------------
TOTAL ADJUSTMENTS.......................................................... 62,557 23,803
---------------- ----------------
NET CASH PROVIDED BY OPERATING ACTIVITIES.................................. 50,057 28,596
---------------- ----------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures....................................................... (28,842) (10,231)
Proceeds from disposal of assets........................................... 27 157
---------------- ----------------
NET CASH USED IN INVESTING ACTIVITIES...................................... (28,815) (10,074)
---------------- ----------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuance of long-term debt, net of issuance costs............ 167,808 --
Early retirement of debt................................................... (223,017) --
Principal payments on long-term debt....................................... (15,468) (5,942)
Proceeds from borrowings under bank line of credit......................... 63,010 --
Repayments of borrowings under bank line of credit..................... (14,000) --
Repurchase of common stock................................................. (1,538) --
---------------- ----------------
NET CASH USED IN FINANCING ACTIVITIES...................................... (23,205) (5,942)
---------------- ----------------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS........................ (1,963) 12,580
CASH AND CASH EQUIVALENTS, at beginning of period........................... 41,598 29,430
---------------- ----------------
CASH AND CASH EQUIVALENTS, at end of period................................. $ 39,635 $ 42,010
================ ================
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
3
<PAGE>
COAST RESORTS, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
For the Year Ended December 31, 1998 and
For the Nine Months Ended September 30, 1999 (unaudited)
(dollars in thousands)
<TABLE>
<CAPTION>
Common Stock Retained
------------------ Additional Earnings Treasury
Shares Amount Paid-In Capital (Deficit) Stock Total
--------- -------- --------------- ---------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
Balances at December 31, 1997.... 1,494,353 $ 15 $ 95,398 $ (974) $ -- $ 94,439
Net income...................... -- -- -- 7,987 -- 7,987
--------- -------- --------------- ---------- ----------- -----------
Balances at December 31, 1998.... 1,494,353 15 95,398 7,013 -- 102,426
Repurchase of common stock...... (15,375) -- -- -- (1,538) (1,538)
Net loss........................ -- -- -- (12,500) -- (12,500)
--------- -------- --------------- ---------- ----------- -----------
Balances at September 30, 1999... 1,478,978 $ 15 $ 95,398 $ (5,487) $ (1,538) $ 88,388
--------- -------- --------------- ---------- ----------- -----------
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
4
<PAGE>
COAST RESORTS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 - BACKGROUND INFORMATION AND BASIS OF PRESENTATION
Background Information
Coast Resorts, Inc. ("Coast Resorts" or the "Company") is a Nevada
corporation and serves as a holding company for Coast Hotels and Casinos, Inc.
("Coast Hotels"). Through Coast Hotels, we own and operate three Las Vegas
hotel-casinos and are developing a fourth.
. The Orleans Hotel and Casino is located approximately one mile west of
the Las Vegas Strip on Tropicana Avenue.
. The Gold Coast Hotel and Casino is located approximately one mile west
of the Las Vegas Strip on Flamingo Road.
. The Barbary Coast Hotel and Casino is located on the Las Vegas Strip.
. On July 1, 1999, we began construction of the Suncoast Hotel and Casino
near Summerlin in the west end of the Las Vegas valley. The Suncoast,
with a construction budget of $185 million, is expected to open in
September 2000.
The Gold Coast and Barbary Coast hotel-casinos were, prior to January 1996,
owned and operated independently by two partnerships, Gold Coast Hotel and
Casino, a Nevada limited partnership, and Barbary Coast Hotel and Casino, a
Nevada general partnership. On January 1, 1996, the partners of the two
partnerships completed a reorganization (the "Reorganization") with Coast
Resorts. Coast Resorts was formed in September 1995 to effect the
Reorganization. Coast Resorts, Gold Coast and Barbary Coast were all related
through common ownership and management control.
In the Reorganization, the partners of the Gold Coast partnership and the
Barbary Coast partnership transferred their respective partnership interests to
Coast Resorts in exchange for an aggregate of 1,000,000 shares of common stock,
par value $.01 per share, of Coast Resorts ("Coast Resorts Common Stock").
Coast Resorts immediately contributed to Coast Hotels all of the assets and
liabilities of the Predecessor Partnerships other than those relating to the
Coast West Lease (as defined herein), which Coast Resorts contributed to its
wholly owned subsidiary, Coast West, Inc. ("Coast West"). On March 23, 1999,
Coast West was merged into Coast Hotels. The Coast West Lease is a long-term
lease on approximately 50 acres of land in Las Vegas on which the Company is
developing a new hotel-casino, the Suncoast. Coast Resorts retained the
liability for an aggregate principal amount of $51.0 million in notes payable to
former partners and retained the liability for $1.5 million relating to demand
notes due to a related party (the "Exchange Liabilities"). On January 16, 1996,
the Exchange Liabilities were exchanged for 494,353 shares of Coast Resorts
Common Stock, based upon management's estimate of the fair market value of such
Coast Resorts Common Stock.
5
<PAGE>
COAST RESORTS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 - BACKGROUND INFORMATION AND BASIS OF PRESENTATION (continued)
Basis of Presentation
The accompanying financial statements are unaudited and have been prepared
in accordance with generally accepted accounting principles for interim
financial information and with Article 10 of Regulation S-X. Accordingly, they
do not include all of the information and footnotes required by generally
accepted accounting principles for complete financial statements. The unaudited
financial statements should be read in conjunction with the audited financial
statements and footnotes for the year ended December 31, 1998. In the opinion
of management, all adjustments and normal recurring accruals considered
necessary for a fair presentation of the results for the interim period have
been included. The interim results reflected in the unaudited financial
statements are not necessarily indicative of expected results for the full year.
NOTE 2 - LONG-TERM DEBT
Long-term debt consists of the following as of September 30, 1999 and December
31, 1998:
<TABLE>
<CAPTION>
September 30, December 31,
1999 1998
-------------------- --------------------
<S> <C> <C>
(in thousands)
9.5% senior subordinated notes due April 2009...................... $ 175,000 $ --
$200.0 million, reducing revolving credit facility due 2004,
collateralized by substantially all of the assets of Coast
Hotels 50,000 --
and Casinos, Inc................................................
13% First Mortgage Notes due December 15, 2002, net of original
issue discount of $3,971,000 (1998)............................. 1,960 171,029
10-7/8% First Mortgage Notes due November 1, 2001.................. -- 16,800
9.19% note payable, payable in 60 monthly installments of
approximately $750,000, including principal and interest,
collateralized by certain gaming and other equipment, balance
paid in full June 1999............................................ -- 14,987
8.6% note due August 11, 2007, payable in monthly installments of
$26,667 principal plus interest on remaining principal balance,
collateralized by 1980 Hawker aircraft............................ 2,533 2,773
Other notes payable................................................ 2,029 2,270
-------------------- --------------------
231,522 207,859
Less: current portion.............................................. 323 7,905
-------------------- --------------------
$ 231,199 $ 199,954
==================== ====================
</TABLE>
6
<PAGE>
COAST RESORTS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
NOTE 2 - LONG-TERM DEBT (continued)
In March 1999, Coast Hotels issued $175.0 million principal amount of 9.5%
senior subordinated notes with interest payable on April 1 and October 1
beginning October 1, 1999 and entered into a $75 million senior secured
revolving credit facility due 2004 to facilitate a refinancing. Borrowings under
the credit facility are guaranteed by the Company. Availability under the credit
facility was increased to $200 million in September 1999, subject to
satisfaction of several conditions which were met subsequent to September 1999.
Borrowings under the credit facility bear interest, at Coast Hotels' option, at
a premium over the one-, two-, three- or six-month London Interbank Offered Rate
("LIBOR"). As of September 30, 1999 the interest rate was 7.41%. Coast Hotels
incurs a commitment fee, payable quarterly in arrears, on the unused portion of
the credit facility. This variable fee is currently at the maximum rate of 0.5%
per annum times the average unused portion of the facility.
With the proceeds from the senior subordinated notes and borrowings under
the credit facility, Coast Hotels repurchased substantially all of the $175.0
million principal amount outstanding of 13% first mortgage notes and all $16.8
million principal amount outstanding of 10-7/8% first mortgage notes and amended
the indenture under which the 13% first mortgage notes were issued to eliminate
substantially all of its restrictive covenants. Approximately $2.0 million in
principal amount of the 13% first mortgage notes remain outstanding and are
governed by the terms of the amended indenture. In connection with the
repurchase of the 13% notes and the 10-7/8% notes, Coast Hotels incurred
repurchase premiums of $31.0 million and $2.1 million, respectively. The
repurchase premiums and the write-offs of unamortized debt issuance costs and
original issue discount resulted in an extraordinary loss of $27.0 million, net
of applicable income tax benefit of $14.5 million.
The availability under the $200.0 million credit facility will be reduced
in quarterly amounts beginning in the fiscal quarter ending September 30, 2001.
The initial advance of $47.0 million under the new credit facility was used in
connection with the repurchase of the 13% first mortgage notes and the 10-7/8%
first mortgage notes. Subsequent advances under the new credit facility may be
used for working capital, general corporate purposes, construction of the
Suncoast and certain improvements to our existing properties. As of September
30, 1999, we had borrowed $50.0 million under the $200.0 million credit
facility.
NOTE 3 - TREASURY STOCK
In May 1999, our board of directors authorized the potential repurchase of
up to 50,000 shares of common stock from stockholders at a maximum aggregate
repurchase price of $5.0 million. Through September 30, 1999, we repurchased a
total of 15,375 shares of common stock from shareholders at a total purchase
price of $1.5 million.
7
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
Results of Operations
The following table sets forth, for the periods indicated, certain
financial information regarding the results of operations of the Company:
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
-------------------------------- --------------------------------
1999 1998 1999 1998
------------ ------------ ------------- ------------
<S> <C> <C> <C> <C>
Hotel-casino operations:
Net operating revenues........................ $ 88,380 $ 83,071 $ 267,005 $ 244,068
Operating expenses............................ 77,005 73,153 222,336 209,837
------------ ------------ ------------- ------------
Operating income from hotel-casino operations.. 11,375 9,918 44,669 34,231
Corporate expenses (1)......................... 1,541 2,253 6,368 6,774
------------ ------------ ------------- ------------
Total operating income......................... $ 9,834 $ 7,665 $ 38,301 $ 27,457
============ ============ ============== ============
EBITDA, hotel-casino operations (2)............ $ 17,172 $ 15,328 $ 61,477 $ 50,281
------------ ------------ ------------- ------------
EBITDA, total (including corporate) (2)........ $ 15,959 $ 13,862 $ 56,833 $ 45,868
------------ ------------ ------------- ------------
</TABLE>
(1) Corporate expenses include corporate general and administrative expenses,
depreciation and amortization, pre-opening expenses and, prior to July 1,
1999, land lease expenses, both cash and deferred, on the Suncoast land.
Suncoast land lease expenses subsequent to July 1, 1999, the date we
commenced construction on the Suncoast, are being capitalized.
(2) "EBITDA" means earnings before interest, taxes, depreciation, amortization,
deferred (non-cash) rent expense and certain non-recurring items, including
pre-opening expenses. EBITDA should not be construed as an alternative to
operating income or net income, as determined in accordance with generally
accepted accounting principles, as an indicator of the Company's operating
performance, or as an alternative to cash flows generated by operating,
investing and financing activities, as determined in accordance with
generally accepted accounting principles, as an indicator of cash flows or
a measure of liquidity. EBITDA is presented solely as supplemental
disclosure because management believes that it is a widely used measure of
operating performance in the gaming industry. All companies do not
calculate EBITDA in the same manner. As a result, EBITDA as presented here
may not be comparable to a similarly titled measure presented by other
companies.
Three Months Ended September 30, 1999 Compared to Three Months Ended September
30, 1998 and Nine Months Ended September 30, 1999 Compared to Nine Months Ended
September 30, 1998
Net revenues in the quarter ended September 30, 1999 were $88.4 million
compared to $83.1 million in the same quarter in 1998, an increase of 6.4%. For
the first nine months of 1999, net revenues were $267.0 million, an increase of
9.4% over revenues of $244.1 million in the same period in 1998. Third quarter
operating income was $9.8 million compared to $7.7 million in 1998, an increase
of 28.3%. For the nine months ended September 30, 1999, operating income was
$38.3 million, an increase of 39.5% over operating income of $27.5 million in
the same period in 1998. Net income for the quarter ended September 30, 1999 was
$3.5 million compared to $424,000 in the same quarter of 1998. An extraordinary
item of $27.0 million, net of income tax benefit, from the early retirement of
debt in the quarter ended March 31, 1999, resulted in a net loss of $12.5
million in the first nine months of 1999, compared to net income of $4.8 million
in the first nine
8
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (Continued)
Results of Operations (Continued)
months of 1998. Net income before extraordinary item for the nine months ended
September 30, 1999 was $14.5 million compared to $4.8 million in the same period
in 1998.
Casino. Casino revenues in the quarter ended September 30, 1999 were $64.8
million, an increase of 6.2% compared to casino revenues of $61.0 million in the
same quarter in 1998. The increase was primarily due to a 16.4% increase in
slot revenues at The Orleans. Slot revenues also increased at both the Gold
Coast and Barbary Coast, but table games win percentages were lower than
historical averages at all three properties in the quarter. In the nine months
ended September 30, 1999, casino revenues were $195.4 million, an increase of
9.7% over 1998 revenues of $178.1 million. The increase was due primarily to
increased slot revenues at The Orleans, Gold Coast and Barbary Coast, which were
up 24.0%, 6.8% and 16.4%, respectively.
Casino expenses in the quarter ended September 30, 1999 increased by 3.5%
over the same quarter in 1998, primarily due to wage increases in July at all
three properties. The casino operating margin increased to 48.9% compared to
47.6% in the third quarter of 1998. For the nine months ended September 30,
1999, casino expenses increased 3.6%, primarily due to increased promotional
expenses and the wage increases discussed above. The casino operating margin
increased to 50.3% from 47.3% in the nine months ended September 1998.
Food and Beverage. Food and beverage revenues were $17.8 million in the
third quarter of 1999 compared to $16.4 million in 1998, an increase of 8.2%.
The increase was due primarily to the new buffet at The Orleans, which opened in
May 1999. For the nine months ended September 30, 1999, food and beverage
revenues were $53.4 million, increasing 8.5% over 1998 revenues of $49.2 million
in the same period, primarily due to increased buffet revenues at The Orleans.
Food and beverage expenses were $12.9 million in the third quarter of 1999
compared to $11.8 million in the third quarter of 1998, an increase of 9.6%.
Third quarter food and beverage operating margin declined to 27.2% from 28.2% in
the prior year, primarily as a result of the higher labor costs and cost of
sales related to the new buffet at The Orleans. For the nine months ended
September 30, 1999, food and beverage expenses increased 5.7%. While the higher
operating costs related to the new buffet at The Orleans may affect operating
margins on a going-forward basis, the food and beverage operating margin in the
first nine months of 1999 improved to 30.0% compared to 28.1% in 1998.
Hotel. Hotel room revenues were $7.2 million in the three months ended
September 30, 1999, an increase of 3.4% over 1998 revenues of $6.9 million.
Each of our three hotel properties continued to experience strong room occupancy
percentages, with a combined occupancy rate of 96.3% for the quarter compared to
95.8% in the third quarter of 1998. In addition, average daily room rates were
slightly higher in the quarter compared to the prior year. For the nine months
ended September 30, 1999, hotel room revenues were $22.5 million compared to
$21.1 million in the first nine months of 1998. The combined occupancy rate for
our three hotel properties for the first nine months of 1999 was 96.3% compared
to 92.5% in 1998. For the nine month period, average daily room rates at each
of our hotel properties were slightly higher than in the first nine months of
1998.
Other. Other revenues were $7.2 million for the three months ended
September 30, 1999, an increase of 10.1% over 1998 other revenues of $6.6
million, primarily due to the opening of a liquor store in the expansion of The
Orleans, as well as increased rental income due to higher movie theater revenues
at that property. Costs related to the other revenues increased 5.3% in the
period due to expenses related to the new liquor store. For the nine months
ended September 30, 1999, other revenues increased 14.9% to $21.4 million
compared to $18.7 million in the first nine months of 1998, primarily due to
increased revenues at the Gold Coast and The Orleans showrooms, bowling centers,
gift shops and liquor stores. Costs related to the other revenues increased
14.5% in the nine months ended September 30, 1999, in line with the increase in
revenues.
9
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (Continued)
Results of Operations (Continued)
General and Administrative. General and administrative expenses were $16.5
million in the third quarter of 1999, an increase of 3.0% over 1998 expenses of
$16.1 million. The increase was due, in part, to wage increases at our three
hotel-casinos. For the nine months ended September 30, 1999, general and
administrative expenses were $47.6 million compared to $43.9 million in the same
period in 1998, an increase of 8.3%. In addition to wage increases, an
expansion completed at The Orleans in May 1999 resulted in higher utility costs
and increased staffing in several ancillary departments.
Deferred Rent. Deferred rent in the third quarter of 1999 decreased from
$1.0 million in 1998 to $519,000 in 1999 as we began capitalizing rent expense
for the land upon which we started construction of the Suncoast on July 1, 1999.
For the nine months ended September 30, 1999, deferred rent expense was $2.4
million compared to $3.0 million in the same period in 1998.
Interest expense. Interest expense was lower in the third quarter and in
the first nine months of 1999 compared to the same periods in 1998, primarily as
a result of our debt refinancing in March 1999. The refinancing reduced the
weighted average interest rate on our outstanding indebtedness to approximately
9.0% from approximately 12.4% at December 31, 1998. In connection with the
commencement of construction of the Suncoast on July 1, 1999, we began to
capitalize interest expense during the third quarter.
Liquidity and Capital Resources
Our principal sources of liquidity have consisted of cash provided by
operating activities and debt financing. Cash provided by operating activities
was $50.1 million in the nine months ended September 30, 1999, compared to
$28.6 million in the same period in 1998. The increase was due primarily to
the increased operating income of Coast Hotels.
Our estimated cash requirements for 1999 include interest payments on
outstanding indebtedness and principal payments of approximately $15.6 million
on equipment notes payable, $15.5 million of which was paid in the nine months
ended September 30, 1999. Additional cash requirements include land lease
payments of approximately $4.6 million, including $3.4 million paid in the nine
months ended September 30, 1999, and budgeted capital expenditures at our
existing properties of approximately $24.6 million. Of the budgeted capital
expenditures, we incurred $19.4 million in the nine months ended September 30,
1999, including $10.6 million related to an expansion project at The Orleans
which was completed in May 1999. Included in the $24.6 million capital
expenditure budget is $11.0 million for maintenance capital expenditures,
including $8.8 million expended in the first nine months.
In July 1999, we began construction of our newest hotel-casino, the
Suncoast, which has an estimated construction and development budget of $185.0
million and an estimated completion date of September 2000. We have expended
$12.7 million on the Suncoast project, including $9.4 million in the first nine
months of 1999. For the remainder of 1999, we estimate additional expenditures
related to the Suncoast construction will total approximately $30.0 million.
10
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (Continued)
Liquidity and Capital Resources (Continued)
We believe that existing cash balances, operating cash flow and available
borrowings under our $200.0 million credit facility will provide sufficient
resources to meet our debt and lease payment obligations, foreseeable capital
expenditure requirements at our existing properties and the construction and
development of the Suncoast.
In March 1999, Coast Hotels issued $175.0 million principal amount of 9.5%
senior subordinated notes with interest payable on April 1 and October 1
beginning October 1, 1999 and entered into a $75.0 million senior secured
revolving credit facility due 2004 to facilitate a refinancing. Availability
under the credit facility was increased to $200 million in September 1999,
subject to satisfaction of several conditions which were met subsequent to
September 1999. Borrowings under the credit facility bear interest, at Coast
Hotels' option, at a premium over the one-, two-, three- or six-month London
Interbank Offered Rate ("LIBOR"). As of September 30, 1999 the interest rate was
7.41%. Coast Hotels incurs a commitment fee, payable quarterly in arrears, on
the unused portion of the credit facility. This variable fee is currently at the
maximum rate of 0.5% per annum times the average unused portion of the facility.
With the proceeds from the senior subordinated notes and borrowings under
the credit facility, we repurchased substantially all of the $175.0 million
principal amount outstanding of 13% first mortgage notes and all $16.8 million
principal amount outstanding of 10-7/8% first mortgage notes and amended the
indenture under which the 13% first mortgage notes were issued to eliminate
substantially all of its restrictive covenants. Approximately $2.0 million in
principal amount of the 13% first mortgage notes remain outstanding and are
governed by the terms of the amended indenture. In connection with the
repurchase of the 13% notes and the 10-7/8% notes, we incurred repurchase
premiums of $31.0 million and $2.1 million, respectively. The repurchase
premiums and the write-offs of unamortized debt issuance costs and original
issue discount resulted in an extraordinary loss of $27.0 million, net of
applicable income tax benefit of $14.5 million.
The availability under the $200.0 million credit facility will be reduced
in quarterly amounts beginning in the fiscal quarter ending September 30, 2001.
The initial advance of $47.0 million under the credit facility was used in
connection with the repurchase of the 13% first mortgage notes and the 10-7/8%
first mortgage notes. Subsequent advances under the credit facility may be used
for working capital, general corporate purposes, construction of the Suncoast,
and certain improvements to our existing properties. As of September 30, 1999,
we have borrowed $50.0 million under the $200.0 million credit facility.
Year 2000
Many currently installed computer systems and other equipment with embedded
computer chips cannot recognize dates after December 31, 1999. Beginning in the
year 2000, companies with such systems, software or equipment may experience
difficulties due to their reliance on them. This situation involving the year
2000 is commonly referred to as the "Y2K" problem.
11
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (Continued)
Year 2000 (Continued)
We utilize computer systems in virtually all areas of our hotel-casino
operations. Should we or certain of our vendors not be "Y2K compliant" the
operations of our hotel-casinos could be disrupted for an indeterminate period
of time, potentially having a material adverse impact on our results of
operations. Possible consequences of our not being Y2K compliant include, but
are not limited to, problems with the compiling of financial information in our
back-office accounting, purchasing, inventory and payroll systems. Additionally,
disruptions could occur to hotel reservations operations, hotel check-in/check-
out procedures, point-of-sale transactions in food, beverage and retail areas,
race and sports book wagering and the updating and accumulation of slot machine
player marketing information. Additionally, embedded microchips in certain
systems such as elevators, escalators and the heating, ventilation and air
conditioning could lead to interruptions in service. All of these problems could
inconvenience hotel and casino customers, resulting in a loss of business.
We could also be exposed to Y2K problems should certain of our suppliers
have disruptions to their operations due to Y2K problems. We do not consider
these potential problems to be as significant as those with our own systems
because, in most instances, we could find alternate vendors for our supplies.
However, Y2K problems for certain suppliers, such as utility providers, could
result in disruptions to hotel-casino operations for an indeterminate period of
time. Additionally, should providers of financial services such as ATM's, credit
card processing and credit card cash advance experience Y2K problems, our
operations could be adversely affected.
We recognize the need to ensure our operations will not be adversely
affected by Y2K and have taken steps to update our systems, where necessary,
including replacing or updating software and equipment. Since 1997, our
Information Systems department has attempted to identify all areas where Y2K
could pose a problem. To assist them in their effort and to further help
identify potential problem areas, in October 1998 we retained the services of an
advisor to review our Y2K program.
As of September 30, 1999, we have identified and updated or are in the
process of updating those systems and programs that we deem most critical to the
day-to-day operations of our hotel-casinos. Based on representations from our
software vendors, we are currently using Year 2000 compliant software for our
accounting, human resources, payroll, inventory, purchasing, hotel front desk
and reservations, casino player tracking and marketing, race and sports
wagering, bowling and point of sale systems. We estimate that the cost to
identify and correct potential Y2K problems will total approximately $1.6
million, approximately $1.3 million of which had been spent as of September 30,
1999. All costs related to software modification, as well as all costs
associated with our Y2K project, are being expensed or capitalized as incurred
and are included in the cost estimate referred to above. We are currently
developing contingency plans for specific areas of our operations. Such plans
include the training of employees in the implementation of manual procedures for
gaming operations, the selection of alternative vendors and the testing of back-
up electrical power generators. We will continue to assess Y2K risk and develop
contingency plans.
Forward Looking Statements
The statements in this Management's Discussion and Analysis which are not
historical facts are forward looking statements that are made pursuant to the
Safe Harbor provisions of the Private Securities Litigation Reform Act of 1995.
The statements are subject to risks and uncertainties, including, but not
limited to, increased competition, both in Nevada and other jurisdictions,
dependence on the Las Vegas area and the Southern California region for a
majority of the Company's customers, uncertainties associated with the Y2K
problem and uncertainties associated with construction projects, including the
related disruption of operations and the availability of financing which could
cause actual results to vary materially from those discussed herein.
Item 3. Quantitative and Qualitative Disclosures about Market Risk.
Not Applicable.
12
<PAGE>
PART II. OTHER INFORMATION
Item 1. Legal Proceedings.
None.
Item 2. Changes in Securities.
None.
Item 3. Defaults Upon Senior Securities.
None.
Item 4. Submission of Matters to a Vote of Security Holders.
None.
Item 5. Other Information.
None.
Item 6. Exhibits and Reports on Form 8-K:
(a) Exhibits.
10.48 Amended and Restated Loan Agreement dated as of September 16,
1999
27. Financial Data Schedule.
(b) Reports on Form 8-K.
On July 6, 1999, the Company filed a Form 8-K dated June 22, 1999
under Item 5, Other Events, with respect to the commencement of Coast Hotel's
offer to exchange up to $175.0 million principal amount of newly issued 9-1/2%
Senior Subordinated Notes Due 2009 for a like amount of its outstanding
privately placed 9-1/2% Senior Subordinated Notes Due 2009.
13
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Quarterly Report on Form 10-Q to be signed on
its behalf by the undersigned thereunto duly authorized.
Date: November 15, 1999 COAST RESORTS, INC., a Nevada corporation
By: /s/ Gage Parrish
---------------------------------
Gage Parrish
Vice President and Chief Financial Officer
14
<PAGE>
EXHIBIT 10.48
EXECUTION
================================================================================
================================================================================
AMENDED AND RESTATED
LOAN AGREEMENT
Dated as of September 16, 1999
among
COAST HOTELS AND CASINOS, INC.
as Borrower,
The Lenders, Syndication Agent, Senior Managing Agent, Co-Agents referred to
herein
and
BANK OF AMERICA, N.A.,
as Administrative Agent
BANC OF AMERICA SECURITIES, LLC
Lead Arranger and Sole Book Manager
================================================================================
================================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
Article 1 DEFINITIONS AND ACCOUNTING TERMS.................................... 1
1.1 Defined Terms............................................... 2
1.2 Use of Defined Terms........................................ 32
1.3 Accounting Terms............................................ 32
1.4 Rounding.................................................... 32
1.5 Exhibits and Schedules...................................... 32
1.6 References to "and its Subsidiaries"........................ 33
1.7 References to Times......................................... 33
1.8 Miscellaneous Terms......................................... 33
Article 2 LOANS............................................................... 34
2.1 Loans-General............................................... 34
2.2 Base Rate Loans............................................. 35
2.3 LIBOR Loans................................................. 35
2.4 Letters of Credit........................................... 36
2.5 Voluntary Reduction of Commitment........................... 39
2.6 Scheduled Mandatory Reductions of Commitment................ 40
2.7 Other Mandatory Reductions of Commitment.................... 40
2.8 Administrative Agent's Right to Assume Funds
Available for Advances...................................... 40
2.9 Swing Line.................................................. 40
Article 3 PAYMENTS AND FEES................................................... 43
3.1 Principal and Interest...................................... 43
3.2 Upfront Fees and Arrangement Fees........................... 44
3.3 Commitment Fees............................................. 44
3.4 Letter of Credit Fees....................................... 44
3.5 Agency Management Fees...................................... 45
3.6 Construction Services Fees.................................. 45
3.7 Increased Commitment Costs.................................. 45
3.8 LIBOR Costs and Related Matters............................. 45
3.9 Late Payments............................................... 49
3.10 Computation of Interest and Fees............................ 49
3.11 Non-Banking Days............................................ 49
3.12 Manner and Treatment of Payments............................ 49
3.13 Funding Sources............................................. 51
3.14 Failure to Charge Not Subsequent Waiver..................... 51
3.15 Administrative Agent's Right to Assume
Payments Will be Made by Borrower........................... 51
</TABLE>
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<TABLE>
<S> <C>
3.16 Fee Determination Detail.................................... 51
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........................................... 53
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....................................................... 54
4.14 Regulations T, U and X; Investment Company Act.............. 55
4.15 Disclosure.................................................. 55
4.16 Tax Liability............................................... 55
4.17 Projections................................................. 55
4.18 Hazardous Materials......................................... 55
4.19 Gaming Laws................................................. 56
4.20 Security Interests.......................................... 56
4.21 Year 2000 Compliance........................................ 56
Article 5 AFFIRMATIVE COVENANTS(OTHER THAN INFORMATION
AND REPORTING REQUIREMENTS)............................................ 57
5.1 Payment of Taxes and Other Potential Liens.................. 57
5.2 Preservation of Existence................................... 57
5.3 Maintenance of Properties................................... 57
5.4 Maintenance of Insurance.................................... 57
5.5 Compliance With Laws........................................ 58
5.6 Inspection Rights - Completion of Construction.............. 58
5.7 Keeping of Records and Books of Account..................... 58
5.8 Compliance With Agreements.................................. 58
5.9 Use of Proceeds............................................. 58
5.10 Hazardous Materials Laws.................................... 59
5.11 Retirement of Debt.......................................... 59
5.12 Pledge of Stock............................................. 59
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
5.13 Sale of Barbary Coast....................................... 59
Article 6 NEGATIVE COVENANTS.................................................. 61
6.1 Prepayment of Indebtedness.................................. 61
6.2 Payment of Subordinated Obligations and the
Former Partner Debt......................................... 61
6.3 Disposition of Property..................................... 61
6.4 Hostile Tender Offers....................................... 62
6.5 Mergers..................................................... 62
6.6 Distributions............................................... 63
6.7 ERISA....................................................... 64
6.8 Change in Nature of Business................................ 64
6.9 Liens, Negative Pledges and Rights of Others................ 64
6.10 Indebtedness and Contingent Obligations..................... 65
6.11 Transactions with Affiliates................................ 66
6.12 Senior Leverage Ratio....................................... 67
6.13 Total Leverage Ratio........................................ 67
6.14 Fixed Charge Coverage Ratio................................. 67
6.15 Capital Expenditures........................................ 67
6.16 Acquisitions and Investments................................ 68
6.17 New Subsidiaries............................................ 69
6.18 Changes to Certain Obligations.............................. 69
6.19 Construction of the Sun Coast Project....................... 69
Article 7 INFORMATION AND REPORTING REQUIREMENTS.............................. 73
7.1 Financial and Business Information.......................... 73
7.2 Compliance Certificates..................................... 75
Article 8 CONDITIONS.......................................................... 76
8.1 The Effective Date.......................................... 76
8.2 Any Advance................................................. 77
8.3 Outstanding Obligations in Excess of $75,000,000............ 78
8.4 Conditions to Advances...................................... 80
Article 9 EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT................ 82
9.1 Events of Default........................................... 82
9.2 Remedies Upon Event of Default.............................. 83
Article 10 THE ADMINISTRATIVE AGENT........................................... 87
10.1 Appointment and Authorization............................... 87
10.2 Administrative Agent and Affiliates......................... 87
10.3 Proportionate Interest in any Collateral.................... 87
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
10.4 Lenders' Credit Decisions................................. 88
10.5 Action by Administrative Agent............................ 88
10.6 Liability of Administrative Agent......................... 89
10.7 Indemnification........................................... 90
10.8 Successor Administrative Agent............................ 90
10.9 Foreclosure on Collateral................................. 91
10.10 No Obligations of Borrower................................ 91
10.11 Permitted Release of Collateral........................... 91
Article 11 MISCELLANEOUS.................................................... 92
11.1 Cumulative Remedies; No Waiver............................ 92
11.2 Amendments; Consents...................................... 92
11.3 Costs, Expenses and Taxes................................. 93
11.4 Nature of Lenders' Obligations............................ 94
11.5 Survival of Representations and Warranties................ 94
11.6 Notices................................................... 94
11.7 Execution of Loan Documents............................... 94
11.8 Binding Effect; Assignment................................ 95
11.9 Right of Setoff........................................... 97
11.10 Sharing of Setoffs........................................ 97
11.11 Indemnity by Borrower..................................... 98
11.12 Nonliability of the Lenders............................... 99
11.13 No Third Parties Benefitted............................... 99
11.14 Confidentiality........................................... 100
11.15 Further Assurances........................................ 100
11.16 Integration; Principles of Restatement.................... 100
11.17 Governing Law............................................. 101
11.18 Severability of Provisions................................ 101
11.19 Headings.................................................. 101
11.20 Time of the Essence....................................... 101
11.21 Foreign Lenders and Participants.......................... 101
11.22 Hazardous Material Indemnity.............................. 102
11.23 Gaming Boards............................................. 103
11.24 Waiver of Right to Trial by Jury.......................... 103
11.25 Purported Oral Amendments................................. 104
</TABLE>
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<PAGE>
Schedules and Exhibits
- ----------------------
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
Schedule 8.3 Significant SunCoast Features, Budget and Timetable Features
Exhibit A - Assignment Agreement
Exhibit B - Compliance Certificate
Exhibit C - Note
Exhibit D - Request for Letter of Credit
Exhibit E - Request for Loan
-v-
<PAGE>
AMENDED AND RESTATED LOAN AGREEMENT
-----------------------------------
Dated as of September 16, 1999
This Amended and Restated Loan Agreement ("Agreement") is entered into
by and among Coast Hotels and Casinos, Inc., a Nevada corporation ("Borrower"),
Wells Fargo Bank, N.A., as Syndication Agent, Bank of Scotland, as Senior
Managing Agent, Bank One, N.A. and The CIT Group/Equipment Financing, Inc., as
Co-Agents, 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 Section 11.8 (collectively, the "Lenders" and individually, a
"Lender") and Bank of America, N.A., as Administrative Agent with reference to
the following facts:
A. Bank of America, N.A. (acting under its former name, Bank of America
National Trust and Savings Association), as sole initial Lender and
Administrative Agent and Borrower have heretofore entered into a Loan Agreement
dated as of March 18, 1999, pursuant to which Loans and Letters of Credit in an
aggregate principal amount not to exceed $75,000,000 have been made available to
Borrower (the "Existing Loan Agreement").
B. The Existing Loan Agreement provides, inter alia, for the increase of
the Commitment thereunder to $200,000,000.
C. The Borrower has heretofore granted liens in certain of its assets to
secure the Obligations under the Existing Loan Agreement and the other Loan
Documents, and Coast Resorts has issued a secured Guaranty thereof dated as of
the Closing Date.
D. By this Agreement, Borrower and Bank of America desire to admit the
lenders signatory hereto as additional Lenders under the Existing Loan
Agreement, to increase the Commitment from $75,000,000 to $200,000,000 and,
subject to Section 11.16, to amend and restate the Existing Loan Agreement in
its entirety as set forth herein.
E. On the Effective Date, Bank of America, N.A. shall be deemed to have
assigned to each other Lender, without recourse, representation or warranty of
any kind, except for those representations and warranties set forth in Section
11.8(c), a Pro Rata Share in an amount equal to the Note delivered to such
Lender pursuant to Section 8.1(a).
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
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<PAGE>
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:
"13% Indenture" means the Indenture, dated as of January 30, 1996,
-------------
under which Borrower's 13% First Mortgage Notes Due 2002 were issued.
"13% First Mortgage Debt" means the Indebtedness outstanding under the
-----------------------
13% Indenture.
"1999 Indenture" means the Indenture, dated as of March 23, 1999,
--------------
under which Borrower's 9.5% Senior Subordinated Notes Due 2009 were
issued substantially contemporaneously with the Closing Date.
"1999 Senior Subordinated Debt" means the Indebtedness outstanding
-----------------------------
under the 1999 Indenture.
"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 and includes Advances under the Existing Loan
Agreement outstanding on Effective Date.
"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
-2-
<PAGE>
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).
"Agreement" means this Loan Agreement, either as originally executed
---------
or as it may from time to time be supplemented, modified, amended,
restated or extended.
"Allocation Notice" means a written notice heretofore delivered by the
-----------------
Administrative Agent and Borrower to each Lender setting forth the amount
of that Lender's Pro Rata Share.
"Assignment Agreement" means an Assignment Agreement substantially in
--------------------
the form of Exhibit A.
"Bank of America" means Bank of America, N.A., 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.
-3-
<PAGE>
"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 and includes all
Advances outstanding on Effective Date.
"Base Rate Loan" means a Loan made hereunder and specified to be a
--------------
Base Rate Loan in accordance with Article 2.
"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:
<TABLE>
<CAPTION>
----------------------------------------------------------------------
Total Leverage Ratio Base Rate Margin
-------------------- ----------------
----------------------------------------------------------------------
<S> <C>
Greater than or equal to 4.00:1.00 1.25%
----------------------------------------------------------------------
Less than 4.00:1.00 but greater 1.00%
than or equal to 3.50:1.00
----------------------------------------------------------------------
Less than 3.50:1.00 but greater 0.75%
than or equal to 3.00:1.00
----------------------------------------------------------------------
Less than 3.00:1.00 but greater 0.50%
than or equal to 2.50:1.00
----------------------------------------------------------------------
Less than 2.50:1.00 but greater 0.25%
than or equal to 2.00:1.00
----------------------------------------------------------------------
----------------------------------------------------------------------
Less than 2.00:1.00 0.00%
----------------------------------------------------------------------
</TABLE>
"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 Sun Coast 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.
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<PAGE>
"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:
(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
-5-
<PAGE>
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 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 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
-6-
<PAGE>
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 March 22, 1999.
------------
"Co-Agents" means, collectively, Bank One, N.A. and The CIT
---------
Group/Equipment Financing, Inc. The capacities of the Co-Agents are
titular in nature, and Bank One, N.A. and The CIT Group/Equipment
Financing, Inc. shall have no rights, obligations or duties above those
of the other Lenders by reason of the title.
"Coast Resorts" means Coast Resorts, Inc., a Nevada corporation and
-------------
direct parent corporation of Borrower.
"Coast Resorts Pledge Agreement" means a pledge agreement to be
------------------------------
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 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 the Security Agreement dated
--------------------------------
as of March 18, 1999 executed by Coast Resorts in favor of the
Administrative Agent for the benefit of the Creditors, 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 decrease in the amount thereof
----------
pursuant to Sections 2.5, 2.6, or 2.7, $200,000,000.
-7-
<PAGE>
"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:
<TABLE>
<CAPTION>
Total Leverage Ratio Commitment Fee Rate
------------------------------------- -----------------------------
<S> <C>
Greater than or equal to 3.00:1.00 0.500%
------------------------------------- -----------------------------
Less than 3.00:1.00 but greater 0.375%
than or equal to 2.00:1.00
------------------------------------- -----------------------------
Less than 2.00:1.00 0.300%
------------------------------------- -----------------------------
</TABLE>
"Completion Date" means October 1, 2000, the date scheduled as of the
---------------
Effective Date for the completion of the Sun Coast Project and the
Opening, which date may be extended by the Borrower to not later than
January 1, 2001.
"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
-8-
<PAGE>
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 Syndication Agent, the Senior Managing Agent, the Co-Agents,
the Swing Line Lender, the Lenders and the Lead Arranger.
"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.
"Deeds of Trust" means the Orleans Deed of Trust, the Gold Coast Deed
--------------
of Trust and the Sun Coast Project Deed of Trust, and each other mortgage
or deed of trust hereafter delivered pursuant to 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
-9-
<PAGE>
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 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
-10-
<PAGE>
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 Sun Coast
Project will be annualized on a straight line basis.
"Effective Date" means the date upon which each of the conditions
--------------
precedent set forth in Section 8.1 to the effectiveness hereof are
satisfied or waived.
"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.
"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
-11-
<PAGE>
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.
----------------
"Existing Loan Agreement" shall have the meaning provided in the
-----------------------
recitals hereto.
"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.
"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.
-12-
<PAGE>
"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(b).
"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 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.
-13-
<PAGE>
"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 dated as of March 18, 1999 executed and delivered by Borrower in
favor of the Administrative Agent for the benefit of the Creditors 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 Effective 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. (S) 9601 et seq., or as hazardous or toxic
wastes or pollutants pursuant to the Hazardous Materials Transportation Act, 49
U.S.C. (S) 1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C.
(S) 6901, et seq., or (b) any other Law regulating hazardous substances or
hazardous or toxic wastes or pollutants or regulating the generation, use,
storage, treatment, handling or
-14-
<PAGE>
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.
-15-
<PAGE>
"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, N.A., 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.
"Lead Arranger" means Banc of America Securities, LLC.
-------------
"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 and includes all
-16-
<PAGE>
Letters of Credit outstanding on the Effective Date.
"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 = Eurodollar 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 and includes all LIBOR Advances outstanding
on the Effective Date.
"LIBOR Loan" means a Loan made hereunder and specified to be a LIBOR Loan
----------
in accordance with Article 2 and includes all LIBOR Loans outstanding on the
Effective Date.
'Conditional End of Page' code here: keep together 12 lines.
"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:
<TABLE>
<CAPTION>
------------------------------------------------------------------
Total Leverage Ratio LIBOR Margin
---------------------- -------------
<S> <C>
Greater than or equal to 4.00:1.00 2.50%
------------------------------------------------------------------
Less than 4.00:1.00 but greater than 2.25%
or equal to 3.50:1.00
------------------------------------------------------------------
Less than 3.50:1.00 but greater than 2.00%
or equal to 3.00:1.00
------------------------------------------------------------------
Less than 3.00:1.00 but greater than 1.75%
or equal to 2.50:1.00
------------------------------------------------------------------
Less than 2.50:1.00 but greater than 1.50%
or equal to 2.00:1.00
------------------------------------------------------------------
Less than 2.00:1.00 1.25%
------------------------------------------------------------------
</TABLE>
"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,
-17-
<PAGE>
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.
"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 and includes all Loans outstanding on the
Effective Date.
"Loan Documents" means, collectively, this Agreement, the Notes, each
--------------
Lender's Allocation Notice, 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 Effective Date,
(b) following the Opening, the Sun Coast 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.
-18-
<PAGE>
"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 (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 September 15, 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.
"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,
substan-
-19-
<PAGE>
tially 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 Sun Coast Project, together
-------
with each of the material amenities described in Schedule 8.3 or 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 Sun Coast Project, and (c) Borrower has delivered a
certificate to the Administrative Agent, executed by a Senior Officer of
Borrower, stating that (i) the Sun Coast Project, including all related
amenities described in Schedule 8.3 or 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 Sun Coast
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 Sun Coast 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 Sun
Coast Project, and (iii) 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 Sun Coast 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 Effective Date and in a form solely acceptable to the
Administrative Agent, together with copies of all factual certificates and legal
opinions upon which
-20-
<PAGE>
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 dated as of March 18, 1999 executed and delivered by
Borrower in favor of the Administrative Agent for the benefit of the Creditors
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.
"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.
-21-
<PAGE>
"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;
(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
--------
-22-
<PAGE>
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 8.1; 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, 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,
-23-
<PAGE>
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 Sun Coast Project, and, if required, submitted to
and approved by the Clark County Building Department, which Plans have been
submitted to 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 Effective Date and
--------------
ending on November 30, 1999, and (b) each of the succeeding three month periods
beginning on each March 1, June 1, September 1 and December 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 Sun Coast Project and any future
hotel-casino sites which Coast Resorts or any of its Subsidiaries hereafter
maintains or operates.
"Projections" means the Projection Model prepared based on information
-----------
provided by Borrower and contained in the Confidential Information Memorandum
dated June, 1999 heretofore distributed to the Lenders.
"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
-24-
<PAGE>
Commitment has been terminated, the percentage of the Outstanding Obligations
owned by that Lender). As of the Effective Date, the Pro Rata Share of each
Lender is as set forth in the Allocation Notice heretofore delivered to that
Lender and in its Note. The records of the Administrative Agent shall be
presumed to correctly reflect the Pro Rata Share of the Lenders then party to
this 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" or such lesser
amount to which that Reduction Amount may be reduced in accordance with the
second sentence of Section 2.5:
-25-
<PAGE>
<TABLE>
<CAPTION>
--------------------------------------------------------
Reduction Dates Reduction Amount
--------------- ----------------
--------------------------------------------------------
<S> <C>
09/30/01 $ 6,000,000
12/31/01 $ 6,000,000
03/31/02 $ 6,000,000
06/30/02 $ 6,000,000
09/30/02 $ 8,500,000
12/31/02 $ 8,500,000
03/31/03 $ 8,500,000
06/30/03 $ 8,500,000
09/30/03 $11,500,000
12/31/03 $11,500,000
03/31/04 $11,500,000
06/30/04 $11,500,000
Maturity $96,000,000
--------------------------------------------------------
</TABLE>
"Reduction Date" means September 30, 2001, and the last day of each
--------------
succeeding December, March, June and September 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.
"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
-26-
<PAGE>
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.
"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
-27-
<PAGE>
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 Administrative Agent for the benefit of the
Creditors, 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 Managing Agent" means Bank of Scotland. The capacity of the
---------------------
Senior Managing Agent is titular in nature, and Bank of Scotland shall have
no rights, obligations or duties above those of the other Lenders by reason
of the title.
"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 Effective Date of any Law or interpretation, or any change after the
Effective 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
-28-
<PAGE>
the force of Law) of any such Governmental Agency, central bank or
comparable authority issued after the Effective Date, or the existence or
occurrence after the Effective 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.
"Sun Coast Project Deed of Trust" means the Leasehold Deed of Trust,
-------------------------------
Assignment of Rents and Fixture Filing dated as of March 18, 1999 executed
and delivered by Borrower in favor of the Administrative Agent for the
benefit of the
-29-
<PAGE>
Creditors with respect to the Sun Coast Project Property and improvements
thereon, either as originally executed or as it may from time to time be
supplemented, modified, amended, extended or supplanted.
"Sun Coast 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 partnership, as tenant, as assigned to Coast West, Inc.,
and further assigned to Borrower on March 23, 1999 by operation of the
merger between Borrower and Coast West, Inc. which occurred on the Closing
Date.
"Sun Coast Project" means the proposed design, development and
-----------------
construction by Borrower of a hotel, casino and entertainment complex on
the Sun Coast Project Property.
"Sun Coast 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 Sun Coast Project Ground Lease.
"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.
"Swing Line" means the revolving line of credit established by the
----------
Swing Line Lender in favor of Borrower pursuant to Section 2.9.
"Swing Line Advances" means loans made by the Swing Line Lender to
-------------------
Borrower pursuant to Section 2.9 and includes all Swing Line Advances
outstanding on the Effective Date.
"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 dated as
--------------------
of the Closing Date (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.
-30-
<PAGE>
"Syndication Agent" means Wells Fargo Bank, N.A.. The capacity of the
-----------------
Syndication Agent is titular in nature, and Wells Fargo Bank, N.A. shall
have no rights, obligations or duties above those of the other Lenders by
reason of the title.
"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 Sun Coast Project
---------
specified by Borrower and approved by the Lenders pursuant to Section
8.1, 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.
"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
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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 dated as of March 18, 1999, executed by Borrower and Coast
Resorts in favor of the Administrative Agent for the benefit of the
Creditors, 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.
"Year 2000 Issue" means failure of computer software, hardware and
---------------
firmware systems, and equipment containing embedded computer chips, to
properly receive, transmit, process, manipulate, store, retrieve, re-
transmit or in any other way utilize data and information due to the
occurrence of the year 2000 or the inclusion of dates on or after January
1, 2000.
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.
1.5 Exhibits and Schedules. All Exhibits and Schedules to this
----------------------
Agreement, either as originally existing or as the same may from time
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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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2 Article
LOANS
-----
2.1 Loans-General.
-------------
(a) Subject to the terms and conditions set forth in this
Agreement, from time to time from the Effective 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,
provided that prior to the date upon which the conditions precedent set
-------- ----
forth in Section 8.3 are satisfied or waived by all of the Lenders, the
Outstanding Obligations shall not exceed $75,000,000. The proceeds of the
initial Advances made hereunder shall refinance the loans heretofore made
by Bank of America under the Existing Loan Agreement (except that Swing
Line Advances may remain outstanding in the discretion of Borrower and the
Swing Line Lender) 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
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$1,000,000 and is not less than $2,000,000.
(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 the applicable LIBOR (which
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<PAGE>
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) On the Effective Date, each letter of credit outstanding
under the Existing Loan Agreement shall be deemed to have been issued
hereunder, and each Lender shall thereupon acquire a participation interest
therein in accordance with its Pro Rata Share and the terms of this
Section. Subject to the terms and conditions hereof, at any time and from
time to time from the Effective 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,
(ii) the Aggregate Effective Amount under all outstanding Letters of Credit
shall not exceed $10,000,000 and (iii) prior to the date upon which the
conditions precedent set forth in Section 8.3 are satisfied or waived by
all of the Lenders, the Outstanding Obligations shall not exceed
$75,000,000.. 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
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<PAGE>
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 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
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<PAGE>
(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 documents presented in connection with any
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<PAGE>
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.
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,
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<PAGE>
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 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.
2.9 Swing Line. All outstanding Swing Line Advances heretofore made
----------
by the Swing Line Lender under the Existing Loan Agreement,
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may, in the discretion of Borrower and the Swing Line Lender remain outstanding
on the Effective Date and shall thereupon be deemed to be Swing Line Advances
hereunder, with each Lender having a participation therein in accordance with
its Pro Rata Share and the provisions of this Section. 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, (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,
and (iii) prior to the date upon which the conditions precedent set forth in
Section 8.3 are satisfied or waived by all of the Lenders, the Outstanding
Obligations shall not exceed $75,000,000. 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 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.
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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 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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3 Article
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));
(ii) the amount, if any, by which the Outstanding Obligations at
any time exceed the Commitment shall be payable immediately; and
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<PAGE>
(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 and Arrangement Fees. On the Effective Date,
---------------------------------
Borrower shall pay to the Administrative Agent upfront and arrangement fees in
the respective amounts heretofore agreed upon by a letter agreement between
Borrower and the Administrative Agent. The upfront 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 Effective Date and are nonrefundable. The arrangement fees are solely
for the account of the Lead Arranger for its services in acting as lead arranger
and sole book manager of the credit facilities contemplated hereby, are fully
earned as of the Effective Date, and are non-refundable.
3.3 Commitment Fees. From the Effective 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.
'Conditional End of Page' code here: keep together 6 lines.
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;
(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
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<PAGE>
(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 8.1(a)(8). 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 Effective 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 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:
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<PAGE>
(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, 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
-46-
<PAGE>
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 Effective 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 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 payment of a prepayment fee under Section 3.8(d). Each
Lender agrees
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<PAGE>
to endeavor promptly to notify Borrower of any event of which it has actual
knowledge, occurring after the Effective 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 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:
---
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<PAGE>
(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
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
------
2.9, 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
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<PAGE>
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 evidence 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 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.
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<PAGE>
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 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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<PAGE>
4 Article
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 requisite 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;
(d) Violate any Requirement of Law applicable to such Obligor in
any material respect;
(e) Result in a breach of or constitute a default
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<PAGE>
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 Effective Date or such other date as
is specified in Schedule 4.3.
4.4 Subsidiaries. As of the Effective 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. As of the Effective Date, Coast Resorts does not have
any Subsidiaries other than Borrower.
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 Effective 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 Effective Date,
since the Effective Date.
4.7 Title to Property. On the Effective Date and on each subsequent
-----------------
date, Borrower (a) holds valid title in fee simple to the Gold Coast Property
and all improvements 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 Sun Coast Project Ground 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
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<PAGE>
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 Effective 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.
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
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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 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 Effective 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
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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 securing principal Indebtedness in an aggregate amount not in
excess of $1,960,000, 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 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.
4.21 Year 2000 Compliance. Coast Resorts and its Subsidiaries have
--------------------
reviewed the effect of the Year 2000 Issue on the computer software, hardware
and firmware systems and equipment containing embedded microchips owned or
operated by or for Coast Resorts and its Subsidiaries. The costs to Coast
Resorts and its Subsidiaries of any reprogramming required as a result of the
Year 2000 Issue to permit the proper functioning of such systems and equipment
and the proper processing of data, and the testing of such reprogramming, and of
required systems changes are not reasonably expected to result in a Default or
to have a material adverse effect on the business, financial position, results
of operations or prospects of Coast Resorts and its Subsidiaries, considered as
a whole.
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5 Article
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
established 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 companies in such amounts and against such risks as is
carried by responsible companies engaged in similar businesses and
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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 Requirement 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 Sun Coast Project
and 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 8.1(a)(8). Through the Opening, Borrower
shall provide CSC with such information and access to the Sun Coast Project
Property and the Sun Coast 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 8.1(a)(8), 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 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 made on the
---------------
Effective Date, first, to refinance the Loans heretofore made under the
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Existing Loan Agreement, and on or after the Effective Date solely (a) to
finance capital improvements and expansion activities at The Orleans, the Gold
Coast and/or the Barbary Coast, (b) to finance development and construction
expenses at the Sun Coast Project, and (c) for other working capital and other
general corporate purposes including permitted future improvements to the Sun
Coast Project.
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
September 30, 1999.
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 twelve full calendar months immediately
preceding such Disposition (but not in excess of the amount of 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 Sun Coast
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, and any Net Cash Proceeds from the Disposition of the Rancho
Property, may be used for Distributions in accordance with Section 6.6(c), for
Capital Expenditures, Investments or Acquisitions made
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in accordance with Sections 6.15(d) or 6.16(i) or in accordance with the first
sentence of this Section.
5.14 Year 2000. Borrower shall use its best efforts to promptly and
---------
in any event by December 1, 1999 make, and to cause Coast Resorts and each of
its Subsidiaries to make, all required systems changes in computer software,
hardware and firmware systems and equipment containing embedded microchips owned
or operated by or for Coast Resorts and its Subsidiaries required as a result of
the Year 2000 Issue to permit the proper functioning of such computer systems
and other equipment, except to the extent that the failure to take any such
action would not reasonably be expected to result in a Default or to have a
material adverse effect on the business, financial position, results of
operations or prospects of Coast Resorts and its Subsidiaries, considered as a
whole. At the request of any Lender, Borrower shall provide, and shall cause
Coast Resorts and each of its Subsidiaries to provide, to such Lender reasonable
assurance of its compliance with the preceding sentence.
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6 Article
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 Sun Coast 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.
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,
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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;
(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;
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(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 Effective 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.
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
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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 Effective 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.
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
Effective Date and disclosed in Schedule 6.10, and renewals, extensions
or amendments that do not increase the amount thereof, provided that (i)
--------
the principal amount of the 1999 Senior Subordinated Debt shall not exceed
$175,000,000, and (ii) the 13% Mortgage Debt shall be in a principal amount
not in excess of
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$1,960,000 and 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, 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 Effective 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
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Borrower; (e) any construction and design contract for the Sun Coast 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, (g) any Tax Agreement providing for cash payments to the equityholders of
Coast Resorts not in excess of the Tax Amount, and (h) the Tax Sharing
Agreement.
6.12 Senior Leverage Ratio. Permit the Senior Leverage Ratio as of
---------------------
the last day of any Fiscal Quarter described in the matrix set forth below, to
exceed the ratio set forth opposite that Fiscal Quarter:
Fiscal Quarters Ending Maximum Ratio
---------------------- -------------
Effective Date through
June 30, 2001 2.75:1.00
Thereafter 2.50:1.00
provided that notwithstanding the matrix set forth above, the maximum permitted
- --------
Senior Leverage Ratio shall in any event reduce to 2.50:1.00 as of the last day
of the second full Fiscal Quarter which both commences and ends following the
Opening.
6.13 Total Leverage Ratio. Permit the Total Leverage Ratio as of the
--------------------
last day of any Fiscal Quarter described in the matrix set forth below, to
exceed the ratio set forth opposite that Fiscal Quarter:
Fiscal Quarters Ending Maximum Ratio
---------------------- -------------
Effective Date through
March 31, 2001 4.75:1.00
Thereafter 4.50:1.00
provided that notwithstanding the matrix set forth above, the maximum permitted
- --------
Total Leverage Ratio shall in any event reduce to 4.50:1.00 as of the last day
of the first full Fiscal Quarter which both commences and ends following the
Opening.
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
during any Fiscal Year, increasing, from and after the Opening, to
$22,000,000 during any Fiscal Year;
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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) other Capital Expenditures for the development of the Sun
Coast Project in an amount not to exceed $185,000,000 (excluding
capitalized interest);
(d) other Capital Expenditures in an amount expressly permitted
by the first sentence of Section 5.13, and
(e) other Capital Expenditures in an amount equal to any Net
Cash Proceeds from the Disposition of the Rancho Property and/or the
Barbary Coast (after making any required repayments of the Obligations
pursuant to Section 5.13) that are used (i) for the construction or
development of the Sun Coast Project, or (ii) following the Opening, for
any proper corporate purpose of Borrower and its Subsidiaries.
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 Effective Date (and/or the Sun
Coast 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;
(g) Investments made as a result of the receipt of non-cash
consideration from any Disposition permitted under Section 6.1;
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(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 Sun Coast Project.
-------------------------------------
(a) Fail to proceed diligently and without material
interruption to construct and furnish the Sun Coast Project in accordance
in all material respects with the Plans (and incorporating the amenities
described on Schedule 8.3), 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 such allocations) of the "contingency" line item in the
Budget to any line item not included in the Budget as of the Effective Date
without the prior written consent of the Requisite Lenders (not to be
unreasonably withheld or delayed), (ii) increase
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the overall Budget 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 Sun Coast 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 Schedule 8.3,
the Plans or Budget.
(c) Fail to construct the Sun Coast Project in a good and
workmanlike manner in accordance with sound building practices and
without material deviation from the Plans and Schedule 8.3, and comply in
all material respects with all existing Laws and requirements of all
Governmental Agencies having jurisdiction over the Sun Coast Project
Property or the Sun Coast Project and in all material respects with all
future Laws and requirements that become applicable to the Sun Coast
Project Property or the Sun Coast 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 Sun Coast 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 Sun Coast 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 Sun Coast Project as either
may reasonably request from time to time, including detailed
---------
identification of each significant subcontractor or supplier to the Sun
Coast Project and the nature and dollar amount of the related subcontract
or supply contract.
(g) Fail to properly obtain, comply with and keep in effect all
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permits, licenses and approvals which are customarily required to be
obtained from Governmental Agencies in order to construct and occupy the
Sun Coast 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 Sun Coast 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 Sun
Coast 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 Sun Coast Project certified as true and correct by the Sun Coast
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 Sun Coast 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 Sun Coast 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 Sun Coast Project having a
value in excess of $1,000,000 that are not located on the Sun Coast
Project Property, or will not be delivered to the Sun Coast 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 Sun Coast Project has been completed in
all material respects in accordance with the Plans and complies in all
material respects with all applicable
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zoning, building and land use Laws and that the Sun Coast Project is
ready to be opened for business together with a Certificate executed by a
Senior Officer to that effect.
(n) Fail, as soon as practicable after completion of the Sun
Coast Project, provide the Administrative Agent with an ALTA survey of
the Sun Coast Project Property that (i) demonstrates compliance of the
Sun Coast Project in all material respects with all applicable Laws and
requirements of Governmental Agencies, (ii) sets forth all recorded
easements and licenses burdening the Sun Coast Project Property, (iii)
reflects no encroachments onto the Sun Coast Project Property and no
encroachments by the Sun Coast Project onto adjoining real property
(other than as reflected on the ALTA Survey described in the definition
of Sun Coast Project Property) and (iv) certifies the legal description
of the Sun Coast Project Property to be the same as that set forth in the
title insurance policy referred to in Section 8.1.
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7 Article
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 of such accountants in the course of
such examination that would cause them
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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;
(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
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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 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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8 Article
CONDITIONS
----------
8.1 The Effective Date. The effectiveness of the amendment and
------------------
restatement of this Agreement on the Effective Date (as set forth herein) is
subject to the following conditions precedent, each of which shall be satisfied
prior to the effectiveness hereof (unless all of the Lenders, in their sole and
absolute discretion, shall agree otherwise):
(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,
each dated as of the Effective 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) Notes issued to each Lender in the principal amount of
that Lender's Pro Rata Share;
(3) a reaffirmation of the Guaranty and the other Loan
Documents executed by Coast Resorts;
(4) the fee letters with respect to certain fees as
described in Article 3, executed by Borrower;
(5) 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;
(6) the Opinions of Counsel;
(7) 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;
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<PAGE>
(8) A letter agreement with the Administrative Agent
setting forth the fees to be payable to CSC in connection with the Sun
Coast Project (which fees shall be mutually acceptable to the
Administrative Agent and the Borrower);
(9) a Certificate of a Responsible Official signed by a
Senior Officer of Borrower certifying that:
(a) the copies of the 13% Indenture, the 1999
Indenture, the Former Partner Debt, the Orleans Lease, the Sun
Coast Project Ground Lease, the Barbary Coast Lease, the
Barbary Coast Parking Lease and the Tax Sharing Agreement
delivered to the Administrative Agent on the Closing Date have
not been amended in any respect and may be relied upon by each
of the Lenders; and
(b) the conditions specified in Sections 8.1(c) and
8.1(d) have been satisfied;
(10) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent reasonably may
require.
(b) 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.
(c) The representations and warranties of Borrower contained in
Article 4 shall be true and correct.
(d) 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.
(e) The fees due and payable on the Effective Date pursuant to
Article 3 shall have been paid, and all interest, commitment fees and other
amounts which have accrued and remain unpaid under the Existing Loan
Agreement shall have been paid to Bank of America.
(f) 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
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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;
(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 Outstanding Obligations in Excess of $75,000,000. The
------------------------------------------------
obligation of (i) each Lender to make any Advance, (ii) the obligation of the
Issuing Lender to issue any Letter of Credit, and (iii) the obligation of the
Swing Line Lender to make any Swing Line Advance, in each case to the extent
that the making or issuance of the same would result in the Outstanding
Obligations being in excess of $75,000,000 for the first time, are each subject
to the conditions precedent that:
(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,
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) Amendments to the Deeds of Trust increasing the amounts
secured thereby to $200,000,000, executed and acknowledged by
Borrower;
(2) Such environmental reports and assessments as may have
been requested by the Administrative Agent or the Requisite Lenders in
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connection with the Sun Coast Project;
(3) 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
payable endorsements thereof on Form 438BFU or other form acceptable
to the Administrative Agent;
(4) assurances acceptable to the Administrative Agent that
Commonwealth Land Title Insurance Company is prepared to issue
indorsements to the ALTA lenders policy of title insurance issued to
the Administrative Agent on the Closing Date (A) increasing the
insurance provided thereunder to $200,000,000 (subject to tie-in
endorsements), with such assurances as the Administrative Agent may
reasonably require from title re-insurers acceptable to the
Administrative Agent, (B) assuring that the amendments to the Deeds of
Trust do not result in a loss of priority, and (C) as to such other
matters as the Administrative Agent or the Requisite Lenders may
reasonably request;
(5) Updates, restatements or replacements for the estoppels
provided pursuant to Section 8.1(a)(13) of the Existing Loan Agreement
as the Administrative Agent or the Requisite Lenders may require;
(6) evidence of such zoning (including variances and use
permits) and other land use entitlements as may be necessary to permit
the use of the Sun Coast Project as a hotel, casino and resort
property;
(7) an ALTA survey which (i) shows all "set-backs" and
other restrictions applicable to the Sun Coast Project Property
pursuant to 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 Sun Coast Project Property or from the Sun
Coast Project Property onto adjoining property, and (iv) certifies the
legal description of the Sun Coast Project Property as insured in the
Lenders' title policy with respect to the Sun Coast Project Property.
(8) 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.,
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and is correct and complete; that access to the Sun Coast Project
Property, and utilities shown on the survey, are sufficient and in
accordance with applicable requirements; that the Sun Coast Project
Property does not fall within a designated flood hazard area; and as
to such other matters as the Administrative Agent requires.
(9) 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 Sun Coast Project;
(10) a Certificate of a Responsible Official of Borrower,
certifying that attached thereto and incorporated by reference therein
are true, correct and complete copies of the Timetable, the Budget and
the Plans (each of which shall contain each of the elements referred
to in Schedule 8.3 and shall not be objectionable to the Requisite
Lenders);
(11) a geotechnical report by a qualified licensed soils
engineer satisfactory to the Lenders and certified as applicable to
the improvements of the Sun Coast Project Property contemplated by the
Sun Coast Project; and
(12) updates to the Opinions as to the authorization, due
execution and delivery and enforceability of the Loan Documents
delivered pursuant to this Section, and as to such other matters as
the Administrative Agent may reasonably request.
(b) 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 Effective Date, shall have been paid.
(c) All legal matters relating to the Loan Documents shall be
satisfactory to Sheppard, Mullin, Richter & Hampton, LLP, special counsel
to the Administrative Agent.
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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9 Article
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 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
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(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
(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
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(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 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,
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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, presentment, 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
(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
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Default occurs 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 Sun Coast 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 Sun Coast
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 Sun Coast Project, neither the Administrative Agent
nor the Lenders shall assume any liability to Borrower or any other Person
for completing the Sun Coast Project, or for the manner or quality of
construction of the Sun Coast 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.
(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
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date of such application (ratably, and without duplication, 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 Agent's then customary credit risk factor for Swap Agreements
times the notional amount of Indebtedness covered by such
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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 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
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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 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
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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.
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
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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 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) To amend or modify the principal of, or the amount of
principal or principal prepayments on any Note, to increase 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),
(b) Without the consent of the affected Lenders, to decrease the
rate of interest or amount of any fee payable to any Lender, 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;
(c) 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);
(d) To permit the term of any Letter of Credit to exceed one
year or extend beyond the Maturity Date;
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(e) to release any portion of the Collateral having an aggregate
value in excess of $500,000 (except as expressly provided in any Loan
------
Document);
(f) To amend the provisions of the definition of "Requisite
---------
Lenders", Section 8.2, Section 8.3 or this Section 11.2; or
--------
(g) 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 Section
11.3 shall bear interest from the fifth Banking Day following the date of demand
for payment at the Default Rate.
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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 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.
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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 Effective 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.
(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,
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<PAGE>
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
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 payable with respect
to the participation, any fee or any other monetary amount payable to the
participant, (C) reduce the
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amount of any installment of principal due under the Notes in a manner
which affects the participant, or (D) 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 Obligations 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 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. Borrower 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.
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11.11 Indemnity by Borrower. Borrower agrees to indemnify, save and
---------------------
hold harmless the Creditors and their directors, officers, agents, attorneys and
employees (collectively 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 determines in good
--------
faith that representing all such Indemnitees would or could result in a conflict
of 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
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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
(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 Benefitted. 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.
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11.14 Confidentiality. Subject to clause (b) of this Section, each
---------------
Lender agrees to hold any confidential information that it may receive from
Borrower pursuant to this Agreement in confidence, except for disclosure: (i)
------
to other Lenders; (ii) to legal counsel and accountants for Borrower or any
Lender; (iii) 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; (iv) to regulatory
officials having jurisdiction over that Lender; (v) to any Gaming Board having
regulatory jurisdiction over Coast Resorts or its Subsidiaries; (vi) as required
by Law or legal process or in connection with any legal proceeding to which that
Lender and Borrower are adverse parties; and (vii) 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.
(b) Borrower acknowledges that from time to time financial advisory,
investment banking and other services may be offered or provided to Borrower, or
one or more of its Affiliates (in connection with this Agreement or otherwise)
by any Creditor or by one or more Subsidiaries or Affiliates of that Creditor
and Borrower hereby authorizes each Lender to share any information delivered to
that Lender by Borrower and its Subsidiaries pursuant to the Loan Documents, or
in connection with the decision of such Lender to enter into this Agreement, to
any Subsidiary or Affiliate of that Lender, it being understood that any such
Subsidiary or Affiliate of any Lender receiving such information shall be bound
by any obligation of confidentiality as if it were a Lender hereunder. This
authorization shall survive the repayment of the Obligations and the termination
of the Commitment.
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; Principles of Restatement. This Agreement amends,
--------------------------------------
restates and supercedes the Existing Loan Agreement in its entirety, and
together with the other Loan Documents and the letter
-100-
<PAGE>
agreements referred to in Article 3, comprises the complete and integrated
Agreement of the parties on the subject matter hereof and supersedes all prior
agreements, written or oral, on the subject matter hereof. The Creditors shall
be entitled to the continuing benefit of each Loan Document heretofore executed
by Borrower, Coast Resorts and their Affiliates which is not expressly
terminated hereby, except to the extent expressly amended in writing pursuant to
Article 8 or otherwise, including without limitation the Guaranty and each of
the Collateral Documents (in each case as the same may have been amended through
the Effective Date). 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 Effective 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 withholding 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
-101-
<PAGE>
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 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 withholding 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
-102-
<PAGE>
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
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.
-103-
<PAGE>
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, 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:_____________________________________
Gage Parrish, Chief Financial Officer
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
<PAGE>
BANK OF AMERICA N.A.., as Administrative
Agent and Issuing Lender
By:_____________________________________
Janice Hammond, Vice President
Address:
Bank of America, N.A.
555 South Flower Street
Los Angeles, California 90071
Attn: Janice Hammond, Vice President
Telecopier: (213) 228-2299
Telephone: (213) 222-9861
BANK OF AMERICA, N.A., as a Lender
By: ____________________________________
Kristin K. Jackson, Vice President
Address:
Bank of America, N.A.
555 South Flower Street, #3283
Los Angeles, California 90071
Attn: Kristin K. Jackson, Vice President
Telecopier: (213) 228-2641
Telephone: (213) 228-9775
With a copy to:
Bank of America, N.A.
555 South Flower Street (LA-5777)
Los Angeles, California 90071
Attn: William Newby, Managing Director
Telecopier: (213) 228-3145
Telephone: (213) 228-2438
S-2 COAST HOTELS & CASINOS, INC.]
[AMENDED & RESTATED LOAN AGREEMENT SIGNATURE PAGE]
<PAGE>
WELLS FARGO BANK, NATIONAL ASSOCIATION
By: ______________________________________
Title:____________________________________
Address for notices:
Wells Fargo Bank, National Association
3800 Howard Hughes Parkway, 4th Floor
Las Vegas, Nevada 89109
Attn.:Rick Bokum, Assistant Vice President
Facsimile: (702) 791-6365
Telephone: (702) 791-6185
S-3 [COAST HOTELS & CASINOS, INC.]
[AMENDED RESTATED LOAN AGREEMENT SIGNATURE PAGE]
<PAGE>
BANK OF SCOTLAND
By: _______________________________________
Title: ____________________________________
Address for notices:
Bank of Scotland
565 5th Avenue, 5th Floor
New York, New York 10017
Attn.: Annie Glynn, Senior Vice President
Facsimile: (212) 557-9460
Telephone: (212) 450-0871
S-4 [COAST HOTELS & CASINOS, INC.]
[AMENDED & RESTATED LOAN AGREEMENT SIGNATURE PAGE]
<PAGE>
BANK ONE, N.A.
By: _______________________________________
Title: ___________________________________
Address for notices:
Bank One, N.A.
One Bank One Plaza, 10th Floor
Chicago, Illinois 60670
Attn.: Robert Simon, CSA
Facsimile: (312) 732-4840
Telephone: (312) 732-8543
S-5 [COAST HOTELS & CASINOS, INC.]
[AMENDED & RESTATED LOAN AGREEMENT SIGNATURE PAGE]
<PAGE>
THE CIT GROUP/EQUIPMENT FINANCING, INC.
By: _______________________________________
Title:_____________________________________
Address for notices:
The Cit Group/Equipment Financing, Inc.
900 Ashwood Parkway, Suite 600
Atlanta, Georgia 30338
Attn.: Steve Epperly, Senior Credit Analyst
Facsimile: (770) 206-9295
Telephone: (770) 677-3474
S-6 [COAST HOTELS & CASINOS, INC.]
[AMENDED & RESTATED LOAN AGREEMENT SIGNATURE PAGE]
<PAGE>
FIRST HAWAIIAN BANK
By: __________________________________________
Title:_________________________________________
Address for notices:
First Hawaiian Bank
Media Finance Division
180 Montgomery Street, 25th Floor
San Francisco, California 94104
Attn.: Donald C. Young, Vice President
Facsimile: (415) 362-4855
Telephone: (415) 765-4906
S-7 [COAST HOTELS & CASINOS, INC.]
[AMENDED & RESTATED LOAN AGREEMENT SIGNATURE PAGE]
<PAGE>
FIRST SECURITY BANK, N.A.
By: _________________________________________
Title: _______________________________________
Address for notices:
First Security Bank, N.A.
Corporate Banking Division
15 East 100 South - 2nd Floor
Salt Lake City, Utah 84111
Attn.: David P. Williams, Vice President
Facsimile: (801) 246-5532
Telephone: (801) 246-5125
S-8 [COAST HOTELS & CASINOS, INC.]
[AMENDED & RESTATED LOAN AGREEMENT SIGNATURE PAGE]
<PAGE>
HIBERNIA NATIONAL BANK
By: _______________________________________
Title: ____________________________________
Address for notices:
Hibernia National Bank
333 Travis Street, 3rd Floor
Shreveport, Louisiana 71101
Attn.: Chris K. Haskew, Vice President
Facsimile: (318) 674-3758
Telephone: (318) 674-3796
S-9 [COAST HOTELS & CASINOS, INC.]
[AMENDED & RESTATED LOAN AGREEMENT SIGNATURE PAGE]
<PAGE>
IMPERIAL BANK, A CALIFORNIA BANKING CORPORATION
By: _________________________________________
Title: ______________________________________
Address for notices:
Imperial Bank, a California Banking Corporation
9920 South La Cienega Boulevard, 14th Floor
Inglewood, California 90301
Attn.: Steven K. Johnson, Vice President
Facsimile: (310) 417-5997
Telephone: (310) 417-5657
S-10 [COAST HOTELS & CASINOS, INC.]
[AMENDED & RESTATED LOAN AGREEMENT SIGNATURE PAGE]
<PAGE>
U. S. BANK NATIONAL ASSOCIATION
By: ____________________________________________
Title:__________________________________________
Address for notices:
U. S. Bank National Association
2300 West Sahara, Suite 120
Las Vegas, Nevada 89102
Attn.: Kent Morishige, Assistant Vice President
Facsimile: (702) 386-3916
Telephone: (702) 386-0530
S-11 [COAST HOTELS & CASINOS, INC.]
[AMENDED & RESTATED LOAN AGREEMENT SIGNATURE PAGE]
<PAGE>
WEST COAST BANK
By: ___________________________________
Title: ________________________________
Address for notices:
West Coast Bank
301 Church Street N.E.
Salem, Oregon 97301
MAIL:
Post Office Box 428
Salem, Oregon 97308
Attn.: Lesa Gardner, Vice President
Facsimile: (503) 399-3937
Telephone: (503) 399-2915
S-12 [COAST HOTELS & CASINOS, INC.]
[AMENDED & RESTATED LOAN AGREEMENT SIGNATURE PAGE]
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<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
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