Exhibit 4.5
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SECURITY AGREEMENT
By
XXXXX CASINO HOLDINGS, LLC
XXXXX CASINO FUNDING, INC.,
as Issuers
and
THE GUARANTORS PARTY HERETO
and
U.S. BANK NATIONAL ASSOCIATION
as Collateral Agent
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Dated as of March 25, 2003
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TABLE OF CONTENTS
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PREAMBLE........................................................................................... 1
RECITALS........................................................................................... 1
AGREEMENT.......................................................................................... 2
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions.......................................................................... 2
SECTION 1.2 Interpretation...................................................................... 12
SECTION 1.3 Resolution of Drafting Ambiguities.................................................. 12
ARTICLE II
GRANT OF SECURITY AND SECURED OBLIGATIONS
SECTION 2.1 Pledge.............................................................................. 12
SECTION 2.2 Secured Obligations................................................................. 13
SECTION 2.3 Security Interest................................................................... 14
SECTION 2.4 No Release.......................................................................... 14
ARTICLE III
PERFECTION; SUPPLEMENTS; FURTHER ASSURANCES;
USE OF PLEDGED COLLATERAL
SECTION 3.1 Delivery of Certificated Securities Collateral...................................... 14
SECTION 3.2 Perfection of Uncertificated Securities Collateral.................................. 15
SECTION 3.3 Maintenance of Perfected Security Interest.......................................... 15
SECTION 3.4 Other Actions....................................................................... 15
SECTION 3.5 Joinder of Additional Guarantors.................................................... 17
SECTION 3.6 Use and Pledge of Pledged Collateral................................................ 17
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 4.1 Perfection.......................................................................... 17
SECTION 4.2 Title, Authority and Validity; Preservation of Corporate Existence.................. 18
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SECTION 4.3 Validity of Security Interest....................................................... 18
SECTION 4.4 Other Financing Statements.......................................................... 19
SECTION 4.5 Chief Executive Office; Change of Name; Jurisdiction of Organization................ 19
SECTION 4.6 Location of Equipment............................................................... 19
SECTION 4.7 Condition and Maintenance of Equipment.............................................. 19
SECTION 4.8 Corporate Names; Prior Transactions................................................. 20
SECTION 4.9 Due Authorization and Issuance...................................................... 20
SECTION 4.10 No Violations, etc.................................................................. 20
SECTION 4.11 No Options, Warrants, etc........................................................... 20
SECTION 4.12 No Claims........................................................................... 20
SECTION 4.13 No Conflicts, Consents, etc......................................................... 20
SECTION 4.14 Pledged Collateral.................................................................. 21
SECTION 4.15 Insurance........................................................................... 21
SECTION 4.16 Benefit to Guarantors............................................................... 21
SECTION 4.17 Further Assurances of Xxxxx Indiana, Inc............................................ 22
ARTICLE V
CERTAIN PROVISIONS CONCERNING SECURITIES COLLATERAL
SECTION 5.1 Pledge of Additional Securities Collateral.......................................... 22
SECTION 5.2 Voting Rights; Distributions; etc................................................... 22
SECTION 5.3 Operative Agreements................................................................ 23
SECTION 5.4 Defaults, etc....................................................................... 24
SECTION 5.5 Certain Agreements of Pledgors As Issuers and Holders of Equity Interests........... 24
ARTICLE VI
CERTAIN PROVISIONS CONCERNING INTELLECTUAL
PROPERTY COLLATERAL
SECTION 6.1 Grant of License.................................................................... 24
SECTION 6.2 Registrations....................................................................... 24
SECTION 6.3 No Violations or Proceedings........................................................ 25
SECTION 6.4 Protection of Collateral Agent's Security........................................... 25
SECTION 6.5 After-Acquired Property............................................................. 25
SECTION 6.6 Modifications....................................................................... 26
SECTION 6.7 Litigation.......................................................................... 26
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ARTICLE VII
INTENTIONALLY OMITTED
ARTICLE VIII
TRANSFERS AND OTHER LIENS
SECTION 8.1 Transfers of and other Liens on Pledged Collateral................................... 27
ARTICLE IX
REMEDIES
SECTION 9.1 Remedies............................................................................ 27
SECTION 9.2 Notice of Sale...................................................................... 29
SECTION 9.3 Waiver of Notice and Claims......................................................... 29
SECTION 9.4 Certain Sales of Pledged Collateral................................................. 29
SECTION 9.5 No Waiver; Cumulative Remedies...................................................... 31
SECTION 9.6 Certain Additional Actions Regarding Intellectual Property.......................... 31
ARTICLE X
APPLICATION OF PROCEEDS
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Concerning Collateral Agent......................................................... 31
SECTION 11.2 Collateral Agent May Perform; Collateral Agent Appointed Attorney-in-Fact........... 32
SECTION 11.3 Expenses............................................................................ 33
SECTION 11.4 Indemnity........................................................................... 33
SECTION 11.5 Continuing Security Interest; Assignment............................................ 34
SECTION 11.6 Termination; Release................................................................ 34
SECTION 11.7 Modification in Writing............................................................. 34
SECTION 11.8 Notices............................................................................. 34
SECTION 11.9 GOVERNING LAW....................................................................... 35
SECTION 11.10 CONSENT TO JURISDICTION AND SERVICE OF PROCESS; WAIVER OF JURY TRIAL................ 35
SECTION 11.11 Severability of Provisions.......................................................... 35
SECTION 11.12 Execution in Counterparts........................................................... 35
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SECTION 11.13 Business Days....................................................................... 35
SECTION 11.14 No Credit for Payment of Taxes or Imposition........................................ 36
SECTION 11.15 No Claims Against Collateral Agent.................................................. 36
SECTION 11.16 Obligations Absolute................................................................ 36
SECTION 11.17 Gaming Laws......................................................................... 36
SIGNATURES
EXHIBIT 1 Form of Issuer Acknowledgment
EXHIBIT 2 Form of Securities Pledge Amendment
EXHIBIT 3 Form of Joinder Agreement
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SECURITY AGREEMENT
SECURITY AGREEMENT (the "Agreement"), dated as of March 25, 2003
made by XXXXX CASINO HOLDINGS, LLC, a Delaware limited liability company having
an office at 0000 Xxxxxxxxx, Xxxxxxxx Xxxx, Xxx Xxxxxx 00000 ("Holdings"), XXXXX
CASINO FUNDING, INC., a Delaware Corporation having an office at 0000 Xxxxxxxxx,
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000 ("Funding" and together with Holdings, the
"Issuers"), and EACH OF THE GUARANTORS LISTED ON THE SIGNATURE PAGES HERETO OR
FROM TIME TO TIME PARTY HERETO BY EXECUTION OF A JOINDER AGREEMENT
(collectively, the "Guarantors"), as pledgors, assignors and debtors (the
Issuers, together with the Guarantors, in such capacities and together with any
successors in such capacities, the "Pledgors," and each, a "Pledgor"), in favor
of U.S. Bank National Association, a national banking association having an
office at 000 Xxxx Xxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000, in its capacity as
collateral agent pursuant to the Priority Intercreditor Agreement (as
hereinafter defined), as pledgee, assignee and secured party (in such capacities
and together with any successors in such capacities, the "Collateral Agent").
R E C I T A L S:
A. The Issuers and the Collateral Agent, as trustee (in
such capacity, along with successors in such capacity, the "First Priority
Trustee") have, in connection with the execution and delivery of this Agreement,
entered into that certain indenture, dated as of March 25, 2003 (as amended,
amended and restated, supplemented or otherwise modified from time to time, the
"First Priority Indenture"), pursuant to which the Issuers have issued their 11
5/8% first priority mortgage notes due 2010 (the "First Priority Notes") in the
original aggregate principal amount of $425,000,000. It is contemplated that the
Issuers may, after the date hereof, issue additional First Priority Notes,
exchange notes and private exchange notes (collectively with the original First
Priority Notes, the "First Notes") pursuant to the provisions of the First
Priority Indenture.
B. The Issuers and the Collateral Agent, as trustee (in
such capacity, along with successors in such capacity, the "Second Priority
Trustee" and together with the First Priority Trustee, the "Trustees") have, in
connection with the execution and delivery of this Agreement, entered into that
certain indenture, dated as of March 25, 2003 (as amended, amended and restated,
supplemented or otherwise modified from time to time, the "Second Priority
Indenture" and together with the First Priority Notes Indenture, the
"Indentures"), pursuant to which the Issuers have issued their 17 5/8% second
priority mortgage notes due 2010 (the "Second Priority Notes") in the original
aggregate principal amount of $65,000,000. It is contemplated that the Issuers,
after the date hereof, may issue additional Second Priority Notes, exchange
notes and private exchange notes (collectively with the original Second Priority
Notes, the "Second Notes;" the Second Notes together with the First Notes are
referred to as the "Notes") pursuant to the provisions of the Second Priority
Notes Indenture.
C. Collateral Agent is the collateral agent under that
certain Priority Intercreditor Agreement dated as of March 25, 2003 (as amended,
amended and restated, supplemented or otherwise modified from time to time, the
"Priority Intercreditor Agreement") for the Trustees (acting at the direction of
and for the benefit of the holders of the Notes) (the Trustees, the holders of
the Notes and the Collateral Agent are hereinafter referred to collectively as
the "Secured Parties")
D. Each Guarantor has, pursuant to the Indentures, among
other things, unconditionally guaranteed the obligations of the Issuers under
the Indentures and the Notes.
E. Each Guarantor will receive substantial benefits from
the execution, delivery and performance of the obligations under the Indentures
and the Notes and is, therefore, willing to enter into this Agreement.
F. Each Pledgor is or, as to Pledged Collateral (as
hereinafter defined) acquired by such Pledgor after the date hereof will be, the
legal and/or beneficial owner of the Pledged Collateral pledged by it hereunder.
G. This Agreement is given by each Pledgor in favor of the
Collateral Agent for the benefit of the Secured Parties to secure the payment
and performance of all of the Secured Obligations (as hereinafter defined).
A G R E E M E N T :
NOW THEREFORE, in consideration of the foregoing premises and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, each Pledgor and the Collateral Agent hereby agree as
follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions. (a) Unless otherwise defined herein,
terms used herein that are defined in the UCC shall have the meanings assigned
to them in the UCC, including the following which are capitalized herein:
"Account;" "Commercial Tort Claim;" "Electronic Chattel Paper;"
"Equipment;" "Fixtures;" "Goods;" "Inventory;" "Proceeds;" "Supporting
Obligations;" and "Tangible Chattel Paper."
(b) Capitalized terms used but not otherwise defined herein
that are defined in the Indentures shall have the meanings given to them in the
Indentures, including the following:
"Applicable Law;" "Business Day;" "Capitalized Lease
Obligation;" "Cash Equivalents;" "Collateral Account;" "Collateral Documents;"
"Event of Default;" "GAAP;" "Gaming Licenses;" "Holders;" "Indebtedness;" "Issue
Date;" "Lien;" "Mortgage;" "Net Loss Proceeds;" "Officers' Certificate;"
"Permitted Liens;" "Person;" "Purchase Money Obligations;" "Ship Mortgage;"
"Subsidiary;" and "Trust Monies."
(c) The following terms shall have the following meanings:
"Additional Pledged Interests" shall mean, collectively, with
respect to each Pledgor, (i) all options, warrants, rights, agreements,
additional membership or partnership interests or other interests of whatever
class of any issuer of Initial Pledged Interests or any interest in any such
issuer, including, without limitation, all rights, privileges, authority and
powers of such Pledgor relating to the
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equity or membership or partnership interests in any such issuer or under the
Operative Agreement of any such issuer, from time to time acquired by such
Pledgor in any manner and (ii) all the membership, partnership or other
interests, as applicable, of each limited liability company, partnership or
other entity (other than a corporation) hereafter acquired or formed by such
Pledgor and all options, warrants, rights, agreements, additional membership or
partnership interests or other interests of whatever class of such limited
liability company, partnership or other entity including, without limitation,
all rights, privileges, authority and powers of such Pledgor relating to such
equity or membership or partnership interests or under the Operative Agreement
of such limited liability company, partnership or other entity, from time to
time acquired by such Pledgor in any manner, in each case, including the
certificates, instruments and agreements, if any, representing such additional
interests and any and all interest of such Pledgor in the entries on the books
of any financial intermediary pertaining to such additional interests.
"Additional Pledged Shares" shall mean, collectively, with
respect to each Pledgor, (i) all options, warrants, rights, agreements,
additional shares of capital stock of whatever class of any issuer of the
Initial Pledged Shares or any interest in any such issuer, including, without
limitation, all rights, privileges, authority and powers of such Pledgor
relating to such additional shares issued by any such issuer under the Operative
Agreement of any such issuer, from time to time acquired by such Pledgor in any
manner and (ii) all the issued and outstanding shares of capital stock of each
corporation hereafter acquired or formed by such Pledgor and all options,
warrants, rights, agreements or additional shares of capital stock of whatever
class of such corporation including, without limitation, all rights, privileges,
authority and powers of such Pledgor relating to such shares or under the
Operative Agreement of such corporation, from time to time acquired by such
Pledgor in any manner, in each case, including the certificates, if any,
representing such additional shares and any and all interest of such Pledgor in
the entries on the books of any financial intermediary pertaining to such
additional shares.
"Agreement" shall mean this Agreement, as amended, amended and
restated, supplemented or otherwise modified from time to time in accordance
with the provisions hereof.
"Charges" shall mean any and all property and other taxes,
assessments and special assessments, levies, fees and all governmental charges
imposed upon or assessed against, and all claims (including, without limitation,
landlords', carriers', mechanics', maritime, workmen's, repairmen's, laborers',
materialmen's, suppliers' and warehousemen's Liens and other claims arising by
operation of law) against, all or any portion of the Pledged Collateral.
"Chattel Paper" shall have the meaning assigned to such term in
the UCC, to the extent such "Chattel Paper" evidences any amounts payable under
or in connection with any item of the Pledged Collateral or Mortgaged Property
or such chattel paper constitutes Proceeds of any item of Pledged Collateral or
Mortgaged Property.
"Collateral Account Funds" shall mean, collectively, the
following from time to time on deposit in the Collateral Account: all funds
(including, without limitation, all Trust Monies), investments (including,
without limitation, all Cash Equivalents) and all certificates and instruments
from time to time representing or evidencing such investments; all notes,
certificates of deposit, checks and other instruments and all interest,
dividends, cash, instruments and other property from time to time received,
receivable or otherwise distributed thereon.
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"Collateral Agent" shall have the meaning assigned to such term
in the Preamble of this Agreement.
"Collateral Material Adverse Effect" shall mean, as of any date
of determination and whether individually or in the aggregate (a) any event,
circumstance, occurrence or condition which has caused or resulted in (or would
reasonably be expected to cause or result in) a material adverse effect on the
business or operations as presently conducted of the Pledgors taken as a whole;
(b) any event, circumstance, occurrence or condition which has caused or
resulted in (or would reasonably be expected to cause or result in) a material
adverse effect on the value or utility of the Pledged Collateral taken as a
whole; or (c) any event, circumstance, occurrence or condition which has caused
or resulted in (or would reasonably expect to cause or result in) a material
adverse effect on the legality, priority or enforceability of the Lien created
by this Agreement or the rights and remedies of the Collateral Agent hereunder.
"Contracts" shall mean, collectively, with respect to each
Pledgor, all sale, service, performance, equipment or property lease contracts,
agreements and grants and all other contracts, agreements or grants (in each
case, whether written or oral, or third party or intercompany), between such
Pledgor and third parties, and all assignments, amendments, restatements,
supplements, extensions, renewals, replacements or modifications thereof, and in
any event, shall include, without limitation, the Xxxxx 29 Management Agreement
(including the right to receive Management Fees thereunder) and all other
material agreements, licenses and permits entered into by, or granted to, any
Pledgor in connection with the development, construction, maintenance, ownership
and operation of any Pledgors' properties.
"Control Agreement" shall have the meaning assigned to such term
in Section 3.4(d) hereof.
"Copyrights" shall mean, collectively, with respect to each
Pledgor, all copyrights (whether statutory or common law, whether established or
registered in the United States or any other country or any political
subdivision thereof whether registered or unregistered and whether published or
unpublished) and all copyright registrations and applications made by such
Pledgor, in each case, whether now owned or hereafter created or acquired by or
assigned to such Pledgor, including, without limitation, the copyrights,
registrations and applications listed in Schedule 14(b) of the Perfection
Certificate, together with any and all (i) rights and privileges arising under
Applicable Law with respect to such Pledgor's use of such copyrights, (ii)
reissues, renewals, continuations and extensions thereof, (iii) income, fees,
royalties, damages, claims and payments now or hereafter due and/or payable with
respect thereto, including, without limitation, damages and payments for past,
present or future infringements thereof, (iv) rights corresponding thereto
throughout the world and (v) rights to xxx for past, present or future
infringements thereof.
"CRDA" shall mean the New Jersey Casino Reinvestment Development
Authority.
"Destruction" shall mean any and all damage to, or loss or
destruction of, all or any portion of the Pledged Collateral or Mortgaged
Property.
"Distributions" shall mean, collectively, with respect to each
Pledgor, all dividends, options, warrants, rights, instruments, distributions,
returns of capital or principal, income, interest, profits and other property,
interests (debt or equity) or Proceeds, including as a result of a split,
revision, reclassification or other like change of the Pledged Securities, in
each case in a form other than cash or
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Cash Equivalents, from time to time received, receivable or otherwise
distributed to such Pledgor in respect of or in exchange for any or all of the
Pledged Securities or Intercompany Notes.
"Documents" shall have the meaning assigned to such term in the
UCC, to the extent such "Documents" evidence any item of the Pledged Collateral
or Mortgaged Property or such "Documents" constitute Proceeds of any item of
Pledged Collateral or Mortgaged Property.
"Excluded Property" shall mean Special Property other than any
Proceeds, substitutions or replacements of any Special Property (unless such
Proceeds, substitutions or replacements would constitute Special Property).
"First Priority Secured Obligations" shall mean all obligations
(whether or not constituting future advances, obligatory or otherwise) of the
Issuers and any and all of the Guarantors from time to time arising under or in
respect of this Agreement, the First Priority Indenture, the First Notes and the
other Collateral Documents (including, without limitation, the obligations to
pay principal, interest and all other charges, fees, expenses, commissions,
reimbursements, premiums, indemnities and other payments related to or in
respect of the obligations contained in this Agreement, the First Priority
Indenture, the First Notes and the other Collateral Documents), in each case
whether (i) such obligations are direct or indirect, secured or unsecured, joint
or several, absolute or contingent, due or to become due whether at stated
maturity, by acceleration or otherwise, (ii) arising in the regular course of
business or otherwise, (iii) for payment or performance and/or (iv) now existing
or hereafter arising (including, without limitation, interest and other
obligations arising or accruing after the commencement of any bankruptcy,
insolvency, reorganization or similar proceeding with respect to any Pledgor or
any other Person, or which would have arisen or accrued but for the commencement
of such proceeding, even if such obligation or the claim therefor is not
enforceable or allowable in such proceeding).
"First Priority Secured Parties" shall mean the Collateral
Agent, the First Priority Trustee and the Holders of First Notes.
"General Intangibles" shall mean, collectively, with respect to
each Pledgor, all "general intangibles," as such term is defined in the UCC, of
such Pledgor and, in any event, shall include, without limitation, (i) all of
such Pledgor's rights, title and interest in, to and under all Insurance
Policies and Contracts, (ii) all know-how and warranties relating to any of the
Pledged Collateral or the Mortgaged Property, (iii) any and all other rights,
claims, choses-in-action and causes of action of such Pledgor against any other
Person and the benefits of any and all collateral or other security given by any
other Person in connection therewith, (iv) all guarantees, endorsements and
indemnifications on, or of, any of the Pledged Collateral or any of the
Mortgaged Property, (v) all lists, books, records, correspondence, ledgers,
print-outs, files (whether in printed form or stored electronically), tapes and
other papers or materials containing information relating to any of the Pledged
Collateral or any of the Mortgaged Property, including, without limitation, all
customer or tenant lists, identification of suppliers, data, plans, blueprints,
specifications, designs, drawings, appraisals, recorded knowledge, surveys,
studies, engineering reports, test reports, manuals, standards, processing
standards, performance standards, catalogs, research data, computer and
automatic machinery software and programs and the like, field repair data,
accounting information pertaining to such Pledgor's operations or any of the
Pledged Collateral or any of the Mortgaged Property and all media in which or on
which any of such information or knowledge or data or records may be recorded or
stored and all computer programs used for the compilation or printout of such
information, knowledge, records or data, (vi) all licenses,
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consents, permits, variances, certifications, authorizations and approvals,
however characterized, of any Governmental Authority (or any Person acting on
behalf of a Governmental Authority) now or hereafter acquired or held by such
Pledgor pertaining to operations now or hereafter conducted by such Pledgor or
any of the Pledged Collateral or any of the Mortgaged Property including,
without limitation, building permits, certificates of occupancy, environmental
certificates, industrial permits or licenses and certificates of operation and
(vii) all rights to reserves, deferred payments, deposits, refunds,
indemnification of claims to the extent the foregoing relate to any Pledged
Collateral or Mortgaged Property and claims for tax or other refunds against any
Governmental Authority relating to any Pledged Collateral or any of the
Mortgaged Property.
"Goodwill" shall mean, collectively, with respect to each
Pledgor, the goodwill connected with such Pledgor's business including, without
limitation, (i) all goodwill connected with the use of and symbolized by any of
the Intellectual Property Collateral in which such Pledgor has any interest,
(ii) all know-how, trade secrets, customer and supplier lists, proprietary
information, inventions, methods, procedures, formulae, descriptions,
compositions, technical data, drawings, specifications, name plates, catalogs,
confidential information and the right to limit the use or disclosure thereof by
any Person, pricing and cost information, business and marketing plans and
proposals, consulting agreements, engineering contracts and such other assets
which relate to such goodwill and (iii) all product lines of such Pledgor's
business.
"Governmental Authority" shall mean any Federal, state, local,
foreign or other governmental, quasi-governmental or administrative (including
self-regulatory) body, instrumentality, department, agency, authority, board,
bureau, commission, office of any nature whatsoever or other subdivision
thereof, or any court, tribunal, administrative hearing body, arbitration panel
or other similar dispute-resolving body, whether now or hereafter in existence,
or any officer or official thereof, having jurisdiction over any Pledgor or the
Pledged Collateral or the Mortgaged Property or any portion thereof.
"Guarantors" shall have the meaning assigned to such term in the
Preamble hereof.
"Indemnified Liabilities" shall have the meaning assigned to
such term in Section 11.4(i) hereof.
"Indemnitees" shall have the meaning assigned to such term in
Section 11.4(i) hereof.
"Indentures" shall have the meaning assigned to such term in
Recital B hereof.
"Initial Pledged Interests" shall mean, with respect to each
Pledgor, all membership, partnership or other equity interests (other than in a
corporation), as applicable, of each issuer described in Schedule 11 annexed to
the Perfection Certificate, together with all rights, privileges, authority and
powers of such Pledgor in and to
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each such issuer or under the Operative Agreement of each such issuer, and the
certificates, instruments and agreements, if any, representing such membership,
partnership or other interests and any and all interest of such Pledgor in the
entries on the books of any financial intermediary pertaining to such
membership, partnership or other interests.
"Initial Pledged Shares" shall mean, collectively, with respect
to each Pledgor, the issued and outstanding shares of capital stock of each
issuer described in Schedule 11 annexed to the Perfection Certificate together
with all rights, privileges, authority and powers of such Pledgor in and to each
such issuer or under the Operative Agreement of each such issuer, and the
certificates, instruments and agreements, if any, representing such shares of
capital stock and any and all interest of such Pledgor in the entries on the
books of any financial intermediary pertaining to the Initial Pledged Shares.
"Instruments" shall mean, collectively, with respect to each
Pledgor, all "instruments," as such term is defined in Section 9-102 of the UCC,
and in any event shall include, without limitation, all promissory notes,
drafts, bills of exchange or acceptances to the extent the same evidence the
Pledged Collateral or Mortgaged Property.
"Insurance Policies" shall mean the insurance policies and
coverages required to be maintained by the Pledgors with respect to the Pledged
Collateral and the Mortgaged Property pursuant to Section 4.18 of the Indentures
and all renewals and extensions thereof.
"Insurance Requirements" means, collectively, with respect to
each Pledgor, all provisions of the Insurance Policies, all requirements of the
issuer of any of the Insurance Policies and all orders, rules, regulations and
any other requirements of the National Board of Fire Underwriters (or any other
body exercising similar functions) binding upon such Pledgor and applicable to
the Pledged Collateral or the Mortgaged Property or any use or condition
thereof.
"Intellectual Property Collateral" shall mean, collectively, the
Patents, Trademarks, Copyrights, Licenses and Goodwill.
"Intercompany Notes" shall mean, with respect to each Pledgor,
all intercompany notes described in Schedule 12 annexed to the Perfection
Certificate (and each other intercompany note hereafter acquired by such
Pledgor) and all certificates, instruments or agreements evidencing such
intercompany notes, and all assignments, amendments, restatements, supplements,
extensions, renewals, replacements or modifications thereof to the extent
permitted pursuant to the terms hereof.
"Issuers" shall have the meaning assigned to such term in the
Preamble hereof.
"Joinder Agreement" shall mean the form of joinder agreement
attached hereto as Exhibit 3.
"Letter-of-Credit Rights" shall have the meaning assigned to
such term in the UCC, to the extent such "Letter-of-Credit Rights" evidence
amounts payable under or in connection with the Pledged Collateral or Mortgaged
Property.
"Letters of Credit" shall have the meaning assigned to such term
in the UCC, to the extent such "Letters of Credit" evidence the Pledged
Collateral or Mortgaged Property.
"Licenses" shall mean, collectively, with respect to each
Pledgor, all license and distribution agreements with, and covenants not to xxx,
any other party with respect to any Patent, Trademark or Copyright, whether such
Pledgor is a licensor or licensee, distributor or distributee under any such
license or distribution agreement, including, without limitation, the license
and distribution agreements listed in Schedules 14(a) and 14(b) annexed to the
Perfection Certificate, together with any and all (i) renewals, extensions,
supplements and continuations thereof, (ii) income, fees, royalties, damages,
claims and payments now and hereafter due and/or payable thereunder and with
respect thereto
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including, without limitation, damages and payments for past, present or future
infringements or violations thereof, (iii) rights to xxx for past, present and
future infringements or violations thereof and (iv) other rights to use, exploit
or practice any or all of the Patents, Trademarks or Copyrights.
"Management Fees" shall have the meaning assigned to such term
in the Xxxxx 29 Management Agreement.
"Material Intellectual Property" means Intellectual Property
Collateral owned by or in which a Pledgor has any interest which is material to
its business or the business of any other Pledgor.
"Mortgaged Property" shall have the meaning assigned to such
term in the Mortgages and shall also include any "Vessel" as defined in any Ship
Mortgage.
"Notes" shall have the meaning assigned to such term in Recital
B of this Agreement.
"Operative Agreement" shall mean (i) in the case of any limited
liability company or partnership or other non-corporate entity, any membership
or partnership agreement or other organizational agreement or document thereof
and (ii) in the case of any corporation, any charter or certificate of
incorporation and by-laws thereof.
"Parking Lease" means that certain Parking Lease by and between
Xxxxxxxxxx Harbor Parking Associates, LLC, as lessor, and Xxxxx Indiana, Inc.,
as lessee, dated as of June 19, 2000, as amended from time to time.
"Patents" shall mean, collectively, with respect to each
Pledgor, all patents issued or assigned to and all patent applications and
registrations made by such Pledgor (whether established or registered or
recorded in the United States or any other country or any political subdivision
thereof), including, without limitation, those listed in Schedule 14(a) annexed
to the Perfection Certificate, together with any and all (i) rights and
privileges arising under Applicable Law with respect to such Pledgor's use of
any patents, (ii) inventions and improvements described and claimed therein,
(iii) reissues, divisions, continuations, renewals, extensions and
continuations-in-part thereof, (iv) income, fees, royalties, damages, claims and
payments now or hereafter due and/or payable thereunder and with respect thereto
including, without limitation, damages and payments for past, present or future
infringements thereof, (v) rights corresponding thereto throughout the world and
(vi) rights to xxx for past, present or future infringements thereof.
"Perfection Certificate" shall mean that certain Perfection
Certificate dated March 25, 2003 executed and delivered by each Pledgor in favor
of the Collateral Agent for the benefit of the Secured Parties, and each other
Perfection Certificate (which shall be in form and substance reasonably
acceptable to the Collateral Agent) executed and delivered by the applicable
Guarantor in favor of the Collateral Agent for the benefit of the Secured
Parties contemporaneously with the execution and delivery of each Joinder
Agreement executed in accordance with Section 3.5 hereof, in each case, as the
same may be amended, amended and restated, supplemented (including, if requested
by the Collateral Agent, to reflect the addition of any new Pledgor that has
executed a joinder agreement hereto) or otherwise modified from time to time
upon the request of the Collateral Agent.
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"Pledge Amendment" shall have the meaning assigned to such term
in Section 5.1 hereof.
"Pledged Collateral" shall have the meaning assigned to such
term in Section 2.1 hereof.
"Pledged Interests" shall mean, collectively, the Initial
Pledged Interests and the Additional Pledged Interests excluding any interest to
the extent representing more than 65% of the voting power or control of all
classes of interests entitled to vote of any Subsidiary which is a controlled
foreign corporation (as defined in Section 957(a) of the Tax Code) and excluding
any Subsidiary to the extent that such pledge would constitute an investment of
earnings in United States property under Section 956 (or a successor provision)
of the Tax Code, which investment would trigger an increase in the gross income
of a United States shareholder of such Pledgor pursuant to Section 951 (or a
successor provision) of the Tax Code.
"Pledged Securities" shall mean, collectively, the Pledged
Interests, the Pledged Shares and the Successor Interests.
"Pledged Shares" shall mean, collectively, the Initial Pledged
Shares and the Additional Pledged Shares excluding any shares representing more
than 65% of the voting power of all classes of capital stock entitled to vote of
any Subsidiary which is a controlled foreign corporation (as defined in Section
957(a) of the Tax Code) and excluding any shares of stock of any Subsidiary to
the extent that such pledge would constitute an investment of earnings in United
States property under Section 956 (or a successor provision) of the Tax Code,
which investment would trigger an increase in the gross income of a United
States shareholder of such Pledgor pursuant to Section 951 (or a successor
provision) of the Tax Code.
"Pledgor" shall have the meaning assigned to such term in the
Preamble hereof.
"Prudent Operator" shall mean the standard of care taken by a
prudent operator of property and assets similar in use and configuration to the
Pledged Collateral or Mortgaged Property, as the case may be, and located in the
locality where the Pledged Collateral or Mortgaged Property, as the case may be,
is located.
"Receivables" shall mean, with respect to each Pledgor,
collectively, (i) all Accounts (ii) all receivables arising out of the sale or
lease of Inventory or the provision of services in the ordinary course of each
Pledgor's business (other than with respect to the Xxxxx 29 Management Agreement
and Management Fees payable thereunder), including all casino receivables
(markers, instruments, notes and checks) both undeposited and returned, hotel
receivables, credit card receivables, interest receivable (including with
respect to CRDA or other required regulatory investments) and progressive
jackpot receivables (wide area progressives or multiple casinos linked
progressives).
"Requirements of Law" shall mean, collectively, any and all
requirements of any Governmental Authority including, without limitation, any
and all laws, ordinances, rules, regulations or similar statutes or case law.
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"Second Priority Secured Obligations" shall mean all obligations
(whether or not constituting future advances, obligatory or otherwise) of the
Issuers and any and all of the Guarantors from time to time arising under or in
respect of this Agreement, the Second Priority Indenture, the Second Notes and
the other Collateral Documents (including, without limitation, the obligations
to pay principal, interest and all other charges, fees, expenses, commissions,
reimbursements, premiums, indemnities and other payments related to or in
respect of the obligations contained in this Agreement, the Second Priority
Indenture, the Second Notes and the other Collateral Documents), in each case
whether (i) such obligations are direct or indirect, secured or unsecured, joint
or several, absolute or contingent, due or to become due whether at stated
maturity, by acceleration or otherwise, (ii) arising in the regular course of
business or otherwise, (iii) for payment or performance and/or (iv) now existing
or hereafter arising (including, without limitation, interest and other
obligations arising or accruing after the commencement of any bankruptcy,
insolvency, reorganization or similar proceeding with respect to any Pledgor or
any other Person, or which would have arisen or accrued but for the commencement
of such proceeding, even if such obligation or the claim therefor is not
enforceable or allowable in such proceeding).
"Second Priority Secured Parties" shall mean the Collateral
Agent, the Second Priority Trustee and the Holders of Second Notes.
"Secured Obligations" shall mean the First Priority Secured
Obligations and the Second Priority Secured Obligations.
"Secured Parties" shall have the meaning assigned to such term
in Recital C.
"Securities Act" shall have the meaning assigned to such term in
Section 9.4(ii) hereof.
"Securities Collateral" shall mean, collectively, the Pledged
Securities, the Intercompany Notes and the Distributions.
"Special Property" shall mean:
(a) any and all permits, leases or licenses held by any
Pledgor that validly prohibits the creation by such Pledgor of a
security interest therein, including, without limitation Gaming
Licenses;
(b) any and all permits, leases or licenses held by any
Pledgor to the extent that any Requirement of Law applicable thereto
prohibits the creation of a security interest therein;
(c) all right, title and interest of any Pledgor in and to
any property that is owned by any Pledgor on the date hereof or
hereafter acquired that is subject to a Lien securing FF&E Financing
Agreements, a Purchase Money Obligation or a Capitalized Lease
Obligation permitted under each Indenture;
(d) all right, title and interest held by any Pledgor in and
to any and all Receivables, Inventory and Commercial Tort Claims;
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(e) all right, title and interest held by any Pledgor in any
property, to the extent that such property is subject to a Lien
permitted to be incurred pursuant to clause (m), (o) or (t) of the
definition of Permitted Liens;
(f) all right, title and interest held by any Pledgor in and
to any and all cash, Cash Equivalents (other than Collateral Account
Funds) and securities (other than Pledged Securities) and deposit
accounts (other than the Collateral Account);
(g) all rights, title and interests of Xxxxx Indiana, Inc.
to the Parking Lease;
(h) for so long as the property described in clauses (a)
through (f) above is "Special Property," all right, title and interest
of any Pledgor in and to any and all General Intangibles, books and
records relating to the property described in such clauses and all
Proceeds and products of the foregoing, including, without limitation,
Proceeds of insurance, condemnation awards, tax refunds and other
similar property or claims with respect to such property; and
(i) all right, title and interest, if any, of any Pledgor to
use the names "Xxxxx," "Xxxxxx Xxxxx" and "Xxxxxx X. Xxxxx" (including
variations thereon) and related intellectual property rights.
provided, however, that in each case described in clauses (a) and (b) of this
definition, such property shall constitute "Special Property" only to the extent
and for so long as such permit, lease or license or Requirement of Law
applicable thereto, validly prohibits the creation of a Lien on such property in
favor of the Collateral Agent and, upon the termination of such prohibition
(howsoever occurring), such property shall cease to constitute "Special
Property;" provided, further, that at such time as the property described in
clause (c) of this definition is not subject to an FF&E Financing Agreement,
Purchase Money Obligation or Capitalized Lease Obligation, such property shall
cease to be "Special Property;" provided, further, that at such time as Xxxxx
Indiana, Inc. has received a consent to a pledge of any of the property
described in clause (g) of this definition, such property shall cease to be
"Special Property."
"Successor Interests" shall mean, collectively, with respect to
each Pledgor, all shares of each class of the capital stock of the successor
corporation or interests or certificates of the successor limited liability
company, partnership or other entity owned by such Pledgor (unless such
successor is such Pledgor itself) formed by or resulting from any consolidation
or merger in which any Person listed in Schedule 1(a) annexed to the Perfection
Certificate is not the surviving entity; provided, however, that the pledge of
the Successor Interests affected hereby shall in no event affect the obligations
of such Pledgor under any provision prohibiting such action hereunder or under
the Indenture.
"Taking" shall mean any taking of the Pledged Collateral or the
Mortgaged Property or any portion thereof, in or by condemnation or other
eminent domain proceedings pursuant to any law, general or special, or by reason
of the temporary requisition of the use of the Pledged Collateral or Mortgaged
Property or any portion thereof, by any Governmental Authority, civil or
military.
"Tax Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
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"Trademarks" shall mean, collectively, with respect to each
Pledgor, all trademarks (including service marks), logos, slogans, certification
marks, trade dress, uniform resource locations (URL's), domain names, corporate
names and trade names, whether registered or unregistered, owned by or assigned
to such Pledgor and all registrations and applications for the foregoing
(whether statutory or common law and whether established or registered in the
United States or any other Country or any political subdivision thereof),
including, without limitation, the registrations and applications listed in
Schedule 14(a) annexed to the Perfection Certificate, together with any and all
(i) rights and privileges arising under Applicable Law with respect to such
Pledgor's use of any trademarks, (ii) reissues, continuations, extensions and
renewals thereof, (iii) income, fees, royalties, damages and payments now and
hereafter due and/or payable thereunder and with respect thereto, including,
without limitation, damages, claims and payments for past, present or future
infringements thereof, (iv) rights corresponding thereto throughout the world
and (v) rights to xxx for past, present and future infringements thereof.
"Xxxxx 29 Management Agreement" shall mean the Amended and
Restated Gaming Facility Management Agreement dated as of March 28, 2002 between
The Twenty-Nine Palms Band of Luiseno Mission Indians of California, Twenty-Nine
Palms Enterprises Corporation and THCR Management Services, LLC, as in effect on
the Issue Date (and any renewals or replacements thereof or amendments thereto).
"UCC" shall mean the Uniform Commercial Code as in effect on the
date hereof in the State of New York; provided, however, that if by reason of
mandatory provisions of law, any or all of the attachment, perfection or
priority of the Collateral Agent's security interest in any item or portion of
the Pledged Collateral is governed by the Uniform Commercial Code as in effect
in a jurisdiction other than the State of New York, the term "UCC" shall mean
the Uniform Commercial Code as in effect on the date hereof in such other
jurisdiction for purposes of the provisions hereof relating to such attachment,
perfection or priority and for purposes of definitions relating to such
provisions.
SECTION 1.2 Interpretation. The rules of construction set forth
in Section 1.04 of each Indenture shall be applicable to this Agreement.
SECTION 1.3 Resolution of Drafting Ambiguities. Each Pledgor
acknowledges and agrees that it was represented by counsel in connection with
the execution and delivery hereof, that it and its counsel reviewed and
participated in the preparation and negotiation hereof and that any rule of
construction to the effect that ambiguities are to be resolved against the
drafting party (i.e., the Collateral Agent) shall not be employed in the
interpretation hereof.
ARTICLE II
GRANT OF SECURITY AND SECURED OBLIGATIONS
SECTION 2.1 Pledge. (a) As collateral security for the payment
and performance in full of all the First Priority Secured Obligations, each
Pledgor hereby pledges and grants to the Collateral Agent for the benefit of the
First Priority Secured Parties, a lien on and first priority security interest
in and to all of the right, title and interest of such Pledgor in, to and under
the following property, wherever
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located, whether now existing or hereafter arising or acquired from time to time
(collectively, the "Pledged Collateral"):
(i) all Equipment, Goods, and Fixtures;
(ii) all Documents, Instruments and Chattel Paper;
(iii) all Letter-of-Credit Rights;
(iv) all Securities Collateral;
(v) all Intellectual Property Collateral;
(vi) all General Intangibles;
(vii) the Collateral Account and all Collateral Account
Funds;
(viii) all Supporting Obligations (but only to the extent
relating to items expressly set forth in this sentence);
(ix) all books and records relating to the Pledged
Collateral; and
(x) to the extent not covered by clauses (i) through (ix)
of this sentence, all Proceeds and products of each of the foregoing and
all accessions to, substitutions and replacements for, and rents,
profits and products of, each of the foregoing, any and all Proceeds of
any insurance, indemnity, warranty or guaranty payable to such Pledgor
from time to time with respect to any of the foregoing.
Notwithstanding anything to the contrary contained in clauses
(i) through (x) above, the security interest created by this Agreement shall not
extend to, and the term "Pledged Collateral" shall not include, any Excluded
Property and (i) the Pledgors shall from time to time at the request of the
Collateral Agent give written notice to the Collateral Agent identifying in
reasonable detail the Special Property of the type described in clauses (a)
through (c) of such definition (and stating in such notice that such Special
Property constitutes "Excluded Property") and shall provide to the Collateral
Agent such other information regarding such Special Property as the Collateral
Agent may reasonably request and (ii) from and after the Issue Date, no Pledgor
shall permit to become effective in any document creating, governing or
providing for any permit, lease or license, a provision that would prohibit the
creation of a Lien on such permit, lease or license in favor of the Collateral
Agent unless such Pledgor believes, in its reasonable judgment, that such
prohibition is usual and customary in transactions of such type.
(b) As collateral security for the payment in full of all the Second
Priority Secured Obligations, each Pledgor hereby pledges and grants to the
Collateral Agent for the benefit of the Second Priority Secured Parties, a lien
on and second priority security interest in and to all of the Pledged
Collateral.
SECTION 2.2 Secured Obligations. This Agreement secures, and the
Pledged Collateral is collateral security for, the payment and performance in
full when due of the Secured Obligations.
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SECTION 2.3 Security Interest. (a) Each Pledgor hereby
irrevocably authorizes the Collateral Agent at any time and from time to time to
file in any relevant jurisdiction any initial financing statements (including
fixture filings) and amendments thereto relating to the Pledged Collateral that
contain the information required by Article 9 of the Uniform Commercial Code of
each applicable jurisdiction for the filing of any financing statement or
amendment relating to the Pledged Collateral, including, without limitation, (i)
whether such Pledgor is an organization, the type of organization and any
organizational identification number issued to such Pledgor and (ii) in the case
of a financing statement filed as a fixture filing or covering Pledged
Collateral constituting minerals or the like to be extracted or timber to be
cut, a sufficient description of the real property to which such Pledged
Collateral relates. Each Pledgor agrees to provide all information described in
the immediately preceding sentence to the Collateral Agent promptly upon
request.
(b) Each Pledgor hereby ratifies its authorization for the
Collateral Agent to file in any relevant jurisdiction any initial financing
statements or amendments thereto relating to the Pledged Collateral if filed
prior to the date hereof.
(c) Each Pledgor hereby further authorizes the Collateral
Agent to file filings with the United States Patent and Trademark Office or
United States Copyright Office (or any successor office or any similar office in
any other country) or other documents for the purpose of perfecting, confirming,
continuing, enforcing or protecting the security interests granted by such
Pledgor hereunder, without the signature of such Pledgor to the extent permitted
by Applicable Law, and naming such Pledgor as debtor, and the Collateral Agent
as secured party.
SECTION 2.4 No Release. Nothing set forth in this Agreement
shall relieve any Pledgor from the performance of any term, covenant, condition
or agreement on such Pledgor's part to be performed or observed under or in
respect of any of the Pledged Collateral or from any liability to any Person
under or in respect of any of the Pledged Collateral or shall impose any
obligation on the Collateral Agent or any other Secured Party to perform or
observe any such term, covenant, condition or agreement on such Pledgor's part
to be so performed or observed or shall impose any liability on the Collateral
Agent or any other Secured Party for any act or omission on the part of such
Pledgor relating thereto or for any breach of any representation or warranty on
the part of such Pledgor contained in this Agreement, the Indentures, the Notes
or the other Collateral Documents, or under or in respect of the Pledged
Collateral or made in connection herewith or therewith. The obligations of each
Pledgor contained in this Section 2.4 shall survive the termination hereof and
the discharge of such Pledgor's other obligations under this Agreement and the
Indentures, the Notes and the other Collateral Documents.
ARTICLE III
PERFECTION; SUPPLEMENTS; FURTHER ASSURANCES;
USE OF PLEDGED COLLATERAL
SECTION 3.1 Delivery of Certificated Securities Collateral. Each
Pledgor hereby agrees that all certificates, agreements or instruments
representing or evidencing Securities Collateral acquired by such Pledgor after
the date hereof, shall immediately upon receipt thereof by such Pledgor be
delivered to and held by or on behalf of the Collateral Agent pursuant hereto.
All certificated Securities
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Collateral shall be in suitable form for transfer by delivery or shall be
accompanied by duly executed instruments of transfer or assignment in blank, all
in form and substance satisfactory to the Collateral Agent. Subject to the
provisions of applicable Gaming Laws and Section 11.17 hereof, the Collateral
Agent shall have the right, at any time upon the occurrence and during the
continuance of any Event of Default, to endorse, assign or otherwise transfer to
or to register in the name of the Collateral Agent or any of its nominees or
endorse for negotiation any or all of the Securities Collateral, without any
indication that such Securities Collateral is subject to the security interest
hereunder. In addition, the Collateral Agent shall have the right at any time to
exchange certificates representing or evidencing Securities Collateral for
certificates of smaller or larger denominations.
SECTION 3.2 Perfection of Uncertificated Securities Collateral.
Each Pledgor hereby agrees that if any issuer of Pledged Securities is organized
in a jurisdiction which does not permit the use of certificates to evidence
equity ownership, or if any of the Pledged Securities are at any time not
evidenced by certificates of ownership, then each applicable Pledgor shall, to
the extent permitted by Applicable Law, request that such pledge be recorded on
the equityholder register or the books of the issuer, request that the issuer
execute and deliver to the Collateral Agent an acknowledgment of the pledge of
such Pledged Securities substantially in the form of Exhibit 1 annexed hereto,
execute any customary pledge forms or other documents necessary or appropriate
to complete the pledge and give the Collateral Agent the right to transfer such
Pledged Securities under the terms hereof.
SECTION 3.3 Maintenance of Perfected Security Interest. Each
Pledgor agrees that at the sole cost and expense of the Pledgors, (i) such
Pledgor will maintain the security interest created by this Agreement in the
Pledged Collateral as a perfected security interest having at least the priority
required hereunder and shall defend such security interest against the claims
and demands of all Persons, and (ii) at any time and from time to time, upon the
written request of the Collateral Agent, such Pledgor will promptly and duly
execute and deliver, and have recorded, such further instruments and documents
(including Control Agreements) and take such further action as the Collateral
Agent may reasonably request for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted,
including the filing of any financing or continuation statement under the UCC
(or other similar laws) in effect in any jurisdiction with respect to the
security interest created hereby.
SECTION 3.4 Other Actions. In order to further insure the
attachment, perfection and priority of, and the ability of the Collateral Agent
to enforce, the Collateral Agent's security interest in the Pledged Collateral,
each Pledgor agrees, in each case at such Pledgor's own expense, to take the
following actions with respect to the following Pledged Collateral:
(a) Instruments and Tangible Chattel Paper. As of the date
hereof, each Pledgor hereby represents and warrants that (i) no amount
individually or in the aggregate in excess of $250,000 payable under or
in connection with any of the Pledged Collateral is evidenced by any
Instrument or Tangible Chattel Paper other than such Instruments and
Tangible Chattel Paper listed in Schedule 12 of the Perfection
Certificate and (ii) each Instrument and each item of Tangible Chattel
Paper has been properly endorsed, assigned and delivered to the
Collateral Agent, accompanied by instruments of transfer or assignment
duly executed in blank. If any amount individually or in the aggregate
in excess of $250,000 payable under or in connection with any of the
Pledged Collateral shall be evidenced by any Instrument or Tangible
Chattel Paper, the Pledgor acquiring such Instrument or Tangible Chattel
Paper shall forthwith endorse, assign and deliver the same to the
Collateral Agent, accompanied by such instruments of transfer
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or assignment duly executed in blank as the Collateral Agent may from
time to time specify; provided, however, that so long as no Event of
Default shall have occurred and be continuing, the Collateral Agent
shall return such Instrument or Tangible Chattel Paper to such Pledgor
from time to time, to the extent necessary for collection in the
ordinary course of such Pledgor's business.
(b) Electronic Chattel Paper and Transferable Records. If
any amount individually or in the aggregate in excess of $250,000
payable under or in connection with any of the Pledged Collateral shall
be evidenced by any Electronic Chattel Paper or any "transferable
record," as that term is defined in Section 201 of the Federal
Electronic Signatures in Global and National Commerce Act, or in Section
16 of the Uniform Electronic Transactions Act as in effect in any
relevant jurisdiction, the Pledgor acquiring such Electronic Chattel
Paper or transferable record shall promptly notify the Collateral Agent
thereof and shall take such action as the Collateral Agent may
reasonably request to vest in the Collateral Agent control under UCC
Section 9-105 of such Electronic Chattel Paper or control under Section
201 of the Federal Electronic Signatures in Global and National Commerce
Act or, as the case may be, Section 16 of the Uniform Electronic
Transactions Act, as so in effect in such jurisdiction, of such
transferable record. The Collateral Agent agrees with such Pledgor that
the Collateral Agent will arrange, pursuant to procedures satisfactory
to the Collateral Agent and so long as such procedures will not result
in the Collateral Agent's loss of control, for the Pledgor to make
alterations to the Electronic Chattel Paper or transferable record
permitted under UCC Section 9-105 or, as the case may be, Section 201 of
the Federal Electronic Signatures in Global and National Commerce Act or
Section 16 of the Uniform Electronic Transactions Act for a party in
control to allow without loss of control, unless an Event of Default has
occurred and is continuing or would occur after taking into account any
action by such Pledgor with respect to such Electronic Chattel Paper or
transferable record.
(c) Letter-of-Credit Rights. If any Pledgor is at any time a
beneficiary under a Letter of Credit now or hereafter issued in favor of
such Pledgor in an amount individually or in the aggregate in excess of
$250,000, such Pledgor shall promptly notify the Collateral Agent
thereof and such Pledgor shall, pursuant to an agreement in form and
substance satisfactory to the Collateral Agent, either (i) arrange for
the issuer and any confirmer of such Letter of Credit to consent to an
assignment as collateral to the Collateral Agent of the proceeds of any
drawing under the Letter of Credit or (ii) arrange for the Collateral
Agent to become the transferee beneficiary of such Letter of Credit,
with the Collateral Agent agreeing, in each case, that the proceeds of
any drawing under the Letter of Credit are to be applied as provided in
the Indentures.
(d) Special Provisions regarding the Collateral Account and
all Collateral Account Funds. Each Pledgor hereby represents and
warrants that at all times the Collateral Account and all Collateral
Account Funds shall be maintained in one or more accounts under which
Collateral Agent is the depositary, and Collateral Agent will be deemed
to have "control" (as defined in Section 9-104 of the UCC) of such
Collateral Account and all Collateral Account Funds through its direct
dominion and control. If at any time the Collateral Account or any
Collateral Account Funds are not maintained with Collateral Agent, each
Pledgor shall enter into an agreement in form and substance acceptable
to Collateral Agent (each, a "Control Agreement") sufficient to
establish Collateral Agent's control over and perfection of its security
interest in any and all such
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Collateral Account Funds. Each Pledgor hereby acknowledges and agrees
that notwithstanding any provisions hereof or any other circumstance to
the contrary, Collateral Agent shall at all times (A) have "control" (as
defined in Section 9-104 of the UCC) of the Collateral Account and all
Collateral Account Funds, as may be confirmed in one or more Control
Agreements, and (B) be authorized in writing to direct the institution
maintaining the Collateral Account or any Collateral Account Funds to
comply without further consent of any Pledgor or any person acting or
purporting to act for any Pledgor being required, with all instructions
originated by Collateral Agent. Collateral Agent hereby agrees that it
shall not issue any such instructions to any institution maintaining the
Collateral Account or any Collateral Account Funds except in connection
with Collateral Agent's exercise of remedies upon the occurrence of an
Event of Default.
SECTION 3.5 Joinder of Additional Guarantors. The Pledgors shall
cause each Subsidiary of the Issuers which, from time to time, after the date
hereof shall be required to pledge any assets to the Collateral Agent for the
benefit of the Secured Parties pursuant to the provisions of the Indentures, to
execute and deliver to the Collateral Agent a joinder agreement substantially in
the form of Exhibit 3 annexed hereto within a commercially reasonable period of
time (not to exceed 30 days) of the date on which it was acquired or created
and, upon such execution and delivery, such Subsidiary shall constitute a
"Guarantor" and a "Pledgor" for all purposes hereunder. The execution and
delivery of such joinder agreement shall not require the consent of any Pledgor
hereunder. Additionally, each Pledgor (including any additional Pledgor) hereby
agrees to promptly update, or in the case of any new Pledgor, deliver, the
Perfection Certificate at any time upon the request of the Collateral Agent. The
rights and obligations of each Pledgor hereunder shall remain in full force and
effect notwithstanding the addition of any new Guarantor and Pledgor as a party
to this Agreement.
SECTION 3.6 Use and Pledge of Pledged Collateral. Unless an
Event of Default shall have occurred and be continuing, the Collateral Agent
shall from time to time execute and deliver, upon written request of any Pledgor
and at the sole cost and expense of the Pledgors, any and all instruments,
certificates or other documents, in a form reasonably requested by such Pledgor,
necessary or appropriate in the reasonable judgment of such Pledgor to enable
such Pledgor to continue to exploit, license, use, enjoy and protect the Pledged
Collateral in accordance with the terms hereof and of the Indentures. The
Pledgors and the Collateral Agent acknowledge that this Agreement is intended to
grant to the Collateral Agent for the benefit of the Secured Parties security
interests in and Liens upon the Pledged Collateral and shall not constitute or
create a present assignment of any of the Pledged Collateral.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
EACH PLEDGOR REPRESENTS, WARRANTS AND COVENANTS AS FOLLOWS:
SECTION 4.1 Perfection. (i) All certificates, agreements or
instruments representing or evidencing the Securities Collateral in existence on
the date hereof have been delivered to the Collateral Agent in suitable form for
transfer by delivery or accompanied by duly executed instruments of transfer or
assignment in blank; (ii) each Pledgor represents and warrants that the
Collateral Agent has a
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perfected first priority security interest securing the First Priority Secured
Obligations and a perfected second priority security interest securing the
Second Priority Secured Obligations, in each case, in all uncertificated Pledged
Securities pledged by it hereunder that are in existence on the date hereof; and
(iii) the only filings, registrations and recordings necessary and appropriate
to create, preserve, protect, give notice of and perfect the security interest
granted by each Pledgor to the Collateral Agent (for the benefit of the Secured
Parties) pursuant to this Agreement in respect of the Pledged Collateral are
listed in Schedule 7 of the Perfection Certificate. All such filings,
registrations and recordings have been delivered to the Collateral Agent in
completed and, to the extent necessary or appropriate, duly executed form for
filing in each governmental, municipal or other office specified in Schedule 7
of the Perfection Certificate.
SECTION 4.2 Title, Authority and Validity; Preservation of
Corporate Existence. (i) Such Pledgor (A) has good and valid rights in and title
to the Pledged Collateral with respect to which it has purported to grant a
security interest and Lien hereunder, (B) has full power and authority to grant
to the Collateral Agent the security interests in and Liens on such Pledged
Collateral pursuant hereto and to execute, deliver and perform its obligations
in accordance with the terms of this Agreement, without the consent or approval
of any other Person other than any consent or approval that has been obtained,
(C) is duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization, (D) it is duly qualified to transact
business and is in good standing in each state in which such qualification is
necessary (except where the failure of all Pledgors to be so qualified would not
individually or in the aggregate have a Collateral Material Adverse Effect) and
(E) this Agreement is a legal, valid and binding obligation of such Pledgor,
enforceable against such Pledgor in accordance with its terms.
(ii) Such Pledgor shall (A) preserve and maintain in full
force and effect its existence and good standing under the laws of the
jurisdiction of its organization, (B) preserve and maintain in full force and
effect its qualification to transact business and good standing in the state in
which the Pledged Collateral which it owns or in which it has rights is located
and (C) preserve and maintain in full force and effect all consents,
authorizations and approvals necessary or required of any Governmental Authority
or any other Person relating to the execution, delivery and performance hereof.
SECTION 4.3 Validity of Security Interest. The security
interests in and Liens on the Pledged Collateral granted to the Collateral Agent
for the benefit of the Secured Parties hereunder constitutes (a) legal and valid
security interests in all the Pledged Collateral securing the payment and
performance of the Secured Obligations, (b) subject to the filings described in
Schedule 7 of the Perfection Certificate, a perfected security interest in all
the Pledged Collateral in which a security interest may be perfected by the
filing of (A) a financing statement pursuant to the UCC or (B) the filing of
this Agreement with the United States Patent and Trademark Office or the United
States Copyright Office and (c) upon delivery of the certificates contemplated
in Section 4.1(i) hereof, a perfected security interest in the certificated
Securities Collateral. The security interest and Lien granted to the Collateral
Agent for the benefit of the First Priority Secured Parties pursuant to this
Agreement in and on the Pledged Collateral will as of the date hereof constitute
a perfected, continuing first priority security interest therein, superior and
prior to the rights of all other Persons therein other than with respect to the
holders of Permitted Liens. The security interest and Lien granted to the
Collateral Agent for the benefit of the Second Priority Secured Parties pursuant
to this Agreement in and on the Pledged Collateral will as of the date hereof
constitute a perfected, continuing second priority security interest therein,
superior and
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prior to the rights of all other Persons therein other than with respect to the
First Priority Secured Parties and holders of Permitted Liens.
SECTION 4.4 Other Financing Statements. So long as any of the
Secured Obligations remain unpaid, no Pledgor shall execute, authorize or permit
to be filed in any public office any financing statement (or similar statement
or instrument of registration under the law of any jurisdiction) or statements
relating to any Pledged Collateral, except, in the case of financing statements
filed or to be filed in respect of and covering the security interests granted
by such Pledgor to the holders of the Permitted Liens.
SECTION 4.5 Chief Executive Office; Change of Name; Jurisdiction
of Organization. (a) The exact legal name, type of organization, jurisdiction of
organization, Federal Taxpayer Identification Number, organizational
identification number and chief executive office of such Pledgor is indicated
next to its name in Schedules 1(a) and 2(a) of the Perfection Certificate. Such
Pledgor shall not change (i) its corporate name, (ii) its identity or type of
organization or corporate structure, (iii) its Federal Taxpayer Identification
Number or organizational identification number or (iv) its jurisdiction of
organization (in each case, including, without limitation, by merging with or
into any other entity, reorganizing, dissolving, liquidating, reincorporating or
incorporating in any other jurisdiction) until (A) it shall have given the
Collateral Agent not less than 30 days' prior written notice (in the form of an
Officers' Certificate) of its intention so to do, clearly describing such change
and providing such other information in connection therewith as the Collateral
Agent may reasonably request and (B) with respect to such change, such Pledgor
shall have taken all action reasonably satisfactory to the Collateral Agent to
maintain the perfection and priority of the security interest of the Collateral
Agent for the benefit of the Secured Parties in the Pledged Collateral intended
to be granted hereunder, including, without limitation, using commercially
reasonable efforts to obtain waivers of landlord's or warehousemen's liens with
respect to such new location, if applicable. Each Pledgor agrees to promptly
provide the Collateral Agent with certified organizational documents reflecting
any of the changes described in the preceding sentence.
(b) The Collateral Agent may rely on opinions of counsel as
to whether any or all UCC financing statements of the Pledgors need to be
amended as a result of any of the changes described in Section 4.5(a). If any
Pledgor fails to provide information to the Collateral Agent about such changes
on a timely basis, the Collateral Agent shall not be liable or responsible to
any party for any failure to maintain a perfected security interest in such
Pledgor's property constituting Pledged Collateral, for which the Collateral
Agent needed to have information relating to such changes. The Collateral Agent
shall have no duty to inquire about such changes if any Pledgor does not inform
the Collateral Agent of such changes, the parties acknowledging and agreeing
that it would not be feasible or practical for the Collateral Agent to search
for information on such changes if such information is not provided by any
Pledgor.
SECTION 4.6 Location of Equipment. All Equipment of such Pledgor
is located at the chief executive office or such other location listed in
Schedules 2(a), 2(b), 2(c), 2(d) or 2(e) of the Perfection Certificate.
SECTION 4.7 Condition and Maintenance of Equipment. The
Equipment of such Pledgor is in good repair, working order and condition,
reasonable wear and tear excepted. Each Pledgor shall cause the Equipment to be
maintained and preserved in good repair, working order and condition,
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reasonable wear and tear excepted, and shall as quickly as commercially
practicable make or cause to be made all repairs, replacements and other
improvements which are necessary or appropriate in the conduct of such Pledgor's
business, except where the failure to make such repairs, replacements or
improvements would not have a Collateral Material Adverse Effect.
SECTION 4.8 Corporate Names; Prior Transactions. Such Pledgor
has not, during the past five years, been known by or used any other corporate
or fictitious name or been a party to any merger or consolidation, or acquired
all or substantially all of the assets of any Person, or acquired any of its
property or assets out of the ordinary course of business, except as set forth
in Schedules 1(b), 1(c) and 4 of the Perfection Certificate.
SECTION 4.9 Due Authorization and Issuance. All of the Initial
Pledged Shares have been, and to the extent any Pledged Shares are hereafter
issued, such shares will be, upon such issuance, duly authorized, validly issued
and fully paid and non-assessable. All of the Initial Pledged Interests have
been fully paid for, and there is no amount or other obligation owing by any
Pledgor to any issuer of the Initial Pledged Interests in exchange for or in
connection with the issuance of the Initial Pledged Interests or as a result
solely of any Pledgor's status as a partner or a member of any issuer of the
Initial Pledged Interests.
SECTION 4.10 No Violations, etc. The pledge of the Pledged
Securities pursuant to this Agreement does not violate Regulation T, U or X of
the Federal Reserve Board.
SECTION 4.11 No Options, Warrants, etc. There are no options,
warrants, calls, rights, commitments or agreements of any character to which
such Pledgor is a party or by which it is bound obligating such Pledgor to
issue, deliver or sell or cause to be issued, delivered or sold additional
Pledged Securities or obligating such Pledgor to grant, extend or enter into any
such option, warrant, call, right, commitment or agreement. There are no voting
trusts or other agreements or understandings to which such Pledgor is a party
with respect to the transfer, voting or exercise of any other right of the
equity interests of any issuer of the Pledged Securities (other than with
respect to the equity interests in Xxxxxxxxxx Harbor Riverboats, L.L.C. and
Xxxxxxxxxx Harbor Parking Associates, LLC).
SECTION 4.12 No Claims. The use by such Pledgor of the Pledged
Collateral and all such rights with respect to the foregoing do not infringe on
the rights of any Person other than such infringement which would not,
individually or in the aggregate, result in a Collateral Material Adverse
Effect. No claim has been made and remains outstanding that such Pledgor's use
of any Pledged Collateral does or may violate the rights of any third Person
that would individually, or in the aggregate, have a Collateral Material Adverse
Effect.
SECTION 4.13 No Conflicts, Consents, etc. Neither the execution
and delivery hereof by each Pledgor nor the consummation of the transactions
herein contemplated nor the fulfillment of the terms hereof (i) violates any
Operative Agreement of such Pledgor or any issuer of Pledged Securities, (ii)
violates the terms of any agreement, indenture, mortgage, deed of trust,
equipment lease, instrument or other document to which such Pledgor is a party,
or by which it is bound or to which any of its properties or assets are subject,
which violation would, individually or in the aggregate, have a Collateral
Material Adverse Effect, (iii) conflicts with any Requirement of Law applicable
to any such Pledgor or its property, which conflict would, individually or in
the aggregate, have a Collateral Material Adverse Effect, or (iv) results in or
requires the creation or imposition of any Lien (other than the Lien
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contemplated hereby or by the Indentures or any of the other Collateral
Documents) upon or with respect to any of the property now owned or hereafter
acquired by such Pledgor. No consent of any party (including, without
limitation, equityholders or creditors of such Pledgor) and no consent,
authorization, approval, license or other action by, and no notice to or filing
with, any Governmental Authority or regulatory body or other Person (other than
as may be required by applicable Gaming Laws) is required (A) for the granting
of Liens to the Collateral Agent by such Pledgor on the Pledged Collateral
pursuant to this Agreement which have not been obtained or for the execution,
delivery or performance hereof by such Pledgor, (B) for the exercise by the
Collateral Agent of the voting or other rights provided for in this Agreement or
(C) for the exercise by the Collateral Agent of the remedies in respect of the
Pledged Collateral pursuant to this Agreement. Subject to the provisions of
Section 11.17 hereof, in the event that the Collateral Agent desires to exercise
any remedies, voting or consensual rights or attorney-in-fact powers set forth
in this Agreement and determines it necessary to obtain any approvals or
consents of any Governmental Authority or any other Person therefor, then, upon
the reasonable request of the Collateral Agent, such Pledgor agrees to use its
best efforts to assist and aid the Collateral Agent to obtain as soon as
practicable any necessary approvals or consents for the exercise of any such
remedies, rights and powers.
SECTION 4.14 Pledged Collateral. All information set forth
herein, including the schedules annexed hereto, and all information contained in
any documents, schedules and lists heretofore delivered to any Secured Party in
connection with this Agreement, in each case, relating to the Pledged
Collateral, is accurate and complete in all material respects. The Pledged
Collateral described on the schedules annexed hereto constitutes all of the
property of such type of Pledged Collateral owned or held by the Pledgors.
SECTION 4.15 Insurance. (a) The Pledgors, at their own expense,
shall maintain or cause to be maintained the insurance policies and coverages
required under Section 4.18 of each Indenture with respect to the Pledged
Collateral.
(b) If there shall occur any Destruction, individually or in
the aggregate, in excess of $250,000, the applicable Pledgor shall promptly send
to the Collateral Agent a written notice setting forth the nature and extent of
such Destruction. If there shall occur any Taking, the applicable Pledgor shall
immediately notify the Collateral Agent upon receiving notice of such Taking or
commencement of proceedings therefor. The Net Loss Proceeds are hereby assigned
and shall be paid to the Collateral Agent. Each Pledgor shall take all steps
necessary to notify the condemning authority of such assignment. All Net Loss
Proceeds shall be applied in accordance with the provisions of Section 4.16 of
the Indenture.
(c) In the event that the Proceeds of any insurance claim
are paid after the Collateral Agent has exercised its right to foreclose after
an Event of Default such Proceeds shall be paid to the Collateral Agent to
satisfy any deficiency remaining after such foreclosure. The Collateral Agent
shall retain its interest in the Insurance Policies required to be maintained
pursuant to this Agreement during any redemption period.
SECTION 4.16 Benefit to Guarantors. Each Guarantor will receive
substantial benefit as a result of the execution, delivery and performance of
the Indentures and other documents evidencing the Secured Obligations.
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SECTION 4.17 Further Assurances of Xxxxx Indiana, Inc. Xxxxx
Indiana, Inc. hereby agrees to use commercially reasonable efforts to obtain
consents to permit a leasehold mortgage on and security interest in the Parking
Lease to be granted to the Collateral Agent to secure the Secured Obligations
and agrees that upon receiving such consent it shall comply with Section 10.01
of the Indentures with respect to such lease to the same extent that it would be
required to comply with such Section if it was a newly acquired Subsidiary of
the Company. Xxxxx Indiana, Inc. and Xxxxx Indiana Realty, LLC hereby agree to
provide to the Collateral Agent as soon as reasonably practicable following the
Issue Date Environmental Disclosure Documents for Transfer of Real Property with
respect to the Mortgaged Property described in the Mortgages granted by Xxxxx
Indiana, Inc. and Xxxxx Realty, LLC, to record the Disclosure Documents in the
office of the county recorder of Lake County, Indiana and to file a copy of the
Disclosure Documents with the Indiana Department of Environmental Management.
The Collateral Agent hereby waives any requirement that the Disclosure Documents
be recorded or filed prior to the Issue Date.
ARTICLE V
CERTAIN PROVISIONS CONCERNING SECURITIES COLLATERAL
SECTION 5.1 Pledge of Additional Securities Collateral. Each
Pledgor shall, upon obtaining any Pledged Securities or Intercompany Notes of
any Person constituting Pledged Collateral, accept the same in trust for the
benefit of the Collateral Agent and promptly deliver to the Collateral Agent a
pledge amendment, duly executed by such Pledgor, in substantially the form of
Exhibit 2 annexed hereto (each, a "Pledge Amendment"), and the certificates and
other documents required under Section 3.1 and Section 3.2 in respect of the
additional Pledged Securities or Intercompany Notes which are to be pledged
pursuant to this Agreement, and confirming the attachment of the Lien hereby
created on and in respect of such additional Pledged Securities or Intercompany
Notes. Each Pledgor hereby authorizes the Collateral Agent to attach each Pledge
Amendment to this Agreement and agrees that all Pledged Interests or
Intercompany Notes listed on any Pledge Amendment delivered to the Collateral
Agent shall for all purposes hereunder be considered Pledged Collateral.
SECTION 5.2 Voting Rights; Distributions; etc. (i) So long as no
Event of Default shall have occurred and be continuing:
(A) Each Pledgor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Securities
Collateral or any part thereof for any purpose not inconsistent with the
terms or purposes hereof, the Indenture or any other document evidencing
the Secured Obligations; provided, however, that no Pledgor shall in any
event exercise such rights in any manner which may have a Collateral
Material Adverse Effect.
(B) Each Pledgor shall be entitled to receive and retain,
and to utilize free and clear of the Lien hereof, any and all
Distributions, but only if and to the extent made in accordance with the
provisions of the Indentures; provided, however, that any and all such
Distributions consisting of rights or interests in the form of
securities shall be forthwith delivered to the Collateral Agent to hold
as Pledged Collateral and shall, if received by any Pledgor, be received
in trust for the benefit of the Collateral Agent, be segregated from the
other property or funds of
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such Pledgor and be promptly delivered to the Collateral Agent as
Pledged Collateral in the same form as so received (with any necessary
endorsement).
(C) The Collateral Agent shall be deemed without further
action or formality to have granted to each Pledgor all necessary
consents relating to voting rights and shall, if necessary, upon written
request of any Pledgor and at the sole cost and expense of the Pledgors,
from time to time execute and deliver (or cause to be executed and
delivered) to such Pledgor all such instruments as such Pledgor may
reasonably request in order to permit such Pledgor to exercise the
voting and other rights which it is entitled to exercise pursuant to
Section 5.2(i)(A) hereof and to receive the Distributions which it is
authorized to receive and retain pursuant to Section 5.2(i)(B) hereof.
(ii) Upon the occurrence and during the continuance of any
Event of Default:
(A) All rights of each Pledgor to exercise the voting and
other consensual rights it would otherwise be entitled to exercise
pursuant to Section 5.2(i)(A) hereof without any action, (other than any
applicable approval required pursuant to applicable Gaming Law), or the
giving of any notice shall cease, and all such rights shall thereupon
become vested in the Collateral Agent, which shall thereupon have the
sole right to exercise such voting and other consensual rights.
(B) All rights of each Pledgor to receive Distributions
which it would otherwise be authorized to receive and retain pursuant to
Section 5.2(i)(B) hereof shall cease and all such rights shall thereupon
become vested in the Collateral Agent, which shall thereupon have the
sole right to receive and hold as Pledged Collateral such Distributions.
(iii) Subject to applicable Gaming Laws, each Pledgor shall,
at its sole cost and expense, from time to time execute and deliver to the
Collateral Agent appropriate instruments as the Collateral Agent may request in
order to permit the Collateral Agent to exercise the voting and other rights
which it may be entitled to exercise pursuant to Section 5.2(ii)(A) hereof and
to receive all Distributions which it may be entitled to receive under Section
5.2(ii)(B) hereof.
(iv) All Distributions which are received by any Pledgor
contrary to the provisions of Section 5.2(ii)(B) hereof shall be received in
trust for the benefit of the Collateral Agent, shall be segregated from other
funds of such Pledgor and shall immediately be paid over to the Collateral Agent
as Pledged Collateral in the same form as so received (with any necessary
endorsement).
SECTION 5.3 Operative Agreements. Each Pledgor has delivered to
the Collateral Agent true, correct and complete copies of the Operative
Agreements. The Operative Agreements are in full force and effect, have not as
of the date hereof been amended or modified except as disclosed to the
Collateral Agent, and there is no existing default by any party thereunder or
any event which, with the giving of notice of passage of time or both, would
constitute a default by any party thereunder. Each Pledgor shall deliver to the
Collateral Agent a copy of any notice of default given or received by it under
any Operative Agreement within ten days after such Pledgor gives or receives
such notice. No Pledgor will terminate or agree to terminate any Operative
Agreement or make any amendment or modification to any Operative Agreement which
may have a Collateral Material Adverse Effect including electing to treat any
Pledged Interests of such Pledgor as a security under 8-103 of the UCC.
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SECTION 5.4 Defaults, etc. Such Pledgor is not in default in the
payment of any portion of any mandatory capital contribution, if any, required
to be made under any agreement to which such Pledgor is a party relating to the
Pledged Securities pledged by it, and such Pledgor is not in violation of any
other provisions of any such agreement to which such Pledgor is a party. No
Securities Collateral pledged by such Pledgor is subject to any defense, offset
or counterclaim, nor have any of the foregoing been asserted or alleged against
such Pledgor by any Person with respect thereto, and as of the date hereof,
there are no certificates, instruments, documents or other writings (other than
the Operative Agreements and certificates, if any, delivered to the Collateral
Agent) which evidence any Pledged Securities of such Pledgor.
SECTION 5.5 Certain Agreements of Pledgors As Issuers and
Holders of Equity Interests. (i) In the case of each Pledgor which is an issuer
of Securities Collateral, such Pledgor agrees to be bound by the terms of this
Agreement relating to the Securities Collateral issued by it and will comply
with such terms insofar as such terms are applicable to it.
(ii) In the case of each Pledgor which is a partner in a
partnership or a member in a limited liability company, such Pledgor hereby
consents to the extent required by the applicable Operative Agreement to the
pledge by each other Pledgor, pursuant to the terms hereof, of the Pledged
Interests in such partnership or limited liability company and, upon the
occurrence and during the continuance of an Event of Default, to the transfer of
such Pledged Interests to the Collateral Agent or its nominee and to the
substitution of the Collateral Agent or its nominee as a substituted partner or
member in such partnership, limited liability company or other entity with all
the rights, powers and duties of a general partner or a limited partner or
member, as the case may be.
ARTICLE VI
CERTAIN PROVISIONS CONCERNING INTELLECTUAL
PROPERTY COLLATERAL
SECTION 6.1 Grant of License. For the purpose of enabling the
Collateral Agent, during the continuance of an Event of Default, to exercise
rights and remedies under Article VIII hereof at such time as the Collateral
Agent shall be lawfully entitled to exercise such rights and remedies, and for
no other purpose, each Pledgor hereby grants to the Collateral Agent, to the
extent assignable, an irrevocable, non-exclusive license (exercisable without
payment of royalty or other compensation to such Pledgor) to use, assign,
license or sublicense any of the Intellectual Property Collateral now owned or
hereafter acquired by such Pledgor, wherever the same may be located, including
in such license access to all media in which any of the licensed items may be
recorded or stored and to all computer programs used for the compilation or
printout hereof.
SECTION 6.2 Registrations. Except pursuant to licenses and other
user agreements entered into by any Pledgor in the ordinary course of business
that are listed in Schedules 14(a) and 14(b) of the Perfection Certificate, on
and as of the date hereof (i) each Pledgor owns and possesses the right to use,
and has done nothing to authorize or enable any other Person to use, any
Copyright, Patent or Trademark listed in Schedules 14(a) and 14(b) of the
Perfection Certificate, and (ii) all registrations listed in Schedules 14(a) and
14(b) of the Perfection Certificate are valid and in full force and effect.
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SECTION 6.3 No Violations or Proceedings. To each Pledgor's
knowledge, on and as of the date hereof, (i) except as set forth in Schedule 6.3
annexed hereto, there is no material violation by others of any right of such
Pledgor with respect to any Copyright, Patent or Trademark listed in Schedules
14(a) and 14(b) of the Perfection Certificate, respectively, pledged by it under
the name of such Pledgor, (ii) such Pledgor is not infringing upon any
Copyright, Patent or Trademark of any other Person other than such infringement
that, individually or in the aggregate, would not (or would not reasonably be
expected to) result in a material adverse effect on the value or utility of the
Intellectual Property Collateral or any portion thereof material to the use and
operation of the Pledged Collateral or Mortgaged Property taken as a whole and
(iii) no proceedings have been instituted or are pending against such Pledgor
or, to such Pledgor's knowledge, threatened, and no claim against such Pledgor
has been received by such Pledgor, alleging any such violation, except as may be
set forth in Schedule 6.3.
SECTION 6.4 Protection of Collateral Agent's Security. On a
continuing basis, each Pledgor shall, at its sole cost and expense, (i) promptly
following its becoming aware thereof, notify the Collateral Agent of (A) any
materially adverse determination in any proceeding in the United States Patent
and Trademark Office or the United States Copyright Office with respect to any
material Patent, Trademark or Copyright or (B) the institution of any proceeding
or any adverse determination in any Federal, state or local court or
administrative body regarding such Pledgor's claim of ownership in or right to
use any of the Intellectual Property Collateral material to the use and
operation of the Pledged Collateral or Mortgaged Property taken as a whole, its
right to register such Intellectual Property Collateral or its right to keep and
maintain such registration in full force and effect, (ii) maintain and protect
the Intellectual Property Collateral material to the use and operation of the
Pledged Collateral or Mortgaged Property (taken as a whole) as presently used
and operated and as contemplated by the Indenture, (iii) not permit to lapse or
become abandoned any Intellectual Property Collateral material to the use and
operation of the Pledged Collateral or Mortgaged Property (taken as a whole) as
presently used and operated and as contemplated by the Indenture, and not settle
or compromise any pending or future litigation or administrative proceeding with
respect to such Intellectual Property Collateral, in each case except as shall
be consistent with commercially reasonable business judgment, (iv) upon such
Pledgor obtaining knowledge thereof, promptly notify the Collateral Agent in
writing of any event which may be reasonably expected to materially and
adversely affect the value or utility of the Intellectual Property Collateral or
any portion thereof material to the use and operation of the Pledged Collateral
or Mortgaged Property (taken as a whole), the ability of such Pledgor or the
Collateral Agent to dispose of the Intellectual Property Collateral or any
portion thereof or the rights and remedies of the Collateral Agent in relation
thereto including, without limitation, a levy or threat of levy or any legal
process against the Intellectual Property Collateral or any portion thereof, (v)
not license the Intellectual Property Collateral other than licenses entered
into by such Pledgor in, or incidental to, the ordinary course of business, or
amend or permit the amendment of any of the licenses in a manner that materially
and adversely affects the right to receive payments thereunder, or in any manner
that would materially impair the value of the Intellectual Property Collateral
or the Lien on and security interest in the Intellectual Property Collateral
intended to be granted to the Collateral Agent for the benefit of the Secured
Parties, without the consent of the Collateral Agent and (vi) until the
Collateral Agent exercises its rights to make collection, diligently keep
adequate records respecting the Intellectual Property Collateral.
SECTION 6.5 After-Acquired Property. If any Pledgor shall, at
any time before the Secured Obligations have been paid in full (other than
contingent indemnification obligations which, pursuant to the provisions of the
Indenture or the Collateral Documents, survive the termination thereof),
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(i) obtain any rights to any additional Intellectual Property Collateral or (ii)
become entitled to the benefit of any additional Intellectual Property
Collateral or any renewal or extension thereof, including any reissue, division,
continuation, or continuation-in-part of any Intellectual Property Collateral,
or any improvement on any Intellectual Property Collateral, the provisions
hereof shall automatically apply thereto and any such item enumerated in clause
(i) or (ii) of this Section 6.5 with respect to such Pledgor shall automatically
constitute Intellectual Property Collateral if such would have constituted
Intellectual Property Collateral at the time of execution hereof and be subject
to the Lien and security interest created by this Agreement without further
action by any party. Each Pledgor shall promptly (i) provide to the Collateral
Agent written notice of any of the foregoing and (ii) confirm the attachment of
the Liens and security interests created by this Agreement to any rights
described in clauses (i) and (ii) of the immediately preceding sentence of this
Section 6.5 by execution of an instrument in form reasonably acceptable to the
Collateral Agent.
SECTION 6.6 Modifications. Each Pledgor authorizes the
Collateral Agent to modify this Agreement by amending Schedules 14(a) and 14(b)
of the Perfection Certificate to include any Intellectual Property Collateral
acquired or arising after the date hereof of such Pledgor including, without
limitation, any of the items listed in Section 6.5 hereof.
SECTION 6.7 Litigation. Unless there shall occur and be
continuing any Event of Default, each Pledgor shall have the right to commence
and prosecute in its own name, as the party in interest, for its own benefit and
at the sole cost and expense of the Pledgors, such applications for protection
of the Intellectual Property Collateral and suits, proceedings or other actions
to prevent the infringement, counterfeiting, unfair competition, dilution,
diminution in value or other damage as are necessary to protect the Intellectual
Property Collateral. Upon the occurrence and during the continuance of any Event
of Default, the Collateral Agent shall have the right but shall in no way be
obligated to file applications for protection of the Intellectual Property
Collateral and/or bring suit in the name of any Pledgor, the Collateral Agent or
the Secured Parties to enforce the Intellectual Property Collateral and any
license thereunder. In the event of such suit, each Pledgor shall, at the
reasonable request of the Collateral Agent, do any and all lawful acts and
execute any and all documents requested by the Collateral Agent in aid of such
enforcement and the Pledgors shall promptly reimburse and indemnify the
Collateral Agent, as the case may be, for all costs and expenses incurred by the
Collateral Agent in the exercise of its rights under this Section 6.7 in
accordance with Section 11.3 hereof. In the event that the Collateral Agent
shall elect not to bring suit to enforce the Intellectual Property Collateral,
each Pledgor agrees, at the reasonable request of the Collateral Agent, to take
all commercially reasonable actions necessary, whether by suit, proceeding or
other action, to prevent the infringement, counterfeiting, unfair competition,
dilution, diminution in value of or other damage to any of the Intellectual
Property Collateral by others and for that purpose agrees to diligently maintain
any suit, proceeding or other action against any Person so infringing necessary
to prevent such infringement.
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ARTICLE VII
INTENTIONALLY OMITTED
ARTICLE VIII
TRANSFERS AND OTHER LIENS
SECTION 8.1 Transfers of and other Liens on Pledged Collateral.
No Pledgor shall (i) sell, convey, assign or otherwise dispose of, or grant any
option with respect to, any of the Pledged Collateral pledged by it hereunder
except as permitted by the Indentures or (ii) create or permit to exist any Lien
upon or with respect to any of the Pledged Collateral pledged by it hereunder
other than Permitted Liens.
ARTICLE IX
REMEDIES
SECTION 9.1 Remedies. (a) Subject to applicable Gaming Laws and
the provisions of Section 11.17 hereof, upon the occurrence and during the
continuance of any Event of Default the Collateral Agent may from time to time
exercise in respect of the Pledged Collateral, in addition to the other rights
and remedies provided for herein or otherwise available to it:
(i) Personally, or by agents or attorneys, immediately take
possession of the Pledged Collateral or any part thereof, from any
Pledgor or any other Person who then has possession of any part thereof
with or without notice or process of law, and for that purpose may enter
upon any Pledgor's premises where any of the Pledged Collateral is
located, remove such Pledged Collateral, remain present at such premises
to receive copies of all communications and remittances relating to the
Pledged Collateral and use in connection with such removal and
possession any and all services, supplies, aids and other facilities of
any Pledgor;
(ii) Demand, xxx for, collect or receive any money or
property at any time payable or receivable in respect of the Pledged
Collateral including, without limitation, instructing the obligor or
obligors on any agreement, instrument or other obligation constituting
part of the Pledged Collateral to make any payment required by the terms
of such agreement, instrument or other obligation directly to the
Collateral Agent, and in connection with any of the foregoing,
compromise, settle, extend the time for payment and make other
modifications with respect thereto; provided, however, that in the event
that any such payments are made directly to any Pledgor, prior to
receipt by any such obligor of such instruction, such Pledgor shall
segregate all amounts received pursuant thereto in trust for the benefit
of the Collateral Agent and shall promptly (but in no event later than
one Business Day after receipt thereof) deposit such amounts into the
Collateral Account;
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(iii) Sell, assign, grant a license to use or otherwise
liquidate, or direct any Pledgor to sell, assign, grant a license to use
or otherwise liquidate, any and all investments made in whole or in part
with the Pledged Collateral or any part thereof, and take possession of
the Proceeds of any such sale, assignment, license or liquidation;
(iv) Take possession of the Pledged Collateral or any part
thereof, by directing any Pledgor in writing to deliver the same to the
Collateral Agent at any place or places so designated by the Collateral
Agent, in which event such Pledgor shall at its own expense: (A)
forthwith cause the same to be moved to the place or places designated
by the Collateral Agent and there delivered to the Collateral Agent, (B)
store and keep any Pledged Collateral so delivered to the Collateral
Agent at such place or places pending further action by the Collateral
Agent and (C) while the Pledged Collateral shall be so stored and kept,
provide such security and maintenance services as shall be necessary to
protect the same and to preserve and maintain them in good condition.
Each Pledgor's obligation to deliver the Pledged Collateral as
contemplated in this Section 9.1(iv) is of the essence hereof. Upon
application to a court of equity having jurisdiction, the Collateral
Agent shall be entitled to a decree requiring specific performance by
any Pledgor of such obligation;
(v) Withdraw all moneys, instruments, securities and other
property in any bank, financial securities, deposit or other account of
any Pledgor constituting Pledged Collateral for application to the
Secured Obligations as provided in Article X hereof;
(vi) Retain and apply the Distributions to the Secured
Obligations as provided in Article X hereof;
(vii) Exercise any and all rights as beneficial and legal
owner of the Pledged Collateral, including, without limitation,
perfecting assignment of and exercising any and all voting, consensual
and other rights and powers with respect to any Pledged Collateral; and
(viii) Exercise all the rights and remedies of a secured party
on default under the UCC, and the Collateral Agent may also in its sole
discretion, without notice except as specified in Section 9.2 hereof,
sell, assign or grant a license to use the Pledged Collateral or any
part thereof in one or more parcels at public or private sale, at any
exchange, broker's board or at any of the Collateral Agent's offices or
elsewhere, for cash, on credit or for future delivery, and at such price
or prices and upon such other terms as the Collateral Agent may deem
commercially reasonable. The Collateral Agent or any other Secured Party
or any of their respective Affiliates may be the purchaser, licensee,
assignee or recipient of any or all of the Pledged Collateral at any
such sale and shall be entitled, for the purpose of bidding and making
settlement or payment of the purchase price for all or any portion of
the Pledged Collateral sold, assigned or licensed at such sale, to use
and apply any of the Secured Obligations owed to such Person as a credit
on account of the purchase price of any Pledged Collateral payable by
such Person at such sale. Each purchaser, assignee, licensee or
recipient at any such sale shall acquire the property sold, assigned or
licensed absolutely free from any claim or right on the part of any
Pledgor, and each Pledgor hereby waives, to the fullest extent permitted
by law, all rights of redemption, stay and/or appraisal which it now has
or may at any time in the future have under any rule of law or statute
now existing or hereafter enacted. The Collateral Agent shall not be
obligated to make any sale of Pledged Collateral regardless of notice of
sale having been given. The Collateral
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Agent may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned. Each Pledgor hereby waives, to the fullest extent permitted
by law, any claims against the Collateral Agent arising by reason of the
fact that the price at which any Pledged Collateral may have been sold,
assigned or licensed at such a private sale was less than the price
which might have been obtained at a public sale, even if the Collateral
Agent accepts the first offer received and does not offer such Pledged
Collateral to more than one offeree.
SECTION 9.2 Notice of Sale. Each Pledgor acknowledges and agrees
that, to the extent notice of sale or other disposition of Pledged Collateral
shall be required by law, 10 days' prior notice to such Pledgor of the time and
place of any public sale or of the time after which any private sale or other
intended disposition is to take place shall be commercially reasonable
notification of such matters. No notification need be given to any Pledgor if it
has signed, after the occurrence of an Event of Default, a statement renouncing
or modifying any right to notification of sale or other intended disposition.
SECTION 9.3 Waiver of Notice and Claims. Each Pledgor hereby
waives, to the fullest extent permitted by Applicable Law, notice or judicial
hearing in connection with the Collateral Agent's taking possession or the
Collateral Agent's disposition of any of the Pledged Collateral, including,
without limitation, any and all prior notice and hearing for any prejudgment
remedy or remedies and any such right which such Pledgor would otherwise have
under law, and each Pledgor hereby further waives, to the fullest extent
permitted by Applicable Law: (i) all damages occasioned by such taking of
possession, (ii) 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
rights hereunder and (iii) all rights of redemption, appraisal, valuation, stay,
extension or moratorium now or hereafter in force under any Applicable Law. The
Collateral Agent shall not be liable for any incorrect or improper payment made
pursuant to this Article IX in the absence of gross negligence or willful
misconduct. Any sale of, or the grant of options to purchase, or any other
realization upon, any Pledged Collateral shall operate to divest all right,
title, interest, claim and demand, either at law or in equity, of the applicable
Pledgor therein and thereto, and shall be a perpetual bar both at law and in
equity against such Pledgor and against any and all Persons claiming or
attempting to claim the Pledged Collateral so sold, optioned or realized upon,
or any part thereof, from, through or under such Pledgor.
SECTION 9.4 Certain Sales of Pledged Collateral. (i) Each
Pledgor recognizes that, by reason of certain prohibitions contained in law,
rules, regulations or orders of any Governmental Authority, the Collateral Agent
may be compelled, with respect to any sale of all or any part of the Pledged
Collateral, to limit purchasers to those who meet the requirements of such
Governmental Authority. Each Pledgor acknowledges that any such sales may be at
prices and on terms less favorable to the Collateral Agent than those obtainable
through a public sale without such restrictions, and, notwithstanding such
circumstances, agrees that any such restricted sale shall be deemed to have been
made in a commercially reasonable manner and that, except as may be required by
Applicable Law, the Collateral Agent shall have no obligation to engage in
public sales.
(ii) Each Pledgor recognizes that, by reason of certain
prohibitions contained in the Securities Act of 1933, as amended (the
"Securities Act"), and applicable state securities laws, the Collateral Agent
may be compelled, with respect to any sale of all or any part of the Securities
Collateral, to limit purchasers to Persons who will agree, among other things,
to acquire such Securities Collateral for their own account, for investment and
not with a view to the distribution or resale thereof. Each
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Pledgor acknowledges that any such private sales may be at prices and on terms
less favorable to the Collateral Agent than those obtainable through a public
sale without such restrictions (including, without limitation, a public offering
made pursuant to a registration statement under the Securities Act), and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner and that the
Collateral Agent shall have no obligation to engage in public sales and no
obligation to delay the sale of any Securities Collateral for the period of time
necessary to permit the issuer thereof to register it for a form of public sale
requiring registration under the Securities Act or under applicable state
securities laws, even if such issuer would agree to do so.
(iii) Notwithstanding the foregoing, each Pledgor shall, upon
the occurrence and during the continuance of any Event of Default, at the
reasonable request of the Collateral Agent, for the benefit of the Collateral
Agent, cause any registration, qualification under or compliance with any
Federal or state securities law or laws to be effected with respect to all or
any part of the Securities Collateral as soon as practicable and at the sole
cost and expense of the Pledgors. Each Pledgor will use its commercially
reasonable efforts to cause such registration to be effected (and be kept
effective) and will use its commercially reasonable efforts to cause such
qualification and compliance to be effected (and be kept effective) as may be so
requested and as would permit or facilitate the sale and distribution of such
Securities Collateral including, without limitation, registration under the
Securities Act (or any similar statute then in effect), appropriate
qualifications under applicable blue sky or other state securities laws and
appropriate compliance with all other requirements of any Governmental
Authority. Each Pledgor shall use its commercially reasonable efforts to cause
the Collateral Agent to be kept advised in writing as to the progress of each
such registration, qualification or compliance and as to the completion thereof,
shall furnish to the Collateral Agent such number of prospectuses, offering
circulars or other documents incident thereto as the Collateral Agent from time
to time may request, and shall indemnify and shall cause the issuer of the
Securities Collateral to indemnify the Collateral Agent and all others
participating in the distribution of such Securities Collateral against all
claims, losses, damages and liabilities caused by any untrue statement (or
alleged untrue statement) of a material fact contained therein (or in any
related registration statement, notification or the like) or by any omission (or
alleged omission) to state therein (or in any related registration statement,
notification or the like) a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(iv) If the Collateral Agent determines to exercise its right
to sell any or all of the Securities Collateral, upon written request, the
applicable Pledgor shall from time to time furnish to the Collateral Agent all
such information as the Collateral Agent may request in order to determine the
number of securities included in the Securities Collateral which may be sold by
the Collateral Agent as exempt transactions under the Securities Act and the
rules of the Securities and Exchange Commission thereunder, as the same are from
time to time in effect.
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SECTION 9.5 No Waiver; Cumulative Remedies. (i) No failure on
the part of the Collateral Agent to exercise, no course of dealing with respect
to, and no delay on the part of the Collateral Agent in exercising, any right,
power or remedy hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right, power or remedy hereunder preclude
any other or further exercise thereof or the exercise of any other right, power
or remedy; nor shall the Collateral Agent be required to look first to, enforce
or exhaust any other security, collateral or guaranties. The remedies herein
provided are cumulative and are not exclusive of any remedies provided by law.
(ii) In the event that the Collateral Agent shall have
instituted any proceeding to enforce any right, power or remedy under this
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, the Pledgors,
the Collateral Agent and each other Secured Party shall be restored to their
respective former positions and rights hereunder with respect to the Pledged
Collateral, and all rights, remedies and powers of the Collateral Agent and the
other Secured Parties shall continue as if no such proceeding had been
instituted.
SECTION 9.6 Certain Additional Actions Regarding Intellectual
Property. If any Event of Default shall have occurred and be continuing, upon
the written demand of Collateral Agent, each Pledgor shall execute and deliver
to Collateral Agent an assignment or assignments of the registered Patents,
Trademarks and/or Copyrights and such other documents as are necessary or
appropriate to carry out the intent and purposes hereof. Within five Business
Days of written notice thereafter from Collateral Agent, each Pledgor shall make
available to Collateral Agent, to the extent within such Pledgor's power and
authority, such personnel in such Pledgor's employ on the date of the Event of
Default as Collateral Agent may reasonably designate to permit such Pledgor to
continue, directly or indirectly, to produce, advertise and sell the products
and services sold by such Pledgor under the registered Patents, Trademarks
and/or Copyrights, and such persons shall be available to perform their prior
functions on Collateral Agent's behalf.
ARTICLE X
APPLICATION OF PROCEEDS
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
Pledged Collateral pursuant to the exercise by the Collateral Agent of its
remedies as a secured creditor as provided in Article IX hereof shall be
applied, together with any other sums then held by the Collateral Agent in the
manner set forth in the Priority Intercreditor Agreement.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Concerning Collateral Agent. (i) The Collateral
Agent has been
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appointed as such pursuant to the Priority Intercreditor Agreement. The actions
of the Collateral Agent hereunder are subject to the provisions of the Priority
Intercreditor Agreement. The Collateral Agent shall have the right hereunder to
make demands, to give notices, to exercise or refrain from exercising any
rights, and to take or refrain from taking action (including, without
limitation, the release or substitution of the Pledged Collateral), in
accordance with this Agreement and the Priority Intercreditor Agreement. The
Collateral Agent may employ agents and attorneys-in-fact in connection herewith
and shall not be liable for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith. The Collateral Agent may resign
and a successor Collateral Agent may be appointed in the manner provided in the
Priority Intercreditor Agreement. Upon the acceptance of any appointment as the
Collateral Agent by a successor Collateral Agent, that successor Collateral
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Collateral Agent under this Agreement, and
the retiring Collateral Agent shall thereupon be discharged from its duties and
obligations under this Agreement. After any retiring Collateral Agent's
resignation, the provisions hereof shall inure to its benefit as to any actions
taken or omitted to be taken by it under this Agreement while it was the
Collateral Agent.
(ii) The Collateral Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Pledged Collateral in its
possession if such Pledged Collateral is accorded treatment substantially
equivalent to that which the Collateral Agent, in its individual capacity,
accords its own property consisting of similar instruments or interests, it
being understood that neither the Collateral Agent nor any of the Secured
Parties shall have responsibility for (i) ascertaining or taking action with
respect to calls, conversions, exchanges, maturities, tenders or other matters
relating to any Securities Collateral, whether or not the Collateral Agent or
any other Secured Party has or is deemed to have knowledge of such matters, or
(ii) taking any necessary steps to preserve rights against any Person with
respect to any Pledged Collateral.
(iii) The Collateral Agent shall be entitled to rely upon any
written notice, statement, certificate, order or other document or any telephone
message believed by it to be genuine and correct and to have been signed, sent
or made by the proper person, and, with respect to all matters pertaining to
this Agreement and its duties hereunder, upon advice of counsel selected by it.
SECTION 11.2 Collateral Agent May Perform; Collateral Agent
Appointed Attorney-in-Fact. If any Pledgor shall fail to perform any covenants
contained in this Agreement (including, without limitation, such Pledgor's
covenants to (i) pay the premiums in respect of all required insurance policies
hereunder, (ii) pay Charges, (iii) make repairs, (iv) discharge Liens or (v) pay
or perform any obligations of such Pledgor under any Pledged Collateral) or if
any warranty on the part of any Pledgor contained herein shall be breached, the
Collateral Agent may (but shall not be obligated to) do the same or cause it to
be done or remedy any such breach, and may expend funds for such purpose;
provided, however, that Collateral Agent shall in no event be bound to inquire
into the validity of any tax, lien, imposition or other obligation which such
Pledgor fails to pay or perform as and when required hereby and which such
Pledgor does not contest in accordance in accordance with the provision of
Section 4.16 hereof. Any and all amounts so expended by the Collateral Agent
shall be paid by the Pledgors in accordance with the provisions of Section 11.3
hereof. Neither the provisions of this Section 11.2 nor any action taken by
Collateral Agent pursuant to the provisions of this Section 11.2 shall prevent
any such failure to observe any covenant contained in this Agreement nor any
breach of warranty from constituting an Event of Default. Each Pledgor hereby
appoints the Collateral Agent its attorney-in-fact, with full authority in the
place and stead of such Pledgor and in the name of such Pledgor, or otherwise,
from time to time in the
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Collateral Agent's discretion to take any action and to execute any instrument
consistent with the terms of the Indenture and the other Collateral Documents
which the Collateral Agent may deem necessary or advisable to accomplish the
purposes hereof. The foregoing grant of authority is a power of attorney coupled
with an interest and such appointment shall be irrevocable for the term hereof.
Each Pledgor hereby ratifies all that such attorney shall lawfully do or cause
to be done by virtue hereof.
SECTION 11.3 Expenses. Each Pledgor will upon demand pay to the
Collateral Agent the amount of any and all reasonable costs and expenses,
including the reasonable fees and expenses of its counsel and the reasonable
fees and expenses of any experts and agents which the Collateral Agent may incur
in connection with (i) any action, suit or other proceeding affecting the
Pledged Collateral or any part thereof commenced, in which action, suit or
proceeding the Collateral Agent is made a party or participates or in which the
right to use the Pledged Collateral or any part thereof is threatened, or in
which it becomes necessary in the judgment of the Collateral Agent to defend or
uphold the Lien hereof (including, without limitation, any action, suit or
proceeding to establish or uphold the compliance of the Pledged Collateral with
any requirements of any Governmental Authority or law), (ii) the collection of
the Secured Obligations, (iii) the enforcement and administration hereof, (iv)
the custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Pledged Collateral, (v) the exercise or enforcement
of any of the rights of the Collateral Agent or any Secured Party hereunder or
(vi) the failure by any Pledgor to perform or observe any of the provisions
hereof. All amounts expended by the Collateral Agent and payable by any Pledgor
under this Section 11.3 shall be due upon demand therefor (together with
interest thereon accruing at the highest rate then in effect under the Indenture
during the period from and including the date on which such funds were so
expended to the date of repayment) and shall be part of the Secured Obligations.
Each Pledgor's obligations under this Section 11.3 shall survive the termination
hereof and the discharge of such Pledgor's other obligations under this
Agreement, the Indenture and the other Collateral Documents.
SECTION 11.4 Indemnity.
(i) Indemnity. Each Pledgor agrees to indemnify, pay and
hold harmless the Collateral Agent and the Trustees (collectively, the
"Indemnitees") from and against any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, claims, costs (including,
without limitation, settlement costs), expenses or disbursements of any kind or
nature whatsoever (including, without limitation, the reasonable fees and
disbursements of counsel for such Indemnitees) which may be imposed on, incurred
by, or asserted against that Indemnitee, in any manner relating to or arising
out of this Agreement, any other Collateral Document or any other document
evidencing the Secured Obligations (including, without limitation, any
misrepresentation by any Pledgor in this Agreement, any other Collateral
Document or any other document evidencing the Secured Obligations) (the
"Indemnified Liabilities"); provided, however, that no Pledgor shall have any
obligation to an Indemnitee hereunder with respect to Indemnified Liabilities to
the extent it has been determined by a final decision (after all appeals and the
expiration of time to appeal) of a court of competent jurisdiction that such
Indemnified Liabilities arose from the gross negligence or willful misconduct of
that Indemnitee. To the extent that the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable because it is
violative of any law or public policy, each Pledgor shall contribute the maximum
portion which it is permitted to pay and satisfy under Applicable Law to the
payment and satisfaction of all Indemnified Liabilities incurred by the
Indemnitees or any of them.
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(ii) Survival. The obligations of the Pledgors contained in
this Section 10.4 shall survive the termination hereof and the discharge of the
Pledgors' other obligations under this Agreement, the Indenture and under the
other Collateral Documents.
(iii) Reimbursement. Any amounts paid by any Indemnitee as to
which such Indemnitee has the right to reimbursement shall constitute Secured
Obligations secured by the Pledged Collateral.
SECTION 11.5 Continuing Security Interest; Assignment. This
Agreement shall create a continuing security interest in the Pledged Collateral
and shall (i) be binding upon the Pledgors, their respective successors and
assigns and (ii) inure, together with the rights and remedies of the Collateral
Agent hereunder, to the benefit of the Collateral Agent and the other Secured
Parties and each of their respective successors, transferees and assigns. No
other Persons (including, without limitation, any other creditor of any Pledgor)
shall have any interest herein or any right or benefit with respect hereto.
Without limiting the generality of the foregoing clause (ii), subject to the
provisions of any applicable Gaming Laws and the prior approval of any
applicable Gaming Authority, any Secured Party may assign or otherwise transfer
any indebtedness held by it secured by this Agreement to any other Person, and
such other Person shall thereupon become vested with all the benefits in respect
thereof granted to such Secured Party, herein or otherwise, subject however, to
the provisions of the Indenture.
SECTION 11.6 Termination; Release. The Pledged Collateral shall
be released from the Lien of this Agreement in accordance with the provisions of
the Priority Intercreditor Agreement. Upon termination hereof or any release of
Pledged Collateral in accordance with the provisions of the Priority
Intercreditor Agreement, the Collateral Agent shall, upon the request and at the
sole cost and expense of the Pledgors, assign, transfer and deliver to Pledgor,
against receipt and without recourse to or warranty by the Collateral Agent,
such of the Pledged Collateral to be released (in the case of a release) as may
be in possession of the Collateral Agent and as shall not have been sold or
otherwise applied pursuant to the terms hereof, and, with respect to any other
Pledged Collateral, proper documents and instruments (including UCC-3
termination statements or releases) acknowledging the termination hereof or the
release of such Pledged Collateral, as the case may be.
SECTION 11.7 Modification in Writing. No amendment,
modification, supplement, termination or waiver of or to any provision hereof,
nor consent to any departure by any Pledgor therefrom, shall be effective unless
the same shall be made in accordance with the terms of the Indenture and unless
in writing and signed by the Collateral Agent. Any amendment, modification or
supplement of or to any provision hereof, any waiver of any provision hereof and
any consent to any departure by any Pledgor from the terms of any provision
hereof shall be effective only in the specific instance and for the specific
purpose for which made or given. Except where notice is specifically required by
this Agreement or any other document evidencing the Secured Obligations, no
notice to or demand on any Pledgor in any case shall entitle any Pledgor to any
other or further notice or demand in similar or other circumstances.
SECTION 11.8 Notices. Unless otherwise provided herein or in the
Indenture, any notice or other communication herein required or permitted to be
given shall be given in the manner and become effective as set forth in the
Indenture, as to any Pledgor, addressed to it at the address of the Issuers set
forth in the Indenture and as to the Collateral Agent, addressed to it at the
address set forth in
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the Indenture, or in each case at such other address as shall be designated by
such party in a written notice to the other party complying as to delivery with
the terms of this Section 11.8.
SECTION 11.9 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
SECTION 11.10 CONSENT TO JURISDICTION AND SERVICE OF PROCESS;
WAIVER OF JURY TRIAL. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PLEDGOR WITH
RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE SUPREME COURT OF THE STATE OF
NEW YORK SITTING IN NEW YORK COUNTY, THE COURTS OF THE UNITED STATES OF AMERICA
FOR THE SOUTHERN DISTRICT OF NEW YORK AND APPELLATE COURTS OF ANY THEREOF, AND
BY EXECUTION AND DELIVERY HEREOF, EACH PLEDGOR ACCEPTS FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND IRREVOCABLY AGREES TO BE BOUND BY ANY
JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. EACH PLEDGOR AGREES
THAT SERVICE OF PROCESS IN ANY PROCEEDING MAY BE EFFECTED BY MAILING A COPY
THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF
MAIL), POSTAGE PREPAID, TO THE ISSUER AT ITS ADDRESS SET FORTH IN THE INDENTURE
OR AT SUCH OTHER ADDRESS OF WHICH THE TRUSTEE SHALL HAVE BEEN NOTIFIED PURSUANT
THERETO. IF ANY AGENT APPOINTED BY ANY PLEDGOR REFUSES TO ACCEPT SERVICE, SUCH
PLEDGOR HEREBY AGREES THAT SERVICE UPON IT BY MAIL SHALL CONSTITUTE SUFFICIENT
NOTICE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE TRUSTEE TO BRING
PROCEEDINGS AGAINST ANY PLEDGOR IN THE COURTS OF ANY OTHER JURISDICTION. THE
PLEDGORS HEREBY IRREVOCABLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 11.11 Severability of Provisions. Any provision hereof
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 11.12 Execution in Counterparts. This Agreement and any
amendments, waivers, consents or supplements hereto may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original,
but all such counterparts together shall constitute one and the same agreement.
SECTION 11.13 Business Days. In the event any time period or any
date provided in this Agreement ends or falls on a day other than a Business
Day, then such time period shall be deemed to end and such date shall be deemed
to fall on the next succeeding Business Day, and performance herein may be made
on such Business Day, with the same force and effect as if made on such other
day.
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SECTION 11.14 No Credit for Payment of Taxes or Imposition. Such
Pledgor shall not be entitled to any credit against the principal, premium, if
any, or interest payable under the Indentures or the Notes, and such Pledgor
shall not be entitled to any credit against any other sums which may become
payable under the terms thereof or hereof, by reason of the payment of any Tax
on the Pledged Collateral or any part thereof.
SECTION 11.15 No Claims Against Collateral Agent. Nothing
contained in this Agreement shall constitute any consent or request by the
Collateral Agent, express or implied, for the performance of any labor or
services or the furnishing of any materials or other property in respect of the
Pledged Collateral or any part thereof, nor as giving any Pledgor any right,
power or authority to contract for or permit the performance of any labor or
services or the furnishing of any materials or other property in such fashion as
would permit the making of any claim against the Collateral Agent in respect
thereof or any claim that any Lien based on the performance of such labor or
services or the furnishing of any such materials or other property is prior to
the Lien hereof.
SECTION 11.16 Obligations Absolute. All obligations of each
Pledgor hereunder shall be absolute and unconditional irrespective of:
(i) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of any Pledgor;
(ii) any lack of validity or enforceability of the
Indentures, the Notes or any other Collateral Document, or any other
agreement or instrument relating thereto;
(iii) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Secured Obligations, or any
other amendment or waiver of or any consent to any departure from the
Indentures, the Notes or any other Collateral Document, or any other
agreement or instrument relating thereto;
(iv) any pledge, exchange, release or non-perfection of any
other collateral, or any release or amendment or waiver of or consent to
any departure from any guarantee, for all or any of the Secured
Obligations;
(v) any exercise, non-exercise or waiver of any right,
remedy, power or privilege under or in respect hereof, the Indentures,
the Notes or any other Collateral Document except as specifically set
forth in a waiver granted pursuant to the provisions of Section 11.7
hereof; or
(vi) any other circumstances which might otherwise constitute
a defense available to, or a discharge of, any Pledgor.
SECTION 11.17 Gaming Laws. (i) Nothing in this Agreement, the
Indentures or the other Collateral Documents shall require the Collateral Agent
to take any action contrary to any Gaming Laws or the rules, regulations or
determinations promulgated by any Gaming Authority.
(ii) Each provision of this Agreement is subject to and shall
be enforced in compliance with the provisions of the New Jersey Casino Control
Act.
-36-
(iii) The Collateral Agent acknowledges, understands and
agrees that the Indiana Riverboat Gambling Act rules and regulations of the
Indiana Gaming Commission may impose certain licensing or transaction approval
requirements prior to the exercise of the rights and remedies granted to it
under this Agreement, the Indentures or the other Collateral Documents with
respect to the Pledged Collateral. In particular, the Collateral Agent
acknowledges, understands and agrees that it may not take a direct possessory
interest in any gaming equipment, but may exercise rights only through an agent
appropriately licensed or approved by the Gaming Authorities.
(iv) Notwithstanding any other provision of the Indentures,
the Priority Intercreditor Agreement or any other Collateral Documents to the
contrary, nothing in this Agreement, the Indentures, the Priority Intercreditor
Agreement or any other Collateral Document shall (i) effect any transfer of any
ownership interest (within the meaning of 68 Indiana Administrative Code 5) in
any Pledgor or (ii) effect any transfer, sale, purchase, lease or hypothecation
of, or any borrowing or loaning of money against, or any establishment of any
voting trust agreement or other similar agreement with respect to (all within
the meaning of Indiana Code 4-33-4-21), any certificate of suitability or any
Riverboat Gaming License heretofore or hereafter issued to any Person, including
Xxxxx Indiana, Inc., under any of the Gaming Laws.
(v) The Collateral Agent acknowledges, understands and
agrees that the Indiana Gaming Commission reserves the right to disapprove and
subsequently cancel any contract that it determines does not comply with the
Indiana Riverboat Gambling Act, Title 68IAC and the regulations promulgated
thereunder.
(vi) Notwithstanding anything expressed or implied herein to
the contrary, nothing in this Agreement, the Indentures, the Priority
Intercreditor Agreement or the other Collateral Documents is intended to grant
to the Collateral Agent any authority to manage a casino or casino operation.
(vii) The Collateral Agent acknowledges the terms and
conditions of that certain Subordination Agreement dated as of October 12, 2001
by THCR Management Holdings, LLC in favor of the lenders under that certain Loan
Agreement dated as of October 17, 2001 by and among Twenty-Nine Palms
Enterprises Corporation, the Twenty-Nine Palms Band of Luiseno Mission Indians
of California and First National Bank, as administrative agent, and agrees to be
bound by the provisions of such Subordination Agreement, including the
provisions of paragraph 14 thereof.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-37-
IN WITNESS WHEREOF, the Pledgors and the Collateral Agent have
caused this Agreement to be duly executed and delivered as of the date first
above written.
XXXXX CASINO FUNDING, INC.,
as Issuer and a Pledgor
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
Title: CFO, Executive Vice President,
Corporate Treasurer and
Secretary
XXXXX CASINO HOLDINGS, LLC,
as Issuer and a Pledgor
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
Title: CFO, Executive Vice President,
Corporate Treasurer and
Secretary
XXXXX INDIANA, INC.,
as a Guarantor and a Pledgor
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President and
Treasurer
XXXXX INDIANA REALTY, LLC,
as a Guarantor and a Pledgor
By: Xxxxx Casino Holdings, LLC, its
member
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
Title: CFO, Executive Vice President,
Corporate Treasurer and
Secretary
XXXXX XXXXXX, INC.,
as a Guarantor and a Pledgor
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Treasurer
XXXXX XXXXXX ASSOCIATES, L.P.,
as a Guarantor and a Pledgor
By: Xxxxx Xxxxxx, Inc., its general
partner
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Treasurer
THCR MANAGEMENT SERVICES, LLC,
as a Guarantor and a Pledgor
By: THCR Management Holdings, LLC, its
member
By: Xxxxx Casino Holdings, LLC, its
member
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
Title: CFO, Executive Vice President,
Corporate Treasurer and
Secretary
THCR MANAGEMENT HOLDINGS, LLC,
as a Guarantor and a Pledgor
By: Xxxxx Casino Holdings, LLC, its
member
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
Title: CFO, Executive Vice President,
Corporate Treasurer and
Secretary
-39-
U.S. BANK NATIONAL ASSOCIATION,
as Collateral Agent
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
EXHIBIT 1
ISSUER ACKNOWLEDGMENT
The undersigned hereby (i) acknowledges receipt of a copy of
that certain security agreement (as amended, amended and restated, supplemented
or otherwise modified from time to time, the "Security Agreement;" capitalized
terms used but not otherwise defined herein shall have the meanings assigned to
such terms in the Security Agreement), dated as of March 25, 2003, among Xxxxx
Casino Holdings, LLC and Xxxxx Casino Funding, Inc. (the "Issuers"), the
Guarantors from time to time party thereto, and U.S. Bank National Association,
as Collateral Agent (in such capacity and together with any successors in such
capacity, the "Collateral Agent"), (ii) agrees promptly to note on its books the
security interests granted to the Collateral Agent and confirmed under the
Security Agreement, (iii) agrees that it will comply with instructions of the
Collateral Agent with respect to the applicable Securities Collateral without
further consent by the applicable Pledgor, (iv) agrees to notify the Collateral
Agent upon obtaining knowledge of any interest in favor of any Person in the
applicable Securities Collateral that is adverse to the interest of the
Collateral Agent therein and (v) waives any right or requirement at any time
hereafter to receive a copy of the Security Agreement in connection with the
registration of any Securities Collateral thereunder in the name of the
Collateral Agent or its nominee or the exercise of Voting rights by the
Collateral Agent or its nominee.
[ ]
By:
-----------------------------------
Name:
Title:
EXHIBIT 2
SECURITY AGREEMENT AMENDMENT
This Security Pledge Amendment, dated as of [ ], 20[ ], is
delivered pursuant to Section 6.1 of that certain security agreement (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the "Security Agreement;" capitalized terms used but not otherwise defined
herein shall have the meanings assigned to such terms in the Security
Agreement), dated as of March 25, 2003, among Xxxxx Casino Holdings, LLC and
Xxxxx Casino Funding, Inc. (the "Issuers"), the undersigned, the other
Guarantors from time to time party thereto and U.S. Bank National Association,
as Collateral Agent (in such capacity and together with any successors in such
capacity, the "Collateral Agent"). The undersigned hereby agrees that this
Pledge Amendment may be attached to the Security Agreement and that the Pledged
Securities and/or Intercompany Notes listed on this Pledge Amendment shall be
deemed to be and shall become part of the Pledged Collateral and shall secure
all Secured Obligations.
PLEDGED SECURITIES
CLASS NUMBER OF PERCENTAGE OF
OF STOCK SHARES ALL ISSUED CAPITAL
OR PAR CERTIFICATE OR OR OTHER EQUITY INTERESTS
ISSUER INTERESTS VALUE NO(S). INTERESTS OF ISSUER
---------- ----------- ------- ------------- ------------ --------------------------
INTERCOMPANY NOTES
PRINCIPAL DATE OF INTEREST MATURITY
ISSUER AMOUNT ISSUANCE RATE DATE
---------- ----------- ---------- ---------- ----------
[_____________________________________],
as Pledgor
By:
------------------------------------
Name:
Title:
-2-
AGREED TO AND ACCEPTED:
U.S. BANK NATIONAL ASSOCIATION,
as Collateral Agent
By:
-----------------------------------
Name:
Title:
EXHIBIT 3
[Name of New Pledgor]
[Address of New Pledgor]
[Date]
____________________________
____________________________
____________________________
Ladies and Gentlemen:
Reference is made to that certain security agreement (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the "Security Agreement;" capitalized terms used but not otherwise defined
herein shall have the meanings assigned to such terms in the Security
Agreement), dated as of March 25, 2003, among Xxxxx Casino Holdings, LLC
("Holdings") and Xxxxx Casino Funding, Inc. ("Funding" and together with
Holdings, the "Issuers"), each of the Guarantors listed on the signature pages
thereto or from time to time party thereto by execution of a joinder agreement,
and U.S. Bank National Association, as Collateral Agent (in such capacity and
together with any successors in such capacity, the "Collateral Agent").
This letter supplements the Security Agreement and is delivered
by the undersigned, ______________ (the "New Pledgor"), pursuant to Section 3.5
of the Security Agreement. The New Pledgor hereby agrees to be bound as a
Guarantor and as a Pledgor by all of the terms, covenants and conditions set
forth in the Security Agreement to the same extent that it would have been bound
if it had been a signatory to the Security Agreement on the execution date of
the Security Agreement and without limiting the generality of the foregoing,
hereby grants and pledges to the Administrative Agent, as collateral security
for the full, prompt and complete payment and performance when due (whether at
stated maturity, by acceleration or otherwise) of the Secured Obligations, a
Lien on and security interest in, all of its right, title and interest in, to
and under the Pledged Collateral and expressly assumes all obligations and
liabilities of a Guarantor and Pledgor thereunder. The New Pledgor hereby makes
each of the representations and warranties and agrees to each of the covenants
applicable to the Pledgors contained in the Security Agreement.
Attached hereto are supplements to each of the schedules to the
Security Agreement with respect to the New Pledgor. Such supplements shall be
deemed to be part of the Security Agreement.
This agreement and any amendments, waivers, consents or
supplements hereto may be executed in any number of counterparts and by
different parties hereto in separate counterparts,
-2-
each of which when so executed and delivered shall be deemed to be an original,
but all such counterparts together shall constitute one and the same agreement.
THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
-3-
IN WITNESS WHEREOF, the New Pledgor has caused this letter
agreement to be executed and delivered by its duly authorized officer as of the
date first above written.
[NEW PLEDGOR]
By:
-----------------------------------
Name:
Title:
AGREED TO AND ACCEPTED:
U.S. BANK NATIONAL ASSOCIATION,
as Collateral Agent
By:
--------------------------------
Name:
Title:
[Schedules to be attached]
