EXHIBIT 4.11
INTERCOMPANY SECURITY AGREEMENT
-------------------------------
(Accounts, Inventory, Equipment, Chattel Paper, Documents,
Instruments, General Intangibles and Other Property)
Made by
HWCC-TUNICA, INC.,
as Debtor
to
HOLLYWOOD CASINO CORPORATION,
as Secured Party
and Collaterally Assigned by
Hollywood Casino Corporation
to
STATE STREET BANK AND TRUST COMPANY,
as Trustee
Acting on behalf of the Holders of the Senior Secured Notes
May 19, 1999
INTERCOMPANY SECURITY AGREEMENT
-------------------------------
Accounts, Inventory, Equipment, Chattel Paper, Documents,
Instruments, General Intangibles and Other Property
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THIS INTERCOMPANY SECURITY AGREEMENT (this "Agreement") is made as of May
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19, 1999, by HWCC-Tunica, Inc., a Texas corporation with its chief executive
office at Two Galleria Tower, Suite 2200, 00000 Xxxx Xxxx, XX 00, Xxxxxx, Xxxxx
00000 ("Debtor"); in favor of Hollywood Casino Corporation (the "Secured
------ -------
Party"). The Secured Party has collaterally assigned its interest hereunder to
State Street Bank and Trust Company, as Trustee (the "Trustee"), to secure,
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among other things, the Senior Secured Notes (as such term is hereinafter
defined) pursuant to a Security Agreement of even date herewith between the
Secured Party and the Trustee (the "HWCC Security Agreement").
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RECITALS
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A. Of even date herewith, Debtor has executed a certain amended and
restated promissory note payable to the order of Hollywood Casino Corporation, a
Delaware corporation (the "Borrower"), in the original principal amount of
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$87,045,000 (as the same may be amended, supplemented, restated or otherwise
modified from time to time, being hereinafter referred to as the "Note").
----
B. The Borrower, Debtor, HWCC-Shreveport, Inc. and State Street Bank and
Trust Company, as Trustee, have entered into an Indenture dated as of May 19,
1999 (as the same may be amended, supplemented, restated or otherwise modified
from time to time, the "Indenture"), pursuant to which the Borrower will issue
---------
up to (i) $310,000,000 of its 11 1/4% Series A and Series B Senior Secured Notes
due 2007 and (ii) $50,000,000 of its Floating Rate Series A and Series B Senior
Secured Notes due 2006 (as the same may be amended, supplemented, restated,
exchanged, replaced or otherwise modified from time to time, collectively, the
"Senior Secured Notes"). Debtor is an affiliate of Borrower and as such will
---------------------
derive direct and indirect benefits from the issuance of the Senior Secured
Notes pursuant to the Indenture.
C. It is a condition precedent to the purchase of the Senior Secured
Notes under the Indenture that Debtor shall have executed and delivered this
Agreement.
D. Therefore, in order to comply with the terms and conditions of the
Indenture and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Debtor hereby agrees with Secured
Party as follows:
ARTICLE 1.
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SECURITY INTEREST
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Section 1.01. Grant of Security Interest.
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Debtor hereby assigns, endorses, delivers, pledges and grants to Secured
Party a continuing security interest in, Lien upon, and right of set-off against
the assets referred to in Section 1.02 hereof (the "Collateral") to secure the
prompt and complete payment and performance of the Obligations (as defined in
Section 2.02 hereof) and the performance by Debtor of this Agreement.
Section 1.02. Collateral
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. The Collateral consists of the following types or items of property
(including property hereafter acquired by Debtor as well as property which
Debtor now owns or in which Debtor has rights), but subject to the exceptions
and provisos as set forth herein:
(a) All of Debtor's accounts, equipment, chattel paper, documents,
instruments, general intangibles and personal property, including, without
limitation, any of the foregoing which may be more specifically indicated
in the remainder of this Section 1.02 and including all of the Debtor's
vessel The Hollywood-Tunica, Official No. 534006 (the "Vessel"), duly
documented in the name of the Debtor under the laws of the United States,
whether or not such Vessel is a vessel within the meaning of 46 U.S.C. (S)
31322(a), and all rights of Debtor therein, including all equipment, parts
and accessories, including, but not limited to, all of its boilers,
engines, generators, air compressors,
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machinery, masts, spars, sails, riggings, boats, anchors, cables, chains,
tackle, tools, pumps and pumping equipment, motors, apparel, furniture,
computer equipment, electronic equipment used in connection with the
operation of the Vessel and belonging to the Vessel, all machinery,
equipment, engines, appliances and fixtures for generating or distributing
air, water, heat, electricity, light, fuel or refrigeration, or for
ventilating or sanitary purposes, fittings and equipment, supplies, spare
parts, fuel, and all other appurtenances thereunto appertaining or
belonging, whether now owned or hereafter acquired, whether or not on board
said Vessel, and all extensions, additions, accessions, improvements,
renewals, substitutions, and replacements hereafter made in or to said
Vessel or any part thereof, or in or to any said appurtenances;
(b) All of Debtor's inventory in all of its forms, wherever located,
now or hereafter existing (including, but not limited to, (i) all food
services products including beef, chicken, veal, pork, fish, eggs, dairy
products, salads, soups, herbs, condiments, canned foods, dried foods,
coffee, tea, jams, flour, sugar, canned and bottled sodas, confectioneries
and liquor inventory and raw materials and work in process therefor,
finished goods thereof and materials used or consumed in the manufacture or
production thereof, (ii) goods in which Debtor has an interest in mass or
in joint or other interest or right of any kind (including without
limitation, goods in which Debtor has an interest or right as consignee),
and all accessions thereto and products thereof and documents therefor, and
(iii) all motion picture memorabilia);
(c) All contracts of Debtor, including, without limitation, the
contracts described or referred to in Exhibit A attached hereto and made a
---------
part hereto and each contract in which Debtor may hereafter become a party,
in each case as such agreements may be amended or otherwise modified from
time to time, including, without limitation, (i) all rights of Debtor to
receive moneys due and to become due under or pursuant to the contracts,
(ii) all rights of Debtor to receive proceeds of any insurance, indemnity,
warranty or guaranty with respect to the contracts, (iii) claims of Debtor
for damages arising out of or for breach of or default under the contracts,
(iv) the right of Debtor to terminate the contracts, to perform thereunder
and to compel performance and to otherwise exercise all remedies thereunder
and (v) all proceeds of the foregoing Collateral;
(d) All of Debtor's general intangibles of any kind whether now
existing or hereafter arising; all chattel papers, documents and
instruments relating to such general intangibles; and all rights now or
hereafter existing in and to all security agreements, leases (excluding
real property leases), and other contracts securing or otherwise relating
to any such general intangibles or any such chattel papers, documents and
instruments. The Debtor's general intangibles that are the subject of this
Agreement and are included as part of the Collateral covered by this
Agreement include, without limitation, the following intangible personal
property in which the Debtor presently or in the future will own any right,
title or interest (to the extent that the granting of this security
interest does not violate a valid and enforceable restriction on such grant
created in the agreement by which the Debtor acquired its right, title or
interest from the prior owner or from the lessor or licensor thereof): (i)
any and all trade secrets, ideas, information, procedures, processes,
systems, methods of operation, concepts, principles or discoveries, whether
or not patentable, and all of the intellectual property rights therein
provided by State or federal laws of the United States, such as the right
of first publication and, if applicable,
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the right to file applications for United States patent protection on the
preferred embodiments thereof; (ii) any and all applications for United
States patents and issued United States patents; (iii) any and all names,
tradenames, trademarks or service marks and the goodwill of the Debtor's
business, goods or services represented by such names and marks, and all
applications to register such names or marks on State registrars or with
the United States Patent and Trademark Office and all issued State or
United States registrations thereon, including, without limitation, those
listed on Exhibit B attached hereto and made a part hereof; (iv) all
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expressions embodied in a tangible medium that are the subject matter of
copyright and the intangible rights of copyright therein, including,
without limitation, both nonregistered copyrighted works and registered
copyrighted works; (v) all rights arising out of licenses (in cases where
Debtor is the licensee) to use patents, trademarks, copyrights, trade
secrets and other intellectual property rights; (vi) all rights and
proceeds arising out of licenses (in cases where Debtor is the licensor) to
use Debtor's United States patents, trademarks, copyrights, trade secrets
and other intellectual property; and (vii) in all cases, the rights to
prosecute such intellectual property rights referred to in this subsection
1.02(d), and to recover the proceeds of past, present and future
infringement of such rights by third parties; provided, however, that the
Debtor shall at all times have the right in the conduct of its business to
make and carry out decisions that affect such intangible personal property
and the intellectual property rights therein, such as, the Debtor shall
have the right to exercise the right of first publication with respect to
its ideas, information, procedures, processes, systems, methods of
operation, concepts, principles or discoveries; to determine whether
applications for patent protection will be filed or abandoned on the
preferred embodiments thereof; to determine which terms shall be used as
names and marks for its business, goods or services, when the use of such
terms will be discontinued, and the efforts, if any, that will be made to
register such terms and to maintain or, in its discretion, to abandon such
registrations or applications therefor; to determine if and when
copyrighted works will be registered; to determine whether aspects of such
intellectual property will be sold, assigned, or licensed to others in
connection with operation of the Debtor's business; and to determine the
actions that will be taken to maintain and prosecute the Debtor's
intellectual property rights in such intangible personal property;
(e) (i) Any related or additional property from time to time delivered
to or deposited with Secured Party by or for the account of Debtor; (ii)
all certificates of title or other documents evidencing ownership or
possession of or otherwise relating to any property referred to in this
Section 1.02; (iii) all property used or usable in connection with any
property referred to in this Section 1.02; (iv) all goods which were at any
time included in the Collateral and which are returned to or for the
account of Debtor following their sale, lease or other disposition; (v) all
proceeds, products, replacements, additions to, substitutions for,
accessions to, and property necessary for the operation of any of the
property referred to in this Section 1.02, including, without limitation,
insurance payable as a result of loss or damage to any of the property
referred to in this Section 1.02, refunds of unearned premiums of any such
insurance policy and claims against third parties; and (vi) all books and
records related to any of the property referred to in this Section 1.02,
including, without limitation, any and all books of account, customer lists
and other records relating in any way to the accounts, chattel paper,
instruments or inventory referred to in this Section 1.02;
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(f) All general intangibles related to any property referred to in
this Section 1.02, including, without limitation, all (i) letters of
credit, bonds, guaranties, purchase or sales agreements and other
contractual rights, rights to performance, and claims for damages, refunds
(including tax refunds, but only to the extent such refunds are assignable
under 31 U.S.C. (S) 3727) or other monies due or to become due; (ii)
orders, franchises, permits, certificates, licenses, consents, exemptions,
variances, authorizations or other approvals by any governmental agency or
court, to the extent but only to the extent permitted by applicable law to
be pledged and assigned and to the extent but only to the extent that the
perfection of the security interests therein may be obtained by the filing
of a financing statement pursuant to the applicable provisions of the Code;
(iii) books, business records, data bases, computer tapes and computer
software; (iv) goodwill; and (v) other intangible personal property,
whether similar or dissimilar to the property referred to in this Section
1.02;
provided that, the Collateral described in this Section 1.02 shall not
include (i) tort claims, (ii) rights represented by judgments, and (iii) any of
the foregoing property that is, pursuant to restrictions enforceable under
applicable law, prohibited from being pledged as security; provided that, with
respect to this clause (iii), upon the termination of such prohibitions for any
reason whatsoever or in the event such prohibitions are or become unenforceable
under applicable law, such foregoing property shall automatically be Collateral
hereunder. Notwithstanding the foregoing, so long as no Event of Default shall
have occurred and be continuing, all dividends, distributions, interest and
principal payments, cash, instruments, and other property and proceeds made upon
or with respect to or of the Collateral shall not constitute Collateral and may
be used by the Debtor subject to the terms and conditions of the Indenture. Upon
the occurrence and during the continuance of an Event of Default, all rights of
the Debtor to receive all such dividends, distributions, interest and principal
payments, cash, instruments and other property and proceeds shall cease, and
such dividends, distributions, interest and principal payments, cash,
instruments and other property and proceeds shall constitute Collateral, and
shall be paid or otherwise delivered to the Secured Party or the Trustee. It is
expressly contemplated that additional property may from time to time be
pledged, assigned or granted to Secured Party as additional security for the
Obligations, and the term "Collateral" as used herein shall be deemed for all
purposes hereof to include all such additional property, together with all other
property of the types described above related thereto.
Section 1.03. Second Priority Security Interest
---------------------------------
. Of even date herewith, the Debtor is executing a certain Security
Agreement (the "First Priority Security Agreement") in favor of State Street
Bank and Trust Company, as Trustee and Secured Party, to secure, among other
things, the indebtedness outstanding under the Indenture and the Senior Secured
Notes. The liens evidenced by this Agreement shall be inferior and subordinate
to the liens and security interests granted by Debtor pursuant to the provisions
of the First Priority Security Agreement, which liens and security interests
shall be first priority (subject to Permitted Encumbrances).
ARTICLE 2.
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DEFINITIONS
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Section 2.01. Terms Defined Above or in the Indenture
---------------------------------------
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. As used in this Agreement, the terms defined above shall have the
meanings respectively assigned to them. Other capitalized terms which are
defined in the Indenture but which are not defined herein shall have the same
meanings as defined in the Indenture.
Section 2.02. Certain Definitions
-------------------
. As used in this Agreement, the following terms shall have the following
meanings, unless the context otherwise requires:
"Accounts" means all accounts, chattel paper and instruments (as such terms
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are defined in the Code) at any time included in the Collateral.
"Account Debtor" means any Person liable (whether directly or indirectly
--------------
primarily or secondarily) for the payment or performance of any obligations
included in the Collateral, whether as an account debtor (as defined in the
Code), obligor on an instrument, issuer of documents or securities, guarantor or
otherwise.
"Agreement" means this Security Agreement, as the same may from time to
---------
time be amended or supplemented.
"Code" means the Uniform Commercial Code as presently in effect in the
----
State of New York; provided that, if by reason of mandatory provisions of law,
the perfection or the effect of perfection or non-perfection of the security
interests in any Collateral is governed by the Uniform Commercial Code as in
effect in any jurisdiction other than the State of New York, "Code" means the
Uniform Commercial Code as in effect in such other jurisdiction for purposes of
the provisions hereof relating to such perfection or the effect of perfection or
non-perfection. Unless otherwise indicated by the context herein, all
uncapitalized terms which are defined in the Code shall have their respective
meanings as used in Article 9 of the Code.
"Event of Default" means any event specified in Section 6.01.
----------------
"Inventory" means all inventory (as defined in the Code) at any time
---------
included in the Collateral, including, without limitation, motion picture
memorabilia.
"Obligations" means (i) the payment when due of indebtedness evidenced by
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the Note, which is in the principal sum not to exceed at any time outstanding of
$87,045,000 interest (including post-petition interest) as set forth in the
Note, and premiums, penalties, and late charges thereon; (ii) all other
indebtedness and other sums (including, without limitation, all expenses,
attorneys' fees, other fees, indemnifications, reimbursements, damages, other
monetary liabilities, and other charges) that may or shall become due hereunder
or under the Note or the other documents executed as security for or in
connection with the Note; and (iii) any and all renewals, modifications,
amendments, extensions for any period, supplements or restatements of any of the
foregoing.
"Obligor" means any Person, other than Debtor, liable (whether directly or
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indirectly, primarily or secondarily) for the payment or performance of any of
the Obligations whether as maker, co-maker, endorser, guarantor, accommodation
party, general partner or otherwise.
"Permitted Encumbrances" means the items set forth on Exhibit D hereto.
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ARTICLE 3.
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REPRESENTATIONS AND WARRANTIES
------------------------------
In order to induce Secured Party to accept this Agreement, Debtor
represents and warrants to Secured Party (which representations and warranties
will survive the creation and payment of the Obligations) that:
Section 3.01. Ownership of Collateral; Absence of Encumbrances and
----------------------------------------------------
Restrictions
------------
. After giving effect to the use of the proceeds of the Senior Secured
Notes, Debtor is, and in the case of property acquired after the date hereof,
will be, the sole legal and beneficial owner of the Collateral holding good and
indefeasible title to the same, free and clear of all Liens except for the
Permitted Encumbrances and Debtor has full right, power and authority to assign
and grant a security interest in the Collateral to Secured Party.
Section 3.02. No Required Consent
-------------------
. Except for such authorizations, consents or approvals previously
obtained and in effect, no authorization, consent, approval or other action by,
and no notice to or filing with, any governmental authority or regulatory body
(other than the filing of financing statements and the other documents required
to perfect or maintain the perfection of the Liens granted hereby) is required
for (i) the due execution, delivery and performance by Debtor of this Agreement,
(ii) the grant by Debtor of the security interest granted by this Agreement,
(iii) the perfection of such security interest or (iv) the exercise by Secured
Party of its rights and remedies under this Agreement, except as may be required
by applicable gaming laws or in connection with the disposition of Collateral or
by federal or state securities laws or antitrust laws.
Section 3.03. Security Interest
-----------------
. After giving effect to the use of proceeds of the Senior Secured Notes,
the grant of the security interest in and Lien on the Collateral pursuant to
this Agreement creates a valid and continuing security interest in and Lien on
the Collateral, enforceable against Debtor, and, upon the filing of financing
statements in the appropriate office for the locations of the Collateral listed
on Exhibit C hereof, the security interests granted hereby will be perfected,
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prior to all other Liens except Permitted Encumbrances, enforceable against
third parties and securing payment of the Obligations.
Section 3.04. No Filings By Third Parties
---------------------------
. After giving effect to the use of proceeds of the Senior Secured Notes,
and other than any financing statement or other public notice or recording
naming Secured Party as the secured party therein or financing statements with
respect to Liens permitted hereunder, no financing statement or other public
notice or recording covering the Collateral is on file in any public office and
Debtor has not signed any document or agreement authorizing the filing of any
such financing statement or other public notice or recording so long as any of
the Obligations are outstanding.
Section 3.05. No Name Changes
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. The name of the Debtor set forth on Exhibit C hereto is the true and
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correct legal name of the Debtor, and, except as described on Exhibit C hereto,
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Debtor has not, during the preceding five (5) years, entered into any contract,
agreement, security instrument or other document using a name other than, or
been known by or otherwise used any name other than, the name used by Debtor
herein.
Section 3.06. Location of Debtor and Collateral
---------------------------------
. Debtor's chief executive office, principal place of business and the
locations of Debtor's records concerning the Collateral are set forth on Exhibit
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C hereto. Any Collateral not at such location(s) nevertheless remains subject
-
to Secured Party's security interest. Except as disclosed on Exhibit C hereto,
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all tangible Collateral of Debtor are located at the locations set forth on
Exhibit C hereto.
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Section 3.07. Collateral
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. All statements or other information provided by Debtor to Secured Party
describing or with respect to the Collateral is (or, in the case of subsequently
furnished information, will be when provided) correct and complete in all
material respects. The delivery at any time by Debtor to Secured Party of
additional descriptions of Collateral shall constitute a representation and
warranty by Debtor to Secured Party hereunder that the representations and
warranties of this Article 3 are correct insofar as they would pertain to such
Collateral or the descriptions thereof, except as indicated therein.
Section 3.08. Delivery of Documents
---------------------
. With respect to any Collateral covered by one or more certificates of
title or other documents of title evidencing ownership or possession thereof,
each of such certificates or documents of title shall, after the occurrence and
during the continuance of an Event of Default and upon the request of the
Secured Party or the Trustee, be delivered to Secured Party or the Trustee
(provided that all certificates of title and documents of title referred to in
Section 1.02 shall be subject to the security interest created by this Agreement
irrespective of whether or not such delivery shall have been made).
ARTICLE 4.
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COVENANTS AND AGREEMENTS
------------------------
Debtor will at all times comply with the covenants and agreements contained
in this Article 4, from the date hereof and for so long as any part of the
Obligations are outstanding.
Section 4.01. Change in Location of Collateral or Debtor
------------------------------------------
. Except with respect to Collateral under repair or temporarily in transit
between locations (and in any such case, for a period not to exceed four (4)
months), Debtor will not change the location of the Collateral (except for (a)
Collateral held by the Secured Party or the Trustee, (b) motor vehicles and
rolling stock, and (c) Collateral temporarily in transit between locations) to
any state, county or other jurisdiction in which Secured Party has not already
filed a financing statement or taken other necessary steps to perfect or
maintain its security interests in the Collateral without Secured Party's prior
written consent and the delivery of such new financing statements or other
documentation as may be reasonably necessary or required by
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Secured Party to ensure the continued perfection and priority of its security
interest in the Collateral. Debtor will not change the location of Debtor's
chief executive office, principal place of business or the locations of Debtor's
records concerning the Collateral unless Debtor shall have given Secured Party
at least thirty (30) days prior written notice thereof and shall have delivered
to Secured Party such new financing statements or other documentation as may be
reasonably necessary or required by Secured Party to ensure the continued
perfection and priority of its security interest in the Collateral.
Section 4.02. Change in Debtor's Name or Corporate Structure
----------------------------------------------
. Debtor will not change its name, identity or corporate structure
(including, without limitation, any merger, consolidation or sale of
substantially all of its assets) unless Debtor shall have given Secured Party at
least thirty (30) days prior written notice thereof and shall have delivered to
Secured Party such new financing statements or other documentation as may be
reasonably necessary or required by Secured Party to ensure the continued
perfection and priority of its security interest on the Collateral.
Section 4.03. Documents; Collateral in Possession of Third Parties
----------------------------------------------------
. If certificates of title or other documents evidencing ownership or
possession of the Collateral are issued or outstanding, Debtor will, after the
occurrence and during the continuance of an Event of Default and upon the
request of the Secured Party, cause the interest of Secured Party to be properly
noted thereon and will, forthwith upon receipt, deliver same to Secured Party.
If any material portion of the Collateral is at any time in the possession or
control of any warehouseman, bailee, agent or independent contractor, Debtor
shall notify such Person of Secured Party's security interest in such
Collateral. Upon Secured Party's request, Debtor shall instruct any such Person
to hold all such Collateral for Secured Party's account subject to Debtor's
instructions, or, if an Event of Default shall have occurred, subject to Secured
Party's instructions.
Section 4.04. Delivery of Letters of Credit and Instruments
---------------------------------------------
. After the occurrence and during the continuance of an Event of Default
and upon the request of the Secured Party, Debtor will deliver each letter of
credit, if any, included in the Collateral to Secured Party, in each case
forthwith upon receipt by or for the account of Debtor. After the occurrence and
during the continuance of an Event of Default and upon the request of the
Secured Party, if any Account becomes evidenced by a promissory note, trade
acceptance or any other instrument for the payment of money (other than checks
or drafts in payment of Accounts collected by Debtor in the ordinary course of
business prior to notification by Secured Party under Section 6.02(h)), Debtor
will immediately deliver such instrument to Secured Party appropriately endorsed
and, regardless of the form of presentment, demand, notice of dishonor, protest
and notice of protest with respect thereto, Debtor will remain liable thereon
until such instrument is paid in full.
Section 4.05. Sale, Disposition or Encumbrance of Collateral
----------------------------------------------
. Except as permitted pursuant to the provisions of the Indenture and by
Section 4.09 of this Agreement or with Secured Party's prior written consent,
Debtor will not in any way encumber any of the Collateral (or permit or suffer
any of the Collateral to be encumbered) or
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sell, assign, lend, rent, lease or otherwise dispose of or transfer any of the
Collateral to or in favor of any Person other than Secured Party.
Section 4.06. Records and Information
-----------------------
. Debtor shall keep accurate and complete records of the Collateral
(including proceeds). Secured Party may at any time upon reasonable prior notice
have access during normal business hours to examine, audit, make extracts from
and inspect without hindrance or delay Debtor's records, files and the
Collateral. Debtor will promptly provide written notice to Secured Party of all
information which in any way relates to or affects the filing of any financing
statement or other public notices or recordings, or the delivery and possession
of items of Collateral, for the purpose of perfecting a security interest in the
Collateral. Debtor will also promptly furnish such information as Secured Party
may from time to time reasonably request regarding the Collateral or Secured
Party's rights or remedies with respect thereto.
Section 4.07. Reimbursement of Expenses
-------------------------
. Debtor hereby assumes all liability for the Collateral, the security
interests created hereunder and any use, possession, maintenance, management,
enforcement or collection of any or all of the Collateral. Debtor agrees to
indemnify and hold Secured Party harmless from and against and covenants to
defend Secured Party against any and all losses, damages, claims, costs,
penalties, liabilities and expenses, including, without limitation, court costs
and reasonable attorneys' fees, incurred because of, incident to, or with
respect to the Collateral (including, without limitation, any use, possession,
maintenance or management thereof, or any injuries to or deaths of persons or
damage to property, except to the extent caused by the gross negligence or
willful misconduct of the Secured Party). All amounts for which Debtor is liable
pursuant to this Section 4.07 shall be due and payable by Debtor to Secured
Party upon demand. If Debtor fails to make such payment upon demand (or if
demand is not made due to an injunction or stay arising from bankruptcy or other
proceedings) and Secured Party pays such amount, the same shall be due and
payable by Debtor to Secured Party, plus interest thereon from the date of
Secured Party's demand (or from the date of Secured Party's payment if demand is
not made due to such proceedings) at the interest rate applicable to overdue
principal as provided in the Note.
Section 4.08. Further Assurances
------------------
. Upon the request of Secured Party, Debtor shall (at Debtor's expense)
execute and deliver all such assignments, certificates, financing statements or
other documents and give further assurances and do all other acts and things as
Secured Party may reasonably request to perfect Secured Party's interest in the
Collateral or to protect, enforce or otherwise effect Secured Party's rights and
remedies hereunder.
Section 4.09. Inventory
---------
. Debtor may use the Inventory in any lawful manner not inconsistent with
this Agreement and the Indenture and with the terms of insurance thereon.
Section 4.10. Use of Collateral
-----------------
. Debtor will not use any Collateral in violation in any material respect
of any law, statute, ordinance, regulation or administrative order, or suffer it
to be so used.
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Section 4.11. Collateral Attached to Other Property
-------------------------------------
. In the event that the Collateral is to be attached or affixed to any
real property, Debtor hereby agrees that this Agreement may be filed for record
in any appropriate real estate records as a financing statement which is a
fixture filing. In connection therewith, Debtor will take whatever action is
required by Section 4.08. If Debtor is not the record owner of such real
property, Debtor will provide Secured Party with any additional security
agreements or financing statements necessary for the perfection of Secured
Party's security interest in the Collateral. If the Collateral is wholly or
partly affixed to real estate or installed in or affixed to other goods, Debtor
will, on demand of Secured Party, use its commercially reasonable efforts to
furnish Secured Party with landlord's waivers, signed by all Persons or entities
having an interest in the real estate or other goods to which the Collateral may
have become affixed, permitting the Secured Party or the Trustee to have access
to the Collateral at all reasonable times and granting the Secured Party or the
Trustee a reasonable period of time in which to remove the Collateral after an
Event of Default.
ARTICLE 5.
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RIGHTS, DUTIES AND POWERS OF SECURED PARTY
------------------------------------------
Secured Party shall have the following rights, duties and powers:
Section 5.01. Discharge Encumbrances
----------------------
. After the occurrence and during the continuance of an Event of Default,
Secured Party may, at its option, discharge any taxes, Liens, security interests
or other encumbrances at any time levied or placed on the Collateral, and may
pay for insurance on the Collateral to the extent required by this Agreement or
the Indenture and not obtained by Debtor. Debtor agrees to reimburse Secured
Party upon demand for any payment so made, plus interest thereon from the date
of Secured Party's demand at the interest rate applicable to overdue principal
as provided in the Note.
Section 5.02. Licenses and Rights to Use Collateral
-------------------------------------
. After the occurrence and during the continuance of an Event of Default,
in connection with any transfer or sale (to Secured Party or any other Person)
of the Collateral, Secured Party is hereby granted a transferable license or
other right to use, without any charge, any of Debtor's labels, patents,
copyrights, tradenames, trade secrets, trademarks or other similar property in
completing production, advertising or selling such Collateral except any of the
foregoing property which is expressly prohibited by its terms from being
assigned or licensed. After the occurrence and during the continuance of an
Event of Default, Debtor's rights under all licenses and franchise agreements
shall inure to the benefit of Secured Party and any transferee of all or any
part of the Collateral.
Section 5.03. Cumulative and Other Rights
---------------------------
. The rights, powers and remedies of Secured Party hereunder are in
addition to all rights, powers and remedies given by law or in equity. The
exercise by Secured Party of any one or more of the rights, powers and remedies
herein shall not be construed as a waiver of any other rights, powers and
remedies, including, without limitation, any other rights of set-off (which
11
set-off rights may be exercised only after the occurrence and during the
continuance of an Event of Default). If any of the Obligations are given in
renewal, extension for any period or rearrangement, or applied toward the
payment of debt secured by any Lien, Secured Party shall be, and is hereby,
subrogated to all the rights, titles, interests and liens securing the debt so
renewed, extended, rearranged or paid.
Section 5.04. Disclaimer of Certain Duties.
----------------------------
(a) The powers conferred upon Secured Party by this Agreement
are to protect its interest in the Collateral and shall not impose any duty
upon Secured Party to exercise any such powers. Debtor hereby agrees that
Secured Party shall not be liable for, nor shall the indebtedness evidenced
by the Obligations be diminished by, Secured Party's delay or failure to
collect upon, foreclose, sell, take possession of or otherwise obtain value
for the Collateral. Nothing herein shall affect any obligation of Secured
Party to the Holders under the Indenture or under applicable law.
(b) Except as may be required by the Indenture, and to the
fullest extent permitted by applicable law, Secured Party shall be under no
duty whatsoever to make or give any presentment, notice of dishonor,
protest, demand for performance, notice of non-performance, notice of
intent to accelerate, notice of acceleration, or other notice or demand in
connection with any Collateral or the Obligations, or to take any steps
reasonably necessary to preserve any rights against any Obligor, Account
Debtor or other Person. Debtor waives any right of marshaling in respect of
any and all Collateral, and waives any right to require Secured Party to
proceed against any Obligor, Account Debtor or other Person, exhaust any
Collateral or enforce any other remedy which Secured Party now has or may
hereafter have against any Obligor or other Person.
Section 5.05. Modification of Obligations: Other Security
--------------------------------------------
. Except as specifically provided for in the Indenture, Debtor waives (i)
any and all notice of acceptance, creation, modification, rearrangement, renewal
or extension for any period of any instrument executed by any Obligor in
connection with the Obligations and (ii) any defense of any Obligor by reason of
disability, lack of authorization, cessation of the liability of any Obligor or
for any other reason. Debtor authorizes Secured Party, without notice or demand
and without any reservation of rights against Debtor and without affecting
Debtor's liability hereunder or on the Obligations, from time to time to (x)
after the occurrence and during the continuance of an Event of Default and after
the acceleration of the Senior Secured Notes, apply the Collateral in the manner
permitted by this Agreement or the Indenture and (y) after the occurrence and
during the continuance of an Event of Default and after the acceleration of the
Senior Secured Notes, renew, extend for any period, accelerate, amend or modify,
supplement, enforce, compromise, settle, waive or release the obligations of any
Obligor or any instrument or agreement of such other Person with respect to any
or all of the Obligations or Collateral.
ARTICLE 6.
----------
EVENTS OF DEFAULT
-----------------
Section 6.01. Events
------
12
. It shall constitute an Event of Default under this Agreement if an Event
of Default occurs and is continuing under the Indenture.
Section 6.02. Remedies
--------
. Upon the occurrence and during the continuance of any Event of Default,
Secured Party may take any or all of the following actions without notice
(except where expressly required below or in the Indenture) or demand to Debtor:
(a) Declare all or part of the indebtedness pursuant to the
Obligations immediately due and payable and enforce payment of the same by
Debtor or any Obligor.
(b) Take possession of the Collateral, or at Secured Party's request
Debtor shall, at Debtor's cost, assemble the Collateral and make it
available at a location to be specified by Secured Party which is
reasonably convenient to Debtor and Secured Party. In any event, Debtor
shall bear the risk of accidental loss or damage to or diminution in value
of the Collateral, and Secured Party shall have no liability whatsoever for
failure to obtain or maintain insurance, nor to determine whether any
insurance ever in force is adequate as to amount or as to risk insured.
(c) Sell, in one or more sales and in one or more parcels, or
otherwise dispose of any or all of the Collateral in its then condition or
in any other commercially reasonable manner as Secured Party may elect, in
a public or private transaction, at any location as deemed reasonable by
Secured Party (including, without limitation, Debtor's premises), for cash
at such price as Secured Party may deem fair, and (unless prohibited by the
Code, as adopted in any applicable jurisdiction) Secured Party may be the
purchaser of any or all Collateral so sold and may apply upon the purchase
price therefor any Obligations secured hereby. Any such sale or transfer by
Secured Party either to itself or to any other Person shall be absolutely
free from any claim of right by Debtor, including any equity or right of
redemption, stay or appraisal which Debtor has or may have under any rule
of law, regulation or statute now existing or hereafter adopted. Upon any
such sale or transfer, Secured Party shall have the right to deliver,
assign and transfer to the purchaser or transferee thereof the Collateral
so sold or transferred. It shall not be necessary that the Collateral or
any part thereof be present at the location of any such sale or transfer.
Secured Party may, at its discretion, provide for a public sale, and any
such public sale shall be held at such time or times within ordinary
business hours and at such place or places as Secured Party may fix in the
notice of such sale. Secured Party shall not be obligated to make any sale
pursuant to any such notice. Secured Party may, without notice or
publication, adjourn any public or private sale by announcement at any time
and place fixed for such sale, and such sale may be made at any time or
place to which the same may be so adjourned. In the event any sale or
transfer hereunder is not completed or is defective in the opinion of
Secured Party, such sale or transfer shall not exhaust the rights of
Secured Party hereunder, and Secured Party shall have the right to cause
one or more subsequent sales or transfers to be made hereunder. If only
part of the Collateral is sold or transferred such that the Obligations
remain outstanding (in whole or in part), Secured Party's rights and
remedies hereunder shall not be exhausted, waived or modified, and Secured
Party is specifically empowered to make one or more successive sales or
transfers until all the Collateral shall be sold or transferred and all the
Obligations are paid. In the event that Secured Party elects not to sell
the Collateral, Secured Party retains its rights to lease or otherwise
dispose of or utilize the Collateral or any part or
13
parts thereof in any manner authorized or permitted by law or in equity,
and to apply the proceeds of the same towards payment of the Obligations.
Each and every method of disposition of the Collateral described in this
subsection or in subsection (f) shall constitute disposition in a
commercially reasonable manner.
(d) Take possession of all books and records of Debtor pertaining to
the Collateral. Secured Party shall have the authority to enter upon any
real property or improvements thereon in order to obtain any such books or
records, or any Collateral located thereon, and remove the same therefrom
without liability.
(e) Apply proceeds of the disposition of the Collateral to the
Obligations in any manner elected by Secured Party and permitted by the
Code or otherwise permitted by law or in equity and in accordance with the
provisions of the Indenture. Such application may include, without
limitation, the reasonable expenses of retaking, holding, preparing for
sale or other disposition, and the reasonable attorneys' fees and legal
expenses incurred by Secured Party.
(f) Appoint any Person as agent to perform any act or acts necessary
or incident to any sale or transfer by Secured Party of the Collateral.
Additionally, any sale or transfer hereunder may be conducted by an
auctioneer or any officer or agent of Secured Party.
(g) Execute, assign and endorse negotiable and other instruments for
the payment of money, documents of title or other evidences of payment,
shipment or storage for any form of Collateral on behalf of and in the name
of Debtor.
(h) Notify or require Debtor to notify Account Debtors that the
Accounts have been assigned to Secured Party and direct such Account
Debtors to make payments on the Accounts directly to Secured Party. To the
extent Secured Party does not so elect, Debtor shall continue to collect
the Accounts. Secured Party or its designee shall also have the right, in
its own name or in the name of Debtor, to do any of the following: (i) to
demand, collect, receipt for, settle, compromise any amounts due, give
acquittances for, prosecute or defend any action which may be in relation
to any monies due, or to become due by virtue of, the Accounts; (ii) to
sell, transfer or assign or otherwise deal in the Accounts or the proceeds
thereof or the related goods, as fully and effectively as if Secured Party
were the absolute owner thereof; (iii) to extend the time of payment of any
of the Accounts, to grant waivers and make any allowance or other
adjustment with reference thereto; (iv) to take control of cash and other
proceeds of any Collateral; (v) to send a request for verification of
Accounts to any Account Debtor; and (vi) to do all other acts and things
necessary to carry out the intent of this Agreement.
(i) Exercise all other rights and remedies permitted by law or in
equity.
Section 6.03. Attorney-in-Fact
----------------
. Debtor hereby irrevocably appoints Secured Party as Debtor's attorney-
in-fact, with full authority in the place and stead of Debtor and in the name of
Debtor or otherwise, from time to time in Secured Party's discretion upon the
occurrence and during the continuance of an Event of Default, but at Debtor's
cost and expense and without notice to Debtor:
14
(a) To obtain, adjust, sell and cancel any insurance with respect to
the Collateral, and endorse any draft drawn by insurers of the Collateral.
Secured Party may apply any proceeds or unearned premiums of such insurance
to the Obligations (whether or not due).
(b) To take any action and to execute any assignment, certificate,
financing statement, notification, document or instrument which Secured
Party may reasonably deem necessary or advisable to accomplish the purposes
of this Agreement, including, without limitation, to receive, endorse and
collect all instruments made payable to Debtor representing any payment or
other distribution in respect of the Collateral or any part thereof and to
give full discharge for the same.
Section 6.04. Account Debtors
---------------
. Any payment or settlement of an Account made by an Account Debtor will
be, to the extent of such payment or to the extent provided under such
settlement, a release, discharge and acquittance of the Account Debtor with
respect to such Account, and Debtor shall take any action as may reasonably be
required by Secured Party in connection therewith. No Account Debtor on any
Account will ever be bound to make inquiry as to the termination of this
Agreement or the rights of Secured Party to act hereunder, but shall be fully
protected by Debtor in making payment directly to Secured Party.
Section 6.05. Liability for Deficiency
------------------------
. If any sale or other disposition of Collateral by Secured Party or any
other action of Secured Party hereunder results in reduction of the Obligations,
such action will not release Debtor from its liability to Secured Party for any
unpaid Obligations, including costs, charges and expenses incurred in the
liquidation of Collateral, together with interest thereon at the rate then
applicable under the Indenture, and the same shall be immediately due and
payable to Secured Party at Secured Party's address set forth in the Indenture.
Section 6.06. Reasonable Notice
-----------------
. If any applicable provision of any law requires Secured Party to give
reasonable notice of any sale or disposition or other action, Debtor hereby
agrees that ten days' prior written notice shall constitute reasonable notice
thereof. Such notice, in the case of public sale, shall state the time and
place fixed for such sale and, in the case of private sale, the time after which
such sale is to be made.
Section 6.07. Non-judicial Enforcement
------------------------
. Secured Party may enforce its rights hereunder without prior judicial
process or judicial hearing, and to the extent permitted by law Debtor expressly
waives any and all legal rights which might otherwise require Secured Party to
enforce its rights by judicial process.
ARTICLE 7.
----------
MISCELLANEOUS PROVISIONS
------------------------
Section 7.01. Notices
-------
15
. Any notice required or permitted to be given under or in connection with
this Agreement shall be given in accordance with the notice provisions of the
Indenture.
Section 7.02. Amendments and Waivers
----------------------
. Secured Party's acceptance of partial or delinquent payments or any
forbearance, failure or delay by Secured Party in exercising any right, power or
remedy hereunder shall not be deemed a waiver of any obligation of Debtor or any
Obligor, or of any right, power or remedy of Secured Party; and no partial
exercise of any right, power or remedy shall preclude any other or further
exercise thereof. Secured Party may remedy any Event of Default hereunder or in
connection with the Obligations without waiving the Event of Default so
remedied. Debtor hereby agrees that if Secured Party agrees to a waiver of any
provision hereunder, or an exchange of or release of the Collateral, or the
addition or release of any Obligor or other Person, any such action shall not
constitute a waiver of any of Secured Party's other rights or of Debtor's
obligations hereunder. This Agreement may be amended only by an instrument in
writing executed jointly by Debtor and Secured Party and may be supplemented
only by documents delivered or to be delivered in accordance with the express
terms hereof.
Section 7.03. Copy as Financing Statement
---------------------------
. A photocopy or other reproduction of this Agreement or any financing
statement covering the Collateral is sufficient as a financing statement, and
the same may be filed with any appropriate filing authority for the purpose of
perfecting Secured Party's security interest in the Collateral.
Section 7.04. Possession of Collateral
------------------------
. Secured Party shall be deemed to have possession of any Collateral in
transit to it or set apart for it (or, in either case, any of its agents,
affiliates or correspondents).
Section 7.05. Redelivery of Collateral
------------------------
. If any sale or transfer of Collateral by Secured Party results in full
satisfaction of the Obligations, and after such sale or transfer and discharge
there remains a surplus of proceeds, Secured Party will deliver to Debtor such
excess proceeds in a commercially reasonable time; provided, however, that
Secured Party shall not be liable for any interest, cost or expense in
connection with any reasonable delay in delivering such proceeds to Debtor.
Section 7.06. Governing Law; Jurisdiction
---------------------------
. This Agreement and the security interest granted hereby shall be
construed in accordance with and governed by the laws of the State of New York
(except to the extent that the laws of any other jurisdiction govern the
perfection and priority of the security interests granted hereby).
Section 7.07. Gaming Authority
----------------
. Each of the provisions of this Agreement is subject to, and shall be
enforced in compliance with, any requirements imposed by any applicable Gaming
Authority.
Section 7.08. Continuing Security Agreement.
-----------------------------
16
(a) Except as may be expressly applicable pursuant to Section 9-505 of
the Code, no action taken or omission to act by Secured Party hereunder,
including, without limitation, any action taken or inaction pursuant to
Section 6.02 hereof, shall be deemed to constitute a retention of the
Collateral in satisfaction of the Obligations or otherwise to be in full
satisfaction of the Obligations, and the Obligations shall remain in full
force and effect, until Secured Party shall have applied payments
(including, without limitation, collections from Collateral) towards the
Obligations in the full amount then outstanding or until such subsequent
time as is hereinafter provided in subsection (b) below.
(b) To the extent that any payments on the Obligations or proceeds of
the Collateral are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee, debtor in
possession, receiver or other Person under any bankruptcy law, common law
or equitable cause, then to such extent the Obligations so satisfied shall
be revived and continue as if such payment or proceeds had not been
received by Secured Party, and Secured Party's security interests, rights,
powers and remedies hereunder shall continue in full force and effect. In
such event, this Agreement shall be automatically reinstated if it shall
theretofore have been terminated pursuant to Section 7.09.
Section 7.09. Termination
-----------
. The grant of a security interest hereunder and all of Secured Party's
rights, powers and remedies in connection therewith shall unless otherwise
provided in the Indenture, the HWCC Security Agreement, or this Agreement,
remain in full force and effect until payment in full of (A) the Note, (B) all
obligations then due and owing under the Indenture, the Senior Secured Notes and
the Collateral Documents and (C) all other Obligations; provided, however, that
after receipt from the Debtor by the Trustee of a request for a release of any
Collateral permitted under the Indenture upon the sale, transfer, assignment,
exchange or other disposition of such Collateral not prohibited by the Indenture
(and upon receipt by the Trustee of all proceeds of such sale, transfer,
assignment, exchange or other disposition to the extent required to be remitted
to the Trustee under the Indenture or otherwise), such Collateral shall be
released from the lien and security interest created hereunder in accordance
with the provisions of the Indenture and shall no longer constitute Collateral.
Upon the payment in full of (A) the Note, (B) all obligations then due and owing
under the Indenture, the Senior Secured Notes and the Collateral Documents, and
(C) all other Obligations, the Debtor shall be entitled to the return, upon its
request and at its expense, of such of the Collateral pledged by it as shall not
have been sold or otherwise applied pursuant to the terms hereof.
Notwithstanding the foregoing, the reimbursement and indemnification provisions
of Section 4.07 and the provisions of subsection 7.08(b) shall survive the
termination of this Agreement.
Upon any termination of this Agreement or release of any Collateral as
permitted by the Indenture and the HWCC Security Agreement, the Trustee will, at
the expense of the Debtor, execute and deliver to the Debtor such documents and
take such other actions as the Debtor shall reasonably request to evidence the
termination of this Agreement or the release of such Collateral, as the case may
be. Any such action taken by the Trustee shall be without warranty by or
recourse to the Trustee, except as to the absence of any prior assignments by
the Trustee of its interests in the Collateral, and shall be at the expense of
the Debtor. The Trustee may conclusively rely on any certificate delivered to it
by the Debtor stating that the execution of such documents and release of the
Collateral is in accordance with and permitted by the terms of the Indenture and
this Agreement.
17
Section 7.10. Counterparts; Effectiveness
---------------------------
. This Agreement may be executed in two or more counterparts. Each
counterpart is deemed an original, but all such counterparts taken together
constitute one and the same instrument. This Agreement becomes effective upon
the execution hereof by Debtor and delivery of the same to Secured Party, and it
is not necessary for Secured Party to execute any acceptance hereof or otherwise
signify or express its acceptance hereof.
Section 7.11. Indenture
---------
. This Agreement is subject to the terms, conditions and provisions of the
Indenture. To the extent a term or provision of this Agreement conflicts with
the Indenture, the Indenture shall control with respect to the subject matter of
such term or provision.
Section 7.12. Rights of Holders
-----------------
. No Holder of a Senior Secured Note shall have any independent rights
hereunder other than those rights granted to individual Holders of Senior
Secured Notes pursuant to Section 6.07 of the Indenture; provided that nothing
--------
in this Section 7.12 shall limit any rights granted to the Trustee under the
Senior Secured Notes, the Indenture or the Collateral Documents.
Section 7.13. No Personal Liability of Directors, Officers, Employees and
-----------------------------------------------------------
Stockholders
------------
. No past, present or future director, officer, employee, incorporator or
stockholder of the Debtor as such or any successor Person, as such, shall have
any liability for any obligations of the Debtor under the Notes, the Collateral
Documents, this Agreement or for any claim based on, in respect of, or by reason
of, such obligations or their creation.
Section 7.14. Collateral Assignment
---------------------
. Of even date herewith, Secured Party has executed the HWCC Security
Agreement in favor of the Trustee pursuant to which the Secured Party grants to
the Trustee a security interest in certain collateral therein described,
including but not limited to the Note and the liens and security interests
securing same. Debtor hereby consents to and acknowledges the existence of the
Trustee's security interest in the Note and the liens and security interests
securing same, including, but not limited to, the liens and security interests
granted by this Agreement.
18
IN WITNESS WHEREOF, Debtor has caused this Intercompany Security Agreement
to be executed and delivered as of the date first set forth above.
DEBTOR: HWCC-TUNICA, INC.
------
By: /s/ Xxxxxxx X. Xxxxx
---------------------
Xxxxxxx X. Xxxxx
Executive Vice
President, General
Counsel and
Secretary
EXHIBIT A
---------
CONTRACTS
---------
1. Computer Services Agreement dated as of January 1, 1994, by and between
HWCC-Tunica, Inc., as assignee of the Summit Tunica Partnership, a Mississippi
limited partnership, and Advanced Casino Systems Corporation.
2. Consulting Agreement dated as of January 1, 1994, by and between HWCC-
Tunica, Inc. and Xxxxx Casino Corporation.
EXHIBIT B
---------
TRADEMARKS
----------
None
----
EXHIBIT C
---------
PERFECTION
----------
(a) Legal Name of Debtor:
--------------------
HWCC-Tunica, Inc., a Texas corporation
(b) Other Names:
-----------
Summit Tunica Partnership, A Mississippi Limited Partnership
Summit Riverboat Casinos-Tunica, Inc., a Mississippi corporation
Hollywood Casino Tunica
(c) (i) Chief Executive Office and Principal Place of Business of Debtor:
----------------------------------------------------------------
Chief Executive Office--Dallas County, Texas
Principal Place of Business--Tunica County, Mississippi
(ii) Other Premises at which Collateral is Stored or Located:
-------------------------------------------------------
None
(iii) Locations of Records Concerning Collateral:
------------------------------------------
Tunica County, Mississippi; Dallas County, Texas
EXHIBIT D
---------
PERMITTED ENCUMBRANCES
----------------------
1. Liens on the assets of the Company and any Guarantor created by the
Indenture and the Collateral Documents securing the Notes and the Note
Guarantees;
2. Liens in favor of the Company or the Guarantors;
3. Liens on property of a Person existing at the time such Person is
merged with or into or consolidated with the Company or any Restricted
Subsidiary of the Company; provided, however, that such Liens were in existence
prior to the contemplation of such merger or consolidation and do not extend to
any assets other than those of the Person merged into or consolidated with the
Company or the Restricted Subsidiary;
4. Liens on property existing at the time of acquisition thereof by the
Company or any Restricted Subsidiary of the Company, provided that such Liens
were in existence prior to the contemplation of such acquisition;
5. Liens to secure the performance of statutory obligations, surety or
appeal bonds, performance bonds or other obligations of a like nature incurred
in the ordinary course of business;
6. Liens to secure Indebtedness permitted by clause (a) of Section 4.09 of
the Indenture covering only inventory and accounts receivable;
7. Liens to secure Indebtedness (including Capital Lease Obligations)
permitted by clause (d) of the second paragraph of Section 4.09 of the Indenture
covering only the assets acquired with such Indebtedness;
8. Liens of record on the date of the Indenture;
9. Liens for taxes, assessments or governmental charges or claims that are
not yet delinquent or that are being contested in good faith by appropriate
proceedings promptly instituted and diligently concluded, provided that any
reserve or other appropriate provisions as shall be required in conformity with
GAAP shall have been made therefor;
10. Liens arising from UCC financing statements regarding property leased
by the Company or any of its Restricted Subsidiaries;
11. Liens of carriers, warehousemen, mechanics, landlords, materialmen,
repairmen or other like Liens arising by operation of law or in the ordinary
course of
business and consistent with industry practices and Liens on deposits made to
obtain the release of such Liens if:
(a) the underlying Obligations are not overdue for a period of more than 60
days, or
(b) such Liens are being contested in good faith and by appropriate
proceedings by the Company and adequate reserves with respect thereto are
maintained on the books of the Company in accordance with GAAP, and
(c) the Company is in compliance with the terms of the security
documents applicable to such Liens;
12. A Lien on a vessel to secure FF&E Financing or Capital Lease
Obligations in accordance with Section 4.09(d) of the Indenture where (a) the
creditor under such FF&E Financing or Capital Lease Obligations agrees to
release such Lien upon satisfaction of the Obligations under such FF&E Financing
or Capital Lease Obligations, (b) the creditor under such FF&E Financing or
Capital Lease Obligations agrees to release such Lien upon payment of the
proceeds from the sale of such vessel attributable to such FF&E Financing or
Capital Lease Obligations, (c) the creditor under such FF&E Financing or Capital
Lease Obligations acknowledges that such Lien does not create rights on the hull
or other equipment constituting such vessel, but shall be limited to the FF&E
specifically identified in such creditor's financing or lease and Lien
documents, (d) such Lien is expressly subject and subordinate to the Liens
granted in favor of the Trustee, (e) the creditor under such FF&E Financing or
Capital Lease Obligations agrees to promptly notify the Trustee of the
occurrence of any event of default under such creditor's financing or lease
documents, and (f) the creditor under such FF&E Financing or Capital Lease
Obligations acknowledges and agrees that it has no right to possess or use such
vessel or anything on board such vessel, except for its right to come on board
the vessel to inspect the related FF&E and, after the occurrence and continuance
of an event of default under such creditor's financing or lease documents, to
remove or repossess the subject FF&E, provided that such creditor's efforts to
remove or repossess such FF&E shall be commercially reasonable and shall not
damage the vessel, its hull or any other equipment constituting such vessel.
13. Liens incurred in the ordinary course of business of the Company or
any Restricted Subsidiary of the Company with respect to Obligations that do not
exceed Five Million Dollars ($5,000,000) at any one time outstanding.
14. Liens incurred and pledges made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and Social
Security benefits.
