EXHIBIT 4.6
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CONTROL AGREEMENT
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This CONTROL AGREEMENT (this "Agreement") is made as of the 19th day
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of May, 1999 by and among HOLLYWOOD CASINO CORPORATION, a Delaware corporation
(the "Company") with an office at the address set forth in Section 15 hereof,
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and STATE STREET BANK AND TRUST COMPANY, a Massachusetts chartered trust company
with offices as set forth in Section 15 hereof, as Trustee and Securities
Intermediary ("Trustee" or "Securities Intermediary"). Capitalized terms used
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herein and not otherwise defined herein have the meanings assigned to them in
the Indenture described below.
RECITALS:
A. The Company, HWCC-Tunica, Inc., HWCC-Shreveport, Inc. and Trustee
have entered into an Indenture dated as of May 19, 1999 (as the same may be
amended, supplemented, restated or otherwise modified from time to time, the
"Indenture"), pursuant to which the Company will issue up to $310,000,000 of its
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11 1/4% Series A and Series B Senior Secured Notes due 2007 and up to
$50,000,000 of its Floating Rate Series A and Series B Senior Secured Notes due
2006 (as the same may be amended, supplemented, restated, exchanged, replaced or
otherwise modified from time to time, collectively, the "Notes").
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B. Securities Intermediary and Company have entered into a customer
agreement, a copy of which is attached hereto as Exhibit A (the "Customer
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Agreement"), pursuant to which Securities Intermediary has established its
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securities account number 102449-030 in the name of Company (the "Account").
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C. Company has entered into a Security Agreement of even date
herewith (as from time to time amended, restated, supplemented or otherwise
modified, the "Security Agreement"), in which inter alia, Company has granted to
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Trustee on behalf of the holders of the Notes a security interest in the Account
and the financial assets and any free credit balance carried therein.
D. Company and Securities Intermediary are entering into this
Agreement to provide for the control of the Account and to perfect the security
interest of Trustee in the Account and the financial assets and any free credit
balance carried therein as more fully described in the Security Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
AGREEMENT
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Section 1. The Account. The parties hereby agree and represent that (a) the
Account has been established in the name of Company as recited above, (b) the
Account does not hold any financial assets which are registered in the name of
Company, payable to its order, or specially endorsed to it, which have not been
endorsed to Securities Intermediary or in blank, (c) the Customer Agreement, the
security entitlements arising out of the financial assets carried in
the Account and such free credit balance are valid and legally binding
obligations of Securities Intermediary, and (d) except for the claims and
interests of Trustee and of Company in the Account, Securities Intermediary does
not know of any claim to or interest in the Account or in any financial asset
carried therein. Securities Intermediary will treat all property held by it in
the Account as financial assets under Article 8 of the Uniform Commercial Code
of the State of New York (the "Code").
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Section 2. Withdrawals. The Securities Intermediary shall accept and
comply with any entitlement order from the Company (a) to withdraw any financial
asset from the Account, (b) to deliver any financial assets to the Company, or
(c) to pay to the Company any free credit balance or other amount with respect
to the Account. Notwithstanding the foregoing sentence, following receipt of a
Notice of Exclusive Control (as defined below) from Trustee, the Securities
Intermediary shall neither accept nor comply with any entitlement order from the
Company.
Section 3. Priority of Lien. Company hereby grants to Trustee for the
benefit of the holders of the Notes a security interest in the Account, all
financial assets carried therein and any free credit balance therein. Securities
Intermediary consents to such security interest. Securities Intermediary hereby
confirms that the Account is a cash account and that it will not advance any
margin or other credit to Company therein, either directly or indirectly by
executing purchase orders in excess of any credit balance or money market mutual
funds held in the Account, executing sell orders on securities not held in the
Account or by executing trades in instruments such as options and commodities
contracts that create similar obligations, nor shall Securities Intermediary
hypothecate any securities carried in the Account. Securities Intermediary
hereby waives and releases all liens, encumbrances, claims and rights of setoff
Securities Intermediary may have against the Account or any financial asset
carried in the Account or any credit balance in the Account and agrees that,
except for payment of its customary fees and commissions pursuant to the
Customer Agreement, it will not assert any such lien, encumbrance, claim or
right or the priority thereof against the Account or any financial asset carried
in the Account or any credit balance in the Account. Securities Intermediary
will not agree with any third party that Securities Intermediary will comply
with entitlement orders concerning the Account originated by such third party
without the prior written consent of Trustee and Company.
Section 4. Control. Securities Intermediary will comply with entitlement
orders originated by Trustee concerning the Account without further consent by
Company. Except as otherwise provided in Sections 2 and 3 above, Securities
Intermediary shall make trades of financial assets held in the Account at the
instruction of Company, or its authorized representatives, and comply with
entitlement orders concerning such trades from Company, or its authorized
representatives in any of the permitted investments set forth on Exhibit B
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hereto, until such time as Trustee delivers a written notice to Securities
Intermediary which states that an Event of Default under the Indenture has
occurred and is continuing, and Trustee is exercising exclusive control over the
Account. Such notice is referred to herein as the "Notice of Exclusive
Control." After Securities Intermediary receives a Notice of Exclusive Control,
it will immediately cease complying with all instructions or entitlement orders
concerning the Account originated by Company or its representatives.
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Section 5. Statements, Confirmations and Notices of Adverse Claims.
Securities Intermediary will send copies of all statements, confirmations and
other correspondence concerning the Account simultaneously to each of Company
and Trustee at the addresses set forth in the heading of this Agreement. If any
person asserts any lien, encumbrance or adverse claim against the Account or in
any financial asset carried therein, Securities Intermediary will promptly
notify Trustee and Company thereof.
Section 6. Responsibility of Securities Intermediary. Except for
advancing margin or other credit to Company in violation of Section 3 above,
Securities Intermediary shall have no responsibility or liability to Trustee for
making trades of financial assets held in the Account at the instruction of
Company, or its authorized representatives, or complying with entitlement orders
in accordance with Section 4 above concerning the Account from Company, or its
authorized representatives, which are received by Securities Intermediary before
Securities Intermediary receives a Notice of Exclusive Control. Securities
Intermediary shall have no responsibility or liability to Company for complying
with a Notice of Exclusive Control or complying with entitlement orders
concerning the Account originated by Trustee. Securities Intermediary shall have
no duty to investigate or make any determination as to whether the conditions
for the issuance of a Notice of Exclusive Control contained in any agreement
between Company and Trustee have occurred. Neither this Agreement nor the
Security Agreement imposes or creates any obligation or duty of Securities
Intermediary other than those expressly set forth herein.
Section 7. Tax Reporting. All items of income, gain, expense and loss
recognized in the Account shall be reported to the Internal Revenue Service and
all state and local taxing authorities under the name and taxpayer
identification number of Company.
Section 8. Customer Agreement. This Agreement supplements the Customer
Agreement between Securities Intermediary and Customer. In the event of a
conflict between this Agreement and the Customer Agreement, the terms of this
Agreement will prevail. Regardless of any provision in the Customer Agreement,
New York shall be deemed to be the Securities Intermediary's location for the
purposes of this Agreement and the perfection and priority of Trustee's security
interest in the Account.
Section 9. Termination. The rights and powers granted herein to Trustee
have been granted in order to perfect its security interest in the Account, are
powers coupled with an interest and will neither be affected by the bankruptcy
or insolvency of Company nor by the lapse of time. The obligations of Securities
Intermediary under Sections 2, 3, 4 and 5 above shall continue in effect until
the security interest of Trustee in the Account has been terminated pursuant to
the terms of the Security Agreement and Trustee has notified Securities
Intermediary of such termination in writing. Upon receipt of such notice, the
obligations of Securities Intermediary under Sections 2, 3, 4 and 5 above with
respect to the operation and maintenance of the Account after the receipt of
such notice shall terminate, Trustee shall have no further right to originate
entitlement orders concerning the Account and Securities Intermediary may take
such steps as Company may request to vest full ownership and control of the
Account in Company, including, but not limited to, transferring all of the
financial assets and credit balances in the Account to another securities
account in the name of Company or its designee.
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Section 10. This Agreement. This Agreement, the schedules and exhibits
hereto and the agreements and instruments required to be executed and delivered
hereunder set forth the entire agreement of the parties hereto with respect to
the subject matter hereof and supersede and discharge all prior agreements
(written or oral) and negotiations and all contemporaneous oral agreements
concerning such subject matter and negotiations. There are no oral conditions
precedent to the effectiveness of this Agreement.
Section 11. Amendments. No amendment, modification or termination of
this Agreement or waiver of any right hereunder shall be binding on any party
hereto unless it is in writing and is signed by the party to be charged.
Section 12. Severability. If any term or provision set forth in this
Agreement shall be invalid or unenforceable, the remainder of this Agreement, or
the application of such terms or provisions to persons or circumstances, other
than those to which it is held invalid or unenforceable, shall be construed in
all respects as if such invalid or unenforceable term or provision were omitted.
Section 13. Successors, Assignment, Additional Accounts. The terms of
this Agreement shall be binding upon, and shall inure to the benefit of, the
parties hereto and their respective corporate successors or assigns. The Company
may open additional accounts with Securities Intermediary or any other
securities intermediary pursuant to a control agreement on substantially the
same terms as this Agreement.
Section 14. Rules of Construction. In this Agreement, words in the
singular number include the plural, and in the plural include the singular;
words of the masculine gender include the feminine and the neuter, and when the
sense so indicates words of the neuter gender may refer to any gender and the
word "or" is disjunctive but not exclusive. The captions and section numbers
appearing in this Agreement are inserted only as a matter of convenience. They
do not define, limit or describe the scope or intent of the provisions of this
Agreement. Except as otherwise defined herein all terms herein shall have the
meanings ascribed thereto in Article 8 of the Code.
Section 15. Notices. Any notice other communication by the Company, the
Trustee or the Securities Intermediary to the others is duly given if in writing
and delivered in Person or mailed by first class mail (registered or certified,
return receipt requested) telex, telecopier or overnight air courier
guaranteeing next day delivery, to the others' address:
If to the Company:
x/x Xxxxxxxxx Xxxxxx Xxxxxxxxxxx
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
00000 Xxxx Xxxx, XX 00
Xxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
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With a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
If to the Trustee:
State Street Bank and Trust Company
Xxx Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Corporate Trust Administration
If to the Securities Intermediary:
State Street Bank and Trust Company
Xxx Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Corporate Trust Administration
The Company, the Trustee or the Securities Intermediary by notice to
the others may designate additional or different addresses for subsequent
notices or communications.
All notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
Section 16. Counterparts. This Agreement may be executed in any number
of counterparts, all of which shall constitute one and the same instrument, and
any party hereto may execute this Agreement by signing and delivering one or
more counterparts.
Section 17. Choice of Law. The parties hereto agree that certain
material events, occurrences and transactions relating to this Agreement bear a
reasonable relationship to the State of New York. The validity, terms,
performance and enforcement of this Agreement shall be governed by the laws of
the State of New York which are applicable to agreements which are executed,
delivered and performed in that State.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties hereto have caused this Control
Agreement to be duly executed as of the day and year first above written.
HOLLYWOOD CASINO CORPORATION
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Vice President
STATE STREET BANK AND TRUST COMPANY,
as Securities Intermediary
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Vice President
S-1
EXHIBIT A
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Customer Agreement
(attached)
EXHIBIT A
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Customer Agreement
(attached)
[LETTERHEAD OF STATE STREET APPEARS HERE]
April 20, 1999
Xxxxxx X. Xxxxxxx
Associate General Counsel
Hollywood Casino Corporation
Via Fax 972/000-0000
Re: Trustee, Registrar, Paying, Depositary/Tender and Escrow Agent
$350,000,000 Secured Notes
Hollywood Casino Corporation
Dear Xxxxxx:
State Street Bank and Trust Company is pleased to serve as Trustee on the above
referenced note issue. Our fees will follow on the attached pages.
Please add to the distribution of the Offering Memorandum and documents the
following individuals:
Xxxxxx Xxxx Xxxxxx Xxxxxxxxx, Esq.
State Street Bank and Trust Company Xxxxxxx & Xxxxxxx
Two International Place Xxx Xxxxxxxx Xxx
Xxxxxx, XX 00000 Xxxxxxxx, XX 00000
617/664-5219 860/251-5918
617/000-0000 fax 860/000-0000 fax
Also, please send the Offering Memorandum to myself and Xxxxx Xxxxx, State
Street Bank and Trust Company, Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, XX 00000.
The transaction underlying this proposal, and all related legal documentation,
is subject to review and acceptance by State Street in accordance with its
policies and procedures. Should the actual transaction materially differ from
the assumptions used herein, State Street reserves the right to modify this
proposal. In the event that the subject transaction fails to close for reasons
beyond the control of State Street, the party requesting these services agrees
to pay State Street's acceptance fees, legal fees and out-of-pocket expenses.
Should you have any questions you may contact me at 860/000-0000.
Very truly yours,
/s/ X X XxXxxxxx
Xxxxx X. XxXxxxxx
Vice President
cc: Xxxxxx Xxxxxx, Esq., Xxxxxx & Xxxxxxx
Xxx Xxxxxx, Esq., Weil, Gotschal
[STATE STREET LETTERHEAD LOGO APPEARS HERE]
Hollywood Casino Corporation
Schedule of Fees
page 2
State Stret Bank and Trust Company
Fee Proposal for acting as Trustee, Registrar, Paying,
Depositary/Tender and Escrow Agent
$350,000,000 Secured Notes
Hollywood Casino Corporation
Acceptance Fee $5,000
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Our Acceptance Fee encompasses all administrative and operational activities
necessary to close the transaction. It includes but is not limited to the
following:
. Review and comment on all agreements and documents delivered at the
closing.
. Preparation and delivery of any closing documents requested of the
Trustee.
. Establishment of the files and records necessary to carry out the
duties of the Trustee throughout the life of the transaction.
. Attendance at the pre-closing and closing. Please note tht out-of
pocket for transportation, meals and accommodations will be billed as
incurred in addition to the quoted acceptance fee.
. Assistance to all professionals involved in the transaction to assure
a timely and successful closing.
Annual Administrative Fee $8,000
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Our Annual Administrative Fee encompasses the day to day discharge of our duties
and responsibilities in acting as Trustee. It includes but is not limited to
the following:
. Maintenance of all records and files required of the Trustee pursuant
to the operative documents.
. Compliance with all Indenture provisions which require Trustee
action.
. Establishment of cash accounts and the proper administration of such
as described by the agreements.
. Prompt response to inquiries from bondholders and other interested
parties to the financing.
. Rendering of periodic statements and reports as required.
[STATE STREET LETTERHEAD LOGO APPEARS HERE]
Hollywood Casino Corporation
Schedule of Fees
page 3
. Receipt and appropriate distribution of certificates and financial
statements as required.
. Preparation and delivery of Trustee reports required by the Trust
Indenture Act of 1939 as amended.
Annual Registrar and Paying Agent Fee Waived
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Our Registrar Fee includes the following services:
. Maintenance of bondholder name, address, and tax payer identification
number
. Distribution of debt service payments
. Reconciliation of paying agent accounts
. Issuance and mailing of 1099, 1099 B's and other required tax
information
. Completion and delivery of all necessary SEC reports
Depositary Agent Fee $4,000
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Escrow Agent Fee $1,500
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Investment Fee $65 per security purchased
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Investment in State Street
Investment Vehicles 40 Basis Points (.0040) of the
average daily net assets
Investment Vehicles
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SSgA Prime Money Market Fund
SSgA US Treasury Money Market Fund
SSgA Tax Free Money Market Fund
State Street Insured Money No transaction fee
Market (1MMA)
Notes
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Trustee counsel fees and out of pocket expenses will be billed as incurred.
EXHIBIT B
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Permitted Investments
1. Securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof (provided that
the full faith and credit of the United States is pledged in support
thereof) having maturities no later than one year from the date of
acquisition thereof.
2. Certificates of deposit and eurodollar time deposits with maturities no
later than one year from the date of acquisition thereof, bankers'
acceptances with maturities not exceeding six months and overnight bank
deposits, in each case, with any lender party to any Credit Facility or
with any domestic commercial bank having capital and surplus in excess of
$500 million and a Thomson Bank Watch Rating of "B" or better.
3. Repurchase obligations with a term of not more than seven days for
underlying securities of the types described in 1 and 2 above entered into
with any financial institution meeting the qualifications in 2 above.
4. Commercial paper rated at least P-1 or the equivalent thereof by Xxxxx'x
Investors Service, Inc. or at least A-1 or the equivalent thereof by
Standard & Poor's Rating Services and in each case maturing within one year
after the date of acquisition.
5. Money market funds at least 95% of which constitute investments of the
types described in 1-4 above.
