EXECUTION COPY
SECURITY AGREEMENT
This SECURITY AGREEMENT, dated as of June ___, 2002 (as the
same may be amended, supplemented or otherwise modified from time to time, this
"Agreement"), is made by RIVIERA HOLDINGS CORPORATION, a Nevada corporation
("RHC"), RIVIERA OPERATING COMPANY, a Nevada corporation ("ROC"), RIVIERA GAMING
MANAGEMENT, INC., a Nevada corporation ("RGM"), RIVIERA GAMING MANAGEMENT OF
COLORADO, INC., a Colorado corporation ("RGMC"), and RIVIERA BLACK HAWK, INC., a
Colorado corporation ("RBH") (RHC, ROC, RGM, RGMC and RBH are each individually
and collectively referred to herein as "Grantor"), in favor of THE BANK OF NEW
YORK, having an office at 000 Xxxxxxx Xxxxxx, Xxxxx 0X, Xxx Xxxx, Xxx Xxxx,
00000, as trustee (in such capacity, together with its successors and assigns,
the "Trustee") pursuant to the Indenture referred to below.
RECITALS
A. RHC, ROC, RGM, RGMC and RBH and the Trustee are,
contemporaneously with the execution and delivery of this Agreement, entering
into that certain Indenture dated as of even date herewith (as the same may be
amended, supplemented or otherwise modified from time to time, the "Indenture"),
pursuant to which RHC is issuing its 11% Senior Secured Notes due 2010 (such
notes, together with any notes issued in replacement thereof or in exchange
therefor, the "Notes"), in the original aggregate principal amount of $215
,000,000.
B. Grantor and one or more lenders may enter into a credit
facility agreement pursuant to which Grantor may incur up to $30,000,000 of
Indebtedness (the "Credit Facility") which may be secured by Liens on the
Collateral. Upon execution and delivery of an intercreditor agreement in the
form of Exhibit H attached to the Indenture (the "Intercreditor Agreement"), the
Liens on the Collateral securing the Notes will be subordinated to the Liens
securing up to $30,000,000 of Indebtedness under the Credit Facility.
C. It is a condition precedent to the purchase of the Notes
that Grantor shall have executed and delivered this Agreement to the Trustee for
itself and the ratable benefit of the holders from time to time of the Notes
(the "Holders" and, together with the Trustee, the "Secured Parties") to secure
the payment and performance of the Obligations (as hereinafter defined).
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and
in order to induce the Trustee to enter into the Indenture and to induce the
Holders to purchase the Notes, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Grantor hereby
agrees, for the benefit of the Trustee and for the ratable benefit of the
Holders as follows:
SECTION 1. Definitions.
1.1 Defined Terms.
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(a) Capitalized terms used but not otherwise defined herein shall have the
meanings given in the Indenture. Unless the context indicates otherwise
or the terms are otherwise defined herein or in the Indenture,
definitions in the UCC apply to words and phrases in this Agreement.
The term "Grantor," as used with respect to any Person, includes
without limitation, such Person, such Person's heirs, successors and
assigns, such Person as a debtor-in-possession, and any receiver,
trustee, liquidator, conservator, custodian or similar party appointed
for such Person or all or substantially all of its assets under any
law.
(b) The following terms which are defined in the Uniform Commercial Code in
effect in the State of New York on the date hereof are used herein as
so defined: Accounts, Chattel Paper, Documents, Fixtures, Instruments,
Inventory and Proceeds.
(c) The following terms shall have the following meanings:
"Collateral" has the meaning set forth in Section 2
hereof.
"Contracts" means (i) any and all contracts and
agreements relating to gaming including without limitation, any
agreement in which a Person does business with or on the premises of an
entity licensed pursuant to applicable Gaming Laws and any resource or
product used or useful in the business of Grantor, and (ii) any and all
other contracts and agreements of Grantor, in each case as such may be
amended, modified or otherwise supplemented from time to time, and in
each case, including without limitation, (x) all rights to receive
monies due and to become due to Grantor thereunder or in connection
therewith, (y) all rights to damages arising out of or for breach or
default in respect thereof, and (z) all rights to perform and exercise
all remedies thereunder.
"Copyrights" means (i) all copyrights in all works,
whether published or unpublished, registered or unregistered, all
registrations and recordings thereof, and all applications in
connection therewith, including without limitation, registrations,
recordings and applications in the United States Copyright Office or in
any other country, including without limitation, those listed on
Exhibit C, and (ii) all renewals of the foregoing.
"Copyright License" means any and all agreements,
whether written or oral, providing for the grant by or to Grantor of
any right to reproduce, copy, publish or otherwise use any Copyright,
including without limitation, the agreements set forth on Exhibit C,
but excluding any such agreement that prohibits the granting of a
security interest therein.
"Default Rate" shall have the meaning set forth in
Section 6.15 hereof.
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"Equipment" means "equipment" as defined in the
Uniform Commercial Code in effect in the State of New York on the date
hereof, including without limitation, all machinery (including without
limitation, any and all equipment and machinery used for or in
connection with maintaining and operating gaming facilities, lodging
and restaurants), apparatus, implements, office machinery, computers,
furniture, furnaces, conveyors, tools, parts, accessories, automobiles,
trailers, tractors, trucks, forklifts, other motor vehicles and all
other equipment of any kind or nature, wherever located, and all
modifications, alterations, repairs, substitutions, additions and
accessions thereto and all replacements and all other parts therefor.
"General Intangibles" means "general intangibles" as
defined in the Uniform Commercial Code in effect in the State of New
York on the date hereof, including without limitation, claims of
Grantor in respect of litigation and claims for tax and other refunds
from, inter alia, any city, county, state, or federal government or any
agency or authority or other subdivision thereof.
"Governmental Authority" means any nation or
government, any state, municipality or other political subdivision
thereof, and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government,
including without limitation, the Nevada Gaming Commission, the Nevada
State Gaming Control Board, Colorado Division of Gaming, the Colorado
Limited Gaming Control Commission and any other agency with authority
to regulate any gaming operation (or proposed gaming operation) owned,
managed or operated by the Grantor or its Subsidiaries.
"Investment Property" means "investment property" as
defined in the Uniform Commercial Code in effect in the State of New
York on the date hereof.
"Intellectual Property" means, collectively,
Copyrights, Patents, Trademarks, Trade Secrets and Licenses.
"Licenses" means, collectively, Copyright Licenses,
Patent Licenses and Trademark Licenses.
"Material Adverse Effect" means a material adverse
effect on (i) the business, operations, property, condition (financial
or otherwise) of Grantor and its Subsidiaries, taken as a whole, (ii)
the Collateral, or (iii) the validity or enforceability of (x) this
Agreement, any of the Notes, the Indenture or any Collateral Document,
or (y) the rights or remedies of the Trustee (or any other trustee)
hereunder or thereunder.
"Obligations" has the meaning set forth in Section 3
hereof.
"Patents" means all patents and patent applications,
and the inventions and improvements described and claimed therein, and
patentable inventions and the reissues, divisions, continuations,
renewals, extensions and continuations-in-part of any of the foregoing,
including without limitation, those set forth on Exhibit D.
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"Patent Licenses" means any and all agreements,
whether written or oral, providing for the grant by or to Grantor of
any right to manufacture, use or sell any invention covered by a
Patent, including, without limitation, those set forth on Exhibit D,
but excluding any such agreement that prohibits the granting of a
security interest therein.
"Stock Pledge and Security Agreement(s)" shall refer
to those certain Stock Pledge and Security Agreements, dated as of even
date herewith and between (i) RHC and the Trustee, (ii) ROC and the
Trustee, (iii) RGM and the Trustee, and (iv) RGMC and the Trustee.
"Trademarks" means (i) all registered and
unregistered trademarks, trade names, corporate names, company names,
business names, fictitious business names, trade styles, service marks,
logos, slogans and other source or business identifiers, and the
goodwill and general intangibles associated therewith, all
registrations and recordings thereof, and all applications in
connection therewith, whether in the United States Patent and Trademark
Office or in any similar office or agency of the United States, any
State thereof or any other country or any political subdivision
thereof, or otherwise, including without limitation, those set forth on
Exhibit E, and (ii) all renewals of the foregoing.
"Trademark License" means any and all agreements,
whether written or oral, providing for the grant by or to Grantor of
any right to use any Trademark, including without limitation, those set
forth on Exhibit E, but excluding any such agreement that prohibits the
granting of a security interest therein.
"Trade Secret" means any proprietary technology,
process or system which is owned or licensed by Grantor, including
without limitation, manufacturing processes or methods, all formulae,
processes, procedures, compounds, drawings, designs, blueprints,
surveys, reports, manuals and operating standards relating to or used
in the operation of each Grantor's business.
"Transaction Documents" has the meaning given in
Section 3.
"UCC" means the Uniform Commercial Code as the same
may, from time to time, be in effect in the State of New York.
"Works" means any work which is or may be subject to
copyright protection pursuant to Title 17 of the U.S. Code.
1.2 Other Definitional Provisions.
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(a) The words "hereof," "herein," "hereto" and
"hereunder" and words of similar import when used in
this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this
Agreement, and Section, subsection and Exhibit
references are to this Agreement, unless otherwise
specified.
(b) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural
forms of such terms.
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SECTION 2. Grant of Security Interest.
To the fullest extent permitted by applicable law, Grantor
hereby grants, pledges, assigns and transfers to the Trustee, for the Trustee's
individual benefit and the ratable benefit of the Holders, as security for the
prompt and complete payment and performance when due (whether at stated
maturity, upon redemption or required repurchase, by acceleration or otherwise)
of all the Obligations of Grantor, a continuing first priority security interest
in and lien on all of the right, title and interest of Grantor in, to and under
the following property, in each case wherever located, whether now owned or at
any time hereafter acquired by Grantor, whether now existing or hereafter coming
into existence, or in which Grantor now has or at any time in the future may
acquire any right, title or interest (collectively, the "Collateral"):
(a) all Accounts;
(b) all Chattel Paper;
(c) all Contracts;
(d) all Documents;
(e) all Equipment;
(f) all Fixtures;
(g) all General Intangibles;
(h) all Instruments;
(i) all Intellectual Property;
(j) all Inventory;
(k) all Investment Property;
(l) to the extent not otherwise included in the foregoing, all of Grantor's
personal property, goods, furnishings, fixtures and equipment, supplies,
building and other materials of every nature whatsoever and all other
personal property, including, but not limited to, communication systems,
visual and electronic security and surveillance systems and transportation
systems and including all property and materials stored therein in which
Grantor has an interest, and all tools, utensils, food and beverage,
liquor, uniforms, linens, housekeeping and maintenance supplies, vehicles,
fuel, advertising and promotional material, blueprints, surveys, plans and
other documents relating to the real properties securing the Notes (the
"Properties"), more particularly described on Exhibit A, all gaming and
general equipment and devices which are or are to be installed and used in
connection with the operation of the Properties, all computer equipment,
calculators, adding machines, and gaming tables, video game and slot
machines and any other electronic equipment, all furniture, fixtures,
equipment, gaming equipment, appurtenances and personal property now or in
the future contained in, used in connection with, attached to, or otherwise
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useful or convenient to the use, operation, or occupancy of, or placed on,
but unattached to, any part of the Properties or the land upon which the
Properties are located, including without limitation, all removable window
and floor coverings, all furniture and furnishings, heating, lighting,
plumbing, ventilating, air conditioning, refrigerating, incinerating and
elevator and escalator plants, cooking facilities, vacuum cleaning systems,
public address and communications systems, sprinkler systems and other fire
prevention and extinguishing apparatus and materials, motors, machinery,
pipes, appliances, equipment, fittings, fixtures, and building materials,
together with all venetian blinds, shades, draperies, drapery and curtain
rods, brackets, bulbs, cleaning apparatus, mirrors, lamps, ornaments,
cooling apparatus and equipment, ranges and ovens, garbage disposals,
dishwashers, mantels, and any and all such property which is at any time
installed in affixed to or placed upon the land upon which the Properties
are located, all fixtures for generating or distributing air, water, heat,
electricity, light, fuel or refrigeration, or for ventilating or sanitary
purposes, or for the exclusion of vermin or insects, or for the removal of
dust, refuse or garbage, all specifically designed installations and
furnishings, and all other personal property, furniture, fixtures and
equipment of every nature used or located at each of the Properties;
(m) to the extent not otherwise included in the foregoing, all of Grantor's
accounts and accounts receivable, including without limitation, all rights
to payment for goods sold or leased or for services rendered which are not
evidenced by an instrument or chattel paper, all other present or future
rights for money due or to become due, all of Grantor's chattel paper,
instruments, promissory notes (including without limitation, all
inter-company notes), markers and general intangibles for money due or to
become due of any kind, in each case whether now existing or hereafter
arising and wherever arising and whether or not earned by performance, and
all royalties, earnings, income, proceeds, products, rents, revenues,
reversions, remainders, issues, profits, avails, and other benefits
directly or indirectly derived or otherwise arising from any of the
foregoing, other general intangibles, documents of title, warehouse
receipts, leases, money, tax refund claims, partnership interests,
indemnification and other similar claims and contract rights, permits and
licenses, including without limitation, any licenses held or to be held by
Grantor necessary to operate the Properties (including without limitation,
licenses in favor of Grantor, franchises, variances, special permits,
rulings, validations, exemptions, filings, registrations, authorizations,
consents, approvals, waivers, orders, rights and agreements (including
without limitation, options, option rights and contract rights)
certificates, stock (including the capital stock listed on Exhibit B,
attached hereto, any and all books, records, customer lists, concession
agreements, supply or service contracts, documents, unearned premiums,
rebates, deposits, refunds, including, but not limited to, income tax
refunds, prepaid expenses, rebates, tax and insurance escrow and impound
accounts, if any, and all rights in, to and under all, leases and other
agreements or contracts relating to any of the foregoing or now or
hereafter obtained by Grantor from any Person or from any Governmental
Authority having or claiming jurisdiction over the Properties, and all
things in action, rights represented by judgments, awards of damages,
settlements and claims arising out of tort, warranty or contract (including
without limitation, the right to assert and otherwise be the proper party
of interest to commence, control, prosecute and/or settle such actions,
whether as claims, counterclaims or otherwise, and whether involving
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matters arising from casualty, condemnation, indemnification, negligence,
strict liability, other tort, contract, warranty or in any other manner),
and all securities of any Subsidiary, whether now in existence or hereafter
incorporated or formed;
(n) to the extent not otherwise included in the foregoing, all computer
programs of Grantor and all intellectual property rights therein and
all other proprietary information owned by Grantor, or in which Grantor
has an interest, including, but not limited to, Trade Secrets;
(o) all of Grantor's right, title and interest in, and to and under any and all
maps, plans, preliminary plans, specifications, surveys, studies, tests,
reports, data and drawings relating to the development of the Properties,
including without limitation, all marketing plans, feasibility studies,
soils tests, design contracts and all contracts and agreements of Grantor
relating thereto including, without limitation, architectural, structural,
mechanical and engineering plans and specifications, studies, data and
drawings prepared for or relating to the development of the Properties or
the renovation or restoration of the Properties, each as finalized,
amended, supplemented or otherwise modified from time to time, or the
extraction of minerals, sand, gravel or other valuable substances from the
land upon which the Properties are located and purchase contracts or any
agreement granting Grantor a right to acquire any land;
(p) to the extent not otherwise included in the foregoing: (i) all other rights
to the payment of money, including subsidy, reserve and deficiency
payments, rents (including room rents) and other sums payable to Grantor
under leases, rental agreements and insurance proceeds; (ii) all books,
ledgers, files, correspondence, credit files, records, invoices, bills of
lading, and other documents relating to any of the foregoing, including
without limitation, all tapes, cards, disks, computer software, computer
runs, and other papers and documents in the possession or control of
Grantor or any computer bureau from time to time acting for Grantor; (iii)
all rights and rights to use or access any resource or product used or
useful in the business of Grantor; and (iv) all accessions and additions
to, parts and appurtenances of, substitutions for and replacements of any
of the foregoing; and
(q) to the extent not otherwise included in the foregoing, all Net Loss
Proceeds, Net Proceeds, Proceeds and products of any and all of the
foregoing and all collateral security, guarantees and other credit
enhancements given by any person with respect to any of the foregoing, and
in any event, including without limitation, any and all: (i) proceeds of
any insurance (including without limitation, all Net Insurance Proceeds),
surety bonds, tax and other refunds (including, without limitation, any
city, county, state, or federal government or any agency or authority or
other subdivision thereof), indemnity, warranty or guarantee payable to the
Trustee or to Grantor from time to time with respect to any of the
Collateral; (ii) payments (in any form whatsoever) made or due and payable
to Grantor from time to time in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of all or any part of the
Collateral by any Governmental Authority (or any person acting under color
of a Governmental Authority); (iii) payments made or due and payable to
Grantor in respect of litigation and other claims; (iv) products of the
Collateral; (v) subject to the provisions and limitations contained in the
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Indenture, whatever is now or hereafter receivable or received by Grantor
upon the sale, exchange, collection or other disposition of any item of
Collateral, whether voluntary or involuntary including, without limitation,
the proceeds of a permitted Asset Sale in accordance with the Indenture;
(vi) to the extent permitted by law, whatever is now or hereafter
receivable or received by Grantor upon the sale, exchange, collection or
other disposition of any Gaming License, regardless of whether such Gaming
License is Collateral or an Excluded Asset; and (vii) other amounts from
time to time paid or payable under or in connection with any of the
Collateral.
Notwithstanding the foregoing, the grant contained in this
Section 2 is subject to the Intercreditor Agreement (if any) and the Collateral
shall not include any of the following assets (the "Excluded Assets"): (i)
Gaming Licenses and Liquor Licenses, (ii) any other governmental approval or
permit to the extent that, under the terms and conditions of such approval or
under applicable law, it cannot be subjected to a Lien in favor of the Trustee
without the approval of the relevant Governmental Authority, but only to the
extent that such approval has not been obtained; (iii) any Collateral that is
exclusively subject to any agreement with a third party that, pursuant to its
terms, prohibits the grant of a lien on such Collateral; provided that the
Grantor of such Collateral shall use its reasonable best efforts to obtain such
third party's consent to assignment of all such agreements; (iv) FF&E (as
defined in that certain Deed of Trust, Assignment of Rents, Leases, Fixture
Filing and Security Agreement, dated as of even date herewith, among RHC as
trustor, Nevada Title Company as trustee and Trustee) to the extent financed or
refinanced by, or the proceeds of, an FF&E Financing to the extent that (A) the
purchase or lease of such FF&E was not financed with the proceeds of the Notes
but with the proceeds of an FF&E Financing and (B) the Grantor is permitted to
enter into or maintain such FF&E Financing for such FF&E under the Indenture;
and (v) any Collateral sold pursuant to a sale and leaseback transaction
permitted under the Indenture, but will include the Grantor's leasehold interest
in such property; provided that the Trustee shall, if requested by Grantor,
execute and deliver, at such Grantor's sole expense, any instruments reasonably
necessary or appropriate to release the lien of this Agreement with respect to
or otherwise confirm that the lien of this Agreement does not apply to any of
such Excluded Assets; provided further that any such FF&E Financing shall
encumber only that FF&E specifically subject to such FF&E Financing; and
provided further that any such Excluded Asset now or hereafter acquired by
Grantor shall automatically become part of the Collateral when and to the extent
it may subsequently be made subject to such a lien and/or such approval is
obtained and/or such FF&E Financing has been repaid, satisfied or terminated (as
applicable) and/or such Collateral sold pursuant to a sale and leaseback
transaction has been released;(vi) any and all assets of any Person designated
as an Unrestricted Subsidiary; and (vii) the Six Acre Tracts and any
improvements thereon to the extent the same is contributed to an Unrestricted
Subsidiary of RHC as permitted by the Indenture.
SECTION 3. Obligations.
This Agreement secures with respect to Grantor, and the
Collateral of Grantor is collateral security for, the payment and performance in
full when due (whether at stated maturity, upon redemption or required
repurchase, by acceleration or otherwise) of all obligations of every type and
nature of Grantor to the Trustee, any other trustee under the Deed of Trust, or
any Holder (including without limitation, any and all amounts which may at any
time be or become due and payable and any and all interest accruing after the
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maturity of the Notes and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to Grantor, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding and interest, to the extent
permitted by law, on the unpaid interest), whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of or in connection with the Indenture, the Notes,
this Agreement, the other Collateral Documents or any other document made,
delivered or given by Grantor in connection with any of the foregoing
(collectively, the "Transaction Documents"), in each case whether on account of
principal, premium, interest, fees, Liquidated Damages, indemnities, costs,
expenses or otherwise (including without limitation, all reasonable fees and
disbursements of counsel (including without limitation, in-house counsel) to the
Trustee or to the Holders that are required to be paid by Grantor pursuant to
the terms of the Indenture, the Notes, this Agreement or any other Transaction
Document) (the foregoing, collectively, the "Obligations").
SECTION 4. Special Provisions Relating to Contracts.
4.1 Grantor Remains Liable under Contracts. Anything herein to the contrary
notwithstanding, Grantor shall remain liable under each of the Contracts to
which it is a party to observe and perform all the conditions and obligations to
be observed and performed by it thereunder, all in accordance with the terms and
provisions of each such Contract, except as otherwise provided herein. Neither
the Trustee (nor any other trustee under the Deed of Trust) nor any Holder shall
have any obligation or liability under any such Contract by reason of or arising
out of this Agreement or the receipt by the Trustee (or any such other trustee)
or any such Holder of any payment relating to any such Contract pursuant hereto,
nor shall the Trustee (or any such other trustee) or any Holder be obligated in
any manner to perform any of the obligations of Grantor under or pursuant to any
Contract, to make any payment, to make any inquiry as to the nature or the
sufficiency of any payment received by it or as to the sufficiency of any
performance by any party under any Contract, to present or file any claim, to
take any action to enforce any performance or to collect the payment of any
amounts which may have been assigned to it or to which it may be entitled at any
time or times.
4.2 Communication with Contracting Parties. The Trustee, in its own name or in
the name of others, may, (i) after the occurrence and continuance of an Event of
Default, (ii) with the prior written consent of Grantor (which shall not be
unreasonably withheld or delayed) or (iii) as otherwise permitted under the
Collateral Documents, communicate with parties to the Contracts to verify with
them to the Trustee's satisfaction the existence, amount and terms of any
Contract.
SECTION 5. Maintenance of Perfected Security Interests; Further Assurances.
5.1 Perfection Maintenance. Grantor agrees that it shall maintain the security
interests created by this Agreement as perfected first priority security
interests, except with respect to (i) Permitted Liens and (ii) Collateral
exclusively subject to a certificate of title statute and listed on Schedule A
hereto, and shall defend such security interests against the claims and demands
of all Persons whomsoever.
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5.2 Further Assurances. At the Trustee's request, Grantor agrees that at any
time and from time to time, at the sole cost and expense of Grantor, Grantor
shall promptly, and in any event, in no less than ten (10) days, deliver and,
where applicable, file all further instruments and documents, including without
limitation, all financing, continuation or amendment statements under the
Uniform Commercial Code in effect in any applicable jurisdiction with respect to
the security interests created hereby, and take all further action that may be
necessary or that the Trustee may reasonably request for the purpose of
obtaining, maintaining or preserving the full benefits of this Agreement and the
rights and powers herein granted, or for the purpose of creating, preserving,
perfecting or otherwise protecting the liens and security interests created or
purported to be created hereby and the priority thereof. Without limiting
Grantor's obligation to make such filings, Grantor hereby authorizes the Trustee
(subject to the following sentence) to take all action which the Trustee may
deem necessary or desirable to perfect or otherwise protect the liens and
security interests created or purported to be created hereunder and to obtain
the benefits of this Agreement. Subject to the Trustee's obligations under the
Indenture during the continuance of an Event of Default, the Trustee shall not
be responsible for perfecting or maintaining the perfection of any security
interest granted to it under this Agreement or for filing, refiling, recording
or re-recording any document, financing statement, notice or instrument in any
public office at any time or times and shall not be responsible for seeing to
the provision of insurance on or the payment of any taxes with respect to any
property subject to this Agreement. In accordance with the Indenture, in the
event of an Asset Sale or an Event of Loss, the Net Proceeds or the Net Loss
Proceeds thereof shall be deposited into an account, if reasonably requested, in
which, at the time of such deposit, the Trustee shall have a perfected first
priority security interest and in respect of which account the Trustee shall
have received an Opinion of Counsel to Grantor, in form and substance
satisfactory to the Trustee, stating that the Trustee has a perfected first
priority security interest in such account.
SECTION 6. Representations, Warranties and Covenants.
Grantor hereby represents and warrants to, and covenants and
agrees with, the Trustee (for the benefit of the Trustee and the ratable benefit
of the Holders), as follows:
6.1 Title; No Other Liens. Grantor is as of the date hereof and, as to
Collateral acquired by it from time to time after the date hereof, Grantor shall
be, the owner of each item of Collateral of Grantor (or in the case of
Collateral held by Grantor as lessee under a lease or licensee under a license,
Grantor has and will have a valid and subsisting leasehold interest or license,
as applicable, in such Collateral), in each case free and clear from any and all
Liens, claims or other right, title or interest of any Person other than
Permitted Liens. No financing statement or other public notice with respect to
all or any part of the Collateral is on file or of record in any public office,
except (a) financing statements related to Permitted Liens and (b) financing
statements which have been filed in favor of the Secured Parties pursuant to
this Agreement. Without the prior written consent of the Trustee or as otherwise
expressly permitted by the Indenture, Grantor will not in any way encumber, or
hypothecate, or create or permit to exist, any lien, security interest, charge
or encumbrance or adverse claim upon or other interest in the collateral, except
for Permitted Liens, including without limitation, encumbrances permitted by the
Indenture and the liens created by this Agreement, and Grantor will defend the
Collateral against all claims and demands of all Persons at any time claiming
the same or any interest therein (other than holders of Permitted Liens), except
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as expressly provided herein. Grantor will not permit any notices of Lien to
exist or be on file in any public office with respect to all or any portion of
the Collateral except, in each case, for notices of Lien of holders of Permitted
Liens or except as may have been filed by or for the benefit of the Secured
Parties relating to this Agreement or the other Transaction Documents. Grantor
shall promptly notify the Trustee of any attachment or other legal process
levied against any of the Collateral and any information received by Grantor
relative to the Collateral, which may in any material way affect the value of
the Collateral or the rights and remedies of the Secured Parties in respect
thereof. Except as expressly permitted by the Indenture, Grantor will pay and
discharge all taxes, assessments and governmental charges or levies against the
Collateral prior to delinquency thereof and will keep the Collateral free of all
unpaid claims and charges (including claims for labor, materials and supplies)
whatsoever.
6.2 Perfected First Priority Liens. The security interests granted pursuant to
this Agreement (a) constitute perfected security interests in the Collateral in
favor of the Trustee, as collateral security for the Obligations (other than
Collateral exclusively subject to a certificate of title statute and listed on
Schedule A hereto), and (b) are prior to all other Liens on the Collateral in
existence on the date hereof, other than Permitted Liens.
6.3 Necessary Filings. The filings, registrations and recordings described on
Schedule B hereto constitute the only filings, registrations and recordings
necessary or appropriate to create, preserve, protect and perfect the security
interests granted by Grantor to the Trustee pursuant to this Agreement in
respect of the Collateral. All such filings, registrations and recordings have
been accomplished as of the date hereof.
6.4 Other Financing Statements. Grantor shall not execute or authorize or permit
to be filed in any public office or elsewhere any financing statement (or
similar statement or instrument of registration under the law of any
jurisdiction) relating to the Collateral, except financing statements filed or
to be filed (a) in respect of Permitted Liens and (b) in favor of the Secured
Parties pursuant to this Agreement.
6.5 Chief Executive Office; Location of Collateral and Records. Grantor's chief
executive office is located at the address set forth for Grantor on Schedule C.
Grantor represents and warrants that it has no place of business, offices where
Grantor's books of account and records are kept, or places where the Collateral
is used, stored or located, and all Collateral is in its sole possession and
control, except (i) as set forth on Schedule C hereto, and (ii) except as set
forth in Section 6.9. Grantor further covenants that it will not store, use or
locate any of the Collateral at any place other than as set forth on Schedule C
(or, upon forty-five (45) days' prior written notice to the Trustee, at such
other location in a jurisdiction where all action required by Sections 5 and 6.6
(if applicable) shall have been taken).
6.6 Changes in Locations, Name, etc. Grantor represents and warrants that it
currently uses no business or trade names, except as set forth on Schedule C
hereto. Grantor shall not (a) change the location of its chief executive office
from that specified in Schedule C, (b) change its name, identity or corporate
structure or (c) change the location where it maintains its books and records
from the addresses set forth on Schedule C, unless (i) it shall have given the
Trustee not less than forty-five (45) days' prior written notice of its
intention to do so, clearly describing such new location, name, identity or
corporate structure and providing such other information in connection therewith
11
as the Trustee may reasonably request, and (ii) with respect to such new
location, name, identity or corporate structure, Grantor shall have taken all
action which is necessary or appropriate or which is reasonably requested by the
Trustee to maintain the perfection and proof of the security interest of the
Trustee for the benefit of the Secured Parties in the Collateral intended to be
granted hereby and shall have delivered to the Trustee an Officer's Certificate
as to compliance with this clause (ii).
6.7 Delivery of Instruments, Investment Property and Chattel Paper. If any
amount payable under or in connection with any of the Collateral, or any
Collateral itself, shall be or become evidenced by any Instrument, Investment
Property or Chattel Paper, such Instrument, Investment Property or Chattel Paper
shall be promptly delivered to the Trustee, duly endorsed in a manner
satisfactory to the Trustee, to be held as Collateral pursuant to this Agreement
(except as otherwise specifically provided in the Stock Pledge and Security
Agreements).
6.8 Information and Inspection. Upon reasonable notice to Grantor, Grantor shall
(a) allow the Trustee to inspect and copy all records relating to the Collateral
and the Obligations and (b) furnish to the Trustee such information as the
Trustee may reasonably request from time to time with respect to the Collateral,
any distributions thereon and any proceeds thereof.
6.9 Location of Equipment. All Equipment held on the date hereof by Grantor is
located at one of the locations shown for Grantor on Schedule C. All Equipment
now held or subsequently acquired by Grantor shall be kept at one or more of the
locations shown for Grantor on Schedule C hereto, or such new location as
Grantor may establish if (a) it shall have given to the Trustee at least
forty-five (45) days' prior written notice of its intention to do so, clearly
describing such new location and providing such other information in connection
therewith as the Trustee may reasonably request, and (b) with respect to such
new location, Grantor shall have taken all action which is necessary or
appropriate or which is reasonably requested by the Trustee to maintain the
perfection and priority of the security interest of the Trustee for the benefit
of the Secured Parties in the Collateral granted or purported to be granted
hereby and shall have delivered to the Trustee an Officer's Certificate as to
compliance with this clause (b). Schedule A contains a true, complete and
correct listing of all of the motor vehicles and other Equipment of Grantor
subject to a certificate of title statute in any jurisdiction and the
jurisdiction in which such Collateral is subject to a certificate of title
statute.
6.10 Copyrights, Patents and Trademarks.
----------------------------------
(a) (i) Exhibit C contains a list of all registrations and applications for
Copyrights owned by Grantor in its own name on the date hereof; (ii)
Exhibit D contains a list of all registrations and applications for Patents
owned by Grantor in its own name on the date hereof; (iii) Exhibit E
contains a list of all registrations and applications for Trademarks owned
by Grantor in its own name on the date hereof; (iv) Exhibit F contains a
list of each Copyright License, Patent License and Trademark License to
which Grantor is a party; (v) each Copyright, Patent and Trademark set
forth on Exhibit C, Exhibit D, and Exhibit E is on the date hereof valid,
subsisting, unexpired, enforceable and has not been cancelled or abandoned;
(vi) except as set forth in any of Exhibit C, Exhibit D or Exhibit E, none
of such Copyrights, Patents and Trademarks set forth therein is on the date
hereof the subject of any licensing or franchise agreement pursuant to
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which Grantor is the licensor or franchisor (except as set forth on Exhibit
F); (vii) to the best of Grantor's knowledge after due inquiry, no holding,
decision or judgment has been rendered by any Governmental Authority which
would limit, cancel or question the validity of any Copyright, Patent or
Trademark in any respect that could reasonably be expected to have a
Material Adverse Effect; and (viii) to the best of Grantor's knowledge
after due inquiry, no action or proceeding is pending on the date hereof
(x) seeking to limit, cancel or question the validity of any Copyright,
Patent or Trademark, or (y) which, if adversely determined, could
reasonably be expected have a Material Adverse Effect on the value of any
Copyright, Patent or Trademark.
(b) Grantor (either itself or through licensees or sublicensees) will (i)
continue to use each material Trademark to the extent it has rights to such
Trademark on each and every trademark class of goods or services applicable
to its current line as reflected in its current catalogs, brochures and
price lists, if any, in order to maintain such Trademark in full force free
from any claim of abandonment for non-use, (ii) maintain as in the past the
quality of products and services offered under such Trademark, (iii) employ
each material Trademark with the appropriate notice of registration, (iv)
not adopt or use any xxxx which is confusingly similar or a colorable
imitation of such Trademark unless the Trustee, for the ratable benefit of
the Holders, shall obtain a perfected first priority security interest in
such xxxx pursuant to this Agreement, and (v) not do (and not permit any
licensee or sublicensee thereof to do) any act or knowingly omit to do any
act whereby such Trademark may reasonably be expected to become invalidated
unless the Grantor determines in its prudent business judgment that such
Trademark is no longer useful in the operation of its business.
(c) Grantor will not do any act, or omit to do any act, whereby any Patent
may become abandoned or dedicated if such abandonment or dedication
could reasonably be expected have a Material Adverse Effect.
(d) Grantor will notify the Trustee immediately if it knows, or has reason
to know, that any application or registration relating to any material
Patent or Trademark may become abandoned or dedicated, or of any
adverse determination or development (including without limitation, the
institution of, or any such determination or development in, any
proceeding in the United States Patent and Trademark Office or any
court or tribunal in any country) regarding Grantor's ownership of any
Patent or Trademark material to the business of Grantor or its right to
register the same or to keep and maintain the same and of any action
Grantor is taking in respect of such event.
(e) Whenever Grantor, either by itself or through any agent, employee, licensee
or designee, shall file an application for the registration of any Patent
or Trademark with the United States Patent and Trademark Office or any
similar office or agency in any other country or any political subdivision
thereof, Grantor shall report such filing to the Trustee within thirty (30)
days after the last day of the fiscal quarter in which such filing occurs.
Grantor shall execute and deliver any and all agreements, instruments,
documents, and papers as may be necessary or appropriate or as the Trustee
may reasonably request to evidence, perfect and/or maintain the perfection
of the Trustee's and the Holders' security interest in any Patent or
Trademark and the goodwill and general intangibles of Grantor relating
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thereto or represented thereby and shall deliver to the Trustee an
Officer's Certificate as to compliance with this subparagraph (e).
(f) Consistent with Grantor's reasonable business judgment, Grantor will take
all reasonable and necessary steps, including without limitation, in any
proceeding before the United States Patent and Trademark Office, or any
similar office or agency in any other country or any political subdivision
thereof, as applicable, to maintain and pursue each application (and to
obtain the relevant registration) and to maintain each registration of the
Patents and Trademarks material to the business of Grantor, including
without limitation, filing of applications for renewal, affidavits of use
and affidavits of incontestability and, as to Patents, the payment of
maintenance fees, except where the failure to take such action could not
have a Material Adverse Effect.
(g) In the event that any Patent or Trademark is infringed, misappropriated or
diluted by a third party, which infringement, misappropriation or dilution
could reasonably be expected to have a Material Adverse Effect, Grantor
shall upon receipt of knowledge of such infringement, misappropriation or
dilution, promptly (i) take such actions as Grantor shall reasonably deem
appropriate under the circumstances to protect such Patent or Trademark and
(ii) if such Patent or Trademark is of material economic value, promptly
notify the Trustee after it learns thereof and, consistent with Grantor's
reasonable business judgment, xxx for infringement, misappropriation or
dilution, seek injunctive relief where appropriate and recover any and all
damages for such infringement, misappropriation or dilution.
(h) Grantor (either itself or through licensees or sublicensees) will (i)
employ the appropriate notice of copyright for each published Work
subject to copyright protection to the extent necessary to protect the
Copyright relating to such Work and (ii) not do (and not permit any
licensee or sublicensee thereof to do) any act or knowingly omit to do
any act whereby any material Copyright may become invalidated, except
where the failure to take any such action could not reasonably be
expected to have a Material Adverse Effect.
(i) Grantor will not (either itself or through licensees) do any act, or
omit to do any act, whereby any material Copyright may reasonably be
expected to become injected into the public domain, except where the
failure to take any such action could not reasonably be expected to
have a Material Adverse Effect.
(j) Grantor will notify the Trustee immediately if it knows, or has reason
to know, that any Copyright may become injected into the public domain
or of any adverse determination or development (including without
limitation, the institution of, or any such determination or
development in, any proceeding in any court or tribunal in any country)
regarding Grantor's ownership of any such Copyright or its validity and
of any action Grantor is taking in respect of such event.
(k) Whenever Grantor, either by itself or through any agent, employee licensee,
sublicensee or designee, shall file an application for the registration of
any Copyright with the United States Copyright Office or any similar office
14
in any other country or political subdivision thereof, Grantor shall report
such filing to the Trustee within thirty (30) days after the last day of
the fiscal quarter in which such filing occurs. Grantor shall execute and
deliver any and all agreements, instruments, documents and papers and make
such recordings and filings as shall be necessary or appropriate or as the
Trustee reasonably may request to evidence, perfect and/or maintain the
perfection of the Trustee's and the Holders' security interest in such
Copyright and shall deliver to the Trustee an Officer's Certificate as to
compliance with this subparagraph (k).
(l) Consistent with the Grantor's reasonable business judgment, Grantor
will take all reasonable and necessary steps in accordance with its
reasonable business judgment to maintain and pursue each application
(and to obtain the relevant registration) and to maintain to the extent
permitted by law each registration of each material Copyright owned by
Grantor including without limitation, filing of applications for
renewal, where necessary.
(m) Grantor will promptly notify the Trustee of any material infringement
of any Copyright owned by it of which Grantor becomes aware and which
infringement could reasonably be expected to have a Material Adverse
Effect, and Grantor shall upon receipt of knowledge of such
infringement take all actions it reasonably deems appropriate under the
circumstances to protect such Copyright, including, where appropriate,
the bringing of suit or the settling of actual or potential suits for
infringement, seeking injunctive relief and seeking to recover any and
all damages for such infringement.
6.11 Due Authorization, Enforceability. Grantor has the requisite power,
authority and legal right to grant a security interest in all the Collateral of
Grantor pursuant to this Agreement, and this Agreement has been duly authorized,
executed and delivered by, and constitutes the legal, valid and binding
obligation of Grantor, enforceable against Grantor in accordance with its terms.
Each Contract to which Grantor is a party is in full force and effect and
constitutes a valid and legally enforceable obligation of Grantor, except as the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally or by general equitable principles
(whether considered in a proceeding in equity or at law).
6.12 No Consents. Except for the filings, registrations and recordings
contemplated in Section 6.3 and except for the prior approval of the Nevada
State Gaming Control Board required before any sale, transfer or other
disposition of any Collateral consisting of slot machines or other devices, no
consent of any Person (including without limitation, any stockholders or
creditors of Grantor) and no consent, authorization, approval, or other action
by, and no notice to or filing with, any Governmental Authority or regulatory
body or other Person is required (a) for the grant by Grantor of a security
interest in the Collateral pursuant to this Agreement, (b) for the perfection or
maintenance of such security interest created hereby, including the first
priority nature of such security interest, or the exercise of rights and
remedies provided for herein, (c) for the enforceability of such security
interest against third parties, including judgment lien creditors, (d) for the
authorization, execution, delivery or performance of this Agreement by Grantor,
or (e) for the exercise by the Trustee of the remedies in respect of the
Collateral pursuant to this Agreement.
15
6.13 Collateral. All information set forth herein (including without limitation,
the information set forth in the Schedules and Exhibits annexed hereto, as they
may be amended from time to time) relating to the Collateral is accurate and
complete in all material respects.
6.14 Ownership and Control of Collateral. Except as may otherwise be permitted
by the Indenture, Grantor at all times will be the sole legal and beneficial
owner or lessee of the Collateral of Grantor.
6.15 [Intentionally Omitted].
6.16 Representations Regarding Contracts.
-----------------------------------
(a) Each Contract to which Grantor is a party is in full force and effect
and constitutes a valid and legally enforceable obligation of Grantor,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally or by
general equitable principles (whether considered in a proceeding in
equity or at law).
(b) Except as could not reasonably be expected to have a Material Adverse
Effect, Grantor or (to the best of Grantor's knowledge) any other party
to any Contract to which Grantor is a party is not in default in the
performance or observance of any of the terms thereof and Grantor is
not aware of any fact that, with notice or lapse of time, could
reasonably be expected to result in such a default.
(c) Except as could not reasonably be expected to have a Material Adverse
Effect, Grantor has fully performed all of its obligations required as
of the date hereof under each Contract to which Grantor is a party.
(d) No defense, offset, counterclaim or claim which could reasonably be
expected to (i) materially adversely affect the value of the Contract
to which it relates as Collateral or (ii) otherwise have a Material
Adverse Effect has been asserted or alleged against Grantor as to any
Contract to which Grantor is a party.
(e) No amount constituting Collateral and payable to Grantor under or in
connection with any Contract to which Grantor is a party is evidenced
by any Instrument, Chattel Paper or Investment Property which has not
been delivered to the Trustee.
(f) None of the parties to any Contract is a Governmental Authority except
as set forth on Schedule D.
6.17 Covenants Regarding Contracts.
-----------------------------
(a) Except as expressly permitted by the Indenture or any other Collateral
Document, Grantor shall not amend, modify, terminate or waive any
provision of any Contract to which Grantor is a party in any manner
which could reasonably be expected to materially adversely affect the
value of such Contract as Collateral or which could otherwise
reasonably be expected to have a Material Adverse Effect; provided
that, Grantor may replace a Contract (the "Initial Contract") so long
16
as the contract entered into to replace the Initial Contract (the
"Replacement Contract") is subject to the security interest created by
this Agreement.
(b) Except as expressly permitted by the Indenture or any other Collateral
Document, Grantor shall deliver to the Trustee a copy of each material
demand, notice of default or other written material notification
received by it relating in any way to any material Contract to which
Grantor is a party.
(c) Except as expressly permitted in the Indenture, in any suit, proceeding or
action brought by or on behalf of the Trustee under any Contract to which
Grantor is a party which the Trustee is entitled to bring after an Event of
Default has occurred, Grantor will defend, save, indemnify and keep the
Trustee and the Holders harmless from and against any and all expenses,
losses, claims, liabilities and damages, as incurred, suffered by reason of
any defense, setoff, counterclaim, recoupment or reduction or liability
whatsoever of the obligor thereunder, arising out of a breach by Grantor of
any obligation thereunder or arising out of any other agreement,
indebtedness or liability at any time owing to or in favor of such obligor
or its successors from Grantor; provided that the indemnity provided under
this Section 6.17(e) shall not apply to the extent such liability arises
from the gross negligence or willful misconduct of the Trustee or Holders.
6.18 Further Actions and Identification of Collateral. At any time upon the
occurrence of an Event of Default, or otherwise no more than two times in any
twelve-month period, Grantor shall, at its sole cost and expense, make, execute,
endorse, acknowledge, file and/or deliver to the Trustee from time to time such
lists, descriptions and designations of the Collateral of Grantor, copies of
warehouse receipts, receipts in the nature of warehouse receipts, bills of
lading, documents of title, vouchers, invoices and schedules relating to the
Collateral of Grantor, as the Trustee may reasonably request, all in reasonable
detail. Grantor will promptly notify the Trustee in writing of any event, or
change of law, regulation, business practice, or business condition of which
Grantor has knowledge that could reasonably be expected to materially adversely
affect the value of the Collateral.
6.19 Records of Collateral; Notation on Books and Records. Grantor shall keep
full and accurate books and records relating to the Collateral of Grantor, and
stamp or otherwise xxxx such books and records in such manner as may be
necessary or as the Trustee may reasonably require in order to reflect the
security interests granted by this Agreement.
6.20 Notices. Grantor shall promptly notify the Trustee, in reasonable detail,
of any Lien (other than security interests created hereby or Permitted Liens) or
any attachment or other legal process levied against any of the Collateral and
any information received by the Grantor relative to the Collateral, which may in
any material way affect the value of the Collateral or the rights and remedies
of the Secured Parties in respect thereof.
6.21 Collateral Maintenance. Grantor shall keep and maintain the Collateral in
good operating condition, working order and repair, ordinary wear and tear
excepted, and from time to time will make or cause to be made all repairs,
replacements and other improvements in connection therewith that are necessary
or desirable toward such end. Grantor shall not misuse or abuse the Collateral,
17
or waste or allow it to deteriorate, except for the ordinary wear and tear of
its normal and expected use in Grantor's business in accordance with Grantor's
policies as then in effect (provided that no changes are made to Grantor's
policies as in effect on the date hereof that would be materially adverse to the
interests of any of the Secured Parties), and Grantor shall comply with all
laws, statutes and regulations pertaining to the use or ownership of the
Collateral where failure to comply could reasonably be expected to result in a
Material Adverse Effect.
6.22 After-Acquired Intellectual Property. If Grantor shall (a) obtain any
ownership rights to any new invention (whether or not patentable), know-how,
trade secret, design, process, procedure, formula, diagnostic test, service
xxxx, trademark, trademark registration, trade name, copyright or license, or
(b) become entitled to the benefit of any patent, service xxxx or trademark
application, trademark, trademark registration, license renewal, copyright
renewal or extension, or patent for any reissue, division, continuation, renewal
extension, or continuation-in-part of any patent or any improvement on any
patent, excluding as to (a) and (b) any right, interest or benefit received by
Grantor which by the terms of any agreement exclusively conferring such right,
interest or benefit prohibits the granting by Grantor of a security interest
therein, the provisions of this Agreement shall automatically apply thereto and
any item enumerated in clause (a) or (b) of this sentence shall automatically
constitute Collateral and shall be subject to the assignment, lien and security
interest created hereby without further action by any party. Grantor promptly
shall (i) give to the Trustee written notice of its acquisition of or
entitlement to any of the rights subject to federal registration set forth in
clauses (a) or (b) of the immediately preceding sentence and (ii) confirm the
attachment of the lien and security interest created hereby to any of such
rights by execution of an appropriate instrument delivered to the Trustee and/or
to make such recordings and filings as may be necessary or appropriate or as the
Trustee may reasonably request to evidence, confirm, perfect and/or maintain the
perfection of such security interest, including without limitation, an amendment
to Exhibits C, D, E and F (as applicable) to include any such rights and
appropriate filings with the applicable federal office.
6.23 Litigation. No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the best knowledge of
Grantor, threatened by or against Grantor or against any of its properties or
revenues with respect to any of the Collateral Documents or any of the
transactions contemplated thereby.
6.24 Insurance. Grantor maintains insurance covering the Collateral, including
all insurance required by the Indenture. Such insurance insures against such
losses and risks as are adequate in accordance with customary industry practice
to protect Grantor and its business. Grantor has not received any notice from
any insurer or agent of such insurer that substantial capital improvements or
other expenditures will have to be made in order to continue such insurance. As
of the date hereof, all such insurance is in full force and all accrued premiums
with respect thereto have been paid.
SECTION 7. Special Provisions Relating to Intellectual Property.
7.1 Modifications. Grantor and the Trustee may modify this Agreement, without
the consent of Holders, by amending Exhibits C, D, E and/or F to include any
future Intellectual Property of Grantor in accordance with Section 6.10 or
Section 6.22 or to reflect any disposition of Intellectual Property made in
18
compliance with the provisions of this Agreement and the Indenture.
7.2 Applications. Except in the ordinary course of business consistent with
prudent business practice or as Grantor, in its reasonable business judgment,
deems appropriate or as may otherwise be permitted by the Indenture, Grantor
shall not abandon any registration of any Intellectual Property or any right to
file an application with respect to Intellectual Property or any pending
application, unless refused by the Patent and Trademark Office Examiner where
such abandonment, in each case, could reasonably be expected to have a Material
Adverse Effect, without the prior written consent of the Trustee.
7.3 Restriction on Licensing Intellectual Property. Grantor shall not license
the Intellectual Property or any portion thereof, or amend or permit the
amendment of any of the Licenses, in either case in a manner that adversely
affects the right to receive any material amount of payments thereunder or,
except as otherwise permitted under the Indenture, in any manner materially
adverse to the interests of the Trustee in the Intellectual Property, in each
case without the prior written consent of the Trustee.
7.4 Use of Intellectual Property Prior to Event of Default. Subject to Section
7.3 but notwithstanding any other provision herein to the contrary, so long as
no Event of Default shall have occurred and be continuing, Grantor shall be
permitted to exploit, use, enjoy, protect, license, sublicense, assign, sell,
dispose of or take any other actions with respect to the Intellectual Property
in the ordinary course of the business of Grantor or in the exercise of
Grantor's reasonable business judgment. In furtherance of the foregoing, unless
an Event of Default shall have occurred and be continuing, the Trustee shall,
from time to time upon the request of Grantor, execute and deliver to Grantor
any instruments, certificates or other documents, in the form so requested,
which Grantor shall have certified are appropriate to allow Grantor to take any
action permitted above (including relinquishment of the license provided as to
any specific Intellectual Property).
SECTION 8. Transfers and Other Liens.
Except as permitted by the Indenture, Grantor shall not sell,
convey, assign or otherwise dispose of, or grant any option with respect to, any
of the Collateral. Grantor shall not create or permit to exist any Lien upon or
with respect to any of the Collateral other than Permitted Liens or Liens in
favor of the Secured Parties pursuant to this Agreement.
SECTION 9. Reasonable Care.
Beyond the duties set forth in Section 15.3 and the exercise
of reasonable care in custody thereof, the Trustee shall have no duty as to the
collection of any Collateral in its possession or control or in the possession
or control of any agent or nominee of the Trustee, or any income thereon or as
to the preservation of rights against prior parties or any other rights
pertaining thereto. The Trustee shall be deemed to have exercised reasonable
care in the custody and preservation of the Collateral in its possession if such
Collateral is accorded treatment substantially equivalent to that which the
Trustee, in its individual capacity, accords its own property, it being
19
understood that the Trustee shall not have responsibility for taking any
necessary steps to preserve rights against any Person with respect to any
Collateral.
SECTION 10. Remedies Upon Event of Default.
10.1 Notice to Obligors and Contract Parties. At any time after the occurrence
and during the continuance of an Event of Default, the Trustee may, and, if
requested by the Trustee, Grantor shall, notify parties to the Contracts and
account debtors in respect of any General Intangibles or Accounts constituting
Collateral that such Collateral has been assigned to the Trustee for the benefit
of itself and ratable benefit of the Holders and that payments in respect
thereof shall be made directly to the Trustee.
10.2 Proceeds to be Turned Over to Trustee. If an Event of Default shall have
occurred and be continuing, all amounts and proceeds (including instruments)
received by Grantor in respect of any Collateral shall be held by Grantor in
trust for the Trustee and the Holders, segregated from other funds of Grantor,
and shall, forthwith upon receipt by Grantor, be turned over to the Trustee in
the exact form received by Grantor (duly endorsed by Grantor to the Trustee, if
required or requested) and held by the Trustee while held by the Trustee (or by
Grantor in trust for the Trustee and the Holders) shall continue to be held as
collateral security for all the Obligations and shall not constitute payment
thereof until applied as provided in Section 11.
10.3 Obtaining Possession of the Collateral. If an Event of Default shall have
occurred and be continuing, then and in every such case, the Trustee may, but
shall not be obligated to, in addition to any other action permitted by law (and
not limited in any manner to the remedies contained in the Notes and the
Indenture) take one or more of the following actions, subject to compliance with
applicable Gaming Laws:
(a) personally, or by agents or attorneys, immediately take possession of
the Collateral or any part thereof, from Grantor 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 Grantor's premises
where any of the Collateral is located and remove such Collateral and
use in connection with such removal any and all services, supplies,
aids and other facilities of Grantor;
(b) sell, assign or otherwise liquidate, or direct Grantor to sell, assign
or otherwise liquidate, any or all investments made in whole or in part
with the Collateral or any part thereof, and take possession of the
proceeds of any such sale, assignment or liquidation; and
(c) take possession of the Collateral or any part thereof by directing Grantor
in writing to deliver the same to the Trustee at any place or places which
the Trustee shall reasonably select, in which event Grantor shall at its
own expense: (i) forthwith cause the same to be moved to the place or
places so designated by the Trustee and there delivered to the Trustee;
(ii) store and keep any Collateral so delivered to the Trustee at such
place or places pending further action by the Trustee; and (iii) while the
Collateral shall be so stored and kept, provide such guards and maintenance
services as shall be reasonably necessary to protect the same and to
20
preserve and maintain them in good condition. Grantor's obligation to
deliver the Collateral is of the essence of this Agreement. Upon
application to a court of equity having jurisdiction, the Trustee shall, to
the extent permitted by law, be entitled to a decree requiring specific
performance by Grantor of such obligation.
10.4 Use and Preservation of the Collateral. Upon and during the existence of an
Event of Default, the Trustee may, subject to compliance with applicable Gaming
Laws, in its sole discretion, use or manage the Collateral to preserve the
Collateral or its value, or to pay the Obligations which includes, without
limitation, the right to take possession of Grantor's premises and property, to
exclude Grantor and any third parties (whether or not claiming under Grantor)
from such premises and property, to make repairs, replacements, alterations,
additions and improvements to or take any acts to preserving the Collateral, and
to dispose of all or any portion of the Collateral.
10.5 Remedies under UCC. In addition to the rights and remedies provided in this
Agreement or otherwise available to it, the Trustee shall have all the rights
and remedies of a secured party under the UCC or under the Uniform Commercial
Code of any other relevant jurisdiction.
10.6 Additional Remedies. Upon the occurrence and during the continuance of an
Event of Default, the Trustee, subject to compliance with applicable Gaming
Laws, without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred
to below) to or upon Grantor or any other person (all and each of which demands,
defenses, advertisements and notices are, to the extent permitted by law, hereby
waived), may in such circumstances forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell,
lease, assign, give option or options to purchase, or otherwise dispose of and
deliver the Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, at any
exchange, broker's board or office of the Trustee or elsewhere upon such terms
and conditions as the Trustee may deem advisable and at such prices as it may
elect, for cash or on credit or for future delivery without assumption of any
credit risk. The Trustee or any Holder shall have the right, to the extent
permitted by law, upon any such public sale or sales or upon any such private
sale or sales, to purchase for cash the whole or any part of the Collateral so
sold (but any such purchase may not, in whole or in part, be in the form of
cancellation of indebtedness without the consent of each Holder). Grantor
further agrees, at the Trustee's request, to assemble the Collateral of Grantor
and make it available to the Trustee at places which the Trustee shall
reasonably select, whether at Grantor's premises or elsewhere. The Trustee shall
apply the net proceeds of any action taken by it pursuant to this Agreement,
after deducting all reasonable costs and expenses of every kind incurred by the
Trustee in connection therewith or incidental to the care or safekeeping of any
of the Collateral or in any way relating to the Collateral or the rights of the
Trustee and the Holders hereunder, including without limitation, reasonable
attorneys' fees and disbursements, as provided in Section 11 hereof, and only
after such application and after the payment by the Trustee of any other amount
required by any provision of law, including without limitation, Section
9-615(a)(3) of the UCC, need the Trustee account for the surplus, if any, to
Grantor. To the extent permitted by law, Grantor waives all claims, damages and
demands it may acquire against the Trustee (or any other trustee under the Deed
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of Trust) or any Holder arising out of the exercise by any of them of any rights
hereunder. If any notice of proposed sale or other disposition of Collateral
shall be required by law, such notice shall, to the extent permitted by law, be
deemed reasonable and proper if given at least ten (10) days before such sale or
other disposition. Notwithstanding the foregoing, the Trustee shall not be
obligated to make any sale of Collateral regardless of notice of sale having
been given. The Trustee may, without notice or publication, adjourn any public
or private sale, or cause the same to be adjourned from time to time by
announcement at the time and place fixed for sale or, with respect to a private
sale, after which such sale may take place, and any such sale may, without
further notice, be made at the time and place to which it was so adjourned or,
with respect to a private sale, after which such sale may take place. Each
purchaser at any such sale shall hold the property sold free from any claim or
right on the part of Grantor, and Grantor hereby waives, to the full extent
permitted by law, all rights of redemption, stay and/or appraisal which Grantor
now has or may at any time in the future have under any rule of law or statute
now existing or hereafter enacted. To the extent permitted by law, Grantor also
hereby waives any claims against the Trustee arising by reason of the fact that
the price at which any Collateral may have been sold at a private sale was less
than the price which might have been obtained at a public sale, even if the
Trustee accepts the first offer received and does not offer such Collateral to
more than one offeree. In case any sale of all or any part of the Collateral is
made on credit or for future delivery, the Collateral so sold may be retained by
the Trustee until the sale price is paid by the purchaser or purchasers thereof,
and the Trustee shall not incur any liability in case any such purchaser or
purchasers shall fail to take up and pay for the Collateral purchased. In case
of any such failure, such Collateral may be sold again upon like notice. The
parties hereto agree that the notice provisions, method, manner and terms of any
sale, transfer or disposition of any Collateral in compliance with the terms set
forth herein or any other provision of this Agreement are commercially
reasonable.
10.7 Certain Sales of Collateral.
---------------------------
(a) Grantor recognizes that, by reason of certain prohibitions contained in
law, rules, regulations or orders of any Governmental Authority,
including without limitation Gaming Laws, the Trustee may be compelled,
with respect to any sale of all or any part of the Collateral, to limit
purchasers to those who meet the requirements of such Governmental
Authority. Grantor acknowledges that any such sales may be at prices
and on terms less favorable to the Trustee 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.
(b) With respect to the sale of Notes constituting Collateral, to the
extent the Trustee deems it advisable to do so, in its sole discretion
or as may be required by applicable law, the Trustee may restrict the
prospective bidders or purchasers to Persons who, in the Trustee's sole
judgment, are sufficiently sophisticated and who will represent and
agree that they are purchasing the securities constituting Collateral
then being sold for their own account and not with a view to the
distribution or resale thereof, and upon consummation of any such sale,
the Trustee shall have the right to assign, transfer and deliver to the
purchaser or purchasers thereof the securities constituting Collateral
so sold.
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10.8 Certain Remedies in Respect of Intellectual Property. If an Event of
Default shall have occurred and shall be continuing, in addition to the other
rights and remedies provided for herein or otherwise available to it, the
Trustee may license or sublicense (whether general, special or otherwise, and
whether on an exclusive or non-exclusive basis) all or any portion of the
Intellectual Property throughout the world for such term or terms, on such
conditions and in such manner as the Trustee shall determine. Upon request by
the Trustee, Grantor shall execute and deliver to the Trustee any powers of
attorney, in form and substance reasonably satisfactory to the Trustee for the
implementation of any assignment, license, sublicense, grant of option, sale or
other disposition of any Intellectual Property. In the event of any sale,
assignment, or other disposition of any of the Intellectual Property, the
goodwill and general intangibles connected with and symbolized by the
Intellectual Property subject to such disposition shall be included, and Grantor
shall supply to the Trustee or its designee, for inclusion in such sale,
assignment or other disposition, all Intellectual Property relating to such
Intellectual Property. [Notwithstanding the foregoing or any other provision
hereof, the provisions of this Security Agreement, including this Section 10.8,
are subject to the Trademark License Agreement, dated as of June 3, 1999,
between Riviera Operating Corporation and Grantor, and the use and enjoyment by
the Trustee of the license rights thereunder shall be subject to the limitations
contained therein.]
10.9 Specific Performance. In addition to any of the other rights and remedies
hereunder, the Trustee shall have the right to institute a proceeding seeking
specific performance in connection with any of the agreements or obligations
hereunder.
10.10 Receivership. Upon and during the continuance of an Event of Default, the
Trustee may, to the fullest extent permitted by law, have a court having
jurisdiction appoint a receiver, which receiver shall take charge and possession
of and protect, preserve, replace and repair the Collateral or any part thereof,
and manage and operate the same, and receive and collect all rents, income,
receipts, royalties, revenues, issues and profits therefrom. Except to the
extent prohibited by law, Grantor shall irrevocably consent and shall be deemed
to have hereby irrevocably consented to the appointment thereof, and upon such
appointment, Grantor shall immediately deliver possession of such Collateral to
the receiver. Except to the extent prohibited by law, Grantor also irrevocably
consents to the entry of an order authorizing such receiver to invest interest
upon any funds held or received by the receiver in connection with such
receivership. The Trustee shall be entitled to such appointment as a matter of
right, if it shall so elect, without the giving of notice to any party and
without regard to the adequacy of the security of the Collateral.
10.11 Subject to Intercreditor Agreement. Notwithstanding anything stated
herein, all of the remedies in this Section 10 shall be subject to the terms and
provisions of the Intercreditor Agreement (if any).
SECTION 11. Application of Proceeds.
All cash proceeds received by the Trustee upon any sale of,
collection of, or other realization upon, all or any part of the Collateral
shall be applied in accordance with the Intercreditor Agreement (if any) and
otherwise as follows:
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First: To the payment of all reasonable out-of-pocket expenses
incurred by the Trustee in connection with the sale of, collection of
or other realization upon Collateral, including reasonable attorneys'
fees and disbursements and court costs, if applicable;
Second: To the payment of the Obligations in such manner
consistent with applicable law and the Indenture as the Trustee in its
discretion shall decide; and
Third: To the extent of the balance (if any) of such proceeds,
to payment to Grantor or other Person legally entitled thereto.
Non-cash proceeds of any disposition by the Trustee of
Collateral available to satisfy the Obligations shall be applied to the
Obligations in such order and in such manner consistent with applicable law and
the Indenture as the Trustee in its discretion shall decide.
SECTION 12. Expenses.
Grantor will immediately upon demand pay to the Trustee the
amount of any and all reasonable expenses, including the reasonable fees and
expenses of the Trustee's counsel and the fees and expenses of any experts and
agents which the Trustee may incur in connection with (a) the collection of the
Obligations, (b) the enforcement and administration of this Agreement or any
other Collateral Document, (c) the custody or preservation of, or the sale of,
collection from, or other realization upon, any of the Collateral, (d) the
exercise or enforcement of any of the rights of the Trustee or any Secured Party
hereunder, (e) the failure by Grantor to perform or observe any of the
provisions hereof, (f) the preparation and filing or recording of financing
statements and other documents (including all taxes in connection therewith) in
public offices necessary or desirable to create and maintain first priority
perfected security interests in the Collateral in favor of the Trustee, (g) the
payment or discharge of any taxes, insurance premiums required or permitted
under any Collateral Document or encumbrances with respect to the Collateral,
(h) defending or prosecuting any actions or proceedings arising out of or
related to the transactions to which this Agreement relates (other than actions
by Grantor for breach of the Indenture or any Collateral Documents determined by
a court of competent jurisdiction pursuant to a non-appealable order), or (i)
otherwise protecting, maintaining or preserving the Collateral and the
perfection and priority of the security interests granted or purported to be
granted hereunder, or the enforcing, foreclosing, retaking, holding, storing,
processing, selling or otherwise realizing upon the Collateral and the Trustee's
security interest therein, whether through judicial proceedings or otherwise.
All amounts payable by Grantor under this Section 12 shall be due upon demand
and shall be secured hereby and shall be part of the Obligations. Grantor's
obligations under this Section 12 shall survive the termination of this
Agreement and the discharge of Grantor's other obligations hereunder.
SECTION 13.Amendments in Writing; No Waiver, Cumulative Remedies; Reinstatement;
Additional Grantor.
13.1 Amendments. Subject to the provisions of Article 9 of the Indenture, none
of the terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise modified, except by a written instrument executed by
Grantor (except as otherwise provided in Section 13.4) and the Trustee; provided
that any provision of this Agreement imposing obligations on Grantor may be
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waived by the Trustee in a written instrument executed solely by the Trustee.
13.2 No Waiver; Remedies Cumulative. To the maximum extent permitted by law, (a)
no failure on the part of the Trustee to exercise, no course of dealing with
respect to, and no delay on the part of the Trustee in exercising, any right,
power, privilege or remedy hereunder shall operate as a waiver thereof or
constitute an acquiescence to any Default or Event of Default; (b) no single or
partial exercise of any such right, power, privilege or remedy hereunder nor any
taking, exchange, release or non-perfection of any other collateral, nor any
release or amendment of or consent to any departure from any guarantees for all
or any of the Obligations, preclude any other or future exercise thereof or the
exercise of any other right, power or remedy, and (c) the Trustee's acceptance
of partial payment or performance will not extend or affect any grace period or
constitute a waiver of a Default or Event of Default. A waiver by the Trustee or
any Holder of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Trustee or such Holder would
otherwise have on any future occasion. To the maximum extent permitted by law,
the remedies herein provided are cumulative and are not exclusive of any
remedies provided by law.
13.3 Reinstatement. In the event the Trustee 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 Trustee, then and in every such case, Grantor, the Trustee and each
Holder shall be restored to their respective former positions and rights
hereunder with respect to the Collateral, and all rights, remedies and powers of
the Trustee and the Secured Parties shall continue as if no such proceeding had
been instituted.
13.4 Additional Grantors. If Grantor shall acquire or create a Restricted
Subsidiary after the date of this Agreement, then such newly acquired or created
Restricted Subsidiary (each such Restricted Subsidiary, an "Additional Grantor")
shall (i) become a party to this Agreement by executing and delivering to the
Trustee an Amendment to Security Agreement (Additional Grantor) in substantially
the form of Annex I hereto (each, an "Amendment to Security Agreement
(Additional Grantor)"), and (ii) shall enter into such documents as shall be
necessary to create a perfected, first priority security interest in the capital
stock (to the extent required to be pledged under the Indenture) and all
property of such Restricted Subsidiary (including without limitation, any real
property and all personal property of such Restricted Subsidiary) and the
proceeds and products thereof, subject to Permitted Liens. Trustee shall also be
entitled to file UCC Financing Statements in the appropriate jurisdictions and
take any other actions necessary to perfect its security interest. Upon the
execution and delivery to the Trustee by any Additional Grantor of an Amendment
to Security Agreement (Additional Grantor), which Amendment to Security
Agreement (Additional Grantor) need not be executed by Grantor, and the
acceptance thereof by the Trustee, such Additional Grantor shall be and become a
Grantor hereunder, and each reference in this Agreement to the "Grantor" shall
include such Additional Grantor and each reference in the Indenture, the Notes
and any other Transaction Document to the "Grantor" shall include such Person.
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SECTION 14. Appointment as the Trustee.
The actions of the Trustee hereunder are subject to the
provisions of the Indenture. The Trustee 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 Collateral), in each case in accordance with this Agreement
and the Indenture. The Trustee may resign and a successor Trustee may be
appointed in the manner provided in the Indenture. Upon the acceptance of any
appointment as the Trustee by a successor Trustee, such successor Trustee shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Trustee under this Agreement, and the retiring
Trustee shall thereupon be discharged from its duties and obligations under this
Agreement. After any retiring Trustee's resignation, the provisions of this
Agreement shall inure to its benefit as to any actions taken or omitted to be
taken by it under this Agreement while it was the Trustee.
SECTION 15. The Trustee Appointed Attorney-in-Fact; the Trustee May Perform.
---------------------------------------------------------------
15.1 The Trustee Appointed as Attorney-in-Fact. Grantor hereby irrevocably
constitutes and appoints the Trustee and any officer or agent thereof, with full
power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of Grantor and in the
name of Grantor, or in its own name, for the purpose of carrying out the terms
of this Agreement to take any and all appropriate action and to execute any and
all documents and instruments which may be necessary or desirable to accomplish
the purposes of this Agreement. Without limiting the generality of the
foregoing, Grantor hereby gives the Trustee and any officer or agent of the
Trustee the power and right, on behalf of Grantor, without notice to or assent
by Grantor, to do any or all of the following:
(a) in the name of Grantor or its own name, or otherwise, take possession
of and endorse and collect any checks, drafts, notes, acceptances or
other instruments for the payment of monies due under any Contract or
with respect to any other Collateral and file any claim or take any
other action or proceeding in any court of law or equity or otherwise
deemed appropriate by the Trustee for the purpose of collecting any and
all such monies due under any Contract or with respect to any other
Collateral whenever payable;
(b) in the case of any Copyright, Patent or Trademark, execute and deliver
any and all agreements, instruments, documents and papers as the
Trustee may determine appropriate to evidence the Trustee's security
interest in such Copyright, Patent or Trademark and the goodwill and
general intangibles of Grantor relating thereto or represented thereby;
(c) pay or discharge taxes and Liens levied or placed on or threatened
against the Collateral, effect any repairs or any insurance called for
by the terms of this Agreement and pay all or any part of the premiums
therefor and the costs thereof;
(d) execute, in connection with any sale provided for in Sections 10.3,
10.4 or 10.5 or any other sale of Collateral pursuant to this
Agreement, any endorsements, assignments or other instruments of
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conveyance or transfer with respect to the Collateral; and
(e) (i) direct any party liable for any payment under any of the Collateral to
make payment of any and all monies due or to become due thereunder directly
to the Trustee or as the Trustee shall direct; (ii) ask or demand for,
collect, receive payment of and receipt for, any and all monies, claims and
other amounts due or to become due at any time in respect of or arising out
of any Collateral; (iii) sign and endorse any invoices, freight or express
bills, bills of lading, storage or warehouse receipts, drafts against
debtors, assignments, verifications, notices and other documents in
connection with any of the Collateral; (iv) commence and prosecute any
suits, actions or proceedings at law or in equity in any court of competent
jurisdiction to collect the Collateral or any thereof and to enforce any
other right in respect of any Collateral; (v) defend any suit, action or
proceeding brought against Grantor with respect to any Collateral; (vi)
settle, compromise or adjust any such suit, action or proceeding and, in
connection therewith, to give such discharges or releases as the Trustee
may deem appropriate; and (vii) generally, sell, transfer, pledge and make
any agreement with respect to or otherwise deal with any of the Collateral
as fully and completely as though the Trustee were the absolute owner
thereof for all purposes, and do, at the Trustee's option and Grantor's
expense, at any time, or from time to time, all acts and things which the
Trustee deems necessary to protect, preserve or realize upon the Collateral
and the Trustee's and the Holders' security interests therein and to effect
the intent of this Agreement, all as fully and effectively as Grantor might
do.
The foregoing grant of authority is a power of attorney
coupled with an interest and such appointment shall be irrevocable
until this Agreement is terminated and the security interests created
hereby are released. Grantor hereby ratifies all that such attorneys
shall lawfully do or cause to be done by virtue and in accordance with
the terms hereof. Anything in this Section 15.1 to the contrary
notwithstanding, the Trustee agrees that it will not exercise any
rights under the power of attorney provided for in this Section 15.1
unless an Event of Default shall have occurred and be continuing.
15.2 The Trustee May Perform. If Grantor shall fail to do any act or thing that
it has covenanted to do hereunder or under the Indenture within any applicable
grace period with respect thereto or if any representation or warranty on the
part of Grantor contained herein or under the Indenture shall be breached, the
Trustee or any Secured Party may (but shall not be obligated to), after
providing Grantor with at least ten days' notice, do the same or cause it to be
done or remedy any such breach, and may expend funds for such purpose. Any and
all amounts so expended by the Trustee or such Secured Party shall be paid by
Grantor promptly upon demand therefor, with interest at the Default Rate during
the period from and including the date on which such funds were so expended to
the date of repayment. Grantor's obligations under this Section shall survive
the termination of this Agreement and the discharge of Grantor's other
obligations under this Agreement.
15.3 Duty of the Trustee. The Trustee's sole duty with respect to the custody,
safekeeping and physical preservation of the Collateral in its possession, under
Section 9-207 of the UCC, Section 9 hereof or otherwise, shall be to deal with
27
it in the same manner as the Trustee deals with similar property for its own
account. Neither the Trustee, any Holder nor any of their respective officers,
directors, employees or agents shall be liable for failure to demand, collect or
realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of Grantor or any other person or to take any other action whatsoever
with regard to the Collateral or any part thereof. The powers conferred on the
Trustee and the Holders hereunder are solely to protect the Trustee's and the
Holders' interests in the Collateral and shall not impose any duty upon the
Trustee or any Holder to exercise any such powers. The Trustee and the Holders
shall be accountable only for amounts that they actually receive as a result of
the exercise of such powers, and neither they nor any of their officers,
directors, employees or agents shall be responsible to Grantor for any act or
failure to act hereunder, except for their own gross negligence or willful
misconduct. Except for the safe custody of any Collateral in its possession and
the accounting for monies actually received by it hereunder, the Trustee shall
have no duty as to any Collateral, as to ascertaining or taking action with
respect to calls, conversions, exchanges, maturities, tenders or other matters
relative to any Collateral, whether or not the Trustee has or is deemed to have
knowledge of such matters, or as to the taking of any necessary steps to
preserve rights against prior parties or any other rights pertaining to any
reasonable care in the custody and preservation of any Collateral in its
possession if such Collateral is accorded treatment substantially equal to that
which the Trustee accords its own property. Except as provided in this Section
15.3, the Trustee shall not have any duty or liability to protect or preserve
any Collateral or to preserve rights pertaining thereto. Nothing contained in
this Agreement shall be construed as requiring or obligating the Trustee or the
Holders, and neither the Trustee nor the Holders shall be required or obligated,
to (a) present or file any claim or notice or take any action with respect to
any Collateral or in connection therewith or (b) notify Grantor of any decline
in the value of any Collateral.
15.4 Execution of Financing Statements. Grantor authorizes the Trustee (subject
to the last sentence of Section 5.2) to file financing statements and
continuation statements with respect to the Collateral in such form and in such
filing offices as the Trustee reasonably determines appropriate to perfect, and
maintain perfected, the security interests of the Trustee under this Agreement.
A carbon, photographic or other reproduction of this Agreement shall be
sufficient as a financing statement for filing in any jurisdiction.
15.5 Authority of the Trustee. Grantor acknowledges that the rights and
responsibilities of Grantor under this Agreement with respect to any action
taken by the Trustee or the exercise or non-exercise by the Trustee of any
option, voting right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Agreement shall, as between the
Trustee and the Holders, be governed by the Indenture and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Trustee and Grantor, the Trustee shall be conclusively presumed
to be acting as agent for the Holders with full and valid authority so to act or
refrain from acting, and Grantor shall be under no obligation, or entitlement,
to make any inquiry respecting such authority. The Trustee may exercise its
rights under this Agreement through an agent or other designee.
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SECTION 16. Notices.
All notices, requests, demands and other communication shall
be given in writing and in the manner set forth in Section 13.02 of the
Indenture and shall be given or delivered at the following respective addresses
and facsimile numbers and to the attention of the following individuals or
departments: (i) if to Grantor, at its address specified pursuant to the
Indenture; (ii) if to the Trustee, at its address specified pursuant to the
Indenture; or (iii) as to any such party, at such other address, facsimile
number, or to the attention of such other individual or department, as the party
to which such information pertains may hereafter specify for the purpose in a
notice to the other specifically captioned "Notice of Change of Address." The
Trustee shall not be deemed to have received any notice, request, demand or
other communication under this Agreement until a Responsible Officer of the
Trustee shall have received such notice, request, demand or other communication
at the Corporate Trust Office of the Trustee.
SECTION 17. Continuing Security Interest; Assignment.
This Agreement shall create a continuing security interest in
the Collateral and shall (a) be binding upon Grantor, its successors and
assigns, and (b) inure, together with the rights and remedies of the Trustee
hereunder, to the benefit of the Trustee (and, to the extent provided herein,
any other trustee under the Deed of Trust) and the other Secured Parties and
each of their respective successors, transferees and assigns; and no other
Persons (including without limitation, any other creditors of Grantor) shall
have any interest herein or any right or benefit with respect hereto. Without
limiting the generality of the foregoing clause (b), any Secured Party may
assign or otherwise transfer any security or guarantee 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 18. Release of Collateral.
Reference is hereby made to Article 10 of the Indenture for
provisions which discuss the release of the Collateral from the Liens created by
this Agreement.
SECTION 19. Termination.
This Agreement shall terminate (except as to those provisions
which it is provided herein shall survive such termination) upon the
satisfaction of all Obligations or upon Legal Defeasance or Covenant Defeasance
and the Trustee, upon the request and at the expense of Grantor, shall forthwith
cause to be assigned, transferred and delivered, against receipt but without any
recourse, warranty or representation whatsoever, any remaining Collateral and
money received in respect thereof, to or to the order of Grantor, and to be
released and canceled, all licenses and rights referred to in Section 7.4
hereof; provided, however, that any licenses or sublicenses granted by the
Trustee pursuant to Section 10.8 shall continue to be in full force and effect
in accordance with their terms. The Trustee shall also execute and deliver to
Grantor upon such termination such UCC termination statements and such other
documentation as shall be reasonably requested by, and at the expense of,
Grantor to effect the termination and release of the security interests in the
Collateral.
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SECTION 20. GOVERNING LAW.
THIS AGREEMENT, THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HERETO, AND ANY CLAIMS OR DISPUTES RELATING THERETO, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING
WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW)
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF, EXCEPT TO THE
EXTENT THAT THE PERFECTION AND ENFORCEMENT OF THE SECURITY INTERESTS HEREUNDER
IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF ANOTHER
JURISDICTION.
SECTION 21. Severability of Provisions.
Any provision of this Agreement 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 22. Interaction with Indenture.
--------------------------
(a) Incorporation by Reference. All terms, covenants, conditions,
provisions and requirements of the Indenture are incorporated by
reference in this Agreement.
(b) Conflicts. Notwithstanding any other provision of this Agreement, the terms
and provisions of this Agreement shall be subject and subordinate to the
terms of the Indenture. To the extent that the Indenture provides Grantor
with a particular cure or notice period, or establishes any limitations or
conditions on the Trustee's actions with regard to a particular set of
facts, Grantor shall be entitled to the same cure periods and notice
periods, and the Trustee shall be subject to the same limitations and
conditions, under this Agreement, as under the Indenture, in place of the
cure periods, notice periods, limitations and conditions provided for under
this Agreement; provided, however, that such cure periods, notice periods,
limitations and conditions shall not be cumulative as between the Indenture
and this Agreement. In the event of any conflict or inconsistency between
the provisions of this Agreement and those of the Indenture, including
without limitation, any conflicts or inconsistencies in any definitions
herein or therein, the applicable provisions or definitions of the
Indenture shall govern.
SECTION 23. Other Security.
To the extent that the Obligations are now or hereafter
secured by property other than the Collateral or by the guarantee, endorsement
or property of any other Person, then the Trustee shall have the right in its
sole discretion to pursue, relinquish, subordinate, modify or take any other
action with respect thereto, without in any way modifying or affecting any of
the Trustee's or any Holder's rights and remedies hereunder.
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SECTION 24. 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 25. Headings.
The Section and subsection headings used in this Agreement are
for convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
SECTION 26. Additional Grantor Obligations Absolute.
All obligations of any Additional Grantor hereunder shall be
absolute and unconditional irrespective of:
(a) any bankruptcy, insolvency, reorganization, arrangement, readjustment,
composition, liquidation or the like of the Company or any Additional
Grantor;
(b) any lack of validity or enforceability of the Indenture, the Notes or
any other Transaction Document;
(c) any change in the time, manner or place of payment of, or in any other
term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to any departure from the Indenture, the Notes
or any other Transaction Document (except to the extent specified in
such change, amendment or waiver);
(d) any taking, exchange, release or non-perfection of any other collateral
, or any release or amendment or waiver of or consent to any departure
from any guarantees, for all or any of the Obligations;
(e) any exercise or non-exercise, or any waiver of any right, remedy, power
or privilege under or in respect of this Agreement, the Indenture, the
Notes or any other Transaction Document, except as specifically set
forth in a waiver granted pursuant to the provisions of the Indenture;
(f) any manner of application of Collateral, or proceeds thereof, to all or
any of the Obligations, or any manner of sale or other disposition of
any Collateral for all or any of the Obligations or any other
obligations of the Company or any Additional Grantor under the
Indenture, the Notes or any other Transaction Document or any other
assets of the Company, any Additional Grantor or any of their
respective Subsidiaries;
(g) any change, restructuring or termination of the organizational
structure or existence of the Company, any Additional Grantor or any of
their respective Subsidiaries;
(h) any failure of the Trustee or any Secured Party to disclose to Grantor
any information relating to the business, condition (financial or
otherwise), operations, properties or prospects of the Company or any
31
other Additional Grantor now or in the future known to the Trustee or
any other Secured Party (such Additional Grantor hereby waiving any
duty on the part of the Trustee and any other Secured Party to disclose
such information); or
(i) any other circumstance (including without limitation, any statute of
limitations) or any existence of or reliance on any representation by
the Trustee or any other Secured Party that might otherwise constitute
a defense available to, or a discharge of, the Company or any
Additional Grantor or any guarantor or surety.
Notwithstanding the foregoing, nothing in this Section 26
shall be deemed to impair or modify the rights or obligations otherwise
expressly given to or agreed to by the Additional Grantor in any of the Loan
Documents.
SECTION 27. Waiver of Marshaling.
Grantor, for itself and for all Persons hereafter claiming
through or under it or who may at any time hereafter become holders of liens
junior to the liens granted under this Agreement, hereby expressly waives and
releases all rights to direct the order in which any of the Collateral shall be
sold in the event of any sale or sales pursuant hereto and to have any of the
Collateral and/or any other property now or hereafter constituting security for
any of the obligations secured hereunder marshaled upon the exercise of any
remedies under this Agreement or any other agreement granting security for the
obligations secured hereunder.
SECTION 28. Independence of Covenants.
All covenants hereunder shall be given independent effect so
that if a particular action or condition is not permitted by any of such
covenants, the fact that it would be permitted by an exception to, or be
otherwise within the limitations of, another covenant shall not avoid the
occurrence of a default if such action is taken or condition exists.
SECTION 29. Savings Clause.
It is the intention of the parties to conform strictly to the
usury laws, whether state or federal, that are applicable to the transaction of
which this Agreement is a part. All agreements between Grantor and the Trustee,
whether now existing or hereafter arising and whether oral or written, are
hereby expressly limited so that in no contingency or event whatsoever shall the
amount paid or agreed to be paid by Grantor for the use, forbearance or
detention of the money to be loaned or advanced under the Indenture, the Notes,
this Agreement or any other Transaction Document, or for the payment or
performance of any covenant or obligation contained herein or therein, exceed
the maximum amount permissible under applicable federal or state usury laws. If
under any circumstances whatsoever fulfillment of any such provision, at the
time performance of such provision shall be due, shall involve exceeding the
limit of validity prescribed by law, then the obligation to be fulfilled shall
be reduced to the limit of such validity. If under any circumstances Grantor
shall have paid an amount deemed interest by applicable law, which would exceed
the highest lawful rate, such amount that would be excessive interest under
applicable usury laws shall be applied to the reduction of the principal amount
owing in respect of the Obligations and not to the payment of interest, or if
32
such excessive interest exceeds the unpaid balance of principal and any other
amounts due hereunder, the excess shall be refunded to Grantor. All amounts paid
or agreed to be paid for the use, forbearance or detention of the principal
under any extension of credit or advancement of funds by the Trustee or any
Holder shall, to the extent permitted by law and to the extent necessary to
preclude exceeding the limit of validity prescribed by law, be amortized,
prorated, allocated and spread from the date of this Agreement until payment in
full of the Obligations so that the actual rate of interest on account of such
principal amounts is uniform throughout the term hereof.
SECTION 30. Certain Waivers by Grantor.
Grantor waives (a) any claim that, as to any part of the
Collateral, a public sale, should the Trustee elect so to proceed, is, in and of
itself, not a commercially reasonable method of sale for such Collateral, (b)
except as otherwise provided in this Agreement, to the fullest extent not
prohibited by applicable laws, notice or judicial hearing in connection with the
Trustee's disposition of any of the Collateral, including any and all prior
notice and hearing for any pre-judgment remedy or remedies, and all other
requirements as to the time, place and terms of sale or other requirements with
respect to the enforcement of the Trustee's rights hereunder, (c) all rights of
redemption, appraisal or valuation, and (d) all rights and defenses arising out
of an election of remedies by any Secured Party, even though that election of
remedies, such as a nonjudicial foreclosure with respect to security for a
guaranteed obligation, has destroyed Grantor's rights of subrogation and
reimbursement against the principal.
SECTION 31. Waiver of Jury Trial.
To the fullest extent permitted by law, the Trustee and
GRANTOR each waives any right to have a jury participate in resolving any
dispute whether sounding in contract, tort or otherwise arising out of,
connected with, related to or incidental to the relationship established between
them in connection with this Indemnity. Any such disputes shall be resolved in a
bench trial without a jury.
SECTION 32. Gaming Laws.
Notwithstanding any provision herein to the contrary, the
grant of security interest and the terms and provisions of this Agreement,
including, but not limited to, all rights and remedies of the Trustee and powers
of attorney and appointment, are expressly subject to all laws, statutes,
regulations and orders affecting limited gaming or the sale of liquor
(collectively, the "Gaming Laws"), in the State of Colorado and the State of
Nevada, which may include, but not be limited to, the necessity for the Trustee
to obtain the prior approval of the regulatory agencies enforcing the Gaming
Laws before taking any action hereunder and to be licensed by such regulatory
agencies before exercising certain rights and remedies hereunder, including but
not limited to obtaining the prior approval of the Nevada State Gaming Control
Board before any sale, transfer or other disposition of any Collateral
consisting of slot machines or other gaming devices.
33
SECTION 33. Entire Agreement.
This written agreement represents the final agreement between
the parties with respect to the subject matter hereof and may not be
contradicted by evidence of prior, contemporaneous, or subsequent oral
agreements of the parties with respect to the subject matter hereof. There are
no unwritten oral agreements among the parties with respect to the subject
matter hereof.
34
IN WITNESS WHEREOF, Grantor and the Trustee have caused this
Security Agreement to be duly executed and delivered as of the date first above
written.
GRANTOR:
RIVIERA HOLDINGS CORPORATION,
a Nevada corporation
By:
-------------------------------------------
Name:
Title:
RIVIERA OPERATING COMPANY,
a Nevada corporation
By:
--------------------------------------------
Name:
Title:
RIVIERA GAMING MANAGEMENT, INC.,
a Nevada corporation
By:
--------------------------------------------
Name:
Title:
RIVIERA GAMING MANAGEMENT OF COLORADO, INC.,
a Colorado corporation
By:
--------------------------------------------
Name:
Title:
[Signature Page to Security Agreement]
RIVIERA BLACK HAWK, INC.,
a Colorado corporation
By:
-----------------------------------------------------
Name:
Title:
TRUSTEE:
THE BANK OF NEW YORK, as Trustee
By: ____________________________________________
Name:
Title:
[Signature Page to Security Agreement]
EXHIBIT A
TO THE SECURITY AGREEMENT
LEGAL DESCRIPTION OF PROPERTIES
SEE ATTACHED PAGES
A-1
EXHIBIT B
TO THE SECURITY AGREEMENT
LIST OF SECURITIES
Percentage of
Issuer Class of Stock Certificate No. No. of Shares Outstanding Shares
------ -------------- --------------- ------------- ------------------
Riviera Common 1 1,000 100%
Operating
Corporation
Riviera Gaming Common 1 10,000 100%
Management, Inc.
Riviera Gaming Common 1 1,000 100%
Management of
Colorado, Inc.
Riviera Black Common 1 1,000 100%
B-1
EXHIBIT C
TO THE SECURITY AGREEMENT
COPYRIGHT REGISTRATIONS AND
APPLICATIONS FOR COPYRIGHT REGISTRATIONS
None.
C-1
EXHIBIT D
TO THE SECURITY AGREEMENT
PATENTS AND PATENT APPLICATIONS
None.
D-1
EXHIBIT E
TO THE SECURITY AGREEMENT
TRADEMARK AND SERVICE XXXX REGISTRATIONS AND
APPLICATIONS FOR TRADEMARK AND SERVICE XXXX REGISTRATIONS
TRADE NAME, TRADEMARK AND SERVICE XXXX LICENSES
SCHEDULE OF TRADEMARKS
U.S. Federal Trademark Applications/Registrations
Xxxx Registration (R) Registration Owner/Applicant
or Serial No. (S) or Filing Date
$40 for $20 (R)2,237,993 4/13/99 Riviera Operating Corporation
Xxxx Pots (R)2,404,697 11/14/00 Riviera Operating Corporation
Xxxx Pots (S)75,567,372 10/8/98 Riviera Operating Corporation
Pending - Intent to use
Xxxx Pots (R)2,527,890 1/8/02 Riviera Operating Corporation
Loosie Slots (R)2,392,131 10/3/00 Riviera Operating Corporation
Loosie Slots (R)2,547,701 3/12/02 Riviera Operating Corporation
Loosie Slots (R)2,527,889 1/8/02 Riviera Operating Corporation
Nickel Heaven (R)2,249,207 6/1/99 Riviera Operating Corporation
Riviera (R)2,297,193 12/7/99 Riviera Operating Corporation
E-1
Riviera (R)2,090,347 8/26/97 Riviera Operating Corporation
Riviera (logo) (R)2,389,433 9/26/00 Riviera Operating Corporation
Splash (R)1,964,935 4/2/96 Riviera Operating Corporation
Splash (stylized) (R)2,247,039 5/25/99 Riviera Operating Corporation
The Entertainment Center (R)2,190,249 9/22/98 Riviera Operating Corporation
of Las Vegas
The Star of Las Vegas (R)1,588,239 3/20/90 Owner at Publication - Riviera, Inc.
Post Registration Owner - Riviera
Holdings Corporation
Gambler's Spree (R)1,579,483 1/23/90 Owner at Publication - Riviera, Inc.
Post Registration Owner - Riviera
Holdings Corporation
Pull for the Gold (R)1,575,681 1/2/90 Owner at Publication - Riviera, Inc.
Post Registration Owner - Riviera
Holdings Corporation
Where Vegas Meets the (R)2,422,235 1/16/01 Riviera Black Hawk, Inc.
Rockies
Colorado State Trademark Registrations
Xxxx Registration (R) Registration Owner/Applicant
---- ---------------
or Serial No. (S) or Filing Date
Las Vegas in the Rockies (R)20001083562 4/25/00 Riviera Black Hawk, Inc.
E-2
Where Vegas Meets the (R)19991127308 7/6/99 Riviera Black Hawk, Inc.
Rockies
Liv at the Riv (R)20011243477 12/24/01 Riviera Black Hawk, Inc.
Nevada State Trademark Registrations
Xxxx Registration (R) Registration Owner/Applicant
---- ---------------
or Serial No. (S) or Filing Date
$40 of Slot Pay for $20 (S)29600525 11/8/95 Riviera Operating Corporation
$40 for $20 (S)29600524 11/8/95 Riviera Operating Corporation
The Alternative for (S)30500724 2/21/96 Riviera Operating Corporation
Grown-ups
Aristocrat Club 6/30/93 Riviera Operating Corporation
Bingo Fever w/ Design (S)50800646 4/5/00 Riviera Operating Corporation
Bingo Fever w/ Design (S)50800648 4/5/00 Riviera Operating Corporation
Bingo Fever w/ Design (S)50800649 4/5/00 Riviera Operating Corporation
Bingo Fever w/ Design (S)50800650 4/5/00 Riviera Operating Corporation
Bingo Fever w/ Design (S)50800647 4/5/00 Riviera Operating Corporation
Bingo Fever w/ Design (S)50800651 4/5/00 Riviera Operating Corporation
Bingo Fever w/ Design (S)50800652 4/5/00 Riviera Operating Corporation
Bonus 21 Plus (S)55300411 3/14/01 Riviera Operating Corporation
E-3
Bonus 21 Plus (S)55300412 3/14/01 Riviera Operating Corporation
Bonus 21 Plus w/ Design (S)55300413 3/14/01 Riviera Operating Corporation
Classic Las Vegas At Its (S)54900780 2/15/01 Riviera Operating Corporation
Best w/ Design
Classic Las Vegas At Its (S)54900783 2/15/01 Riviera Operating Corporation
Best w/ Design
Classic Las Vegas At Its (S)54900781 2/15/01 Riviera Operating Corporation
Best w/ Design
Classic Las Vegas At Its (S)54900784 2/15/01 Riviera Operating Corporation
Best w/ Design
Classic Las Vegas At Its (S)54900782 2/15/01 Riviera Operating Corporation
Best w/ Design
Dollar Town U.S.A. (S)30500723 2/21/96 Riviera Operating Corporation
Double Diamond Mines (S)50800673 4/13/00 Riviera Operating Corporation
Double Jackpot Junction (S)50200813 2/22/00 Riviera Operating Corporation
Fantasy Revue XXX w/ (S)54101612 12/20/00 Riviera Operating Corporation
Design
Fantasy Revue XXX w/ (S)54101613 12/20/00 Riviera Operating Corporation
Design
Fantasy Revue XXX w/ (S)54101614 12/20/00 Riviera Operating Corporation
Design
E-4
Jackpot Factory (S)50200745 2/2/00 Riviera Operating Corporation
Jackpots Galore (S)20200608 2/22/94 Riviera Operating Corporation
Loosie Slots w/Design (S)51800804 6/2/00 Riviera Operating Corporation
Loosie Slots w/Design (S)51800805 6/2/00 Riviera Operating Corporation
Lucky Duck w/Design (S)54600398 1/19/01 Riviera Operating Corporation
Lucky Duck w/Design (S)54600395 1/19/01 Riviera Operating Corporation
Lucky Duck w/Design (S)54600396 1/19/01 Riviera Operating Corporation
Lucky Duck w/Design (S)54600397 1/19/01 Riviera Operating Corporation
Lucky Duck Sweepstakes (S)54600399 1/19/01 Riviera Operating Corporation
w/Design
Lucky Duck Sweepstakes (S)54600400 1/19/01 Riviera Operating Corporation
w/Design
Lucky Duck Sweepstakes (S)54600401 1/19/01 Riviera Operating Corporation
w/Design
Lucky Duck Sweepstakes (S)54600402 1/19/01 Riviera Operating Corporation
w/Design
E-5
More Certified Fun (S)60201846 3/11/02 Riviera Operating Corporation
w/Design
More Certified Fun (S)60201847 3/11/02 Riviera Operating Corporation
w/Design
More Certified Fun (S)60201848 3/11/02 Riviera Operating Corporation
w/Design
More Fun Certified 3/11/02 Riviera Operating Corporation
(Stylized Lettering and
Design)
More Fun Certified 3/11/02 Riviera Operating Corporation
(Stylized Lettering and
Design)
More Fun Certified 3/11/02 Riviera Operating Corporation
(Stylized Lettering and
Design)
More Winners More Often (S)29600388 12/20/95 Riviera Operating Corporation
Nickel Heaven (S)40201169 2/24/98 Riviera Operating Corporation
Nickel Town (S)55300442 3/27/01 Riviera Operating Corporation
Nickel Town (S)40201160 2/23/98 Riviera Operating Corporation
Nickel Town (S)55300443 3/27/01 Riviera Operating Corporation
Nickel Town w/Design (S)55300444 3/27/01 Riviera Operating Corporation
No If's, And's, Or... (R)54101579 12/4/00 Riviera Operating Corporation
E-6
No If's, And's, Or... (S)54101581 12/4/00 Riviera Operating Corporation
Poker Paradise w/Design (S)50200833 2/17/00 Riviera Operating Corporation
R 2/21/96 Riviera Operating Corporation
Design only
Rack-N-Roll (S)58400912 10/3/01 Riviera Operating Corporation
Rack-N-Roll (S)58400913 10/3/01 Riviera Operating Corporation
Rack-N-Roll (S)58400914 10/3/01 Riviera Operating Corporation
Rack-N-Roll Players Club (S)59700159 1/11/02 Riviera Operating Corporation
Rack-N-Roll Players Club (S)59700160 1/11/02 Riviera Operating Corporation
Rack-N-Roll Players Club (S)59700161 1/11/02 Riviera Operating Corporation
Riviera w/Design (S)58400942 10/12/01 Riviera Operating Corporation
Riviera w/Design (S)58400943 10/12/01 Riviera Operating Corporation
Riviera (stylized (S)58400944 10/12/01 Riviera Operating Corporation
letters)
Riviera (stylized (S)58400945 10/12/01 Riviera Operating Corporation
letters)
Riviera Comedy Club 10/19/99 Riviera Operating Corporation
(with design)
E-7
Riviera Comedy Club Las (S)26900572 6/6/95 Riviera Operating Corporation
Vegas' Original Comedy
Showcase
Riviera Comedy Club Las (S)26900573 6/6/95 Riviera Operating Corporation
Vegas' Original Comedy
Showcase
Riviera Comedy Club Las 6/6/95 Riviera Operating Corporation
Vegas' Original Comedy
Showcase
Rooms Available, If not, 5/22/02 Riviera Operating Corporation
We'll find one for you
Rooms Available, If not, 5/22/02 Riviera Operating Corporation
We'll find one for you
Rooms Available, If not, 5/9/02 Riviera Operating Corporation
We'll find one for you
Rooms Available, If not, 5/9/02 Riviera Operating Corporation
We'll find one for you
Slot Adventure w/Design (S)51401607 5/15/00 Riviera Operating Corporation
Slot Adventure w/Design (S)51401610 5/15/00 Riviera Operating Corporation
Slot Adventure w/Design (S)51401608 5/15/00 Riviera Operating Corporation
Slot Frenzy (S)50200744 2/2/00 Riviera Operating Corporation
E-8
Smiling Stick Character (S)26900574 6/6/95 Riviera Operating Corporation
Wearing Big Glasses
(Design Only)
Smiling Stick Character (S)26900575 6/6/95 Riviera Operating Corporation
Wearing Big Glasses
(Design Only)
Spin for the Gold (S)46201074 4/16/99 Riviera Operating Corporation
$1,000,000 Slot
Tournament
Splash Gardens w/Design (R)50200832 2/17/00 Riviera Operating Corporation
Stylized Microphone (S)24101031 11/13/94 Riviera Operating Corporation
Wearing a Cap and
Sunglasses
(Design only)
Valley of Games w/Design (S)50200831 2/17/00 Riviera Operating Corporation
We're Going to Make You (S)36300525 4/1/97 Riviera Operating Corporation
Lucky
Win More Play Longer (S)53301245 10/18/00 Riviera Operating Corporation
w/Design
World's Loosest Corner (S)50200754 2/8/00 Riviera Operating Corporation
of Slots
XXXtreme Comedy w/Design (S)50800672 4/13/00 Riviera Operating Corporation
XXX Fantasy Revue (S)54101608 12/20/00 Riviera Operating Corporation
w/Design
XXX Fantasy Revue (S)54101609 12/20/00 Riviera Operating Corporation
w/Design
E-9
XXX Fantasy Revue (S)54101610 12/20/00 Riviera Operating Corporation
w/Design
You're a Guaranteed (S)52201035 7/19/00 Riviera Operating Corporation
Winner
Xxxxxxxxx'x (R)26391 6/30/93 Riviera Holdings Corporation
G and A Enterprises 6/30/93 Riviera Holdings Corporation
Gambler's Spree 5/25/89 Riviera Holdings Corporation
Gold Club (R)26395 6/30/93 Riviera Holdings Corporation
Kady's (R)26393 6/30/93 Riviera Holdings Corporation
Kristofer's (R)26394 6/30/93 Riviera Holdings Corporation
Pull for the Gold 5/25/89 Riviera Holdings Corporation
Xxx Xxxx (R)26398 6/30/93 Riviera Holdings Corporation
Xxxxxxxxxx Xxxxxxxx (X)00000 6/30/93 Riviera Holdings Corporation
Riviera Hotel and Xxxxxx (X)00000 6/30/93 Riviera Holdings Corporation
Shogun (S)01085526 1/31/90 Riviera Holdings Corporation
The Star of Las Vegas 6/8/89 Riviera Holdings Corporation
Versailles Room 6/30/93 Riviera Holdings Corporation
World's Fare Buffet (R)26397 6/30/93 Riviera Holdings Corporation
E-10
EXHIBIT F
TO THE SECURITY AGREEMENT
COPYRIGHT LICENSES
None.
PATENT LICENSES
None.
TRADE NAME, TRADEMARK AND SERVICE XXXX LICENSES
SCHEDULE OF TRADEMARKS
U.S. Federal Trademark Applications/Registrations
Xxxx Registration (R) Registration Owner/Applicant
or Serial No. (S) or Filing Date
$40 for $20 (R)2,237,993 4/13/99 Riviera Operating Corporation
Xxxx Pots (R)2,404,697 11/14/00 Riviera Operating Corporation
Xxxx Pots (S)75,567,372 10/8/98 Riviera Operating Corporation
Pending - Intent to use
Xxxx Pots (R)2,527,890 1/8/02 Riviera Operating Corporation
Loosie Slots (R)2,392,131 10/3/00 Riviera Operating Corporation
Loosie Slots (R)2,547,701 3/12/02 Riviera Operating Corporation
Loosie Slots (R)2,527,889 1/8/02 Riviera Operating Corporation
F-1
Nickel Heaven (R)2,249,207 6/1/99 Riviera Operating Corporation
Riviera (R)2,297,193 12/7/99 Riviera Operating Corporation
Riviera (R)2,090,347 8/26/97 Riviera Operating Corporation
Riviera (logo) (R)2,389,433 9/26/00 Riviera Operating Corporation
Splash (R)1,964,935 4/2/96 Riviera Operating Corporation
Splash (stylized) (R)2,247,039 5/25/99 Riviera Operating Corporation
The Entertainment Center (R)2,190,249 9/22/98 Riviera Operating Corporation
of Las Vegas
The Star of Las Vegas (R)1,588,239 3/20/90 Owner at Publication - Riviera, Inc.
Post Registration Owner - Riviera
Holdings Corporation
Gambler's Spree (R)1,579,483 1/23/90 Owner at Publication - Riviera, Inc.
Post Registration Owner - Riviera
Holdings Corporation
Pull for the Gold (R)1,575,681 1/2/90 Owner at Publication - Riviera, Inc.
Post Registration Owner - Riviera
Holdings Corporation
Where Vegas Meets the (R)2,422,235 1/16/01 Riviera Black Hawk, Inc.
Rockies
X-0
Xxxxxxxx Xxxxx Trademark Registrations
Xxxx Registration (R) Registration Owner/Applicant
---- ---------------
or Serial No. (S) or Filing Date
Las Vegas in the Rockies (R)20001083562 4/25/00 Riviera Black Hawk, Inc.
Where Vegas Meets the (R)19991127308 7/6/99 Riviera Black Hawk, Inc.
Rockies
Liv at the Riv (R)20011243477 12/24/01 Riviera Black Hawk, Inc.
Nevada State Trademark Registrations
Xxxx Registration (R) Registration Owner/Applicant
---- ---------------
or Serial No. (S) or Filing Date
$40 of Slot Pay for $20 (S)29600525 11/8/95 Riviera Operating Corporation
$40 for $20 (S)29600524 11/8/95 Riviera Operating Corporation
The Alternative for (S)30500724 2/21/96 Riviera Operating Corporation
Grown-ups
Aristocrat Club 6/30/93 Riviera Operating Corporation
Bingo Fever w/ Design (S)50800646 4/5/00 Riviera Operating Corporation
Bingo Fever w/ Design (S)50800648 4/5/00 Riviera Operating Corporation
Bingo Fever w/ Design (S)50800649 4/5/00 Riviera Operating Corporation
Bingo Fever w/ Design (S)50800650 4/5/00 Riviera Operating Corporation
Bingo Fever w/ Design (S)50800647 4/5/00 Riviera Operating Corporation
F-1
Bingo Fever w/ Design (S)50800651 4/5/00 Riviera Operating Corporation
Bingo Fever w/ Design (S)50800652 4/5/00 Riviera Operating Corporation
Bonus 21 Plus (S)55300411 3/14/01 Riviera Operating Corporation
Bonus 21 Plus (S)55300412 3/14/01 Riviera Operating Corporation
Bonus 21 Plus w/ Design (S)55300413 3/14/01 Riviera Operating Corporation
Classic Las Vegas At Its (S)54900780 2/15/01 Riviera Operating Corporation
Best w/ Design
Classic Las Vegas At Its (S)54900783 2/15/01 Riviera Operating Corporation
Best w/ Design
Classic Las Vegas At Its (S)54900781 2/15/01 Riviera Operating Corporation
Best w/ Design
Classic Las Vegas At Its (S)54900784 2/15/01 Riviera Operating Corporation
Best w/ Design
Classic Las Vegas At Its (S)54900782 2/15/01 Riviera Operating Corporation
Best w/ Design
Dollar Town U.S.A. (S)30500723 2/21/96 Riviera Operating Corporation
Double Diamond Mines (S)50800673 4/13/00 Riviera Operating Corporation
Double Jackpot Junction (S)50200813 2/22/00 Riviera Operating Corporation
F-1
Fantasy Revue XXX w/ (S)54101612 12/20/00 Riviera Operating Corporation
Design
Fantasy Revue XXX w/ (S)54101613 12/20/00 Riviera Operating Corporation
Design
Fantasy Revue XXX w/ (S)54101614 12/20/00 Riviera Operating Corporation
Design
Jackpot City (S)49400795 12/3/99 Riviera Operating Corporation
Jackpot Factory (S)50200745 2/2/00 Riviera Operating Corporation
Jackpots Galore (S)20200608 2/22/94 Riviera Operating Corporation
Loosie Slots w/Design (S)51800804 6/2/00 Riviera Operating Corporation
Loosie Slots w/Design (S)51800805 6/2/00 Riviera Operating Corporation
Lucky Duck w/Design (S)54600398 1/19/01 Riviera Operating Corporation
Lucky Duck w/Design (S)54600395 1/19/01 Riviera Operating Corporation
Lucky Duck w/Design (S)54600396 1/19/01 Riviera Operating Corporation
Lucky Duck w/Design (S)54600397 1/19/01 Riviera Operating Corporation
Lucky Duck Sweepstakes (S)54600399 1/19/01 Riviera Operating Corporation
w/Design
Lucky Duck Sweepstakes (S)54600400 1/19/01 Riviera Operating Corporation
w/Design
F-1
Lucky Duck Sweepstakes (S)54600401 1/19/01 Riviera Operating Corporation
w/Design
Lucky Duck Sweepstakes (S)54600402 1/19/01 Riviera Operating Corporation
w/Design
More Certified Fun (S)60201846 3/11/02 Riviera Operating Corporation
w/Design
More Certified Fun (S)60201847 3/11/02 Riviera Operating Corporation
w/Design
More Certified Fun (S)60201848 3/11/02 Riviera Operating Corporation
w/Design
More Fun Certified 3/11/02 Riviera Operating Corporation
(Stylized Lettering and
Design)
More Fun Certified 3/11/02 Riviera Operating Corporation
(Stylized Lettering and
Design)
More Fun Certified 3/11/02 Riviera Operating Corporation
(Stylized Lettering and
Design)
More Winners More Often (S)29600388 12/20/95 Riviera Operating Corporation
Nickel Heaven (S)40201169 2/24/98 Riviera Operating Corporation
Nickel Town (S)55300442 3/27/01 Riviera Operating Corporation
Nickel Town (S)40201160 2/23/98 Riviera Operating Corporation
F-1
Nickel Town (S)55300443 3/27/01 Riviera Operating Corporation
Nickel Town w/Design (S)55300444 3/27/01 Riviera Operating Corporation
No If's, And's, Or... (R)54101579 12/4/00 Riviera Operating Corporation
No If's, And's, Or... (S)54101581 12/4/00 Riviera Operating Corporation
Poker Paradise w/Design (S)50200833 2/17/00 Riviera Operating Corporation
R 2/21/96 Riviera Operating Corporation
Design only
Rack-N-Roll (S)58400912 10/3/01 Riviera Operating Corporation
Rack-N-Roll (S)58400913 10/3/01 Riviera Operating Corporation
Rack-N-Roll (S)58400914 10/3/01 Riviera Operating Corporation
Rack-N-Roll Players Club (S)59700159 1/11/02 Riviera Operating Corporation
Rack-N-Roll Players Club (S)59700160 1/11/02 Riviera Operating Corporation
Rack-N-Roll Players Club (S)59700161 1/11/02 Riviera Operating Corporation
Riviera w/Design (S)58400942 10/12/01 Riviera Operating Corporation
Riviera w/Design (S)58400943 10/12/01 Riviera Operating Corporation
Riviera (stylized (S)58400944 10/12/01 Riviera Operating Corporation
letters)
F-1
Riviera (stylized (S)58400945 10/12/01 Riviera Operating Corporation
letters)
Riviera Comedy Club 10/19/99 Riviera Operating Corporation
(with design)
Riviera Comedy Club Las (S)26900572 6/6/95 Riviera Operating Corporation
Vegas' Original Comedy
Showcase
Riviera Comedy Club Las (S)26900573 6/6/95 Riviera Operating Corporation
Vegas' Original Comedy
Showcase
Riviera Comedy Club Las 6/6/95 Riviera Operating Corporation
Vegas' Original Comedy
Showcase
Rooms Available, If not, 5/22/02 Riviera Operating Corporation
We'll find one for you
Rooms Available, If not, 5/22/02 Riviera Operating Corporation
We'll find one for you
Rooms Available, If not, 5/9/02 Riviera Operating Corporation
We'll find one for you
Rooms Available, If not, 5/9/02 Riviera Operating Corporation
We'll find one for you
Slot Adventure w/Design (S)51401607 5/15/00 Riviera Operating Corporation
Slot Adventure w/Design (S)51401610 5/15/00 Riviera Operating Corporation
F-1
Slot Adventure w/Design (S)51401608 5/15/00 Riviera Operating Corporation
Slot Frenzy (S)50200744 2/2/00 Riviera Operating Corporation
Smiling Stick Character (S)26900574 6/6/95 Riviera Operating Corporation
Wearing Big Glasses
(Design Only)
Smiling Stick Character (S)26900575 6/6/95 Riviera Operating Corporation
Wearing Big Glasses
(Design Only)
Spin for the Gold (S)46201074 4/16/99 Riviera Operating Corporation
$1,000,000 Slot
Tournament
Splash Gardens w/Design (R)50200832 2/17/00 Riviera Operating Corporation
Stylized Microphone (S)24101031 11/13/94 Riviera Operating Corporation
Wearing a Cap and
Sunglasses
(Design only)
Valley of Games w/Design (S)50200831 2/17/00 Riviera Operating Corporation
We're Going to Make You (S)36300525 4/1/97 Riviera Operating Corporation
Lucky
Win More Play Longer (S)53301245 10/18/00 Riviera Operating Corporation
w/Design
World's Loosest Corner (S)50200754 2/8/00 Riviera Operating Corporation
of Slots
XXXtreme Comedy w/Design (S)50800672 4/13/00 Riviera Operating Corporation
F-1
XXX Fantasy Revue (S)54101608 12/20/00 Riviera Operating Corporation
w/Design
XXX Fantasy Revue (S)54101609 12/20/00 Riviera Operating Corporation
w/Design
XXX Fantasy Revue (S)54101610 12/20/00 Riviera Operating Corporation
w/Design
You're a Guaranteed (S)52201035 7/19/00 Riviera Operating Corporation
Winner
Xxxxxxxxx'x (R)26391 6/30/93 Riviera Holdings Corporation
G and A Enterprises 6/30/93 Riviera Holdings Corporation
Gambler's Spree 5/25/89 Riviera Holdings Corporation
Gold Club (R)26395 6/30/93 Riviera Holdings Corporation
Kady's (R)26393 6/30/93 Riviera Holdings Corporation
Kristofer's (R)26394 6/30/93 Riviera Holdings Corporation
Pull for the Gold 5/25/89 Riviera Holdings Corporation
Xxx Xxxx (R)26398 6/30/93 Riviera Holdings Corporation
Xxxxxxxxxx Xxxxxxxx (X)00000 6/30/93 Riviera Holdings Corporation
Riviera Hotel and Xxxxxx (X)00000 6/30/93 Riviera Holdings Corporation
Shogun (S)01085526 1/31/90 Riviera Holdings Corporation
The Star of Las Vegas 6/8/89 Riviera Holdings Corporation
Versailles Room 6/30/93 Riviera Holdings Corporation
World's Fare Buffet (R)26397 6/30/93 Riviera Holdings Corporation
F-1
SECURITY AGREEMENT
Schedule A
Motor Vehicles and Other Equipment Subject to Certificates of Title
None
Schedule X-0
Xxxxxxxx X-0
SECURITY AGREEMENT
Schedule B
Filings
1. UCC-1 Financing Statements describing the Collateral and naming Grantor
as a debtor and the Trustee as secured party to be filed with:
(a) the Secretary of State of the State of Colorado
(b) the Secretary of State of the State of Nevada
2. With respect to the interests granted in Trademark Licenses, (a) a
notice filing with United States Patent and Trademark Office, and (b)
UCC-1 Financing Statements describing the security interest and naming
Grantor as debtor and the Trustee as secured party to be filed with (i)
the Secretary of State of the State of Colorado and (ii) the Secretary
of State of the State of Nevada.
Schedule B-1
SECURITY AGREEMENT
Schedule C
Executive Office; Collateral Location; Trade Names
Executive Office:
c/o Riviera Holdings Corporation
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Collateral Location:
-------------------
Riviera Holdings Corporation
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Riviera Black Hawk
000 Xxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxx 00000
Trade Names:
-----------
Riviera Holdings Corporation
Riviera Operating Company
Riviera Gaming Management, Inc.
Riviera Gaming Management of Colorado, Inc.
Riviera Black Hawk, Inc.
Schedule C-1
SECURITY AGREEMENT
Schedule D
Governmental Authorities Party to Contracts
Governmental Authority Other Parties Contract Date
Black Hawk Business Isle Of Capri Special Improvement July 15, 1998
Improvement District, Black Hawk LLC District No. 1997
Xxxxxx County, Colorado Special Assessment
Bonds
Schedule D-1
ANNEX I
FORM OF
AMENDMENT TO SECURITY AGREEMENT
(ADDITIONAL GRANTOR)
This Amendment to Security Agreement (Additional Grantor)
(this "Amendment"), dated as of ___________, ____, relates to the Security
Agreement dated as of June 26, 2002, as amended, modified and supplemented to
date (as so amended, supplemented or modified, the "Agreement") executed by
RIVIERA HOLDINGS CORPORATION, a Nevada corporation ("RHC"), RIVIERA OPERATING
COMPANY, a Nevada corporation ("ROC"), RIVIERA GAMING MANAGEMENT, INC., a Nevada
corporation ("RGM"), RIVIERA GAMING MANAGEMENT OF COLORADO, INC., a Colorado
corporation ("RGMC"), and RIVIERA BLACK HAWK, INC., a Colorado corporation
("RBH") (RHC, ROC, RGM, RGMC and RBH are each individually and collectively
referred to herein as "Grantor"), in favor of THE BANK OF NEW YORK, having an
office at 000 Xxxxxxx Xxxxxx, Xxxxx 0X, Xxx Xxxx, Xxx Xxxx, 00000, as trustee
(in such capacity, together with its successors and assigns, the "Trustee"),
pursuant to the Indenture referred to below. Capitalized terms used but not
otherwise defined herein shall have the meanings given in the Agreement.
In compliance with Section 4.20 of the Indenture dated as of
June ___, 2002 (as amended, supplemented or otherwise modified from time to
time, the "Indenture") between Grantor and the Trustee, [NAME OF RESTRICTED
SUBSIDIARY] ("Additional Grantor") and the Trustee hereby agree as follows:
1. Amendment. The Agreement is hereby amended to add as
a party, and more specifically, as a Grantor thereunder, Additional Grantor.
2. Representations and Warranties. Additional Grantor
represents and warrants to the Trustee and each other Secured Party that each of
the representations and warranties of Grantor contained in the Agreement is
hereby made by Additional Grantor on and as of the date hereof and is true and
correct as to Additional Grantor.
3. Grant of Security Interest. Additional Grantor hereby
grants, pledges, assigns and transfers to the Trustee, for the Trustee's
individual benefit and the ratable benefit of the Holders, as security for the
prompt and complete payment and performance when due (whether at stated
maturity, upon redemption or required repurchase, by acceleration or otherwise)
of all the Obligations of Additional Grantor, a continuing first priority
perfected security interest (subject to Permitted Liens) in and lien on all of
the right, title and interest of Additional Grantor in, to and under all types
and items of property of Additional Grantor within the definition of Collateral
(as defined in the Agreement), in each case wherever located, whether now owned
or at any time hereafter acquired by Additional Grantor, whether now existing or
hereafter coming into existence, or in which Additional Grantor now has or at
any time in the future may acquire any right, title or interest.
Annex I-1
4. Schedule Supplements. Additional Grantor has attached
hereto supplements to Schedules A through D to the Agreement, and Additional
Grantor hereby represents and warrants that such supplements have been prepared
by Additional Grantor in substantially the form of the Schedules to the
Agreement and are true, accurate and complete as of the date first above
written.
5. Assumption of Rights, Obligations and Liabilities.
Additional Grantor assumes all of the rights, obligations and liabilities of a
Grantor under the Agreement and agrees to be bound thereby as if Additional
Grantor were an original party to the Agreement. Without limiting the generality
of the foregoing, Additional Grantor waives notice of the creation, advance,
increase, existence, extension, or renewal of, or of any indulgence with respect
to, the Obligations; waives presentment, demand, notice of dishonor, and
protest; waives notice of the amount of the Obligations outstanding at any time,
notice of any change in financial condition of Grantor, notice of any default or
Event of Default, and all other notices respecting the Obligations (except for
any such notices that are required to be given to Additional Grantor pursuant to
the other provisions of this Agreement or the provisions of the Notes, the
Indenture or any other Transaction Document); and agrees that maturity of the
Obligations and any part thereof may be accelerated, extended, or renewed one or
more times by the Holders, in its or their discretion, without notice to
Additional Grantor.
6. Effectiveness. This Amendment shall become effective
on the date hereof upon the execution hereof by Additional Grantor and the
Trustee and delivery hereof to the Trustee.
7. GOVERNING LAW. THIS AMENDMENT AND ANY CLAIMS OR DISPUTES
RELATING THERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAW) WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT
LAWS THEREOF, EXCEPT TO THE EXTENT THAT THE PERFECTION AND ENFORCEMENT OF THE
SECURITY INTERESTS HEREUNDER IN RESPECT OF ANY PARTICULAR COLLATERAL ARE
GOVERNED BY THE LAWS OF ANOTHER JURISDICTION.
Annex I-2
IN WITNESS WHEREOF, Additional Grantor and the Trustee have
caused this Amendment to Security Agreement (Additional Grantor) to be duly
executed and delivered as of the date first written above.
[ADDITIONAL GRANTOR]
By:
-----------------------------------------------
Name:
Title:
Address for Notice:
Attn:
----------------------------------------------
Telephone:
-----------------------------------------
Telecopy:
------------------------------------------
THE BANK OF NEW YORK, as Trustee
By:
-----------------------------------------------
Name:
Title:
Annex I-3
