EXHIBIT 4.5
ESCROW AND CONTROL AGREEMENT
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THIS ESCROW AND CONTROL AGREEMENT (this "Agreement"), dated as of May
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19, 1999, is by and among HOLLYWOOD CASINO CORPORATION, a Delaware corporation
(the "Company"), STATE STREET BANK AND TRUST COMPANY, a Massachusetts chartered
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trust company, as the Trustee under the Indenture (as defined below) (the
"Trustee"), and STATE STREET BANK AND TRUST COMPANY, a Massachusetts chartered
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trust company (in its capacity as escrow agent and securities intermediary, the
"Escrow Agent" or "Securities Intermediary"). Capitalized terms used herein and
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not otherwise defined have the meanings assigned to them in the Indenture
described below.
WITNESSETH:
WHEREAS, the Company, HWCC-Tunica, Inc., a Texas corporation, HWCC-
Shreveport, Inc., a Louisiana corporation, and Trustee have entered into an
Indenture dated as of the date hereof (as amended, supplemented, restated or
otherwise modified from time to time, the "Indenture") pursuant to which the
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Company will issue up to $310,000,000 of its 11 1/4% Series A and Series B
Senior Secured Notes due 2007 and up to $50,000,000 of its Floating Rate Series
A and Series B Senior Secured Notes due 2006 (as amended, supplemented,
restated, exchanged, replaced or otherwise modified from time to time,
collectively, the "Notes");
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WHEREAS, the Company has agreed to place in escrow the Deposits (as
defined below), to be held pursuant to the terms of this Agreement and the
Indenture;
WHEREAS, it is a condition precedent to the purchase of the Notes
under the Indenture that the Deposits be delivered into escrow pursuant to this
Agreement;
WHEREAS, Securities Intermediary and the Company have entered into a
customer agreement, a copy of which is attached hereto as Exhibit A (the
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"Customer Agreement"), pursuant to which Securities Intermediary has established
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its securities account number 102449-020 in the name of Debtor (the "Account");
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WHEREAS, the Company has entered into a Security Agreement (as from
time to time amended, restated, supplemented or otherwise modified, the
"Security Agreement"), in which inter alia, the Company has granted to Trustee
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on behalf of the holders of the Notes a security interest in the Account and the
financial assets and any free credit balance carried therein; and
WHEREAS, the Company and the Securities Intermediary are entering into
this Agreement to provide for the control of the Account and to perfect the
security interest of the Trustee in the Account and the financial assets and any
free credit balance carried therein as more fully described in the Security
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. Deposits; Interest
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1.1. Deposits by the Company. On the date hereof, the Company shall
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deliver to the Escrow Agent a portion of the net proceeds from the sale of the
Notes consisting of $40,700,000 in immediately available funds (the "Deposits").
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1.2. Interest. Any interest or other profit resulting from the
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Deposits shall become part of the Deposits and treated hereunder as though a
part of the original Deposits.
2. Release of Deposits.
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The Escrow Agent shall hold the Deposits in escrow pursuant to this
Agreement until authorized hereunder to deliver them as follows:
(a) Release to Facilitate Xxxxx Casino Corporation Acquisition.
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Except as set forth in Section 5 hereof, the Escrow Agent shall release the
Deposits to the Company upon receipt of an opinion of counsel stating that
all of the conditions for the release of the Deposits have been satisfied,
together with an officer's certificate from the Company addressed to Escrow
Agent and Trustee certifying that:
(i) the final order of the United States Bankruptcy Court
has been approved providing for the Xxxxx Casino Corporation
Acquisition;
(ii) all necessary approvals from Gaming Authorities for
the consummation of the Xxxxx Casino Corporation Acquisition have been
obtained;
(iii) substantially concurrently with the release of such
Deposits, not less than $37,000,000 of the Deposits shall be loaned to
Hollywood Casino-Aurora, and the Aurora Intercompany Note will be
increased by an amount equal to such loan in connection with the Xxxxx
Casino Corporation Acquisition, and the Company agrees to execute such
documentation as Trustee shall reasonably require to ensure the
continued priority and perfection of the security interests in the
collateral securing the obligations under such Aurora Intercompany
Note, as collaterally assigned to Trustee for the benefit of the
holders of the Notes; and
(iv) HWCC-Aurora Management, Inc., Xxxxx Casino
Corporation, and Xxxxx Management, L.P. will be designated as
Restricted Subsidiaries pursuant to the Indenture (collectively, the
"New Restricted Subsidiaries"), and that the Board of Directors of the
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Company has approved that, within five (5) Business Days following the
consummation of the Xxxxx Casino Corporation Acquisition, and subject
to the approval of the applicable Gaming Authorities, (A)(x) each New
Restricted Subsidiary shall become a Guarantor and shall execute a
supplemental indenture and deliver an opinion of counsel to the
Trustee to such effect, and will grant a first priority security
interest in substantially all of its assets to secure its obligations
under its Guarantee, subject to Permitted Encumbrances set forth on
Exhibit D hereto and (y) the Company shall pledge the Capital Stock of
each New Restricted Subsidiary to the Trustee for the benefit of the
holders of the Notes to secure the Company's obligations under the
Notes, or (B) the New Restricted Subsidiaries will be dissolved,
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terminated or otherwise merged out of existence, with the Company or
any other Restricted Subsidiary as the successor entity, and the
Tunica Consulting Agreement and the Aurora Management Agreement will
be terminated.
(b) Release to Facilitate Special Mandatory Redemption.
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Following receipt of written notice from the Trustee of the Special
Mandatory Redemption and the redemption date therefor, the Escrow Agent
shall release the Deposits to the Trustee for the purpose of the Special
Mandatory Redemption.
3. Certain Additional Agreements.
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The Company and the Trustee shall, upon request by the Escrow Agent,
execute and deliver to the Escrow Agent such additional written instructions and
certificates hereunder as may be reasonably required by the Escrow Agent to give
effect to the provisions of Sections 1 and 2 hereof.
4. The Account. The Parties agree and represent that (a) the Account has
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been established in the name of the Company as recited above, (b) the
Account has no financial assets which are registered in the name of the
Company, payable to its order, or specially endorsed to it, which have not
been endorsed to Securities Intermediary or in blank, (c) the Customer
Agreement, the security entitlements arising out of the financial assets
carried in the Account and such free credit balance are valid and legally
binding obligations of Securities Intermediary, and (d) except for the
claims and interests of Trustee and of the Company in the Account,
Securities Intermediary does not know of any claim to or interest in the
Account or in any financial asset carried therein. Securities Intermediary
will treat all property held by it in the Account as financial assets under
Article 8 of the Uniform Commercial Code of the State of New York (the
"Code").
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5. No Withdrawals.
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Securities Intermediary shall neither accept nor comply with any
entitlement order from the Company withdrawing any financial assets from the
Account nor deliver any such financial assets to the Company nor pay any free
credit balance or other amount owing from Securities Intermediary to the Company
with respect to the Account following a Notice of Exclusive Control (as defined
below) from Trustee.
6. Priority of Lien.
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The Company hereby grants to the Trustee for the benefit of the
holders of the Notes a security interest in the Account, all financial assets
carried therein and any free credit balance therein. Securities Intermediary
consents to such security interest. Securities Intermediary hereby confirms
that the Account is a cash account and that it will not advance any margin or
other credit to the Company therein, either directly or indirectly by executing
purchase orders in excess of any credit balance or money market mutual funds
held in the Account, executing sell orders on securities not held in the Account
or by executing trades in instruments such as options and commodities contracts
that create similar obligations, nor shall Securities Intermediary hypothecate
any securities carried in the Account. Securities Intermediary hereby
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waives and releases all liens, encumbrances, claims and rights of setoff
Securities Intermediary may have against the Account or any financial asset
carried in the Account or any credit balance in the Account and agrees that,
except for payment of its customary fees and commissions pursuant to the
Customer Agreement, it will not assert any such lien, encumbrance, claim or
right or the priority thereof against the Account or any financial asset carried
in the Account or any credit balance in the Account. Securities Intermediary
will not agree with any third party that Securities Intermediary will comply
with entitlement orders concerning the Account originated by such third party
without the prior written consent of Trustee and the Company.
7. Control.
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Securities Intermediary will comply with entitlement orders originated
by Trustee concerning the Account without further consent by the Company.
Except as otherwise provided in Section 5 and 6 above, Securities Intermediary
shall make trades of financial assets held in the Account at the instruction of
the Company, or its authorized representatives, and comply with entitlement
orders concerning such trades from the Company, or its authorized
representatives in any of the permitted investments set forth on Exhibit B
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hereto, until such time as Trustee delivers a written notice to Securities
Intermediary which states that Trustee is exercising exclusive control over the
Account. Such notice is referred to herein as the "Notice of Exclusive
Control." After Securities Intermediary receives a Notice of Exclusive Control,
it will immediately cease complying with all instructions or entitlement orders
concerning the Account originated by the Company or its representatives.
8. Statements, Confirmations and Notices of Adverse Claims.
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Securities Intermediary will send copies of all statements,
confirmations and other correspondence concerning the Account simultaneously to
each of the Company and Trustee at the addresses set forth in the heading of
this Agreement. If any person asserts any lien, encumbrance or adverse claim
against the Account or in any financial asset carried therein, Securities
Intermediary will promptly notify the Company and Trustee thereof.
9. Securities Intermediary and Escrow Agent
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(a) Except for advancing margin or other credit to the Company
in violation of Section 6 above, Securities Intermediary shall have no
responsibility or liability to Trustee for making trades of financial
assets held in the Account at the instruction of the Company, or its
authorized representatives, or complying with entitlement orders in
accordance with Section 5 above concerning the Account from the Company, or
its authorized representatives, which are received by Securities
Intermediary before Securities Intermediary receives a Notice of Exclusive
Control. Securities Intermediary shall have no responsibility or liability
to the Company for complying with a Notice of Exclusive Control or
complying with entitlement orders concerning the Account originated by
Trustee. Securities Intermediary shall have no duty to investigate or make
any determination as to whether the conditions for the issuance of a Notice
of Exclusive Control contained in any agreement between the Company and the
Trustee have occurred. Neither this Agreement nor the Security
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Agreement imposes or creates any obligation or duty of Securities
Intermediary other than those expressly set forth herein.
(b) The Escrow Agent, in its capacity as such, shall have no
duties or responsibilities, including, without limitation, a duty to review
or interpret the Indenture, except those expressly set forth herein.
Except for this Agreement, the Escrow Agent, in its capacity as such, is
not a party to, or bound by, any agreement that may be required under,
evidenced by, or arise out of the Indenture.
(c) If the Escrow Agent shall be uncertain as to its duties or
rights hereunder or shall receive instructions from any of the undersigned
with respect to the Deposits, which, in its opinion, are in conflict with
any of the provisions of this Agreement, it shall be entitled to refrain
from taking any action until it shall be directed otherwise in writing by a
joint written instruction of the Company and the Trustee or by order of a
court of competent jurisdiction. The Escrow Agent shall be protected in
acting upon any notice, request, waiver, consent, receipt or other document
reasonably believed by the Escrow Agent to be signed by the proper party or
parties.
(d) The Escrow Agent, in its capacity as such, shall not be
liable for any error or judgment or for any act done or step taken or
omitted by it in good faith or for any mistake of fact or law, or for
anything that it may do or refrain from doing in connection herewith,
except for its own gross negligence or willful misconduct, and the Escrow
Agent shall have no duties to anyone except the Company and the Trustee and
their respective successors and permitted assigns.
(e) The Escrow Agent may consult legal counsel in the event of
any dispute or question as to the construction of this Agreement, or the
Escrow Agent's duties hereunder, and the Escrow Agent shall incur no
liability and shall be fully protected with respect to any action taken or
omitted in good faith in accordance with the opinion and instructions of
counsel.
(f) In the event of any disagreement between the undersigned or
any of them, and/or any other person, resulting in adverse claims and
demands being made in connection with or for the Deposits, the Escrow Agent
shall be entitled at its option to refuse to comply with any such claim or
demand, so long as such disagreement shall continue, and in so doing the
Escrow Agent shall not be or become liable for damages or interest to the
undersigned or any of them or to any person named herein for its failure or
refusal to comply with such conflicting or adverse demands. The Escrow
Agent shall be entitled to continue so to refrain and refuse so to act
until all differences shall have been resolved by agreement and the Escrow
Agent shall have been notified thereof in writing signed by the Company and
the Trustee. In the event of such disagreement which continues for ninety
(90) days or more, the Escrow Agent in its discretion may, but shall be
under no obligation to, file a suit in interpleader for the purpose of
having the respective rights of the claimants adjudicated and may deposit
with the court all documents and property held hereunder. The Company
agrees to pay all reasonable out-of-pocket costs and expenses incurred by
the Escrow Agent in such action, including reasonable attorneys' fees and
disbursements.
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(g) The Escrow Agent is hereby indemnified by the Company from
all losses, costs and expenses of any nature incurred by the Escrow Agent
arising out of or in connection with this Agreement or with the
administration of its duties hereunder, unless such losses, costs or
expenses shall have been caused by the Escrow Agent's willful misconduct or
gross negligence. Such indemnification shall survive termination of this
Agreement until extinguished by any applicable statute of limitations.
(h) The Escrow Agent, in its capacity as such, does not have any
interest in the Deposits deposited hereunder but is serving as escrow
holder only and having only possession thereof. This paragraph shall
survive notwithstanding any termination of this Agreement or the
resignation of the Escrow Agent.
(i) The Escrow Agent (and any successor Escrow Agent) may at any
time resign as such by giving written notice of its resignation to the
parties hereto at least thirty (30) days prior to the date specified for
such resignation to take effect. Upon the effective date of such
resignation, the Deposits shall be delivered by it to such successor escrow
agent or as otherwise shall be instructed in writing by the Company and the
Trustee, whereupon the Escrow Agent shall be discharged of and from any and
all further obligations arising in connection with this Agreement. If at
that time the Escrow Agent has not received such instruction, the Escrow
Agent's sole responsibility after that time shall be to safekeep the
Deposits until receipt of a designation of successor Escrow Agent, or a
joint written instruction as to disposition of the Deposits by the Company
and the Trustee or a final order of a court of competent jurisdiction
mandating disposition of the Deposits.
(j) The Escrow Agent hereby accepts its appointment and agrees
to act as escrow agent under the terms and conditions of this Agreement and
acknowledges receipt of the Deposits. The Company agrees to pay to the
Escrow Agent as payment in full for its services hereunder the Escrow
Agent's compensation set forth in Exhibit C hereto. The Company further
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agrees to reimburse the Escrow Agent for all reasonable out-of-pocket
expenses, disbursements and advances incurred or made by the Escrow Agent
in the performance of its duties hereunder (including reasonable fees, and
out-of-pocket expenses and disbursements, of its counsel).
10. Tax Reporting.
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All items of income, gain, expense and loss recognized in the Account
shall be reported to the Internal Revenue Service and all state and local taxing
authorities under the name and taxpayer identification number of the Company.
11. Customer Agreement.
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This Agreement supplements the Customer Agreement between Securities
Intermediary and the Company. In the event of a conflict between this Agreement
and the Customer Agreement, the terms of this Agreement will prevail.
Regardless of any provision in the Customer Agreement, New York shall be deemed
to be the Securities Intermediary's location
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for the purposes of this Agreement and the perfection and priority of Trustee's
security interest in the Account.
12. Termination.
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The rights and powers granted herein to Trustee have been granted in
order to perfect its security interest in the Account, are powers coupled with
an interest and will neither be affected by the bankruptcy or insolvency of the
Company nor by the lapse of time. The obligations of Securities Intermediary
under Sections 5, 6, 7 and 8 above shall continue in effect until the security
interest of Trustee in the Account has been terminated pursuant to the terms of
the Security Agreement and Trustee has notified Securities Intermediary of such
termination in writing. Upon receipt of such notice, the obligations of
Securities Intermediary under Sections 5, 6, 7 and 8 above with respect to the
operation and maintenance of the Account after the receipt of such notice shall
terminate, Trustee shall have no further right to originate entitlement orders
concerning the Account and Securities Intermediary may take such steps as the
Company may request to vest full ownership and control of the Account in the
Company, including, but not limited to, transferring all of the financial assets
and credit balances in the Account to another securities account in the name of
the Company or its designee.
13. Miscellaneous
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13.1. This Agreement. This Agreement, the schedules and exhibits
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hereto and the agreements and instruments required to be executed and delivered
hereunder set forth the entire agreement of the parties hereto with respect to
the subject matter hereof and supersede and discharge all prior agreements
(written or oral) and negotiations and all contemporaneous oral agreements
concerning such subject matter and negotiations. There are no oral conditions
precedent to the effectiveness of this Agreement.
13.2. Amendments. No amendment, modification or termination of this
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Agreement or waiver of any right hereunder shall be binding on any party hereto
unless it is in writing and is signed by the party to be charged.
13.3. Severability. If any term or provision set forth in this
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Agreement shall be invalid or unenforceable, the remainder of this Agreement, or
the application of such terms or provisions to persons or circumstances, other
than those to which it is held invalid or unenforceable, shall be construed in
all respects as if such invalid or unenforceable term or provision were omitted.
13.4. Successors. The terms of this Agreement shall be binding upon,
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and shall inure to the benefit of, the parties hereto and their respective
corporate successors or assigns.
13.5. Rules of Construction. In this Agreement, words in the
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singular number include the plural, and in the plural include the singular;
words of the masculine gender include the feminine and the neuter, and when the
sense so indicates words of the neuter gender may refer to any gender and the
word "or" is disjunctive but not exclusive. The captions and section numbers
appearing in this Agreement are inserted only as a matter of convenience. They
do not define, limit or describe the scope or intent of the provisions of this
Agreement. Except as
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otherwise defined herein all terms herein shall have the meanings ascribed
thereto in Article 8 of the Code.
13.6. Notices. Notices. Any notice other communication by the
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Company, the Trustee or the Securities Intermediary to the others is duly given
if in writing and delivered in Person or mailed by first class mail (registered
or certified, return receipt requested) telex, telecopier or overnight air
courier guaranteeing next day delivery, to the others' address:
If to the Company:
x/x Xxxxxxxxx Xxxxxx Xxxxxxxxxxx
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
00000 Xxxx Xxxx, XX 00
Xxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
With a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
If to the Trustee:
State Street Bank and Trust Company
Xxx Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Corporate Trust Administration
If to the Securities Intermediary:
State Street Bank and Trust Company
Xxx Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Corporate Trust Administration
The Company, the Trustee or the Securities Intermediary by notice to
the others may designate additional or different addresses for subsequent
notices or communications.
All notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
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If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
13.7. Counterparts. This Agreement may be executed in any number of
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counterparts, all of which shall constitute one and the same instrument, and any
party hereto may execute this Agreement by signing and delivering one or more
counterparts.
13.8. Choice of Law. The parties hereto agree that certain material
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events, occurrences and transactions relating to this Agreement bear a
reasonable relationship to the State of New York. The validity, terms,
performance and enforcement of this Agreement shall be governed by the laws of
the State of New York which are applicable to agreements which are executed,
delivered and performed in that State.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parties hereto have caused this Escrow and
Control Agreement to be duly executed as of the day and year first above
written.
HOLLYWOOD CASINO CORPORATION
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
Executive Vice President and
and Chief Financial Officer
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Vice President
STATE STREET BANK AND TRUST COMPANY,
as Escrow Agent and Securities
Intermediary
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Vice President
EXHIBIT A
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Customer Agreement
(attached)
[LETTERHEAD OF STATE STREET APPEARS HERE]
April 20, 1999
Xxxxxx X. Xxxxxxx
Associate General Counsel
Hollywood Casino Corporation
Via Fax 972/000-0000
Re: Trustee, Registrar, Paying, Depositary/Tender and Escrow Agent
$350,000,000 Secured Notes
Hollywood Casino Corporation
Dear Xxxxxx:
State Street Bank and Trust Company is pleased to serve as Trustee on the above
referenced note issue. Our fees will follow on the attached pages.
Please add to the distribution of the Offering Memorandum and documents the
following individuals:
Xxxxxx Xxxx Xxxxxx Xxxxxxxxx, Esq.
State Street Bank and Trust Company Xxxxxxx & Xxxxxxx
Two International Place Xxx Xxxxxxxx Xxx
Xxxxxx, XX 00000 Xxxxxxxx, XX 00000
617/664-5219 860/251-5918
617/000-0000 fax 860/000-0000 fax
Also, please send the Offering Memorandum to myself and Xxxxx Xxxxx, State
Street Bank and Trust Company, Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, XX 00000.
The transaction underlying this proposal, and all related legal documentation,
is subject to review and acceptance by State Street in accordance with its
policies and procedures. Should the actual transaction materially differ from
the assumptions used herein, State Street reserves the right to modify this
proposal. In the event that the subject transaction fails to close for reasons
beyond the control of State Street, the party requesting these services agrees
to pay State Street's acceptance fees, legal fees and out-of-pocket expenses.
Should you have any questions you may contact me at 860/000-0000.
Very truly yours,
/s/ X X XxXxxxxx
Xxxxx X. XxXxxxxx
Vice President
cc: Xxxxxx Xxxxxx, Esq., Xxxxxx & Xxxxxxx
Xxx Xxxxxx, Esq., Weil, Gotschal
[STATE STREET LETTERHEAD LOGO APPEARS HERE]
Hollywood Casino Corporation
Schedule of Fees
page 2
State Stret Bank and Trust Company
Fee Proposal for acting as Trustee, Registrar, Paying,
Depositary/Tender and Escrow Agent
$350,000,000 Secured Notes
Hollywood Casino Corporation
Acceptance Fee $5,000
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Our Acceptance Fee encompasses all administrative and operational activities
necessary to close the transaction. It includes but is not limited to the
following:
. Review and comment on all agreements and documents delivered at the
closing.
. Preparation and delivery of any closing documents requested of the
Trustee.
. Establishment of the files and records necessary to carry out the
duties of the Trustee throughout the life of the transaction.
. Attendance at the pre-closing and closing. Please note tht out-of
pocket for transportation, meals and accommodations will be billed as
incurred in addition to the quoted acceptance fee.
. Assistance to all professionals involved in the transaction to assure
a timely and successful closing.
Annual Administrative Fee $8,000
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Our Annual Administrative Fee encompasses the day to day discharge of our duties
and responsibilities in acting as Trustee. It includes but is not limited to
the following:
. Maintenance of all records and files required of the Trustee pursuant
to the operative documents.
. Compliance with all Indenture provisions which require Trustee
action.
. Establishment of cash accounts and the proper administration of such
as described by the agreements.
. Prompt response to inquiries from bondholders and other interested
parties to the financing.
. Rendering of periodic statements and reports as required.
[STATE STREET LETTERHEAD LOGO APPEARS HERE]
Hollywood Casino Corporation
Schedule of Fees
page 3
. Receipt and appropriate distribution of certificates and financial
statements as required.
. Preparation and delivery of Trustee reports required by the Trust
Indenture Act of 1939 as amended.
Annual Registrar and Paying Agent Fee Waived
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Our Registrar Fee includes the following services:
. Maintenance of bondholder name, address, and tax payer identification
number
. Distribution of debt service payments
. Reconciliation of paying agent accounts
. Issuance and mailing of 1099, 1099 B's and other required tax
information
. Completion and delivery of all necessary SEC reports
Depositary Agent Fee $4,000
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Escrow Agent Fee $1,500
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Investment Fee $65 per security purchased
-------------- (i.e. Treasuries, Agencies, etc.)
Investment in State Street
Investment Vehicles 40 Basis Points (.0040) of the
average daily net assets
Investment Vehicles
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SSgA Prime Money Market Fund
SSgA US Treasury Money Market Fund
SSgA Tax Free Money Market Fund
State Street Insured Money No transaction fee
Market (1MMA)
Notes
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Trustee counsel fees and out of pocket expenses will be billed as incurred.
EXHIBIT B
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Permitted Investments
1. Securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof (provided that the
full faith and credit of the United States is pledged in support thereof) having
maturities no later than the earlier of one year from the date of acquisition
thereof and January 31, 2000.
2. Certificates of deposit and eurodollar time deposits with maturities no
later than the earlier of one year from the date of acquisition thereof and
January 31, 2000, bankers' acceptances with maturities not exceeding the lesser
of six months and the number of days prior to January 31, 2000, and overnight
bank deposits, in each case, with any lender party to any Credit Facility or
with any domestic commercial bank having capital and surplus in excess of $500
million and a Thomson Bank Watch Rating of "B" or better.
3. Repurchase obligations with a term of not more than seven days (but in no
event to be outstanding beyond January 31, 2000) for underlying securities of
the types described in 1 and 2 above entered into with any financial institution
meeting the qualifications in 2 above.
4. Commercial paper rated at least P-1 or the equivalent thereof by Xxxxx'x
Investors Service, Inc. or at least A-1 or the equivalent thereof by Standard &
Poor's Rating Services and in each case maturing no later than one year after
the date of acquisition thereof and January 31, 2000.
5. Money market funds at least 95% of which constitute investments of the
types described in 1-4 above.
EXHIBIT C
Escrow Agent's Fee
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$1500.00
EXHIBIT D
PERMITTED ENCUMBRANCES
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1. Liens on the assets of the Company and any Guarantor created by
the Indenture and the Collateral Documents securing the Notes and the Note
Guarantees;
2. Liens in favor of the Company or the Guarantors;
3. Liens on property of a Person existing at the time such Person is
merged with or into or consolidated with the Company or any Restricted
Subsidiary of the Company; provided, however, that such Liens were in existence
prior to the contemplation of such merger or consolidation and do not extend to
any assets other than those of the Person merged into or consolidated with the
Company or the Restricted Subsidiary;
4. Liens on property existing at the time of acquisition thereof by
the Company or any Restricted Subsidiary of the Company, provided that such
Liens were in existence prior to the contemplation of such acquisition;
5. Liens to secure the performance of statutory obligations, surety
or appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business;
6. Liens to secure Indebtedness permitted by clause (a) of Section
4.09 of the Indenture covering only inventory and accounts receivable;
7. Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by clause (d) of the second paragraph of Section 4.09 of
the Indenture covering only the assets acquired with such Indebtedness;
8. Liens of record on the date of the Indenture;
9. Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded, provided
that any reserve or other appropriate provisions as shall be required in
conformity with GAAP shall have been made therefor;
10. Liens arising from UCC financing statements regarding property
leased by the Company or any of its Restricted Subsidiaries;
11. Liens of carriers, warehousemen, mechanics, landlords,
materialmen, repairmen or other like Liens arising by operation of law or in the
ordinary course of business and consistent with industry practices and Liens on
deposits made to obtain the release of such Liens if:
(a) the underlying Obligations are not overdue for a period of more
than 60 days, or
(b) such Liens are being contested in good faith and by appropriate
proceedings by the Company and adequate reserves with respect thereto are
maintained on the books of the Company in accordance with GAAP, and
(c) the Company is in compliance with the terms of the security
documents applicable to such Liens;
12. A Lien on a vessel to secure FF&E Financing or Capital Lease
Obligations in accordance with Section 4.09(d) of the Indenture where (a) the
creditor under such FF&E Financing or Capital Lease Obligations agrees to
release such Lien upon satisfaction of the Obligations under such FF&E Financing
or Capital Lease Obligations, (b) the creditor under such FF&E Financing or
Capital Lease Obligations agrees to release such Lien upon payment of the
proceeds from the sale of such vessel attributable to such FF&E Financing or
Capital Lease Obligations, (c) the creditor under such FF&E Financing or Capital
Lease Obligations acknowledges that such Lien does not create rights on the hull
or other equipment constituting such vessel, but shall be limited to the FF&E
specifically identified in such creditor's financing or lease and Lien
documents, (d) such Lien is expressly subject and subordinate to the Liens
granted in favor of the Trustee, (e) the creditor under such FF&E Financing or
Capital Lease Obligations agrees to promptly notify the Trustee of the
occurrence of any event of default under such creditor's financing or lease
documents, and (f) the creditor under such FF&E Financing or Capital Lease
Obligations acknowledges and agrees that it has no right to possess or use such
vessel or anything on board such vessel, except for its right to come on board
the vessel to inspect the related FF&E and, after the occurrence and continuance
of an event of default under such creditor's financing or lease documents, to
remove or repossess the subject FF&E, provided that such creditor's efforts to
remove or repossess such FF&E shall be commercially reasonable and shall not
damage the vessel, its hull or any other equipment constituting such vessel.
13. Liens incurred in the ordinary course of business of the Company
or any Restricted Subsidiary of the Company with respect to Obligations that do
not exceed Five Million Dollars ($5,000,000) at any one time outstanding.
14. Liens incurred and pledges made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
Social Security benefits.
