AS REQUIRED BY CLAUSE (D) BELOW, AND THE COMPANY SHALL NOT
HAVE ANY OBLIGATION TO OBTAIN THE APPROVALS WITH RESPECT TO ANY MEZZANINE
INVESTOR IN THE EVENT THE APPROVALS ARE DENIED SOLELY BY REASON OF A
DETERMINATION BY THE GAMING AUTHORITIES THAT SUCH MEZZANINE INVESTOR OR THE
COLLATERAL AGENT IS UNSUITABLE.
PENDING THE RECEIPT OF THE APPROVALS, (I) NO
LIEN SHALL HAVE BEEN CREATED IN SUCH EQUITY INTERESTS UNDER APPLICABLE GAMING
LAWS, (II) AND THE CERTIFICATES EVIDENCING SUCH EQUITY INTERESTS SHALL REMAIN IN
THE POSSESSION OF EQUITYCO IN THE STATE OF NEVADA, (III) THE ORIGINAL WARRANTS
SHALL REMAIN IN THE POSSESSION OF THE MEZZANINE INVESTORS, AND (IV) THE WARRANTS
SHALL NOT BE ISSUED TO THE MEZZANINE INVESTORS.
(C)
PROMPTLY UPON OBTAINING ALL OF THE APPROVALS, THE COMPANY SHALL
(I) CAUSE THE DELIVERY OF ALL CERTIFICATES WITH RESPECT TO THE PLEDGED EQUITY
INTERESTS OF THE COMPANY TO THE COLLATERAL AGENT OR ITS DESIGNATED CUSTODIAL
AGENT IN THE STATE OF NEVADA (PURSUANT TO A CUSTODIAN OR COLLATERAL AGENCY
AGREEMENT ACCEPTABLE TO THE MEZZANINE INVESTORS AND IN COMPLIANCE WITH NEVADA
LAW), AND THE COLLATERAL AGENT SHALL THEREAFTER MAINTAIN SUCH CERTIFICATES IN
THE STATE OF NEVADA AND KEEP THEM AVAILABLE FOR INSPECTION BY AGENTS OR
EMPLOYEES OF THE GAMING AUTHORITIES PROMPTLY UPON REQUEST DURING NORMAL BUSINESS
HOURS, AND (II) CAUSE THE DELIVERY OF THE WARRANTS TO THE MEZZANINE INVESTORS.
(D)
EACH OF THE COLLATERAL AGENT AND THE MEZZANINE INVESTORS AGREE (I)
NOT TO EXERCISE ANY OF THEIR ORIGINAL WARRANTS PRIOR TO MAY 29, 2007, UNLESS
GAMING APPROVAL IS RECEIVED FOR THE ESTABLISHMENT OF AN SPE IN ACCORDANCE WITH
SECTION 3.9, AND (II) TO COOPERATE WITH THE GAMING AUTHORITIES AS NECESSARY IN
CONNECTION WITH OBTAINING THE APPROVALS
INCLUDING THE PROVISION OF SUCH
DOCUMENTS OR OTHER INFORMATION AS MAY BE REQUESTED BY THE GAMING AUTHORITIES
RELATING TO THE WARRANTS OR THE OTHER RESTRUCTURING DOCUMENTS IN CONNECTION WITH
THE REQUEST FOR THE APPROVALS.
21
ARTICLE IV - RIGHTS TO PURCHASE
Notwithstanding anything herein to the contrary, the following provisions of
this Article IV shall terminate immediately prior to the closing of a Qualified
Public Offering and shall not apply with respect to any Qualified Public
Offering.
Section 4.1
Right to Participate in Certain Sales of Additional Securities and
Indebtedness.
If at any time the Company or any of its Subsidiaries intends to
issue any (i) Equity Interests, (ii) securities convertible into or exchangeable
for Equity Interests, (iii) options, warrants or rights carrying any rights to
purchase Equity Interests, (iv) any Indebtedness, or (v) any other securities,
evidences of indebtedness or other Property of the Company or any of its
Subsidiaries issued in exchange of a capital contribution (in whatever form)
other than Excluded Securities (collectively, the "Offered Securities"), it
shall submit a written offer to each Mezzanine Investor (collectively, the
"Offerees"), identifying the terms of the proposed issuance and sale (including
price, number or aggregate principal amount of the Offered Securities and all
other material terms), to purchase its Pro Rata Allotment (as hereinafter
defined) of