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EXHIBIT 10.3
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SECURITY AND PLEDGE AGREEMENT
AMONG
FITZGERALDS GAMING CORPORATION,
CERTAIN OF ITS SUBSIDIARIES
PARTY HERETO,
AS GRANTORS
AND
THE BANK OF NEW YORK,
AS COLLATERAL AGENT
DATED AS OF DECEMBER 30, 1997.
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TABLE OF CONTENTS
Page
1. Definitions...............................................................1
2. Creation of Security Interest, etc........................................8
3. Representations and Warranties...........................................10
3.1 Validity, Perfection and Priority..............................10
3.2 No Liens; Other Financing Statements...........................10
3.3 Chief Executive Office.........................................11
3.4 Location of Inventory..........................................11
3.5 Fair Labor Standards Act.......................................11
3.6 Tradenames; Prior Names........................................11
3.7 Pledged Securities.............................................11
3.8 Receivables....................................................12
3.9 Intellectual Property..........................................12
4. Covenants................................................................14
4.1 Books and Records..............................................14
4.2 Further Assurances.............................................14
4.3 Change of Chief Executive Office...............................15
4.4 Change of Location of Inventory................................15
4.5 Change of Name, Identity or Corporate Structure................16
4.6 Subsequently Acquired Pledged Securities, etc..................16
4.7 Delivery of Instruments........................................16
4.8 Delivery of Chattel Paper......................................16
4.9 Right of Inspection............................................17
4.10 Insurance......................................................17
4.11 Warehouse Receipts Non-negotiable..............................19
4.12 Compliance with Laws...........................................19
4.13 Payment of Obligations.........................................19
4.14 No Impairment..................................................20
4.15 Intercreditor Agreement........................................20
4.16 Negative Pledge................................................20
4.17 Limitations on Dispositions of Collateral......................20
4.18 Provisions Regarding Receivables...............................21
4.19 Intellectual Property..........................................21
4.20 Notice.........................................................23
4.21 Performance by Collateral Agent of Grantor's Obligations;
Reimbursement..................................................23
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5. Appointment of Sub-Agents................................................23
6. Voting, etc..............................................................23
7. Payments and Other Distributions.........................................24
8. Collateral Account.......................................................25
8.1 Collateral Account.............................................25
8.2 Deposit of Proceeds............................................25
8.3 Investment of Balance in Collateral Account....................25
9. Power of Attorney........................................................26
9.1 Collateral Agent's Appointment as Attorney-in-Fact.............26
10. Remedies................................................................28
10.1 Rights and Remedies Generally; Foreclosure.....................28
10.2 Proceeds.......................................................28
10.3 Direct Grantor to Dispose of Collateral........................29
10.4 Collateral Account.............................................30
10.5 Possession of Collateral.......................................30
10.6 Disposition of the Collateral..................................31
10.7 Registration Rights; Private Sales.............................32
10.8 Provisions Regarding Receivables...............................33
10.9 Recourse.......................................................34
10.10 Expenses; Attorneys' Fees......................................34
10.11 Preventing Impairment of the Collateral........................34
10.12 Limitation on Duties Regarding Preservation of Collateral......34
10.13 Waiver of Claims...............................................35
10.14 Discontinuance of Proceedings..................................36
10.15 Intellectual Property License..................................36
11. Additional Collateral...................................................36
12. Compensation and Indemnification........................................37
12.1 Compensation...................................................37
12.2 Indemnity, etc.................................................37
12.3 Indemnity Obligations Secured by Collateral; Survival..........38
13. Governing Law; Submission to Jurisdiction...............................38
14. Limitation of Liability.................................................39
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15. Notices.................................................................39
16. Successors and Assigns..................................................40
17. Waivers and Amendments..................................................40
18. No Waiver; Remedies Cumulative..........................................40
19. Termination; Release....................................................40
20. Counterparts............................................................41
21. Headings Descriptive....................................................41
22. Marshalling.............................................................41
23. Severability............................................................41
24. Survival................................................................41
25. Powers Coupled with an Interest.........................................41
26. Authority of Collateral Agent...........................................41
27. Waiver..................................................................42
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Schedules
Schedule I Filing Offices
Schedule II Pledged Securities
Schedule III Inventory Locations
Schedule IV Inventory in Possession of Bailee
Schedule V Trade Names
Schedule VI Intellectual Property Collateral
Item A: Copyrights
Item B: Copyright Licenses
Item C: Patents
Item D: Patent Licenses
Item E: Trademarks
Item F: Trademark Licenses
Item G: Trade Secret
Item H: Intellectual Property Collateral Matters
Exhibit I Form of Trademark Security Agreement
Exhibit II Form of Patent Security Agreement
Exhibit III Form of Copyright Security Agreement
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SECURITY AND PLEDGE AGREEMENT
THIS SECURITY AND PLEDGE AGREEMENT, dated as of December 30, 1997
is entered into among FITZGERALDS GAMING CORPORATION, a Nevada corporation
(together with its successors and assigns, the "Company"), its Subsidiaries
listed on Schedule A hereto (the Company and such Subsidiaries, together with
their successors and assigns, each a "Grantor" and collectively, the
"Grantors"), and THE BANK OF NEW YORK, as collateral agent (together with its
successors and assigns, the "Collateral Agent").
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, covenant and agree as follows:
1. Definitions. Unless the context hereof clearly requires
otherwise:
(a) words and terms defined in the Indenture and not
defined herein shall have the same meanings herein as therein provided; and
(b) the following words and terms shall have the following
meanings:
"Account Debtor" shall mean the person who is obligated on a
Receivable.
"Accounts" shall mean "accounts" as such term is defined in
Section 9-106 of the UCC.
"Applicable UCC" shall mean the Uniform Commercial Code as in
effect in any applicable jurisdiction.
"Assignment of Security Interest" shall mean any Trademark
Security Agreement, Patent Security Agreement or Copyright Security
Agreement in the forms attached hereto as Exhibits I, II and III,
respectively.
"Bankruptcy Code" shall mean Title 11 of the United States Code
entitled "Bankruptcy", as amended from time to time, and any successor
statute or statutes.
"Chattel Paper" shall mean "chattel paper" as such term is
defined in Section 9-105(b) of the UCC.
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"Collateral" shall have the meaning assigned to it in Section 2
hereof.
"Collateral Account" shall mean the account (which may be a
securities account) established and maintained pursuant to Section 8 of
this Security Agreement by the Collateral Agent, entitled Fitzgeralds
2004 Senior Secured Notes Collateral Account, The Bank of New York, as
collateral agent, secured party", and all funds, securities and other
property or other items from time to time credited to such account and
all interest, income and distributions thereon.
"Collateral Records" shall mean books, records, computer
software, computer printouts, customer lists, blueprints, technical
specifications, manuals, and similar items which relate to any
Collateral other than such items obtained under license or franchise
agreements that prohibit assignment or disclosure of such items.
"Contracts" shall mean all contracts between any Grantor and one
or more additional parties.
"Copyright Licenses" means all Contracts providing for the
granting of any right in or to Copyrights (whether a Grantor is licensee
or licensor thereunder), including, without limitation, each Contract
referred to in Item B of Schedule VI.
"Copyrights" means all United States and foreign copyrights
(including, without limitation, copyrights in software and databases)
and all semiconductor chip product mask works, whether registered or
unregistered, now or hereafter in force throughout the world, all
registrations and applications therefor including, without limitation,
the copyright and mask work registrations and applications referred to
in Item A of Schedule VI, all rights corresponding thereto throughout
the world, all extensions and renewals of any thereof, the right to xxx
for past infringements of any of the foregoing, and all proceeds of the
foregoing, including, without limitation, royalties, income, payments,
claims, damages, and proceeds of suit.
"Distributions" shall mean all dividends, distributions, payments
of interest and principal and other amounts (whether consisting of
securities, personalty or other property) from time to time received,
receivable or otherwise distributed in respect of or in exchange or
substitution for any of the Pledged Securities.
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"Documents" shall mean "documents" as such term is defined in
Section 9-105(f) of the UCC.
"Equipment" shall mean "equipment" as such term is defined in
Section 9-109(2) of the UCC, including, without limitation:
(i) machinery, machine tools, manufacturing equipment, data
processing equipment, computers, office equipment, furniture,
appliances, rolling stock, motors, pumps, controls, tools, parts,
works of art, furnishings and trade fixtures, all athletic
equipment and supplies and all molds, dies, drawings, blueprints,
reports, catalogs and computer programs related to any of the
above,
(ii) ships, boats, barges and vessels (whether under construction
or completed) and any and all masts, bowsprints, boilers,
engines, sails, fittings, anchors, cables, chains, riggings,
tackle, apparel, capstans, outfits, gears, appliances, fittings
and spare and replacement parts and other appurtenances,
accessories and additions, improvements and replacements thereto,
whether on board or not on board, in or to any ship, boat, barge
or vessel,
(iii) slot machines, electronic gaming devices and related
equipment, crap tables, blackjack tables, roulette tables,
baccarat tables, keno apparatus, cards, dice, gaming chips and
plaques, tokens, chip racks, dealing shoes, dice cups, dice
sticks, layouts, paddles, roulette balls and other supplies and
items used in connection with gaming operations, and
(iv) stones, wood, steel and other materials used or to be used
in the building, construction, repair, renovation, refurbishment
or otherwise with respect to improvements or ships, boats, barges
or vessels.
"Excluded Assets" shall mean (i) cash, deposit accounts and other
cash equivalents; (ii) furniture, fixtures and equipment securing
Non-Recourse Indebtedness permitted to be incurred under the Indenture;
(iii) assets securing Purchase Money Obligations or Capital Lease
Obligations permitted to be incurred under the Indenture; and (iv) any
Contracts, permits, licenses or the like that cannot be subjected to a
Lien without the consent of third parties, which consent is not
obtainable by any Grantor (including all Gaming Licenses of any
Grantor); provided, that Excluded Assets does not include the proceeds
of the assets under clauses (ii), (iii) or (iv) or of any other
Collateral to the extent such proceeds do not constitute Excluded Assets
under clause (i) above.
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"Fixtures" shall mean "fixtures" as such term is defined in
Section 9-313 of the UCC.
"Gaming Laws" shall mean all gaming laws, rules and regulations,
including without limitation the Nevada Gaming Control Act.
"General Intangibles" shall mean "general intangibles" as such
term is defined in Section 9-106 of the UCC, including, without
limitation and in any event, rights to the payment of money, Trademarks,
Copyrights, Patents, and Contracts, licenses (including all Gaming
Licenses that are not Excluded Assets) and franchises, limited and
general partnership interests and joint venture interests, federal
income tax refunds, trade names, distributions on certificated
securities (as defined in Section 8-102(1)(a) of the UCC) and
uncertificated securities (as defined in Section 8-102(1)(b) of the
UCC), computer programs and other computer software, inventions,
designs, trade secrets, goodwill, proprietary rights, customer lists,
supplier contracts, sale orders, correspondence, advertising materials,
payments due in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of any property, reversionary
interests in pension and profit-sharing plans and reversionary,
beneficial and residual interests in trusts, credits with and other
claims against any Person, together with any collateral for any of the
foregoing and the rights under any security agreement granting a
security interest in such collateral.
"Governmental Authority" shall mean any federal, state,
municipal or other governmental department, commission, board, bureau,
agency or instrumentality, or any court, in each case whether of the
United States or foreign.
"Hedging Agreements" shall mean interest rate or currency
protection or hedging arrangements, including without limitation, caps,
collars, floors, forwards and any other similar or dissimilar interest
rate or currency exchange agreements or other interest rate or currency
hedging arrangements.
"Indenture" shall mean that certain Indenture, dated as of the
date hereof, among the Company, the Grantors and the Trustee, as the
same may be amended, modified, supplemented or restated from time to
time.
"Instruments" shall mean "instruments" as such term is defined in
Section 9-105(1)(i) of the UCC.
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"Intellectual Property Collateral" means, collectively, the
Copyrights, the Copyright Licenses, the Patents, the Patent Licenses,
the Trademarks, the Trademark Licenses, and the Trade Secrets.
"Inventory" shall mean "inventory" as such term is defined in
Section 9-109(4) of the UCC, including without limitation and in any
event, all goods (whether such goods are in the possession of any
Grantor or a lessee, bailee or other Person for sale, lease, storage,
transit, processing, use or otherwise and whether consisting of whole
goods, spare parts, components, supplies, materials or consigned or
returned or repossessed goods) which are held for sale or lease or are
to be furnished (or which have been furnished) under any contract of
service or which are raw materials or work in progress or materials used
or consumed in any Grantor's business.
"Liquor License" shall mean all liquor licenses held by any
Grantor or any of its Affiliates relating to any of the Casinos and all
renewals, substitutions and replacements thereof.
"Liquor License Authority" shall mean any Governmental
Authority that issues a Liquor License.
"Majority Holders" shall mean the holder or holders of a majority
in aggregate principal amount of the outstanding Notes.
"Motor Vehicles" shall mean motor vehicles, tractors, trailers
and other like property, if title thereto is governed by a certificate
of title ownership.
"Non-located Assets" shall have the meaning provided in Section
4.4 of this Security Agreement.
"Patent Licenses" means all Contracts providing for the granting
of any right in or to Patents (whether a Grantor is licensee or licensor
thereunder) including, without limitation, each such Contract referred
to in Item D of Schedule VI.
"Patents" means all United States and foreign patents and
applications for letters patent throughout the world, including, without
limitation each patent and patent application referred to in Item C of
Schedule VI, all reissues, divisions, continuations,
continuations-in-part, extensions, renewals, and reexaminations of any
of the foregoing, all rights corresponding thereto throughout the world,
and all proceeds of the foregoing including, without limitation,
royalties, income, payments,
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claims, damages, and proceeds of suit and the right to xxx for past
infringements of any of the foregoing.
"Pledged Securities" shall mean (i) all shares of capital stock
of any Subsidiary, and all options or rights to acquire any such shares
or interests, in each case now or hereafter owned by any Grantor,
including, without limitation, the capital stock and interests
identified on Schedule II hereto, (ii) all Distributions on Pledged
Securities (as constituted immediately prior to such Distribution)
constituting securities (whether debt or equity securities or
otherwise), and (iii) all other or additional stock, notes, securities
or property paid or distributed in respect of Pledged Securities (as
constituted immediately prior to such payment or distribution) (A) by
way of stock-split, spin-off, split-up, reclassification, combination of
shares or similar rearrangement or (B) by reason of any consolidation,
merger, exchange of stock, conveyance of assets, liquidation, bankruptcy
or similar corporate reorganization or other disposition of Pledged
Securities.
"Proceeds" shall mean "proceeds" as such term is defined in
Section 9-306(1) of the UCC.
"Receivables" shall mean all rights to payment for goods sold or
leased or services rendered, whether or not earned by performance and
all rights in respect of the Account Debtor, including without
limitation all such rights constituting or evidenced by any Account,
Chattel Paper or Instrument, together with (a) any collateral assigned,
hypothecated or held to secure any of the foregoing and the rights under
any security agreement granting a security interest in such collateral,
(b) all goods, the sale of which gave rise to any of the foregoing,
including, without limitation, all rights in any returned or repossessed
goods and unpaid seller's rights, (c) all guarantees, endorsements and
indemnifications on, or of, any of the foregoing and (d) all powers of
attorney for the execution of any evidence of indebtedness or security
or other writing in connection therewith.
"Receivables Records" shall mean (a) all original copies of all
documents, instruments or other writings evidencing the Receivables, (b)
all books, correspondence, credit or other files, records, ledger sheets
or cards, invoices, and other papers relating to Receivables, including
without limitation all tapes, cards, computer tapes, computer discs,
computer runs, record keeping systems and other papers and documents
relating to the Receivables, whether in the possession or under the
control of any Grantor or any computer bureau or agent from time to time
acting
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for any Grantor or otherwise and (c) all credit information, reports and
memoranda relating thereto.
"Security Agreement" shall mean this Security and Pledge
Agreement, as the same may be amended, modified, supplemented or
restated from time to time.
"Secured Obligations" shall mean (i) with respect to the Company,
all obligations, liabilities (including, without limitation, contingent
obligations) and indebtedness of every nature of the Company to the
Secured Parties now existing or hereafter incurred, or arising under or
in connection with the Collateral, this Security Agreement and the other
Security Documents, the Indenture, the Guaranty, the Registration Rights
Agreement and the Notes, and shall include interest on the Notes
accruing after the filing of any petition under the Bankruptcy Code at
the default rate applicable under the Indenture and (ii) with respect to
each Grantor other than the Company, all obligations, liabilities
(including, without limitation, contingent obligations) and indebtedness
of every nature of such Grantor to the Secured Parties now existing or
hereafter incurred, arising under or in connection with its Guarantee.
"Secured Parties" shall mean the collective reference to the
Collateral Agent, the Trustee and each Holder.
"Trademark Licenses" means all Contracts providing for the
granting of any right in or to Trademarks (whether a Grantor is licensee
or licensor thereunder) including, without limitation, each such
Contract referred to in Item F of Schedule VI.
"Trademarks" means all United States and foreign trademarks,
trade names, corporate names, company names, business names, fictitious
business names, trade styles, service marks, certification marks,
collective marks, logos, other source of business identifiers, designs
and general intangibles of a like nature, all registrations and
applications for any of the foregoing including, but not limited to the
registrations and applications referred to in Item E of Schedule VI, all
extensions or renewals of any of the foregoing; all of the goodwill of
the business connected with the use of and symbolized by the foregoing;
the right to xxx for past infringement or dilution of any of the
foregoing or for any injury to goodwill, and all proceeds of the
foregoing, including, without limitation, license royalties, income,
payments, claims, damages, and proceeds of suit.
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"Trade Secrets" means all other confidential or proprietary
information and know-how now or hereafter owned or used in, or
contemplated at any time for use in, the business of any Grantor, in
each case, whether or not reduced to a writing or other tangible form,
including all documents and things embodying, incorporating, or
referring in any way to such Trade Secret, all Contracts providing for
the granting of any right in or to Trade Secrets (whether a Grantor is
licensee or licensor thereunder), including, without limitation, each
such Contract referred to in Item G of Schedule VI, the right to xxx for
past infringement or dilution of any Trade Secret, and all proceeds of
the foregoing, including, without limitation, royalties, income,
payments, claims, damages, and proceeds of suit.
"Trustee" shall mean The Bank of New York, as trustee under the
Indenture, and any successor trustee thereunder.
"UCC" shall mean the Uniform Commercial Code as in effect in the
State of New York.
(c) All terms defined in the UCC and not otherwise defined
herein shall have the meanings assigned to them in the UCC.
2. Creation of Security Interest, etc.
(a) As security for the prompt and complete payment and
performance in full of all the Secured Obligations, each Grantor hereby assigns,
pledges, transfers and delivers to the Collateral Agent, for the benefit of the
Secured Parties, and grants to the Collateral Agent, for the benefit of the
Secured Parties, a security interest in and continuing lien on all of such
Grantor's right, title and interest in, to and under the following (except to
the extent constituting Excluded Assets), in each case whether now owned or
existing or hereafter acquired or arising, and wherever located (all of which
being hereinafter collectively called the "Collateral"):
(i) all Inventory;
(ii) all Accounts;
(iii) all Pledged Securities;
(iv) all Distributions;
(v) the Collateral Account;
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(vi) all Collateral Records;
(vii) all Documents;
(viii) all Chattel Paper;
(ix) all General Intangibles;
(x) all Instruments;
(xi) all Receivables;
(xii) all Receivables Records;
(xiii) all Intellectual Property Collateral;
(xiv) all Contracts;
(xv) all Equipment;
(xvi) all Fixtures;
(xvii) all Hedging Agreements;
(xviii) all insurance policies;
(xix) all Motor Vehicles; and
(xx) all accessions and additions to, all
substitutions and replacements for, and all Proceeds or products of, any
or all of the foregoing.
(b) Notwithstanding anything to the contrary contained
herein, the Collateral Agent expressly acknowledges and agrees that the pledge
of the Pledged Securities of FRI, FSI and FLVI pursuant hereto, and any
restrictions on the transfer of and agreements not to encumber such Pledged
Securities set forth herein, will require the approval of the Nevada Gaming
Commission upon the recommendation of the Nevada State Gaming Control Board in
order to become effective, and that the exercise by Collateral Agent of its
rights and remedies hereunder is subject to the mandatory provisions of the
Gaming Laws.
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3. Representations and Warranties. Each Grantor jointly and
severally represents and warrants to the Secured Parties, which representations
and warranties shall survive the execution and delivery of this Security
Agreement, as follows:
3.1 Validity, Perfection and Priority.
(a) The security interests in the Collateral granted to
the Collateral Agent hereunder constitute valid and continuing security
interests in the Collateral.
(b) Upon (i) the filing of financing statements naming
each Grantor as "debtor" and the Collateral Agent as "secured party" and
describing the Collateral in the filing offices set forth on Schedule I hereto,
(ii) to the extent subject to U.S. federal law and not Article 9 of the
Applicable UCC, the recordation of the security interests granted hereunder in
Patents, Trademarks and Copyrights in the U.S. Patent and Trademark Office and
the U.S. Copyright Office, along with the registration of all U.S. Copyrights in
the U.S. Copyright Office and, to the extent governed by foreign law, the taking
of all steps necessary under applicable foreign law to perfect or record the
security interest in all foreign Intellectual Property applications and
registrations, and (iii) the delivery by each Grantor of certificates and
instruments evidencing all of the Pledged Securities identified on Schedule II
hereto, indorsed in blank or accompanied by undated stock powers duly executed
in blank, as the case may be, with respect thereto, the security interests in
the Collateral granted to the Collateral Agent for the benefit of itself and the
other Secured Parties hereunder will constitute perfected security interests
therein superior and prior to all Liens (other than Permitted Liens), rights or
claims of all other Persons.
3.2 No Liens; Other Financing Statements.
(a) Except for the Lien granted to the Collateral Agent
hereunder for the benefit of the Secured Parties, the Grantors own and, as to
all Collateral whether now existing or hereafter acquired will continue to own,
each item of the Collateral free and clear of any and all Liens (other than
Permitted Liens), and the Grantors shall defend the Collateral against all
claims and demands of all Persons at any time claiming the same or any interest
therein adverse to any Secured Parties other than holders of Permitted Liens on
the Collateral entitled to priority therein under applicable law.
(b) No financing statement or other evidence of Lien
covering or purporting to cover any of the Collateral is on file and is
effective in any public office other than (i) financing statements filed or to
be filed in connection with the security interests granted to the Collateral
Agent hereunder, (ii) financing statements for which proper, executed
termination statements have been delivered to the Collateral Agent for filing
and (iii) financing statements filed in connection with Permitted Liens.
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3.3 Chief Executive Office. The chief executive office of each
Grantor is set forth on Schedule III hereto. The originals of the Receivables
Records and all Collateral Records are located at the locations identified on
Schedule III as such or at the chief executive office of the Company. All
Receivables are maintained at, and controlled and directed (including, without
limitation, for general accounting purposes) from the chief executive office or
the offices identified on Schedule III as such.
3.4 Location of Inventory. All Inventory (other than Non-located
Assets) is kept only at (or shall be in transit to) the locations listed on
Schedules III and IV hereto. None of such Inventory is in the possession of an
issuer of a negotiable document (as defined in Section 7-104 of the UCC)
therefor or otherwise in the possession of a bailee or other Person, except as
set forth on Schedule IV hereto.
3.5 Fair Labor Standards Act. Any goods now or hereafter produced
by any Grantor included in the Collateral have been and will be produced in
compliance with the requirements of the Fair Labor Standards Act, as amended.
3.6 Tradenames; Prior Names. The only names under which the
Grantors have conducted business during the last five years are as set forth on
Schedule V hereto.
3.7 Pledged Securities. Except as disclosed on Schedule 3.7, (a)
each Grantor is the legal, record and beneficial owner of, and has good title
to, the Pledged Securities listed on Schedule II hereto, and such Pledged
Securities are not subject to any put, call, option or other right in favor of
any other Person whatsoever, (b) the Pledged Securities listed on Schedule II
hereto constitutes all of the capital stock owned legally or beneficially by
each Grantor of any Subsidiary, (c) no Grantor is a party to or bound by any
agreement with any other Person (including, without limitation, any Subsidiary
or any other stockholder of any Subsidiary) which restricts the ability of any
Grantor to vote, transfer or dispose of any Pledged Securities, (d) no consent
of any other Person (including, without limitation, any Subsidiary or any other
stockholder of any such Subsidiary) is required to be obtained by any Grantor in
connection with the pledge by such Grantor of any of the Pledged Securities or
the consummation of the other transactions contemplated hereby, including,
without limitation, the exercise by the Collateral Agent of the voting or other
rights provided for in this Security Agreement with respect to the Pledged
Securities or the remedies in respect of the Pledged Securities provided
pursuant to this Security Agreement, and (e) all of the Pledged Securities
listed on Schedule II have been duly and validly issued, and are fully paid and
nonassessable. Each Grantor shall use its best efforts to obtain all approvals
of the Gaming Authorities in Nevada that are required for the pledge of or any
negative pledge on the stock of FRI, FSI, and FLVI.
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3.8 Receivables.
(a) Each Receivable (i) is and will be the genuine, legal,
valid and binding obligation of the Account Debtor in respect thereof,
representing an unsatisfied obligation of such Account Debtor, (ii) is and will
be enforceable in accordance with its terms, (iii) is and will be in full force
and effect and is not and will not be subject to any setoffs, defenses, taxes,
counterclaims (except (x) with respect to refunds, returns and allowances in the
ordinary course of business and (y) to the extent that such Receivable may not
yet have been earned by performance) and (iv) is and will be in compliance with
all applicable laws, whether federal, state, local or foreign.
(b) No Receivables in excess of $250,000 individually or
$2,000,000 in the aggregate are evidenced by any Instrument which has not been
delivered to the Collateral Agent.
(c) The representations and warranties contained in this
Section shall be deemed to be repeated by the applicable Grantor as of the time
when each Receivable arises.
3.9 Intellectual Property. Except as disclosed in Item H of
Schedule VI, as of the date hereof:
(a) all Intellectual Property Collateral material to the
business of each Grantor is subsisting and has not been adjudged invalid or
unenforceable, in whole or in part, and all United States Copyrights owned by
each Grantor which are material to its business are duly registered in the
United States Copyright Office;
(b) to the best of each Grantor's knowledge, all
Intellectual Property Collateral material to the business of such Grantor is
valid and enforceable;
(c) Schedule VI sets forth (i) all United States, state
and foreign registrations of and applications for Patents, Trademarks and
Copyrights of each Grantor and (ii) all Patent Licenses, Trademark Licenses,
Copyright Licenses and Trade Secret licenses material to the business of the
Grantors;
(d) all Trademark, Patent and Copyright registrations and
applications are (except as disclosed in Items A, C or E of Schedule VI hereof)
standing in the name of each Grantor, and none of the Trademarks, Patents,
Copyrights or Trade Secret Collateral material to the business of such Grantor
has been licensed by such Grantor to any affiliate or third party, except as
disclosed in Items B, D, F and G of Schedule VI;
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(e) each Grantor has been using appropriate statutory
notice of registration in connection with its use of registered Trademarks
material to the business of such Grantor, proper marking practices in connection
with the use of Patents material to the business of such Grantor and appropriate
notice of copyright in connection with the publication of Copyrights material to
the business of such Grantor;
(f) the Grantors are the exclusive owners of the entire
and unencumbered right, title and interest in and to all Intellectual Property
Collateral material to the business of the Grantors (subject only to Permitted
Liens and the licenses and other disclosures identified in Items B, D, F and G
of Schedule VI) and, no claim has been made or, to the best of any Grantor's
knowledge, threatened, that the use of such Intellectual Property Collateral
violates the rights of any third party;
(g) to the best of each Grantor's knowledge, the conduct
of each Grantor's business does not infringe upon any trademark, patent,
copyright, trade secret or similar intellectual property right owned or
controlled by a third party and, to the best of each Grantor's knowledge, no
third party is infringing upon any Intellectual Property Collateral;
(h) no holding, decision, or judgment has been rendered in
any action or proceeding challenging the validity of or any Grantor's rights to
use any Intellectual Property Collateral and no such action or proceeding is
pending or, to the best of each Grantor's knowledge, threatened;
(i) each Grantor has performed all acts and has paid all
required fees and taxes to maintain each and every registration and application
of Intellectual Property Collateral material to the business of each Grantor in
full force and effect;
(j) each Grantor owns or has valid rights to use, all
patents, trademarks, trade secrets, copyrights, and other intellectual property
rights used in and material to the business of each Grantor;
(k) the recordation of the Trademark Security Agreement,
in the form of Exhibit I hereto, in the United States Patent and Trademark
Office, together with filings on Form UCC-l pursuant to this Agreement will be
effective to perfect the security interest granted to the Collateral Agent in
the United States Trademarks covered by this Agreement;
(l) the recordation of the Patent Security Agreement, in
the form of Exhibit II hereto, in the United States Patent and Trademark Office,
together with filings on Form UCC-l pursuant to this Agreement will be effective
to perfect the security interest granted to the Collateral Agent in the United
States Patents covered by this Agreement.
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(m) the recordation of the Copyright Security Agreement,
in the form of Exhibit III hereto, in the United States Copyright Office, along
with the registration of all Copyrights therein and the filings on Form UCC-1
pursuant to this Agreement, will be effective to perfect the security interest
granted to the Collateral Agent in the United States Copyrights.
4. Covenants. Each Grantor jointly and severally covenants and
agrees that at all times during the term of this Security Agreement and until
the Secured Obligations have been full and finally paid:
4.1 Books and Records.
(a) Each Grantor shall keep accurate and complete books
and records concerning each category of the Collateral, including, but not
limited to, the originals of all documentation with respect to all Receivables
and records of all payments received and all credits granted on the Receivables,
all merchandise returned and all other dealings therewith. Each Grantor shall,
in form and manner reasonably satisfactory to the Collateral Agent, annotate all
Chattel Paper and Receivables Records with an appropriate reference to the fact
that the Chattel Paper and all other Receivables have been assigned to the
Collateral Agent for the benefit of the Secured Parties and that the Collateral
Agent has a security interest therein.
(b) Each Grantor shall furnish to the Collateral Agent at
such times and in such form and substance as the Collateral Agent may reasonably
request, but in any event within ten business days after the occurrence of an
Event of Default and at least every 30 days thereafter during the continuance of
such Event of Default, information reasonably adequate to enable the Collateral
Agent to identify the Collateral and determine the amount and value thereof,
including, without limitation, the location, cost, net book value and fair
market value of Collateral.
4.2 Further Assurances. (a) At any time and from time to time,
upon the reasonable request of the Collateral Agent, and at the sole expense of
the Grantors, the Grantors shall promptly do all such further things and duly
execute and deliver any and all such further conveyances, assignments,
agreements, instruments, indorsements, powers of attorney and other documents,
make such filings, give such notices and take such further action as the
Collateral Agent may reasonably deem necessary in obtaining the full benefits of
this Security Agreement and of the rights, remedies and powers herein granted or
in order to assure and confirm unto the Collateral Agent the Collateral Agent's
rights, powers and remedies hereunder, including, without limitation, (i) the
filing of any financing statements, in form reasonably acceptable to the
Collateral Agent under the Applicable UCC with respect to the Liens granted
hereby and (ii) with respect to any Intellectual Property Collateral, the filing
of any Assignment of Security Interest in the relevant office in the form of
Exhibit I, II or III hereto, as applicable. Each Grantor
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hereby authorizes the Collateral Agent to file any such instrument without the
signature of such Grantor to the extent permitted by applicable law. A photocopy
or other reproduction of this Security Agreement shall be sufficient as a
financing statement and may be filed in lieu of the original to the extent
permitted by applicable law. Each Grantor shall, at the request of the
Collateral Agent, confirm the grant of security in any Collateral, the form of
such confirmation to be in such form as may be reasonably satisfactory to the
Collateral Agent.
(b) The Grantors will pay or reimburse the Collateral Agent for
all filing fees and related reasonable out-of-pocket expenses and will make or
reimburse the Collateral Agent for making all searches reasonably deemed
necessary by the Collateral Agent to establish and determine the priority of the
security interests of the Collateral Agent created hereunder or to determine the
presence or priority of other secured parties, including the Lenders under the
Eligible Credit Facility or Permitted Tunica Debt.
4.3 Change of Chief Executive Office. No Grantor will move its
chief executive office from that disclosed in Section 3.3 hereof except to such
new location as such Grantor may establish in accordance with the last sentence
of this Section. The originals of all Receivables Records will continue to be
kept at such chief executive office, at the offices designated on Schedule III
as offices at which Receivables Records are located, or at such new locations as
any Grantor may establish in accordance with the last sentence of this Section.
All Receivables and Receivables Records of any Grantor will continue to be
maintained at, and controlled and directed (including, without limitation, for
general accounting purposes) from, such chief executive office or a location
identified as a location at which Receivables or Receivables records are
maintained, controlled and directed on Schedule III, or such new locations as
such Grantor may establish in accordance with the last sentence of this Section.
No Grantor shall establish a new location for its chief executive office or such
activities until (i) it shall have given to the Collateral Agent not less than
30 days' prior written notice of its intention to do so, clearly describing such
new location and providing such other information in connection therewith as the
Collateral Agent may reasonably request and (ii) with respect to such new
location, it shall have taken all action as the Collateral Agent may reasonably
request to maintain the security interest of the Collateral Agent in the
Collateral intended to be granted hereby at all times fully perfected with the
same or better priority and in full force and effect.
4.4 Change of Location of Inventory. Each Grantor agrees that (i)
all Inventory now held or subsequently acquired by it shall only be kept at (or
shall be in transit to) the locations shown on Schedule III hereto (or, in the
case of Inventory held by a bailee, those locations shown on Schedule IV
hereto), or such new locations as such Grantor may establish in accordance with
the last sentence of this Section. Any Grantor may establish a new location for
Inventory only if (i) it shall have given to the Collateral Agent not less than
30 days' prior written notice of its intention to do so, clearly
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describing such new location and providing such other information in connection
therewith as the Collateral Agent may reasonably request and (ii) with respect
to such new location, it shall have taken all action as the Collateral Agent may
reasonably request to maintain the security interest of the Collateral Agent in
the Collateral intended to be granted hereby at all times fully perfected with
the same or better priority and in full force and effect. Notwithstanding
anything to the contrary contained in this Section 4.4, any Grantor may keep
Inventory at locations other than those set forth on Schedule III and Schedule
IV hereto and locations other than with respect to which it has notified the
Collateral Agent in advance (collectively, "Non-located Assets"); provided,
however, that at no time shall the aggregate book value of all Non-located
Assets exceed (a) $500,000 in any State of the United States, province of Canada
or in any other country or (b) $1,000,000 in the aggregate for all such assets
and at all locations.
4.5 Change of Name, Identity or Corporate Structure. No Grantor
shall change its name (or conduct any significant portion of its business under
any tradenames (other than those identified with an asterisk on Schedule V
hereto)), identity or corporate structure unless (i) it shall have given to the
Collateral Agent not less than 30 days' prior written notice of its intention to
do so, clearly describing such new name, identity or corporate structure or such
new tradename and providing such other information in connection therewith as
the Collateral Agent may reasonably request and (ii) with respect to such new
name, identity or corporate structure or such new tradename, it shall have taken
all action as the Collateral Agent may reasonably request to maintain the
security interest of the Collateral Agent in the Collateral intended to be
granted hereby at all times fully perfected with the same or better priority and
in full force and effect.
4.6 Subsequently Acquired Pledged Securities, etc. If at any time
or from time to time after the date hereof, any Grantor shall acquire any
additional Pledged Securities (by purchase, stock dividend, in lieu of interest
or otherwise), such Grantor will forthwith pledge and deposit such Pledged
Securities with the Collateral Agent and deliver to the Collateral Agent
certificates or instruments therefor, indorsed in blank by such Grantor or
accompanied by undated stock powers duly executed in blank by such Grantor or
such other documentation reasonably required by the Collateral Agent to perfect
its first priority Lien.
4.7 Delivery of Instruments. If any Instrument in excess of
$250,000 individually or $2,000,000 in the aggregate shall at any time comprise
any portion of the Collateral, the applicable Grantor shall within thirty days
notify the Collateral Agent thereof, and promptly deliver such Instrument or
Instruments to the Collateral Agent appropriately indorsed or assigned or to the
order of the Collateral Agent or in such other manner as shall be satisfactory
to the Collateral Agent.
4.8 Delivery of Chattel Paper. If Chattel Paper representing
Receivables in excess of $250,000 individually or $2,000,000 in the aggregate
shall at any time
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comprise any portion of the Collateral, the applicable Grantor shall within
thirty days notify the Collateral Agent thereof, and promptly deliver such
Chattel Paper to the Collateral Agent.
4.9 Right of Inspection. The Collateral Agent shall at all times
have full and free access during normal business hours to all the books,
correspondence and records of each Grantor relating to the Collateral, and the
Collateral Agent and its representatives may examine the same, take extracts
therefrom and make photocopies thereof, and each Grantor agrees to render to the
Collateral Agent, at such Grantor's cost and expense, such clerical and other
assistance as may be reasonably requested with regard thereto. The Collateral
Agent and its representatives shall at all times during normal business hours
also have the right to enter into and upon any premises where any of the
Inventory is located for the purpose of inspecting the same, observing its use
or otherwise protecting its interests therein. The Collateral Agent shall, if no
Event of Default shall then exist, provide reasonable notice to applicable
Grantor of any access and inspections permitted under this Section and shall use
all reasonable efforts to ensure that the business of such Grantor will not be
unreasonably disrupted thereby.
4.10 Insurance.
(a) Each Grantor shall maintain or cause to be maintained with
financially sound and reputable insurers acceptable to the Collateral Agent and
licensed to do business in each state in which any of the Collateral covered by
any policy is located, insurance with respect to the Collateral and its use,
against loss or damage of the kinds customarily insured against by reputable
companies in the same or similar businesses, such insurance to be of such types
and in such amounts (with such deductible amounts) as is customary for such
companies under the same or similar circumstances, and the types, amounts and
terms of which shall, in any event, be reasonably acceptable to the Collateral
Agent. Without limiting the generality of the foregoing, each Grantor (i) will
keep the Collateral insured on an "all risk" basis, as appropriate for any
particular Collateral against loss or damage by fire, standard extended coverage
perils and such other hazards, occurrences and events customarily required by a
prudent lender in the area where the Collateral is located in amounts not less
than the replacement cost of the Collateral and (ii) will maintain in the amount
customarily obtained by the same or similar businesses, general public liability
insurance against claims for bodily injury, death or property damage. Each
Grantor shall not obtain or carry separate insurance concurrent in form or
contributing in the event of loss with that required in this Section to be
furnished by such Grantor unless the Secured Parties are included as named
insured, with loss payable as provided herein.
(b) All policies of insurance shall (i) name the Collateral
Agent, on behalf of the Secured Parties as additional insured (with respect to
liability insurance policies) or loss payees with a lender's loss payable
indorsement and a standard "New York"
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mortgagee provision with a no contribution clause (with respect to property
insurance policies), in each case as their respective interests may appear, (ii)
include waivers by the insurer of all claims for insurance premiums against the
Secured Parties, (iii) provide that any losses shall be payable to the
Collateral Agent notwithstanding (A) any act, failure to act or negligence of or
violation of warranties, declarations or conditions contained in such policy by
any Grantor, the Collateral Agent or any other Secured Parties, (B) any
foreclosure or other proceedings or notice of sale relating to any Collateral
insured thereunder, or (C) any change in the title to or ownership of any
Collateral insured thereunder and (iv) provide that no cancellation, termination
or lapse in coverage thereof shall be effective until at least 30 days after
receipt by the Collateral Agent of written notice thereof.
(c) Each Grantor shall pay the premiums for all policies of
insurance as the same become due and payable and shall deliver evidence thereof
to the Collateral Agent. At the request of the Collateral Agent, each Grantor
will assign and deliver all policies of insurance to the Collateral Agent. In
any event, a certificate of insurance for each of the policies of insurance
shall be issued to the Collateral Agent, and copies of all original policies,
together with the indorsements thereof required hereunder, shall be delivered to
the Collateral Agent within ten days of the Collateral Agent's request therefor.
Not later than fifteen days prior to the expiration date of each of the
policies, each Grantor will deliver to the Collateral Agent a renewal policy or
policies or certificates of insurance to the Collateral Agent.
(d) If at any time the Collateral Agent is not in receipt of
written evidence that all insurance required hereunder is in full force and
effect, the Collateral Agent shall have the right upon seven days' prior written
notice to the applicable Grantor to take such action as the Collateral Agent
deems necessary to protect its interest in the Collateral, including, without
limitation, the payment of any premiums that are due and payable or the
obtaining of such insurance coverage as the Collateral Agent in its reasonable
discretion deems appropriate, and all reasonable out-of-pocket expenses incurred
by the Collateral Agent in connection with such action or in obtaining such
insurance and keeping it in effect, together with interest thereon at the rate
of 10% per annum shall be paid by the applicable Grantor to the Collateral Agent
upon demand and such payment obligations shall be secured hereby.
(e) Anything contained in this Section to the contrary
notwithstanding, any and all insurance which any Grantor is obligated to carry
pursuant to this Section may be carried under a general coverage "floater"
policy, master insurance policy, "blanket" policy or policies covering other
properties or liabilities, provided that the coverage so provided in accordance
with the requirements set forth herein shall not be diminished or hindered by
reason of the inclusion of any such required insurance under a policy containing
aggregate loss limits.
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(f) If the Collateral shall be damaged or destroyed, in whole or
in part, by fire or other casualty, the applicable Grantor shall give prompt
notice thereof to the Collateral Agent. No settlement on account of any material
loss covered by insurance shall be made for less than insured value without the
consent of the Collateral Agent. Except with respect to third party liability
insurance, after the occurrence and during the continuance of an Event of
Default, all sums payable to the applicable Grantor by any insurer with respect
to a casualty relating to all or any part of the Collateral shall be paid to the
Collateral Agent. Unless an Event of Default shall have occurred and be
continuing and subject, in any event, to the terms of the Indenture, (i) all
insurance proceeds from any insurance policy held by any Grantor shall be paid
to such Grantor and (ii) such Grantor shall apply such proceeds in accordance
with Section 4.10 of the Indenture. If any Grantor shall receive any insurance
proceeds which are to be paid to the Collateral Agent pursuant to this Section,
such Grantor shall hold such proceeds in trust for the Collateral Agent, shall
segregate such proceeds from other funds of such Grantor, and shall immediately
forward such proceeds in the form received to the Collateral Agent
(appropriately indorsed by such Grantor to the order of the Collateral Agent or
in such other manner as shall be satisfactory to the Collateral Agent). All such
insurance proceeds may be retained by the Collateral Agent in the Collateral
Account as Collateral hereunder and/or applied by the Collateral Agent toward
payment of all or part of the Secured Obligations (whether matured or unmatured)
in such order as is provided herein. If any portion of the insurance proceeds
are made available to any Grantor, the Collateral Agent shall not be obligated
to see to the application of any amount paid to such Grantor.
4.11 Warehouse Receipts Non-negotiable. Each Grantor agrees that
if any warehouse receipt or receipt in the nature of a warehouse receipt or
other Document is issued with respect to any of its Inventory, such warehouse
receipt or receipt in the nature thereof or other Document shall not be
"negotiable" (as such term is used in Section 7-104 of the UCC or under other
relevant law).
4.12 Compliance with Laws. Each Grantor will comply in all
material respects with all requirements of law applicable to the Collateral or
any part thereof; provided, however, that such Grantor may contest any
requirement of law in any reasonable manner which shall not, in the reasonable
opinion of the Collateral Agent, materially and adversely affect the Collateral
Agent's or the Secured Parties' rights in any of the Collateral or adversely
affect the priority of the Liens created hereunder in any of the Collateral.
4.13 Payment of Obligations. Each Grantor will pay promptly when
due all taxes, assessments and governmental charges or levies imposed upon the
Collateral or in respect of its income or profits therefrom, as well as all
claims of any kind (including, without limitation, claims for labor, materials,
supplies and services) against or with respect to the Collateral, except that no
such charge need be paid if (i) the validity thereof is being contested in good
faith by appropriate proceedings, (ii) such proceedings do not
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involve, in the reasonable opinion of the Collateral Agent, any material danger
of the sale, forfeiture or loss of any of the Collateral or any interest therein
that could reasonably be expected to have an adverse effect on the Secured
Parties and (iii) such charge is adequately reserved against on the Company's
books in accordance with GAAP.
4.14 No Impairment. Except as expressly permitted herein or in
the Indenture, no Grantor will take or knowingly permit to be taken any action
which could impair the Collateral Agent's or any Secured Party's rights in the
Collateral.
4.15 Intercreditor Agreement.
(a) The Company will be permitted, as provided in the
Indenture, to enter into an Eligible Credit Facility; provided, that the
Collateral Agent and the Lender providing the Eligible Credit Facility enter
into the Intercreditor Agreement.
(b) The Company will be permitted, as provided in the
Indenture, to incur Permitted Tunica Debt that would be secured by Liens ranking
pari passu with the Liens securing the Notes; provided, that the Collateral
Agent and the Lender providing the Permitted Tunica Debt enter into the
Intercreditor Agreement.
(c) The relative rights of the Secured Parties, the
Lenders under the Eligible Credit Facility and the Lenders under the Permitted
Tunica Debt shall be governed by the terms of the Intercreditor Agreement, but
nothing therein shall affect the obligations of any of the Grantors to any of
the Secured Parties.
4.16 Negative Pledge. Subject to the last sentence of Section
3.7, no Grantor will create, incur or permit to exist, and each Grantor will
defend the Collateral against, and will take such other action as is necessary
to remove, any Lien or claim on or to the Collateral, other than (a) Permitted
Liens and (b) prior to the earlier of the consummation of the Exchange Offer or
the effectiveness of the Initial Shelf Registration Liens on the Capital Stock
of FSI, FLVI and FRI, and will defend the right, title and interest of the
Collateral Agent and the other Secured Parties in and to any of the Collateral
against the claims and demands of all Persons other than holders of Permitted
Liens on the Collateral entitled to priority therein under applicable law.
4.17 Limitations on Dispositions of Collateral. No Grantor will
make any Asset Sale unless the proceeds of such Asset Sale are applied as
permitted or required by Section 4.10 of the Indenture. In the event of an Asset
Sale permitted by this Section, the Collateral Agent shall, subject to the terms
of Section 10.3 of the Indenture, at the sole cost and expense of the applicable
Grantor, execute such documents as the applicable Grantor shall reasonably
request to evidence the release of the Lien created by this Security Agreement
with respect to such Collateral and, to the extent such Collateral is in
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the possession of the Collateral Agent, deliver such Collateral to such Grantor,
or its designee.
4.18 Provisions Regarding Receivables.
(a) Each Grantor shall perform in all material respects
all of its obligations with respect to the Receivables.
(b) Each Grantor shall use commercially reasonable efforts
(including, without limitation, prompt and diligent exercise of each material
right it may have under any Receivable (other than any right of termination)) to
cause to be collected from each Account Debtor, as and when due (including,
without limitation, amounts which are delinquent, such amounts to be collected
in accordance with generally accepted lawful collection procedures) any and all
amounts owing under or on account of any Receivable, and apply all collected
amounts to the outstanding balance of such Receivable immediately upon receipt
thereof. Notwithstanding the foregoing, each Grantor shall not be obligated to
exercise any rights with respect to any Receivables to the extent that it
determines in good faith that such exercise would not be commercially reasonable
or, in the exercise of its best business judgment, prudent. The costs of
collection, whether incurred by any Grantor or the Collateral Agent shall be
borne by the Grantors and if incurred by the Collateral Agent shall be
reimbursed, together with interest thereon at the rate of 10% per annum, to the
Collateral Agent upon demand and such reimbursement obligation shall be secured
hereby.
(c) Upon the occurrence and during the continuance of an
Event of Default, the Company shall establish such lock-box arrangements for the
collection of Receivables as the Collateral Agent may require in its sole
discretion.
(d) The Company shall, and shall cause each other Grantor
to, apply any payments on any intercompany Indebtedness among or between the
Company and such other Grantors first to the payment of intercompany
Indebtedness constituting intercompany Receivables until such intercompany
Receivables are paid in full.
4.19 Intellectual Property.
(a) No Grantor shall do any act or omit to do any act
whereby any of the Intellectual Property Collateral which is material to the
business of the Grantor may lapse or become abandoned or dedicated to the public
or unenforceable.
(b) No Grantor shall (i) cease the use of any of the
Trademarks which is material to the business of the Grantor or (ii) fail to
maintain as in the past the level of the quality of products and services
offered under any of such Trademarks.
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(c) Each Grantor shall promptly notify the Collateral
Agent if it knows that any item of the Intellectual Property Collateral that is
material to the business of the Grantors may become (a) abandoned or dedicated
to the public or placed in the public domain, (b) invalid or unenforceable, or
(c) subject to any adverse determination or development (including the
institution of proceedings) or any adverse determination or development in any
proceeding in the United States Patent and Trademark Office, the United States
Copyright Office, and state registry any foreign counterpart thereof or any
court.
(d) Each Grantor shall take all commercially reasonable
steps, including in the United States Patent and Trademark Office, the United
States Copyright Office, or any state or foreign counterpart thereof, to
maintain and pursue any application and to maintain any registration of each
Trademark, Patent, and Copyright owned by such Grantor which is material to the
business of the Grantor, including, but not limited to, the filing of
applications for renewal, affidavits of use, affidavits of incontestability, the
prosecution and defense of opposition, interference, and cancellation
proceedings, and the payment of fees and taxes.
(e) Each Grantor shall promptly (but in no event more than
ninety days after the Company obtains knowledge thereof) report to the
Collateral Agent (i) the filing of any application to register any Intellectual
Property Collateral (whether such application is filed by such Grantor or
through any agent, employee, licensee, or designee thereof) in the United States
Patent and Trademark Office, the United States Copyright Office, or any State or
foreign counterpart thereof and (ii) the registration of any Intellectual
Property Collateral by any such Office. Upon the request of the Collateral
Agent, each Grantor shall promptly execute and deliver any and all agreements,
instruments, documents, and papers as the Collateral Agent may reasonably
request, including but not limited to the execution of one or more Trademark
Security Agreements, Patent Security Agreements and Copyright Security
Agreements in the forms attached hereto as Exhibits to evidence the Collateral
Agent's security interest in such Intellectual Property Collateral. The Grantor
shall obtain U.S. copyright registrations for all material copyrights within
thirty (30) days after their "fixation in a tangible medium of expression" or
their acquisition by the Grantor, if acquired from a third party.
(f) Each Grantor shall, promptly upon the request of the
Collateral Agent, execute and deliver to the Collateral Agent any document
required to acknowledge, confirm, register, record or perfect the Collateral
Agent's interest in any part of the Intellectual Property Collateral.
(g) Each Grantor shall execute an Assignment of Security
Interest in United States Trademarks and Patents in the form attached hereto as
Exhibit I and hereby grants to the Collateral Agent an absolute power of
attorney to sign, upon the
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occurrence and during the continuance of an Event of Default, any document which
may be required (including, without limitation, those required by the United
States Patent and Trademark Office) in order to effect an absolute assignment of
all right, title and interest in each Trademark, and record the same.
(h) Each Grantor shall execute an Assignment of Security
Interest in United States Copyrights in the form attached hereto as Exhibit III
and hereby grants to the Collateral Agent an absolute power of attorney to sign,
upon the occurrence and during the continuance of an Event of Default, any
document which may be required (including, without limitation, those required by
the United States Patent and Trademark Office or the United States Copyright
Office) in order to effect an absolute assignment of all right, title and
interest in each Patent and Copyright, and to record the same.
4.20 Notice. Each Grantor will advise the Collateral Agent
promptly, in reasonable detail, in accordance with the provisions hereof (a) of
any Lien (other than Permitted Liens) on, or claim asserted against, any of the
Collateral and (b) of the occurrence of any other event which could reasonably
be expected to have a material adverse effect on the aggregate value of the
Collateral or any material component thereof or an adverse effect on the Liens
created hereunder.
4.21 Performance by Collateral Agent of Grantor's Obligations;
Reimbursement. If any Grantor fails to perform or comply with any of its
agreements contained herein, the Collateral Agent may, without consent by such
Grantor and upon such notice to such Grantor as the Collateral Agent reasonably
deems appropriate under the circumstances, perform or comply or cause
performance or compliance therewith, and the expenses of the Collateral Agent
incurred in connection with such performance or compliance, together with
interest thereon at a rate equal to 10% per annum, shall be payable by such
Grantor to the Collateral Agent on demand and such reimbursement obligation
shall be secured hereby.
5. Appointment of Sub-Agents. The Collateral Agent shall have the
right, if an Event of Default shall not then have occurred and be continuing, to
appoint one or more sub-agents or nominees for the purpose of retaining physical
possession of the Collateral, which may be held (if applicable and in the
discretion of the Collateral Agent) in the name of the Collateral Agent,
indorsed or assigned in blank or in favor of the Collateral Agent or any nominee
or nominees of the Collateral Agent or a sub-agent appointed by the Collateral
Agent. All references to the Collateral Agent herein shall be deemed to include
such sub-agents or nominees acting in their capacity as such.
6. Voting, etc. Subject to the terms of the Intercreditor
Agreement, unless and until an Event of Default shall have occurred and be
continuing, each Grantor shall be entitled to vote any and all of the Pledged
Securities and to give consents, waivers or ratifications in respect thereof;
provided, that no vote shall be cast or any consent, waiver
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or ratification given or any action taken that would (a) violate or be
inconsistent with any of the terms of this Security Agreement, any other
Security Document or the Indenture or any other instrument or agreement relating
to the Secured Obligations, (b) have the effect of impairing the position or
interests of any Secured Party hereunder or thereunder or (c) authorize or
effect actions prohibited under the terms of this Security Agreement, any other
Security Document, the Indenture or any instrument or agreement relating to the
Secured Obligations. All such rights of the Grantors to vote and to give
consents, waivers and ratifications shall cease in the event that an Event of
Default has occurred and is continuing. Each Grantor hereby grants to the
Collateral Agent an irrevocable proxy to vote the Pledged Securities, which
proxy shall be effective immediately upon the occurrence and during the
continuance of an Event of Default. After the occurrence and during the
continuance of an Event of Default and upon request of the Collateral Agent,
each Grantor agrees to deliver to the Collateral Agent such further evidence of
such irrevocable proxy or such further irrevocable proxies to vote the Pledged
Securities as the Collateral Agent may reasonably request.
7. Payments and Other Distributions. Subject to the terms of the
Intercreditor Agreement, unless an Event of Default shall have occurred and be
continuing, all cash Distributions payable in respect of the Pledged Securities
shall be paid to each Grantor. The Collateral Agent shall at all times be
entitled to receive directly, and to retain as part of the Collateral:
(a) all other or additional stock or securities or
property (other than cash) paid or distributed by way of Distribution in respect
of the Pledged Securities;
(b) all other or additional stock or other securities or
property paid or distributed in respect of the Pledged Securities by way of
stock-split, spin-off, split-up, reclassification, combination of shares or
similar rearrangement; and
(c) all other or additional stock or other securities or
property which may be paid in respect of the Pledged Securities by reason of any
consolidation, merger, exchange of stock, conveyance of assets, liquidation,
bankruptcy or similar corporate reorganization or other disposition of such
Pledged Securities.
All monies and other property which are payable to the Collateral Agent or which
the Collateral Agent is entitled to receive pursuant to this Section 7 and which
are received by any Grantor shall be held by such Grantor in trust for the
Collateral Agent and the other Secured Parties, segregated from other monies and
other property of such Grantor shall forthwith upon receipt by such Grantor be
turned over to the Collateral Agent in the same form received by such Grantor
(appropriately indorsed or assigned by such Grantor to the order of the
Collateral Agent or in such other manner as shall be reasonably satisfactory to
the Collateral Agent).
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8. Collateral Account.
8.1 Collateral Account. There is hereby established with the
Collateral Agent the Collateral Account. The Collateral Account shall be under
the sole and exclusive dominion and control of the Collateral Agent and no
Grantor shall have any rights with respect to the Collateral Account other than
with respect to the receipt of Proceeds of Collateral deposited therein upon the
termination of this Security Agreement and the full and final payment of all of
the Secured Obligations. Without limiting the generality of the foregoing, no
Grantor shall have any right of withdrawal or transfer from the Collateral
Account.
8.2 Deposit of Proceeds. Subject to the terms of the
Intercreditor Agreement, there shall be deposited in the Collateral Account from
time to time the cash proceeds (as defined in Section 9-306(1) of the UCC) of
any of the Collateral (including insurance proceeds thereon) required to be
delivered to the Collateral Agent pursuant hereto or under the Indenture. All
amounts and investments and other items credited to the Collateral Account from
time to time shall constitute Collateral hereunder and shall not constitute
payment of the Secured Obligations until applied as hereinafter provided. So
long as no Default or Event of Default has occurred and is continuing, the
Collateral Agent shall, upon five business days' prior written notice from any
Grantor (which notice shall be accompanied by a certificate (in form and
substance satisfactory to the Collateral Agent) executed by a senior officer of
such Grantor as to the absence of any such Default or Event of Default) release
funds then credited to the Collateral Account to such Grantor. At any time
following the occurrence and during the continuance of an Event of Default, the
Collateral Agent may in its discretion apply or cause to be applied (subject to
collection) the balance from time to time outstanding to the credit of the
Collateral Account to the payment of the Secured Obligations in the manner
specified herein.
8.3 Investment of Balance in Collateral Account. Subject to the
terms of the Intercreditor Agreement, if an Event of Default shall not then have
occurred and be continuing, substantially all amounts credited to the Collateral
Account shall be invested from time to time by the Collateral Agent upon the
direction of the Company in Cash Equivalents reasonably satisfactory to the
Collateral Agent and in which the Collateral Agent shall have a first priority
perfected security interest, which accounts, investments, instruments and
securities shall be held in the name and be under the control of the Collateral
Agent. If an Event of Default shall have occurred and be continuing, all amounts
credited to the Collateral Account shall be invested by the Collateral Agent in
such accounts (interest-bearing or otherwise), investments, instruments and
securities as the Collateral Agent shall elect in its sole discretion. The
Collateral Agent shall have no responsibility or liability for any losses in
connection with any investment in connection with the Collateral Account,
including, without limitation, losses incurred in connection with the
liquidation of any such investments.
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9. Power of Attorney.
9.1 Collateral Agent's Appointment as Attorney-in-Fact.
(a) Each Grantor hereby irrevocably constitutes and
appoints the Collateral Agent and any officer or agent thereof, with full power
of substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of such Grantor and in the name of
such Grantor or in its own name, from time to time in the Collateral Agent's
discretion, for the purpose of carrying out the terms of this Security
Agreement, to take any and all appropriate action and to execute any and all
documents and instruments which may be necessary or desirable to accomplish the
purposes of this Security Agreement. Without limiting the generality of the
foregoing, each Grantor hereby gives the Collateral Agent the power and right,
on behalf of such Grantor, without assent by such Grantor and upon such notice
to the Company as the Collateral Agent deems appropriate under the
circumstances, to do the following at any time after the occurrence and during
the continuance of an Event of Default:
(i) in the name of the Grantors or its own
name, or otherwise, (A) to take possession of and indorse and collect
any checks, drafts, notes, acceptances or other instruments for the
payment of moneys due under, or with respect to, any Collateral; (B) to
direct any party liable for any payment under any of the Collateral to
make payment of any and all moneys due or to become due thereunder
directly to the Collateral Agent or as the Collateral Agent shall
direct; or (C) to ask or demand for, collect, receive payment of and
receipt for, any and all moneys, claims and other amounts due or to
become due at any time in respect of or arising out of any Collateral;
(ii) to prepare, sign and file any Uniform
Commercial Code financing statements in the name of the applicable
Grantor as debtor;
(iii) to take or cause to be taken all actions
necessary to perform or comply or cause performance or compliance with
the terms of this Security Agreement, including, without limitation, (A)
to pay or discharge taxes and Liens levied or placed on or threatened
against the Collateral, (B) to effect any repairs or obtain any
insurance called for by the terms of this Security Agreement and (C) to
pay all or any part of the premiums therefor and the costs thereof; and
(iv) to sign and indorse any invoices, freight or
express bills, bills of lading, storage or warehouse receipts, drafts
against
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debtors, assignments, verifications, notices and other documents in
connection with any of the Collateral;
(v) to commence and prosecute any suits,
actions or proceedings at law or in equity, in any court of competent
jurisdiction, to collect the Collateral or any portion thereof and to
enforce any other right in respect of any Collateral; to defend any
suit, action or proceeding brought against any Grantor with respect to
any Collateral; and to settle, compromise or adjust any such suit,
action or proceeding and, in connection therewith, to give such
discharges or releases as the Collateral Agent may deem necessary or
commercially reasonable under the circumstances;
(vi) generally, to sell or transfer and make any
agreement with respect to or otherwise deal with any of the Collateral
as fully and completely as though the Collateral Agent were the absolute
owner thereof for all purposes, and to do, at the Collateral Agent's
option and each Grantor's expense, at any time, or from time to time,
all acts and things that the Collateral Agent deems necessary to
protect, preserve or realize upon the Collateral and the Liens of the
Secured Parties thereon and to effect the intent of this Security
Agreement, all as fully and effectively as the Grantors might do; and
(vii) to execute, in connection with any
foreclosure, any indorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral.
Each Grantor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. This power of attorney is a
power coupled with an interest and shall be irrevocable.
Each Grantor hereby acknowledges and agrees that in acting
pursuant to this power-of-attorney the Collateral Agent shall be acting in its
own interest and in the interest of the other Secured Parties, and each Grantor
acknowledges and agrees that the Collateral Agent shall have no fiduciary duties
to such Grantor hereby waives any claims to the rights of a beneficiary of a
fiduciary relationship hereunder.
(b) No Duty on the Part of Collateral Agent or Secured
Parties. The powers conferred on the Collateral Agent hereunder are solely to
protect the interests of the Secured Parties in the Collateral and shall not
impose any duty upon the Collateral Agent or any other Secured Party to exercise
any such powers. The Secured Parties shall be accountable only for amounts that
they actually receive as a result of the exercise of such powers, and neither
they nor any of their officers, directors, employees or agents
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shall be responsible to the Grantors for any act or failure to act hereunder
unless the same shall result from the gross negligence or willful misconduct of
such Person.
10. Remedies.
10.1 Rights and Remedies Generally; Foreclosure. (a) The
Collateral Agent shall have all the rights of a secured party under the
Applicable UCC, shall have all rights now or hereafter existing under all other
applicable laws, and, subject to any mandatory requirements of applicable law
then in effect, shall have all the rights set forth in this Security Agreement
and all the rights set forth with respect to the Collateral or this Security
Agreement in any other agreement between the parties. No enumeration of rights
in this Section or elsewhere in this Security Agreement or in any related
document or other agreement shall be deemed to in any way limit the rights of
the Collateral Agent as described in this Section.
(b) Subject to the terms of Applicable Law, if an Event of
Default occurs and is continuing, the Collateral Agent may, and within three
Business Days after instructions from the Majority Holders and the delivery of
such indemnities from such Holders against loss, liability or expense
satisfactory to the Collateral Agent shall, commence the taking of such actions
toward collection or enforcement of this Security Agreement and the Collateral
(or any portion thereof), including, without limitation, action toward
foreclosure upon any Collateral, as the Collateral Agent deems in its discretion
to be appropriate or as otherwise instructed by the Majority Holders.
(c) From and after the date on which any Secured Party
exercises any of its rights or remedies under any Security Document (including,
without limitation, a judicial or non-judicial foreclosure of the lien of any
deed of trust) to and including the date on which the transfer of any Liquor
License from any Grantor to Secured Party or its successor or assign is approved
by the applicable Liquor License Authority, such Grantor shall take any and all
action necessary or appropriate in the sole and absolute discretion of Secured
Party or its successor or assign to (i) maintain in full force and effect each
Liquor License and (ii) otherwise cause all alcoholic and other beverages now or
hereafter being sold, served, consumed, dispensed or otherwise made available to
the public in, on or about each Casino to be sold, served, consumed, dispensed
or otherwise made available to the public in, on or about such Casino.
10.2 Proceeds. (a) Subject to the terms of the Intercreditor
Agreement, if an Event of Default shall occur and be continuing, (i) all
Proceeds and Distributions received by any Grantor consisting of cash, checks
and other near-cash items shall be held by such Grantor in trust for the Secured
Parties, segregated from other funds of such Grantor in a separate deposit
account containing only Proceeds and Distributions, and shall forthwith upon
receipt by such Grantor, be turned over to the Collateral Agent in the same form
received by such Grantor (appropriately indorsed or assigned by such Grantor
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to the order of the Collateral Agent or in such other manner as shall be
satisfactory to the Collateral Agent) and (ii) any and all such Proceeds and
Distributions received by the Collateral Agent (whether from any Grantor or
otherwise), or any part thereof, may, in the sole discretion of the Collateral
Agent, be held by the Collateral Agent in the Collateral Account as Collateral
hereunder and/or then or at any time or from time to time thereafter, be applied
by the Collateral Agent against the Secured Obligations (whether matured or
unmatured), in the order provided for herein.
(b) Subject to the terms of the Intercreditor Agreement,
except as otherwise provided in Section 4.10 of the Indenture, the proceeds
received by the Collateral Agent in respect of any sale of, collection from or
other realization upon all or any part of the Collateral shall be applied,
together with any other sums then held by the Collateral Agent pursuant to this
Agreement (including, without limitation, sums credited to the Collateral
Account), promptly by the Collateral Agent as follows:
First, to the payment of all costs and expenses,
commissions and taxes of such sale, collection or other realization,
including, without limitation, compensation to the Collateral Agent and
its agents and counsel, and all expenses, liabilities and advances made
or incurred by the Collateral Agent in connection therewith;
Second, to the payment of all other costs and expenses of
such sale, collection or other realization, including, without
limitation, compensation to the Secured Parties and their agents and
counsel and all costs, liabilities and indebtedness made or incurred by
the Secured Parties in connection therewith;
Third, to the payment of the remaining outstanding Secured
Obligations to the Trustee under the Indenture for application in
accordance with the Indenture;
Fourth, (i) if the Secured Obligations have not been paid
and performed in full, the Collateral Agent shall deposit such surplus
in the Collateral Account or (ii) if the Secured Obligations have been
paid and performed in full, the Collateral Agent shall pay such surplus
to the Grantors, or their respective successors or assigns, or to
whomsoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct.
10.3 Direct Grantor to Dispose of Collateral. If an Event of
Default shall occur and be continuing:
(a) the Collateral Agent may direct any Grantor to sell,
assign or otherwise liquidate or dispose of all or from time to time any portion
of the Collateral, and such Grantor shall do so. The Collateral Agent may direct
any Grantor to direct that
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all Proceeds of such Collateral be paid directly to the Collateral Agent or may
permit the Proceeds of such Collateral to be paid to such Grantor and all such
Proceeds consisting of cash, checks, or near-cash items shall be held by such
Grantor in trust for the Collateral Agent, segregated from other funds of such
Grantor in a separate deposit account containing only Proceeds and shall
forthwith upon receipt by such Grantor, be turned over to the Collateral Agent,
in the same form received by such Grantor (appropriately indorsed or assigned by
such Grantor to the order of the Collateral Agent or in such other manner as
shall be satisfactory to the Collateral Agent); and
(b) any and all such Proceeds received by the Collateral
Agent (whether from any Grantor or otherwise) may, in the sole discretion of the
Collateral Agent, be held by the Collateral Agent in the Collateral Account as
Collateral hereunder and/or then or at any time or from time to time thereafter,
be applied by the Collateral Agent against the Secured Obligations (whether
matured or unmatured) in the order provided for herein.
10.4 Collateral Account. If an Event of Default shall occur and
be continuing, the Collateral Agent may liquidate any investments, instruments
and securities credited to the Collateral Account (without any liability for any
losses sustained in such liquidation) and apply the proceeds thereof and any
other amounts credited to the Collateral Account to the Secured Obligations
(whether matured or unmatured) in the order provided for herein.
10.5 Possession of Collateral.
(a) If an Event of Default shall occur and be continuing,
and subject to mandatory provisions of applicable law, (i) the Collateral Agent
may, personally or by agents or attorneys, immediately take possession of the
Collateral or any part thereof, from each Grantor or any other Person who then
has possession of any part thereof with or without notice or judicial process,
and for that purpose may enter upon such Grantor's premises where any of the
Collateral is located and remove the same and may use in connection with such
removal any and all services, supplies, aids and other facilities of such
Grantor and (ii) upon 15 days' notice to any Grantor, such Grantor shall, at its
own expense, assemble the Collateral (or from time to time any portion thereof)
and make it available to the Collateral Agent at any place or places designated
by the Collateral Agent, whether at such Grantor's or the Collateral Agent's
premises or elsewhere. Each Grantor shall, at its sole expense, store and keep
any Collateral so assembled at such place or places pending further action by
the Collateral Agent and while the Collateral shall be so stored and kept,
provide such guards and maintenance services as shall be necessary to protect
the same and to preserve and maintain the Collateral in good condition. Each
Grantor's obligation so to assemble and deliver the Collateral is of the essence
of this Security Agreement and, accordingly, upon application
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to a court of equity having jurisdiction, the Collateral Agent shall be entitled
to a decree requiring specific performance by such Grantor of said obligation.
(b) When Collateral is in the Collateral Agent's
possession, (i) each Grantor shall pay (or reimburse the Collateral Agent on
demand for) all out-of-pocket expenses (including the cost of any insurance and
payment of taxes or other charges) reasonably incurred in the custody,
preservation, use or operation of the Collateral, and the obligation to
reimburse all such expenses shall be secured hereby and (ii) the risk of
accidental loss or damage to the Collateral shall be on each Grantor to the
extent of any deficiency in any effective insurance coverage.
10.6 Disposition of the Collateral. If an Event of Default shall
occur and be continuing, the Collateral Agent may sell, assign, lease, give an
option or options to purchase or otherwise dispose of the Collateral (or
contract to do any of the foregoing) under one or more contracts or as an
entirety, and without the necessity of gathering at the place of sale of the
property to be sold, at public or private sale or sales, conducted by any
officer, nominee or agent of, or auctioneer or attorney for the Collateral Agent
at any location of any third party conducting or otherwise involved in such sale
or any office of the Collateral Agent or any other Secured Party or elsewhere
and in general in such manner, at such time or times and upon such terms and
conditions and at such price as may be commercially reasonable, for cash or on
credit or for future delivery without assumption of any credit risk. The
Collateral Agent may in its discretion restrict prospective bidders as to their
number, nature of their business and investment intention. Any of the Collateral
may be sold, leased, assigned or options or contracts entered to do so, or
otherwise disposed of, in the condition in which the same existed when taken by
the Collateral Agent or after any overhaul or repair which the Collateral Agent
shall determine to be commercially reasonable. Any such disposition which shall
be a private sale or other private proceeding shall be made upon not less than
10 days' written notice to the applicable Grantor (which such Grantor agrees to
be commercially reasonable) specifying the time after which such disposition is
to be made and the intended sale price or other consideration therefor. Any such
disposition which shall be a public sale shall be made upon not less than 10
days' written notice to the Grantor (which such Grantor agrees to be
commercially reasonable) specifying the time and place of such sale and, in the
absence of applicable requirements of law to the contrary, shall be by public
auction (which may, at the Collateral Agent's option, be subject to reserve),
after publication of notice of such auction for not less than ten days prior
thereto in two newspapers in general circulation in New York City. To the extent
permitted by applicable law, the Collateral Agent and/or any other Secured Party
may bid for and become purchasers of the Collateral or any item thereof, offered
for sale in accordance with this Section without accountability to the
applicable Grantor (except to the extent of surplus money received) as provided
below. In the payment of the purchase price of the Collateral, the purchaser
shall be entitled to have credit on account of the purchase price thereof of
amounts owing to such purchaser on account of any obligations of the applicable
Grantor to it and any
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such purchaser may deliver notes, claims for interest, or claims for other
payment with respect to such obligations in lieu of cash up to the amount which
would, upon distribution of the net proceeds of such sale, be payable thereon.
Such notes, if the amount payable hereunder shall be less than the amount due
thereon, shall be returned to the holder thereof after being appropriately
stamped to show partial payment. Notwithstanding the foregoing, if the
Collateral or any portion thereof is perishable or threatens to decline speedily
in value or is of a type customarily sold in a recognized market, no notice of
disposition shall be required.
10.7 Registration Rights; Private Sales.
(a) If the Collateral Agent shall determine to exercise
its rights to sell any or all of the Pledged Securities pursuant to this Section
10, and if in the reasonable opinion of the Collateral Agent it is necessary or
advisable to have the Pledged Securities, or that portion thereof to be sold,
registered under the provisions of the Securities Act of 1933, as amended (the
"Securities Act"), each Grantor will use its best efforts to cause the issuer
thereof to (i) execute and deliver, and cause the directors and officers of the
issuer thereof to execute and deliver, all such instruments and documents, and
do or cause to be done all such other acts as may be, in the reasonable opinion
of the Collateral Agent, necessary to register the Pledged Securities, or that
portion thereof to be sold, under the provisions of the Securities Act, (ii) to
use its best efforts to cause the registration statement relating thereto to
become effective and to remain effective for a period of one year from the date
of the first public offering of the Pledged Securities, or that portion thereof
to be sold, and (iii) to make all amendments thereto and/or to the related
prospectus which, in the opinion of the Collateral Agent, are necessary or
advisable, all in conformity with the requirements of the Securities Act and the
rules and regulations of the Securities and Exchange Commission applicable
thereto. Each Grantor agrees to cause such issuer to comply with the provisions
of the securities or "Blue Sky" laws of any and all jurisdictions which the
Collateral Agent shall designate and to make available to its security holders,
as soon as practicable, an earnings statement (which need not be audited) which
will satisfy the provisions of Section 11(a) of the Securities Act.
(b) Each Grantor recognizes that the Collateral Agent may
be unable to effect a public sale of any or all the Pledged Securities, by
reason of certain prohibitions contained in the Securities Act and applicable
state securities laws or otherwise, and may be compelled to resort to one or
more private sales thereof to a restricted group of purchasers which will be
obliged to agree, among other things, to acquire such securities for their own
account for investment and not with a view to the distribution or resale
thereof. Each Grantor acknowledges and agrees that any such private sale may
result in prices and other terms less favorable than if such sale were a public
sale and, notwithstanding such circumstances, agrees that any such private sale
shall not be deemed to have been made in a commercially unreasonable manner
solely by
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reason of being private. The Collateral Agent shall be under no obligation to
delay a sale of any of the Pledged Securities for the period of time necessary
to permit the issuer to register such securities for public sale under the
Securities Act, or under applicable state securities laws, even if the issuer
thereof would agree to do so.
(c) Each Grantor further agrees to use its best efforts to
do or cause to be done all such other acts as may be reasonably necessary to
make such sale or sales of all or any portion of the Pledged Securities pursuant
to this Section 10.7 valid and binding and in compliance with any and all other
applicable requirements of law. Each Grantor further agrees that a breach of any
of the covenants contained in this Section 10.7 will cause irreparable injury to
the Collateral Agent and the other Secured Parties, that the Collateral Agent
and the other Secured Parties have no adequate remedy at law in respect of such
breach and, as a consequence, that each and every covenant contained in this
Section 10.7 shall be specifically enforceable against the Grantors, and each
Grantor hereby waives and agrees not to assert any defenses against an action
for specific performance of such covenants except for a defense that no Event of
Default has occurred.
10.8 Provisions Regarding Receivables.
(a) Anything herein to the contrary notwithstanding
(including without limitation the grant of any rights to the Collateral Agent),
each Grantor shall remain liable under each of the Receivables to observe and
perform all the conditions and obligations to be observed and performed by it
thereunder, all in accordance with the terms of any agreement giving rise to
each such Receivable. Neither the Collateral Agent nor any Secured Party shall
have any obligation or liability under any Receivable (or any agreement giving
rise thereto) by reason of or arising out of this Security Agreement or the
receipt by the Collateral Agent or any of the Secured Parties of any payment
relating to such Receivable pursuant hereto, nor shall the Collateral Agent or
any of the Secured Parties be obligated in any manner to perform any of the
obligations of any Grantor under or pursuant to any Receivable (or any agreement
giving rise thereto) to make any payment, to make any inquiry as to the nature
or the sufficiency of any payment received by it or as to the sufficiency of any
performance by any party under any Receivable (or any agreement giving rise
thereto), to present or file any claim, to take any action to enforce any
performance or to collect the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.
(b) At any time after an Event of Default shall have
occurred and be continuing, the Collateral Agent may, and upon request of the
Collateral Agent each Grantor shall, notify Account Debtors that the Receivables
have been assigned to the Collateral Agent and that payments in respect thereof
shall be made directly to the Collateral Agent. At any time after an Event of
Default shall have occurred and be continuing, the Collateral Agent may in its
own name or in the name of others
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communicate with Account Debtors to verify with them to its satisfaction the
existence, amount and terms of any Receivables.
(c) If required by the Collateral Agent at any time that
an Event of Default shall have occurred and be continuing, any payments of
Receivables, when collected by any Grantor, shall be forthwith (and, in any
event, within two Business Days) delivered by such Grantor to the Collateral
Agent in the exact form received, duly indorsed by such Grantor to the
Collateral Agent if required, for deposit in the Collateral Account, and, until
so turned over, shall be held by such Grantor in trust for the Collateral Agent
and the Secured Parties, segregated from other funds of such Grantor. All such
Proceeds, while held by the Collateral Agent (or by any Grantor in trust for the
Collateral Agent and the Secured Parties), shall continue to be Collateral
securing all of the Secured Obligations and shall not constitute payment thereof
until applied as hereinafter provided.
10.9 Recourse. Each Grantor shall remain liable for any
deficiency if the proceeds of any sale or other disposition of the Collateral
are insufficient to satisfy the Secured Obligations.
10.10 Expenses; Attorneys' Fees. Each Grantor shall reimburse the
Collateral Agent for all its reasonable out-of-pocket expenses in connection
with the exercise of its rights hereunder, including without limitation all
reasonable attorneys' fees and legal expenses incurred by the Collateral Agent
in connection therewith. Such out-of-pocket expenses including, without
limitation, all reasonable attorneys' fees and legal expenses shall constitute
Secured Obligations secured by this Security Agreement.
10.11 Preventing Impairment of the Collateral. Regardless of
whether there shall have occurred any Event of Default, the Collateral Agent may
institute and maintain or cause in the name of any Grantor or of the Collateral
Agent, to be instituted or maintained, such suits and proceedings as the
Collateral Agent may be advised by counsel shall be necessary to prevent any
impairment of the Collateral in contravention of the terms of this Security
Agreement, of the Notes, of the Purchase Agreement or of the Indenture.
10.12 Limitation on Duties Regarding Preservation of Collateral.
(a) The Collateral Agent's sole duty with respect to the
custody, safekeeping and physical preservation of the Collateral in its
possession, under Section 9-207 of the Applicable UCC or otherwise, shall be to
deal with it in the same manner as the Collateral Agent deals with similar
property for its own account, it being understood that neither the Collateral
Agent nor any Secured Party shall have responsibility for (i) ascertaining or
taking action with respect to calls, conversations, exchanges, maturities,
tenders or other matters relative to any Collateral, whether or not the
Collateral Agent or
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any Secured Party has or is deemed to have knowledge of such matters, or (ii)
taking any necessary steps to preserve rights against any parties with respect
to any Collateral.
(b) The Collateral Agent shall have no obligation to take
any steps to preserve rights against prior parties to any Collateral.
(c) Subject to the requirements of the Applicable UCC, and
in the absence of gross negligence and wilful misconduct, neither the Collateral
Agent nor any of its directors, officers, employees or agents shall be liable
for failure to demand, collect or realize upon all or any part of the Collateral
or for any delay in doing so or shall be under any obligation to sell or
otherwise dispose of any Collateral upon the request of any Grantor or otherwise
and the rights of the Collateral Agent and the other Secured Parties hereunder
shall not be conditioned or contingent upon the pursuit by the Collateral Agent
or any other Secured Party of any right or remedy against any Grantor or against
any other Person which may be or become liable in respect of all or any part of
the Secured Obligations or against any collateral security therefor, guarantee
therefore or right of offset with respect thereto.
10.13 Waiver of Claims. Except as otherwise provided in this
Security Agreement, EACH GRANTOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE COLLATERAL
AGENT'S TAKING POSSESSION OR THE COLLATERAL AGENT'S DISPOSITION OF ANY OF THE
COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING
FOR ANY PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT WHICH THE COMPANY AND
ITS SUBSIDIARIES WOULD OTHERWISE HAVE UNDER THE CONSTITUTION OR ANY STATUTE OF
THE UNITED STATES OR OF ANY STATE, and each Grantor hereby further waives, to
the extent permitted by law:
(a) all damages occasioned by such taking of possession
except any damages which are the sole and direct result of the Collateral
Agent's gross negligence or willful misconduct as determined in a final,
non-appealable judgment of a court of competent jurisdiction;
(b) all other requirements as to the time, place and terms
of sale or other requirements with respect to the enforcement of the Collateral
Agent's and the other Secured Parties' rights hereunder;
(c) demand of performance or other demand, notice of
intent to demand or accelerate, notice of acceleration presentment, protest,
advertisement or notice of any kind to or upon any Grantor or any other Person;
and
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(d) all rights of redemption, appraisement, valuation,
diligence, stay, extension or moratorium now or hereafter in force under any
applicable law in order to hinder, prevent or delay the enforcement of this
Security Agreement or the absolute sale of the Collateral or any portion thereof
and each Grantor, for itself and all who may claim under it, insofar as it or
they now or hereafter lawfully may, hereby waives the benefit of all such laws.
To the extent permitted by applicable law, any sale of, or
the exercise of any options to purchase, or any other realization upon, any
Collateral shall operate to divest all right, title, interest, claim and demand,
at law or in equity, of each Grantor therein and thereto, and shall be a
perpetual bar both at law and in equity against each Grantor and against any and
all persons claiming or attempting to claim the Collateral so sold, optioned or
realized upon, or any part thereof, through and under each Grantor.
10.14 Discontinuance of Proceedings. In case the Collateral Agent
shall have instituted any proceeding to enforce any right, power or remedy under
this Security Agreement by foreclosure, sale, entry or otherwise, and such
proceeding shall have been discontinued or abandoned for any reason or shall
have been determined adversely to the Collateral Agent, then and in every such
case each Grantor, the Collateral Agent and the other Secured Parties shall be
returned to their former positions and rights hereunder with respect to the
Collateral subject to the security interest created under this Security
Agreement, and all rights, remedies and powers of the Collateral Agent shall
continue as if no such proceeding had been instituted.
10.15 Intellectual Property License. Solely for the purpose of
enabling the Collateral Agent to exercise rights and remedies under this Section
10 and at such time as the Collateral Agent shall be lawfully entitled to
exercise such rights and remedies, each Grantor hereby grants to the Collateral
Agent, to the extent it has the right to do so, an irrevocable, non-exclusive
license (exercisable without payment of royalty or other compensation to such
Grantor), subject to rights to quality control and inspection in favor of such
Grantor sufficient to maintain the validity of the Trademarks, to use, license
or sublicense any Trademark, Patent, Copyright or Trade Secret now owned or used
pursuant to a Trademark License, Copyright License, Patent License or Trade
Secret License, or hereafter acquired by or licensed to such Grantor.
11. Additional Collateral. Without notice or consent of any
Grantor and without impairment of the security interest and rights created by
this Security Agreement, the Collateral Agent may accept from any person or
persons additional collateral or other security for the Secured Obligations. The
creation of the security interest created hereunder shall not prevent the
Collateral Agent from resorting to such additional collateral or security
without affecting the Collateral Agent's rights hereunder. The Collateral
Agent's acceptance of any such additional collateral or security shall not
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prevent the Collateral Agent from resorting to the Collateral without affecting
the Collateral Agent's rights in and to such additional collateral or security.
12. Compensation and Indemnification.
12.1 Compensation. The Company shall pay to the Collateral Agent
from time to time reasonable compensation for its services. The Collateral
Agent's compensation shall not be limited by any law on compensation of a
collateral agent pursuant to a security agreement.
12.2 Indemnity, etc.
(a) Each Grantor agrees to indemnify, reimburse and hold
the Collateral Agent and each other Secured Party, and their respective
officers, directors, employees, representatives, attorneys and agents
(hereinafter in this Section 12 referred to individually as "Indemnitee" and
collectively as "Indemnitees") harmless from and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, suits, costs, expenses or disbursements (including, without
limitation, reasonable attorneys' fees and expenses) (for the purposes of this
Section the foregoing are collectively called "expenses") of whatsoever kind or
nature which may be imposed on, asserted against or incurred by any of the
Indemnitees in any way relating to or arising out of the Security Documents or
the documents executed in connection therewith or in any other way connected
with the administration of the transactions contemplated thereby or the
enforcement of any of the terms of or the preservation of any rights hereunder,
or in any way relating to or arising out of the manufacture, ownership,
ordering, purchase, delivery, control, acceptance, lease, financing, possession,
operation, condition, sale, return or other disposition or use of the Collateral
(including, without limitation, latent or other defects, whether or not
discoverable), the violation of the laws of any country, state or other
governmental body or unit, any tort (including, without limitation, claims
arising or imposed under the doctrine of strict liability, or for or on account
of injury to or the death of any Person (including any Indemnitee), or for
property damage) or any contract claim; provided that no Indemnitee shall be
indemnified pursuant to this section for expenses to the extent solely caused by
the gross negligence or wilful misconduct of such Indemnitee as determined in a
final, non-appealable judgment of a court of competent jurisdiction. Each
Grantor agrees that upon written notice by any Indemnitee of any assertion that
could give rise to an expense, such Grantor shall, if so requested by such
Indemnitee, assume full responsibility for the defense thereof.
(b) Without limiting the application of subsection (a)
above, each Grantor agrees to pay, or reimburse the Collateral Agent for any and
all reasonable out-of-pocket fees, costs and expenses of whatever kind or nature
incurred in connection with the creation, preservation or protection of the
Collateral Agent's Liens on, and security
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interest in, the Collateral and the acceptance or administration or performance
by the Collateral Agent of its duties under the Security Documents, including,
without limitation, all fees and taxes in connection with the search of the
records of, and the recording or filing of instruments and documents in, public
offices, payment or discharge of any taxes or Liens upon or in respect of the
Collateral, premiums for insurance with respect to the Collateral and all other
reasonable out-of-pocket fees, costs and expenses in connection with protecting,
maintaining or preserving the Collateral and the Collateral Agent's interest
therein, whether through judicial proceedings or otherwise, or in defending or
prosecuting any actions, suits or proceedings arising out of or relating to the
Collateral.
(c) Without limiting the application of subsections (a) or
(b), above, each Grantor agrees to pay, indemnify and hold each Indemnitee
harmless from and against any expenses which such Indemnitee may suffer, expend
or incur in consequence of or growing solely out of any misrepresentation by any
Grantor and reliance thereon in this Security Agreement or in any statement or
writing contemplated by or made or delivered pursuant to or in connection with
this Security Agreement.
(d) If and to the extent that the obligations of any
Grantor under this Section 12 are unenforceable for any reason, such Grantor
hereby agrees to make the maximum contribution to the payment and satisfaction
of such obligations which is permissible under applicable law.
12.3 Indemnity Obligations Secured by Collateral; Survival. Any
amounts paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement shall constitute Secured Obligations secured by the Collateral.
The indemnity obligations of each Grantor contained in this Security Agreement
shall continue in full force and effect notwithstanding the full payment and
performance of the Secured Obligations and notwithstanding the discharge
thereof.
13. Governing Law; Submission to Jurisdiction. THIS SECURITY
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK. EACH
GRANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF
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THE AFORESAID COURTS. EACH GRANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT
MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. EACH GRANTOR IRREVOCABLY CONSENTS, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, TO THE SERVICE OF PROCESS OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO EACH GRANTOR AT ITS
SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
NOTHING SHALL AFFECT THE RIGHT OF THE COLLATERAL AGENT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST ANY GRANTOR IN ANY OTHER JURISDICTION.
14. Limitation of Liability. No claim may be made by any Grantor
or any other Person against the Collateral Agent or any other Secured Party or
the affiliates, directors, officers, employees, attorneys or agent of any of
them for any special, indirect, consequential or punitive damages in respect of
any claim for breach of contract or any other theory of liability arising out of
or related to the transactions contemplated by this Security Agreement, or any
act, omission or event occurring in connection therewith except that the same
may be determined by a final, non-appealable judgment of a court of competent
jurisdiction to have resulted solely from such Person's actions taken in bad
faith; and each Grantor hereby waives, releases and agrees not to xxx upon any
claim for any such damages, whether or not accrued and whether or not known or
suspected to exist in its favor. Each Grantor hereby agrees to indemnify the
Collateral Agent, each Secured Party and their affiliates, directors, officers,
employees, attorneys and agents for all of their costs and expenses (including
the attributed costs of internal counsel) incurred in connection with defending
any claim made by any Grantor or any other Person against any of them for any
special, indirect, consequential or punitive damages if in a final,
non-appealable judgment a court of competent jurisdiction does not award such
special, indirect, consequential or punitive damages or, if such damages are
awarded, the court does not determine that such person took actions in bad
faith. In performing its duties under the Security Documents, the Collateral
Agent shall be entitled to all of the powers, privileges and protections
afforded to the Trustee under the Indenture, including, without limitation, the
provisions contained in Article 7 thereof.
15. Notices. Except as otherwise expressly provided herein, all
notices, requests and demands to or upon the respective parties hereto to be
effective shall be in
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writing (including by facsimile, telex, or cable communication), in the case of
each party hereto, at its address specified in Section 11.2 of the Indenture, or
to such other address as may be designated by any party in a written notice to
the other party hereto, provided that notices and communications to the
Collateral Agent shall not be effective until received by the Collateral Agent.
All such notices, requests and demands shall be deemed to have been duly given:
when delivered by hand, if personally delivered; one business day after being
timely delivered to a next-day air courier; five business days after being
deposited in the mail, postage prepaid, if mailed; when answered back if
telexed; and when receipt is confirmed, if sent by facsimile.
16. Successors and Assigns. This Security Agreement shall be
binding upon and inure to the benefit of each Grantor, the Collateral Agent, the
other Secured Parties, all future Holders of the Secured Obligations and their
respective successors and assigns, except that no Grantor may assign or transfer
any of its rights or obligations under this Security Agreement without the prior
written consent of the Collateral Agent and each other Secured Party.
17. Waivers and Amendments. None of the terms or provisions of
this Security Agreement may be waived, amended, supplemented or otherwise
modified except in accordance with Sections 9.1 and 9.2 of the Indenture.
18. No Waiver; Remedies Cumulative. No failure or delay on the
part of the Collateral Agent in exercising any right, power or privilege
hereunder and no course of dealing between any Grantor and the Collateral Agent
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. A waiver by the
Collateral Agent of any right or remedy hereunder on any one occasion shall not
be construed as a bar to any right or remedy which the Collateral Agent would
otherwise have on any future occasion. The rights and remedies herein expressly
provided are cumulative, may be exercised singly or concurrently and as often
and in such order as the Collateral Agent deems expedient and are not exclusive
of any rights or remedies which the Collateral Agent would otherwise have
whether by agreement or now or hereafter existing under applicable law. No
notice to or demand on any Grantor in any case shall entitle such Grantor to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Collateral Agent to any other or
further action in any circumstances without notice or demand.
19. Termination; Release. When the Secured Obligations have been
finally paid and performed in full, this Security Agreement shall terminate, and
the Collateral Agent, at the request and sole expense of the Company, will
execute and deliver to each Grantor the proper instruments (including Uniform
Commercial Code termination statements) acknowledging the termination of this
Security Agreement, and will duly assign, transfer and deliver to each Grantor,
without recourse, representation or
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warranty of any kind whatsoever, such of the Collateral as may be in possession
of the Collateral Agent and has not theretofore been disposed of, applied or
released.
20. Counterparts. This Security Agreement may be executed in any
number of counterparts and by the parties hereto on separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same instrument.
21. Headings Descriptive. The headings in this Security Agreement
are for convenience of reference only and shall not limit or otherwise affect
the meaning of this Security Agreement.
22. Marshalling. Neither the Collateral Agent nor any other
Secured Party shall be under any obligation to xxxxxxxx any assets in favor of
any Grantor or any other Person or against or in payment of any or all of the
Secured Obligations.
23. Severability. If any term, provision, covenant or restriction
of this Security Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
24. Survival. All indemnities set forth herein shall survive the
execution and delivery of this Security Agreement and the making and repayment
of the Secured Obligations.
25. Powers Coupled with an Interest. To the fullest extent
lawful, all authorizations and agencies herein contained with respect to the
Collateral are irrevocable and powers coupled with an interest.
26. Authority of Collateral Agent. Each Grantor acknowledges that
the rights and responsibilities of the Collateral Agent under this Security
Agreement with respect to any action taken by the Collateral Agent or the
exercise or non-exercise by the Collateral Agent of any option, right, request,
judgment or other right or remedy provided for herein or resulting or arising
out of this Security Agreement shall, as between the Collateral Agent and the
other Secured Parties, be governed by the Indenture and by such other agreements
with respect thereto as may exist from time to time among them, but, as between
the Collateral Agent and any Grantor, the Collateral Agent shall be conclusively
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presumed to be acting as agent for the Secured Parties with full and valid
authority so to act or refrain from acting, to the extent it has the right to do
so and the Grantors shall not be under any obligation, or entitlement, to make
any inquiry respecting such authority.
27. Waiver. To the extent permitted by applicable law, each
Grantor hereby waives promptness, diligence, notice of acceptance and any other
notice with respect to any of the Secured Obligations and this Security
Agreement and any requirement that the Collateral Agent protect, secure, perfect
or insure any security interest or any property subject thereto or exhaust any
right or take any action against any Grantor, or any other person or entity.
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SECURITY AND PLEDGE AGREEMENT
SIGNATURES
IN WITNESS WHEREOF, each Grantor and the Collateral Agent
have caused this Security Agreement to be duly executed and delivered as of the
date first above written.
GRANTORS:
FITZGERALDS GAMING CORPORATION
FITZGERALDS SOUTH, INC.
FITZGERALDS RENO, INC.
FITZGERALDS INCORPORATED
FITZGERALDS MISSISSIPPI, INC.
FITZGERALDS LAS VEGAS, INC.
FITZGERALDS BLACK HAWK, INC.
FITZGERALDS BLACK HAWK II, INC.
000 XXXX XXXXXX LIMITED LIABILITY
COMPANY
FITZGERALDS FREMONT EXPERIENCE
CORPORATION,
By: /s/ XXXXXX X. XXXXXXXX
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer of
each of the above named entities
S-1
