Exhibit 4.3
SECURITY AGREEMENT
This SECURITY AGREEMENT (this "AGREEMENT"), dated as of June 4, 2002, is
entered into by and between LAS VEGAS SANDS, INC., a Nevada corporation
("LVSI"), VENETIAN CASINO RESORT, LLC, a Nevada limited liability company
("VCR"), and each Subsidiary Guarantor (as defined below) from time to time a
party to this Agreement (individually each a "DEBTOR" and collectively, the
"DEBTORS"), and THE BANK OF NOVA SCOTIA, a Canadian chartered bank
("SCOTIABANK"), in its capacity as Intercreditor Agent under the Intercreditor
Agreement (as defined below) (in such capacity, "INTERCREDITOR AGENT") for and
on behalf of (i) each Bank Secured Party (as defined below), (ii) U.S. Bank
National Association, a national banking association, as the trustee (the
"MORTGAGE NOTES INDENTURE TRUSTEE") for and on behalf of the Mortgage Note
Holders (individually, each a "MORTGAGE NOTE SECURED PARTY" and together, the
"MORTGAGE NOTE SECURED PARTIES") under the Mortgage Notes Indenture (as defined
below) and (iii) the Intercreditor Agent.
RECITALS
A. THE PROJECT. VCR and LVSI own and operate the Venetian Casino Resort
(the "CASINO RESORT"), a Venetian-themed hotel, casino, retail, meeting and
entertainment complex, with related heating, ventilation and air conditioning
and power station facilities located at 0000 Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx
Xxxxxx, Xxxxxx and the to be constructed and developed approximately 1,000 room
hotel tower being constructed by VCR on the currently existing parking garage of
the Casino Resort, approximately 1,000-parking space expansion to the Casino
Resort's existing parking garage and approximately 150,000 additional square
feet of additional meeting and conference center space in the Casino Resort
(collectively, with the Casino Resort, the "PROJECT").
B. CREDIT AGREEMENT. Concurrently herewith, LVSI, VCR, Scotiabank, as
administrative agent, joint lead arranger and joint bookrunner, Xxxxxxx Sachs
Credit Partners L.P., as syndication agent, joint lead arranger and joint
bookrunner and the financial institutions party thereto (the "BANK LENDERS")
have entered into the Credit Agreement (as amended, amended and restated,
supplemented, modified, extended, refinanced, refunded, renewed, replaced or
substituted from time to time, the "CREDIT AGREEMENT") pursuant to which the
Bank Lenders have agreed, subject to the terms thereof and hereof, to make
Credit Extensions to LVSI and VCR.
C. MORTGAGE NOTES INDENTURE. Concurrently herewith, LVSI, VCR, certain
guarantors named therein and the Mortgage Notes Indenture Trustee have entered
into the Mortgage Notes Indenture pursuant to which LVSI and VCR will issue the
Mortgage Notes.
D. INTERCREDITOR AGREEMENT. Concurrently herewith, the Intercreditor
Agent, the Administrative Agent and the Mortgage Notes Indenture Trustee have
entered into an Intercreditor Agreement, dated as of the date hereof (such
agreement as it may be modified,
amended or supplemented from time to time, the "INTERCREDITOR AGREEMENT"), which
sets forth certain agreements among such lenders with respect to the priority of
the liens created hereunder, the enforcement of remedies and the allocation of
the proceeds of any realization upon the collateral. The Intercreditor Agent is
entering into this Agreement and shall perform its obligations as set forth
herein and in the manner provided, pursuant to the provisions of the
Intercreditor Agreement and shall take directions from time to time from one or
more of the Credit Parties as defined and provided for therein.
E. CONDITION PRECEDENT. It is a condition precedent to entering into the
Mortgage Notes Indenture and the Credit Agreement and consummating the
transactions contemplated therein (including the extension of credit thereunder)
that the Debtors enter into this Agreement.
AGREEMENT
In consideration of the promises contained herein and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Debtors hereby agree as follows:
1. DEFINITIONS.
1.1 "ASSIGNED AGREEMENTS" means all of the agreements and documents, as
amended, supplemented or otherwise modified from time to time described in
clauses (A) through (H) of Section 2.1.1.
1.2 "BANK EVENT OF DEFAULT" shall mean any Event of Default under and as
defined in the Credit Agreement.
1.3 "BANK SECURED OBLIGATIONS" is defined in Section 3.1.
1.4 "BANK SECURED PARTIES" means the Secured Parties, as defined in the
Credit Agreement.
1.5 "EVENT OF DEFAULT" shall mean a Bank Event of Default or a Mortgage
Note Event of Default.
1.6 "FINANCING AGREEMENTS" is defined in the Intercreditor Agreement as
in effect on the date hereof.
1.7 "FUTURE FIRST LIEN CREDIT FACILITY" is defined in the Intercreditor
Agreement as in effect on the date hereof.
1.8 "MORTGAGE NOTE EVENT OF DEFAULT" shall mean any Event of Default
under and as defined in the Mortgage Notes Indenture.
1.9 "MORTGAGE NOTES SECURED OBLIGATIONS" is defined in Section 3.2.
1.10 "OBLIGATIONS" shall mean collectively the Bank Secured Obligations
and the Mortgage Notes Secured Obligations.
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1.11 "PERMITTED COUNTERPARTY" is defined in the Intercreditor Agreement as
in effect on the date hereof.
1.12 "RECEIVABLES" shall mean all of the Debtor's accounts and accounts
receivable, including, without limitation, all rights to payment for goods sold
or leased or secured 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 the accounts, chattel paper, instruments, promissory
notes, contract rights, documents, other obligations 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.
1.13 "SECURED PARTIES" shall mean individually and collectively,
Intercreditor Agent, the Bank Secured Parties, the Mortgage Note Secured Parties
and the holders of any Indebtedness that is a Future First Lien Credit Facility.
1.14 "UCC" shall mean the Uniform Commercial Code as the same may, from
time to time, be in effect in the State of New York; PROVIDED, HOWEVER, in the
event that, by reason of mandatory provisions of law, any or all of the
attachment, perfection or priority of the security interest in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of New York, the term "UCC" shall mean the Uniform Commercial
Code as in effect in such other jurisdiction for purposes of the provisions
hereof relating to such attachment, perfection or priority and for purposes of
definitions related to such provisions.
1.15 Unless otherwise defined herein, all capitalized terms used herein
which are defined in the Credit Agreement shall have their respective meanings
as used in the Credit Agreement as in effect on the date hereof. The rules of
interpretation contained in the Credit Agreement as in effect on the date hereof
shall apply to this Agreement.
1.16 Unless otherwise defined herein or in the Credit Agreement or the
context otherwise requires, terms for which meanings are provided in the UCC are
used in this Agreement (whether or not capitalized herein), including its
preamble and recitals, with such meanings.
2. ASSIGNMENT, PLEDGE AND GRANT OF SECURITY INTERESTS.
2.1 SENIOR GRANT IN FAVOR OF BANK SECURED PARTIES AND INTERCREDITOR AGENT
IN ASSIGNED AGREEMENTS. To secure the timely payment and performance of the Bank
Secured Obligations, subject to compliance with applicable Nevada Gaming Laws,
each Debtor does hereby assign, grant and pledge to, and subject to a security
interest on a first priority basis in favor of, the Intercreditor Agent, on
behalf and for the benefit of the Bank Secured Parties and the Intercreditor
Agent, all the estate, right, title and interest of such Debtor, whether now
owned or hereafter acquired or arising and wheresoever located, whether or not
of a type which may be subject to a security interest under the UCC, in, to and
under the following (the "SHARED INTANGIBLE COLLATERAL"):
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2.1.1 the following agreements and documents, as amended,
supplemented or otherwise modified from time to time and all of such
Debtor's rights thereunder:
(A) Architect's Agreement;
(B) HVAC Service Agreement;
(C) HVAC Ground Lease;
(D) Beers Construction Contract;
(E) Xxxxxx Steel Contract;
(F) Cooperation Agreement;
(G) Service Contract between the Venetian and SECC;
(H) Services Agreement;
(I) to the extent assignable, all other documents and
agreements entered into on, prior to or after the date hereof,
relating to the development, construction or operation of the Project
(other than the Financing Agreements) as the same may be amended from
time to time in accordance with the terms and conditions of the
Credit Agreement and the Mortgage Notes Indenture and to the extent
assignable any other agreements to which such Debtor is or becomes a
party;
(J) to the extent assignable, the insurance policies now or
hereafter maintained by such Debtor or any other Person under the
Cooperation Agreement, the Credit Agreement, the Mortgage Notes
Indenture or any other Project Document (except as specifically
provided above), including any such policies insuring against loss of
revenues by reason of interruption of the operation of the Project
and all loss proceeds and other amounts payable to such Debtor
thereunder, and all eminent domain proceeds;
(K) to the extent assignable, all other agreements, now
existing or hereafter entered into, including vendor warranties,
indemnities, and guarantees running to such Debtor or assigned to
such Debtor, including all such agreements relating to the
construction, maintenance, improvement, operation or acquisition of
the Project or any part thereof, or the transport of material,
equipment and other parts of the Project or any part thereof;
(L) to the extent assignable, any other lease or sublease
agreements or easement agreements, now existing or hereafter entered
into, including all such agreements relating to the Project (other
than the Mall) or any part thereof or any ancillary facilities to
which such Debtor is or becomes a party;
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(M) to the extent assignable, all amendments, supplements,
substitutions and renewals to any of the aforesaid agreements;
(N) all rights of such Debtor to receive (i) monies due or to
become due under or pursuant to the aforesaid agreements and (ii)
proceeds of any insurance, indemnity, warranty or guaranty with
respect to the aforesaid agreements;
(O) all claims of such Debtor for damages arising out of breach
or default under any of the aforesaid agreements;
(P) the rights of such Debtor to terminate, amend, supplement,
or modify any of the aforesaid agreements, to perform thereunder and
to compel performance and otherwise exercise all remedies thereunder;
and
(Q) to the extent assignable, all Permits, including those
described on Annex 5 hereto, necessary for or relating to the
construction of the Project.
2.1.2 the proceeds of all of the foregoing, including (a) all rights
of such Debtor to receive proceeds, rents, profits and moneys due and to
become due under or pursuant to the Assigned Agreements; (b) all rights of
such Debtor to receive the return of any premiums for, or proceeds of, any
insurance, indemnity, warranty or guaranty with respect to the Assigned
Agreements or to receive any condemnation proceeds; (c) all claims of such
Debtor for damages arising out of, or for breach of or default under, any
Assigned Agreement; and (d) to the extent not included in the foregoing,
all proceeds receivable or received when any and all of the Assigned
Agreements or proceeds thereof are sold, collected, exchanged or otherwise
disposed of, whether voluntarily or involuntarily.
Notwithstanding anything to the contrary contained herein, the term "Shared
Intangible Collateral" for purposes of this Section 2.1 shall not include
(i) any capital stock, common stock, preferred stock, membership interest,
partnership interest or any other equity interest of LVSI, VCR, any of
their Subsidiaries or any other Person held by LVSI, VCR or any of their
Subsidiaries, (ii) the HVAC Component, (iii) any assets which if pledged,
hypothecated or given as collateral security would require any Debtor to
seek approval of any Nevada Gaming Authority of the pledge, hypothecation
or collateralization, or require the Intercreditor Agent or any Secured
Party to be licensed, qualified or found suitable by an applicable Nevada
Gaming Authority (other than any approval required for the pledge,
hypothecation or collateralization of assets in connection with the
Exchange Offer (as defined in the Mortgage Notes Indenture)), (iv) any
contracts, contract rights, permits or general intangibles, which by their
terms or the operation of law prohibit or do not allow assignment or
require any consent for assignment which has not been obtained or which
would be breached by virtue of a security interest being granted therein,
(v) all right, title and interest of the Borrowers' in the account under
the Defeasance Trust Agreement, dated as of June 4, 2002, among LVSI,
Venetian, certain of their subsidiaries and U.S. Bank National Association,
as trustee, and all securities, cash and proceeds in such account and (vi)
any property or
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assets subject to a Lien permitted under clauses (ii), (iv), (xxv)(b),
(xxvi) and (xxvii) of the definition of Permitted Liens contained in the
Credit Agreement and clauses (2), (3) and (12)(a) of the definition of
Permitted Liens contained in the Mortgage Notes Indenture (collectively,
the "EXCLUDED COLLATERAL").
2.2 SENIOR GRANT TO BANK SECURED PARTIES AND INTERCREDITOR AGENT IN OTHER
COLLATERAL. To secure the timely payment and performance of the Bank Secured
Obligations, subject to compliance with applicable Nevada Gaming Laws, each
Debtor does hereby assign, grant and pledge to, and subject to a security
interest on a first priority basis in favor of, the Intercreditor Agent, on
behalf and for the benefit of the Bank Secured Parties and the Intercreditor
Agent, all the estate, right, title and interest of such Debtor, whether now
owned or hereafter acquired or arising and wheresoever located, whether or not
of a type which may be subject to a security interest under the UCC, in, to and
under the following:
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(A) all Permits, but excluding any of the Permits which by
their terms or by operation of law prohibit or do not allow
assignment or which would become void solely by virtue of a security
interest being granted therein;
(B) to the extent assignable, all rents, profits, income,
royalties, revenues, accounts, contracts, contract rights, chattel
paper, documents, instruments, general intangibles (including tax
refunds and all payment intangibles) and other rights of any kind and
all rights in, to and under all security agreements, leases and other
contracts securing or otherwise relating to any such rents, profits,
income, royalties, revenues, accounts, contracts, contract rights,
chattel paper, instruments, documents, general intangibles or other
rights and claims to the payment or receipt of money or other forms
of consideration (including any intercompany notes held by any of the
Debtors);
(C) all equipment in all of its forms and all parts thereof and
accessions thereto (except to the extent such Debtor's interest
therein may not be assigned or a security interest therein may not be
granted), including all plant, machinery, tools, engines, and
equipment of any type, including control equipment, gaming equipment
and general equipment and devices, all computer equipment,
calculators, adding machines, slot gaming tables, video game and slot
machines and any other electronic equipment of every nature,
appliances, mechanical and electrical systems, elevators, lighting,
alarm systems, fire control systems, furnishings, furniture, service
equipment, motor vehicles, building or maintenance equipment,
building or maintenance materials, pipes and pipelines, spare parts,
maps, plans, specifications, architectural, engineering, construction
or shop drawings, manuals or similar documents and any replacements,
renewals or substitutions for any of the foregoing;
(D) all plant fixtures, business fixtures and other fixtures
and storage and office facilities and accessions thereto and
replacements thereof and products thereof;
(E) all inventory in all of its forms, including (i) all goods
held by such Debtor for sale or lease or to be furnished under
contracts of service or so leased or furnished, (ii) all supplies,
raw materials, work in process, finished goods, and materials used or
consumed in such Debtor's business, (iii) all goods covered by any
warehouse receipts, bills of lading or other such documents or in
which such Debtor has an interest in mass or a joint or other
interest or right of any kind and (iv) all goods which are returned
to or repossessed by such Debtor and all accessions thereto and
products thereof;
(F) all trademarks and service marks now owned or hereafter
acquired by any Debtor which are registered in the United States
Patent and Trademark Office or in any similar office or agency of the
United States or any state thereof or any political subdivision
thereof and any application for such trademarks and service marks, as
well as any unregistered marks used and owned by such Debtor in the
United States and trade dress, including logos, designs, trade names,
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business names, fictitious business names and other business
identifiers in connection with which any of these registered or
unregistered marks are used and owned by such Debtor in the United
States (collectively, the "MARKS") including the Marks listed on
ANNEX 2, together with the registration and right to renewals
thereof, and the goodwill of the business of such Debtor symbolized
by the Marks and all licenses associated therewith, it being
understood that the rights and interests included herein shall
include all rights and interests pursuant to licensing or other
contracts in favor of such Debtor pertaining to the Marks presently
or in the future owned or used by third parties but, in the case of
third parties which are not Affiliates of such Debtor, only to the
extent permitted by such licensing or other contracts and, if not so
permitted, except with respect to the rights of such Debtor to
receive payments thereunder, only with the consent of such third
parties;
(G) all United States copyrights which such Debtor now or
hereafter owns or has registered with the United States Copyright
Office, as well as any application for a United States copyright
registration now or hereafter made with the United States Copyright
Office by such Debtor (collectively, the "COPYRIGHTS") including, the
Copyrights listed on ANNEX 3, and all United States patents to which
such Debtor now or hereafter has title and any divisions or
continuations thereof, as well as any application for a United States
patent now or hereafter made by such Debtor (collectively, the
"PATENTS"), including all Patents listed on ANNEX 4, and all
reissues, renewals or extensions of each of them, it being understood
that the rights and interests included herein shall include all
rights and interests pursuant to licensing or other contracts in
favor of such Debtor pertaining to the Copyrights and Patents
presently or in the future owned or used by third parties but, in the
case of third parties which are not Affiliates of such Debtor, except
with respect to the rights of such Debtor to receive payments
thereunder, only to the extent permitted by such licensing or other
contracts and, if not so permitted, only with the consent of such
third parties;
(H) all computer programs and software owned by such Debtor and
all intellectual property rights therein and all other proprietary
information of such Debtor, including trade secrets, it being
understood that the rights and interests included herein shall
include all rights and interests pursuant to licensing or other
contracts in favor of such Debtor pertaining to computer programs and
software presently or in the future owned or used by third parties
but, in the case of third parties which are not Affiliates of such
Debtor, only to the extent permitted by such licensing or other
contracts and, if not so permitted, except with respect to the rights
of such Debtor to receive payments thereunder, only with the consent
of such third parties;
(I) to the extent not covered by any other clause of this
subsection 2.2 but subject to the exclusions specified above, all
other trademarks, tradenames, tradesecrets, goodwill, business names,
patents, patent applications, licenses and copyrights, registrations,
and franchise rights owned by such Debtor;
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(J) to the extent not covered by any other clause of this
subsection 2.2 but subject to the exclusions specified above, all
other general intangibles (including tax refunds, rights to payment
or performance, chooses in action and judgments taken on any rights
or claims included in the Collateral);
(K) contract rights in respect of agreements entered into with
regard to the purchase of any furniture, fixtures and equipment for
use in the hotel/casino component of the Project and any deposits
paid in respect thereof;
(L) all deposit accounts, securities accounts, securities
entitlements, investment property and financial assets (including the
Disbursement Account);
(M) all letter of credit rights;
(N) all commercial tort claims in which such Debtor has rights
as set forth on ITEM 6 of ANNEX 1 or any supplement thereto;
(O) all books, records, writings, data bases, information and
other property relating to, used or useful in connection with,
evidencing, embodying, incorporating or referring to, any of the
foregoing in this subsection; and
(P) the proceeds of all of the foregoing (all of the collateral
described in 2.2.(A) through and including 2.2.(P) being herein
collectively referred to as the "OTHER COLLATERAL" and together with
the Shared Intangible Collateral, the "COLLATERAL"), including (a)
all rights of such Debtor to receive proceeds, rents, profits and
moneys due and to become due under or pursuant to the Other
Collateral; (b) all rights of such Debtor to receive the return of
any premiums for, or proceeds of, any insurance, indemnity, warranty
or guaranty with respect to the Other Collateral or to receive any
condemnation proceeds with respect thereto; (c) all claims of such
Debtor for damages arising out of, or for breach of or default under,
any Other Collateral; and (d) to the extent not included in the
foregoing, all proceeds receivable or received when any and all of
the foregoing Other Collateral or proceeds thereof is sold,
collected, exchanged or otherwise disposed of, whether voluntarily or
involuntarily.
Notwithstanding anything to the contrary contained herein, the term "Other
Collateral" for purposes of this Section 2.2 shall not include (i) any
Excluded Collateral and (ii) the Shared Intangible Collateral.
2.3 XXXXXX XXXXX IN FAVOR OF MORTGAGE NOTE SECURED PARTIES. To secure the
timely payment and performance of the Mortgage Notes Secured Obligations,
subject to compliance with applicable Nevada Gaming Laws, each Debtor does
hereby assign, grant and pledge to, and subject to a security interest on a
second priority basis, in favor of, the Intercreditor Agent, on behalf of and
for the benefit of the Mortgage Note Secured Parties and the Intercreditor
Agent, all the estate, right, title and interest of each Debtor, whether now
owned or hereafter acquired or arising and wheresoever located, whether or not
of a type which may be subject to a security interest under the UCC, in, to and
under the Collateral (other than the Collateral (as defined in the Disbursement
Account Agreement)).
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Notwithstanding anything to the contrary contained herein, the term "Collateral"
for purposes of this Section 2.3 shall not include any Excluded Collateral.
2.4 DELIVERY OF ASSIGNED AGREEMENTS. Each Debtor has heretofore
delivered, or concurrently with the delivery hereof, is delivering to the
Intercreditor Agent an executed counterpart or certified copy of each of the
Assigned Agreements executed on or prior to the Closing Date. Each Debtor will
likewise deliver to the Intercreditor Agent an executed copy of each Assigned
Agreement not yet delivered and each Material Contract entered into by Debtors
and amendments and supplements to the foregoing, as they are entered into by
Debtor promptly upon the execution thereof. Each Debtor will, at the reasonable
request of the Intercreditor Agent, further: (1) xxxx conspicuously each item of
chattel paper and each of its records pertaining to the Collateral, with a
legend, in form and substance reasonably satisfactory to the Intercreditor
Agent, indicating that such Collateral is subject to the security interest
granted hereby, (ii) at the reasonable request of the Intercreditor Agent,
deliver and pledge to the Intercreditor Agent hereunder all promissory notes and
other instruments and all original counterparts of chattel paper constituting
Collateral, duly endorsed and accompanied by duly executed instruments of
transfer or assignment, all in form and substance satisfactory to the
Intercreditor Agent. Notwithstanding anything to the contrary contained herein,
no such future lease, construction agreement, operation agreement or other
material agreement may be entered into by Debtor except as permitted under both
the Credit Agreement and the Mortgage Notes Indenture.
2.5 DEBTORS TO REMAIN LIABLE. Notwithstanding anything to the contrary
contained herein, Debtors shall remain liable under each of the Assigned
Agreements to perform all of the obligations undertaken by them thereunder, all
in accordance with and pursuant to the terms and provisions thereof and take
such action to such end as requested by the Intercreditor Agent, and the Secured
Parties shall have no obligation or liability under any of such Assigned
Agreements by reason of or arising out of this Agreement, nor shall the
Intercreditor Agent or any other Secured Party be required or obligated in any
manner to perform or fulfill any obligations of Debtors thereunder or to make
any payment or inquiry as to the nature or sufficiency of any payment received
by it, or present or file any claim or take any action to collect or enforce the
payment of any amounts which may have been assigned to the Secured Parties or to
which such Secured Party may be entitled at any time.
2.6 ACTION BY INTERCREDITOR AGENT AND SECURED PARTIES TO CURE CERTAIN
DEFAULTS. If any default by a Debtor under any of the Assigned Agreements shall
occur and be continuing that constitutes an Event of Default, then subject to
the terms of the Intercreditor Agreement any of the Intercreditor Agent and the
Secured Parties shall be permitted (but shall not be obligated) to remedy any
such default by giving written notice of such intent to Debtors and to the
parties to the Assigned Agreement or Assigned Agreements for which such of the
Intercreditor Agent and the Secured Parties intends to remedy the default. After
giving such notice of its intent to cure such default and upon the commencement
thereof, the Intercreditor Agent or the Secured Parties, as applicable, will
proceed diligently to cure such default. Any cure by the Intercreditor Agent or
any of the Secured Parties of Debtor's default under any of the Assigned
Agreements shall not be construed as an assumption by the Intercreditor Agent or
any of the other Secured Parties of any obligations, covenants or agreements of
Debtors under such Assigned Agreement, and neither the Intercreditor Agent nor
any of the Secured Parties shall be liable to any Debtor or any
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other Person as a result of any actions undertaken by the Intercreditor Agent or
any of the Secured Parties pursuant hereto or pursuant to any Consent or in
curing or attempting to cure any such default. This Agreement shall not be
deemed to release or to affect in any way the obligations of Debtors under the
Assigned Agreements or the rights of Intercreditor Agent hereunder with respect
to the exercise of remedies.
2.7 RESTRICTIONS ON MODIFICATION OF ASSIGNED AGREEMENTS. Debtor shall not
without the consent of the Intercreditor Agent:
2.7.1 cancel or terminate any of the Assigned Agreements or consent
to or accept any cancellation or termination thereof;
2.7.2 amend or otherwise modify the Assigned Agreements or give any
consent, waiver or approval thereunder;
2.7.3 waive any default under or breach of the Assigned Agreements;
2.7.4 consent to or permit or accept any prepayment of amounts to
become due under or in connection with the Assigned Agreements, except as
expressly provided therein; or
2.7.5 take any other action in connection with the Assigned
Agreements that would impair the value of the interest or rights of Debtor
thereunder or that would impair the interest or rights of the Secured
Parties.
Notwithstanding the foregoing, Debtors may take any actions otherwise prohibited
under this subsection 2.7 to the extent permitted by both the Mortgage Notes
Indenture and the Credit Agreement. Further, Debtors shall not sell, assign (by
operation of law or otherwise) or otherwise dispose of any of the Collateral
except as permitted by both the Mortgage Notes Indenture and the Credit
Agreement so long as any such agreement by its terms restricts the sale,
assignment or other disposition of Collateral.
3. OBLIGATIONS SECURED.
3.1 BANK SECURED OBLIGATIONS. This Agreement secures, and all of the
Collateral is collateral security for (i) the Obligations (as defined in the
Credit Agreement), (ii) any and all sums advanced by any of the Bank Secured
Parties in order to preserve the Collateral or preserve Bank Secured Parties'
security interest in the Collateral (or the priority thereof), (iii) the
expenses of any Bank Secured Parties of retaking, holding, preparing for sale or
lease, selling or otherwise disposing of or realizing on the Collateral, of any
proceeding for the collection or enforcement of any indebtedness, obligations or
liabilities of Debtors referred to above, or of any exercise by the Bank Secured
Parties of their rights hereunder, together with reasonable attorneys' fees and
disbursements and court costs, (iv) any and all obligations of Debtors to the
Intercreditor Agent and any other agents in respect of costs, fees,
indemnification or otherwise under this Agreement and/or any other Financing
Agreement whether voluntary or involuntary, direct or indirect, absolute or
contingent, liquidated or unliquidated and whether or not jointly owed with
others and (v) any of the foregoing obligations that are paid to the extent all
or any portion of such payment is avoided or recovered directly or indirectly
from any Bank Secured
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Party as a preference, fraudulent transfer or otherwise (collectively, the "BANK
SECURED OBLIGATIONS").
3.2 MORTGAGE NOTE SECURED OBLIGATIONS. This Agreement secures, and all of
the Collateral is collateral security for (i) the prompt payment and performance
by each Debtor when due whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including the payment of amounts
that would become due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code, 11 U.S.C. Section 362(a)), of all obligations and
liabilities of every nature of Debtors now or hereafter existing under or
arising out of or in connection with the Mortgage Notes, the Mortgage Notes
Indenture, this Agreement, and the Mortgage Notes Indenture Security Documents
and all extensions and renewals thereof, whether for principal, interest
(including, interest that, but for the filing of a petition in bankruptcy with
respect to such Debtor, would accrue on such obligations at the contract rate
whether or not a claim for such interest is allowed in any such proceeding),
payments for early termination, fees, expenses, increased costs,
indemnification, or otherwise, whether voluntary or involuntary, direct or
indirect, absolute or contingent, liquidated or unliquidated and whether or not
jointly owed with others, (ii) any and all sums advanced by any of the Mortgage
Note Secured Parties in order to preserve the Collateral or preserve the
Mortgage Note Secured Parties' security interest in the Collateral (or the
priority thereof), (iii) the expenses of the Intercreditor Agent or the Mortgage
Notes Indenture Trustee of retaking, holding, preparing for sale or lease,
selling or otherwise disposing of or realizing on the Collateral, of any
proceeding for the collection or enforcement of any indebtedness, obligations or
liabilities of Debtors referred to above, or of any exercise by the Mortgage
Notes Indenture Trustee of its rights hereunder, together with reasonable
attorneys' fees and disbursements and court costs, (iv) any and all obligations
of Debtors to the Intercreditor Agent in respect of costs, fees, indemnification
or otherwise under this Agreement, and/or any other Financing Agreement whether
voluntary or involuntary, direct or indirect, absolute or contingent, liquidated
or unliquidated and whether or not jointly owed with others and (v) any of the
foregoing obligations that are paid, to the extent all or a portion of such
payment is avoided or recovered directly or indirectly from any Mortgage Note
Secured Party as a preference, fraudulent transfer or otherwise (collectively,
the "MORTGAGE NOTES SECURED OBLIGATIONS").
4. REPRESENTATIONS AND WARRANTIES OF DEBTOR.
Each Debtor represents and warrants as of the date hereof as follows:
4.1 Such Debtor has not assigned any of its rights under the Assigned
Agreements except as expressly permitted under each of the Credit Agreement and
the Mortgage Notes Indenture.
4.2 Except as otherwise permitted by the Credit Agreement and the
Mortgage Notes Indenture such Debtor has not executed and is not aware of any
effective financing statement, security agreement or other instrument similar in
effect covering all or any part of the Collateral, except such as may have been
filed in accordance with the terms of this Agreement and the other Financing
Agreements in favor of the Secured Parties.
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4.3 Except as otherwise permitted by the Credit Agreement and the
Mortgage Notes Indenture and as provided in Section 4.5 and 4.6 hereof, such
Debtor is lawfully possessed of ownership of the Collateral and has full right,
title and interest in and to all rights purported to be granted to it under the
Assigned Agreements, not subject to any Liens except Permitted Liens. Such
Debtor has full power and lawful authority to grant and assign the Collateral
hereunder and all consents of third parties required in connection therewith
have been obtained.
4.4 Such Debtor does not do business, and for the previous five years has
not done business, under any fictitious business names or trade names.
4.5 To the knowledge of such Debtor, such Debtor is the true, lawful and
exclusive owner of the Marks listed in ANNEX 2 in connection with Debtor's
present business, except those listed as being held under a non-exclusive
license, and said listed Marks include all of such Debtor's United States
federal registrations or applications registered in the United States Patent and
Trademark office. To the knowledge of such Debtor, such Debtor owns or is
licensed to use all Marks in connection with its present business that are
material to its business. Such Debtor is aware of no material third party claim
that any aspect of such Debtor's present or contemplated business operations
infringes or will infringe on any such third party's rights to such Marks. Such
Debtor is the owner of record of all United States registrations and
applications listed in ANNEX 2 hereto and that, to the knowledge of such Debtor,
said registrations are valid, subsisting, have not been canceled and that such
Debtor is not aware of any material third-party claim that any of said
registrations is invalid or unenforceable.
4.6 To the knowledge of such Debtor, such Debtor is the true, lawful and
exclusive owner of all rights in the Patents listed in ANNEX 3 hereto and in the
Copyrights listed in ANNEX 4 hereto. Said listed Patents include all the United
States patents and applications for United States patents that such Debtor owns
and said listed Copyrights constitute all the United States copyrights
registered in the United States Copyright Office and applications for United
States copyrights that it now uses or practices under that are material to its
business. Such Debtor is aware of no material third party claim that any aspect
of such Debtor's present or contemplated business operations infringes or will
infringe on any such third party's rights to any patent or any copyright.
4.7 All notes and other instruments (excluding checks) comprising any and
all items of Collateral have been delivered to the Intercreditor Agent duly
endorsed and accompanied by duly executed instruments of transfer or assignment
in blank.
4.8 The jurisdiction in which each Debtor is located for purposes of
Sections 9-301 and 9-307 of the UCC is set forth in ITEM A of ANNEX 1 hereto.
Set forth in ITEM B of ANNEX 1 is each location a secured party would have filed
a UCC financing statement prior to July 1, 2001 to perfect a security interest
in equipment, inventory and general intangibles owned by each Debtor. No Debtor
has any trade names other than those set forth in ITEM C of ANNEX 1 hereto.
During the four months preceding the date hereof, no Debtor has been known by
any legal name different from the one set forth on the signature page hereto,
nor has such Debtor been the subject of any merger or other corporate
reorganization, except as set forth in ITEM D of ANNEX 1 hereto. The name set
forth on the signature page is the true and correct name of such Debtor. Each
Debtor's federal taxpayer identification number is (and, during the four months
preceding
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the date hereof, such Debtor has not had a federal taxpayer identification
number different from that) set forth in ITEM E of ANNEX 1 hereto. If the
Collateral of any Debtor includes any inventory located in the State of
California, such Debtor is not a "retail merchant" within the meaning of Section
9102 of the California UCC. No Debtor is a party to any federal, state or local
government contract except as set forth in ITEM F of ANNEX 1 hereto.
4.9 This Agreement creates a valid security interest in the Collateral
securing the payment of the Secured Obligations; provided that with respect to
Marks, Copyrights and Patents and any other intellectual property included as
Collateral herein, this representation shall only extend to such Marks,
Copyrights and Patents that are the subject of United States federal
registrations or applications. Each Debtor has filed or caused to be filed all
financing statements in the appropriate offices therefor (or has authenticated
and delivered to the Intercreditor Agent financing statements suitable for
filing in such offices) and has taken all of the actions necessary to create
perfected and (subject to Permitted Liens) first-priority security interests in
the Collateral other than, (a) all deposit accounts, securities accounts and
investment accounts (and related investment property and financial assets),
except to the extent an agreement relating to such accounts referred to in
Section 5.13 has been obtained by the Debtors, (b) letter of credit rights
except to the extent the issuer of such letter of credit has consented to an
assignment of the proceeds of such letter of credit and (c) until 185 days after
the Closing Date, any deposit accounts, securities accounts, investment accounts
(and related investment property and financial assets) or like accounts located
outside the United States.
5. COVENANTS OF DEBTORS.
Each Debtor covenants as follows:
5.1 Any action or proceeding to enforce this Agreement after an Event of
Default has occurred and is continuing under any Assigned Agreement may be taken
by the Intercreditor Agent either in such Debtor's name or in the Intercreditor
Agent's name, as the Intercreditor Agent may deem necessary.
5.2 Such Debtor will, so long as any Obligations shall be outstanding,
warrant and defend its title to the Collateral and the interests of the
Intercreditor Agent and the Secured Parties in the Collateral against any claim
or demand of any persons (other than Permitted Liens) which could reasonably be
expected to materially and adversely affect such Debtor's title to, or the
Secured Parties right or interest in, such Collateral.
5.3 Such Debtor will at all times keep accurate and complete records of
the Collateral. Such Debtor shall, at its own expense, permit representatives of
the Intercreditor Agent, the Administrative Agent and the Mortgage Notes
Indenture Trustee upon reasonable prior notice, and in accordance with the
Credit Agreement and the Mortgage Notes Indenture, at any time during normal
business hours of such Debtor to inspect and make abstracts from such Debtor's
books and records pertaining to the Collateral subject to a confidentiality
undertaking in form and substance reasonably satisfactory to Debtors. Upon the
occurrence and during the continuation of any Event of Default, at the
Intercreditor Agent's request, Debtors shall promptly deliver copies of any and
all such records to the Intercreditor Agent.
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5.4 Unless waived in writing by the Intercreditor Agent, such Debtor
shall give the Intercreditor Agent at least forty-five days' notice before it
changes its name, identity, corporate structure, location of its principal place
of business or location of its chief executive office and shall at the expense
of such Debtor execute and deliver such instruments and documents as may
reasonably be required by the Intercreditor Agent to maintain a prior perfected
security interest in the Collateral.
5.5 Such Debtor will keep and maintain the Collateral in good condition,
working order and repair 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. Such Debtor will not misuse the
Collateral, or allow it to deteriorate except for the ordinary wear and tear of
its normal and expected use in such Debtor's business in accordance with such
Debtor's policies as then in effect (PROVIDED that no changes are made to such
Debtor's policies as in effect on the date hereof that would be materially
adverse to the interests of the Secured Parties), and will comply in all
material respects with all laws, statutes and regulations pertaining to the use
or ownership of the Collateral. Such Debtor will promptly notify the
Intercreditor Agent, Administrative Agent and the Mortgage Notes Indenture
Trustee regarding any material loss or damage to any material Collateral or
portion thereof; PROVIDED, HOWEVER, that the foregoing provisions exclude normal
wear and tear to the Collateral, items that such Debtor reasonably believes are
no longer necessary to the successful operation of its business and the
disposition of obsolete items. Such Debtor will not use or permit any Collateral
to be used unlawfully or in violation of any provision of this Agreement or any
applicable statute, regulation or ordinance or any policy of insurance covering
the Collateral. Nothing contained in this Section 5.5 shall prohibit such Debtor
from taking any action or refraining from taking any action permitted by the
Credit Agreement and the Mortgage Note Indenture.
5.6 Upon the reasonable request of the Intercreditor Agent,
Administrative Agent or the Mortgage Notes Indenture Trustee, such Debtor will
promptly deliver to such Person records and schedules that show the status,
condition and location of the Collateral, including accounts receivable aging
reports and other reports reasonably requested by such Person, all in reasonable
detail; and will promptly notify the Intercreditor Agent, Administrative Agent
and the Mortgage Notes Indenture Trustee in writing of any event, or change of
law, regulation, business practice, or business condition that may materially
adversely affect the value of the Collateral. The Intercreditor Agent,
Administrative Agent and the Mortgage Notes Indenture Trustee shall have the
right to review and verify such records, schedules, financial information and
notices, and such Debtor will reimburse each such Person for all costs incurred
thereby. Such review and verification shall include the right of the
Intercreditor Agent, Administrative Agent and the Mortgage Notes Indenture
Trustee to contact account debtors to confirm balances owing on and the terms of
Receivables, PROVIDED that an Event of Default has occurred and is continuing.
5.7 Except as otherwise provided in this SECTION 5.7, such Debtor shall
continue to collect at its own expense, all amounts due or to be become due such
Debtor under the Receivables. In connection with such collections, such Debtor
may take (and, at the Intercreditor Agent's direction when an Event of Default
has occurred and is continuing, shall take) such action as such Debtor or the
Intercreditor Agent after consultation with such Debtor reasonably deem
necessary or advisable to enforce collection of the Receivables; PROVIDED,
HOWEVER, that such Debtor shall not adjust, settle or compromise the amount or
payment of any Receivable, or
15
release wholly or partly any account debtor or obligor thereof, or allow any
credit or discount thereon, other than adjustments, settlements, or discounts
that are in accordance with such Debtor's policies as then in effect; PROVIDED
that no changes are made to such Debtor's policies as in effect on the date
hereof that would be materially adverse to the interests of the Secured Parties.
The Intercreditor Agent shall have the right at any time after the occurrence
and during the continuation of an Event of Default to notify the account debtors
or obligors under any of the Receivables of the assignment of such Receivables
to the Secured Parties and to direct such account debtors or obligors to make
payment of all amounts due or to become due to such Debtor thereunder directly
to the Intercreditor Agent or to such Secured Parties as Intercreditor Agent may
direct in accordance with the Intercreditor Agreement and, upon such
notification and at the expense of such Debtor, to enforce collection of any
such Receivables, and to adjust, settle or compromise the amount or payment
thereof, as the Intercreditor Agent may deem appropriate in its sole discretion.
After the occurrence and during the continuation of an Event of Default (i) all
amounts and proceeds (including instruments) received by such Debtor in respect
of the Receivables shall be received in trust for the benefit of the Secured
Parties hereunder and, upon notice from the Intercreditor Agent, shall be
segregated from other funds of such Debtor and shall be forthwith paid over to
the Intercreditor Agent or to such Secured Parties as Intercreditor Agent may
direct in accordance with the Intercreditor Agreement in the same form as so
received (with all necessary or appropriate endorsements) to be held as cash
collateral and applied as provided by SECTION 8, and (ii) such Debtor shall not
adjust, settle or compromise the amount or payment of any Receivable, or release
wholly or partly any account debtor or obligor thereof, or allow any credit or
discount thereon.
5.8 Such Debtor shall pay promptly when due all taxes, assessments and
governmental charges or levies imposed upon, and all claims against, the
Collateral, except to the extent the validity thereof is being contested in good
faith; PROVIDED that such Debtor shall in any event pay such taxes, assessments,
charges, levies or claims not later than five days prior to the date of any
proposed sale under any judgement, writ or warrant of attachment entered or
filed against such Debtor or any of the Collateral as a result of the failure to
make such payment.
5.9 Each Debtor hereby agrees to give notice to the Intercreditor Agent
by delivering a supplement to ITEM 6 of ANNEX 1, upon acquiring any commercial
tort claim it reasonably believes to be in excess of $1,000,000 and agrees to
take any actions reasonably requested by Intercreditor Agent to perfect a
security interest therein.
5.10 Each Debtor agrees to use commercially reasonable efforts to get each
issuer of a letter of credit in an amount in excess of $500,000 under which such
Debtor has letter of credit rights to consent to an assignment of the proceeds
of such letter of credit to the Intercreditor Agent.
5.11 MARKS.
(A) Each such Debtor hereby agrees not to sell, assign (by
operation of law or otherwise) or otherwise dispose of any right
under any material Xxxx that such Debtor is required to maintain
under SECTION 5.9.B hereof except as permitted by the Credit
Agreement and the Mortgage Notes Indenture, absent prior written
approval of the Intercreditor Agent, such approval not to be
16
unreasonably withheld or delayed. Each such Debtor agrees to use such
Marks in interstate commerce in a manner that is sufficient to
preserve such Marks as trademarks or service marks registered under
the laws of the United States.
(B) Each such Debtor shall, at its own expense, diligently
prosecute all applications for Marks listed in ANNEX 2 hereto and
further, for all of its material registered Marks, shall diligently
process all documents required by the Trademark Act of 1946, 15
U.S.C. Sections 1051 ET SEQ. to maintain trademark registration,
including affidavits of use and applications for renewals of
registration in the United States Patent and Trademark Office
pursuant to 15 U.S.C. Sections 1058(a), 1059 and 1065, and shall pay
all fees and disbursements in connection therewith and shall not
abandon any such filing or affidavit of use or any such application
of renewal prior to the exhaustion of all administrative and judicial
remedies without the prior written consent of the Intercreditor
Agent, such consent not to be unreasonably withheld or delayed;
PROVIDED that such Debtor shall not be obligated to maintain any Xxxx
in the event that such Debtor determines, in its reasonable business
judgment, that the maintenance of such Xxxx is no longer necessary or
desirable in the conduct of its business. Each Debtor agrees to
notify the Intercreditor Agent, the Administrative Agent and the
Mortgage Notes Indenture Trustee three months prior to the date on
which the affidavits of use or the applications for renewal
registration are due with respect to any material registered Xxxx.
(C) If any material Xxxx registration certificate is issued
hereafter to a Debtor as a result of any application now or hereafter
pending before the United States Patent and Trademark Office, within
thirty days of receipt of such certificate confirming such
registration such Debtor shall deliver a copy of such certificate,
and a grant of security in such Xxxx on behalf of the Secured Parties
to the Intercreditor Agent, the Administrative Agent and the Mortgage
Notes Indenture Trustee, confirming the grant thereof hereunder
together with all cover sheets or other documents or instruments
required to be filed with the United States Patent and Trademark
Office in order to create or perfect a lien in respect of such Xxxx.
(D) Each Debtor agrees, promptly upon learning thereof, to
notify the Intercreditor Agent, the Administrative Agent and the
Mortgage Notes Indenture Trustee in writing of the name and address
of, and to furnish such pertinent information that may be available
with respect to, any party who such Debtor believes is infringing or
otherwise violating any of such Debtor's rights to any material Xxxx,
or with respect to any party claiming that such Debtor's use of any
such Xxxx violates in any material respect any property right of that
party. Such Debtor further agrees, unless otherwise agreed by the
Intercreditor Agent, diligently to prosecute any Person infringing
any material Xxxx.
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5.12 PATENTS AND COPYRIGHTS. Each Debtor hereby agrees not to sell, assign
(by operation of law or otherwise), or otherwise dispose of any right under any
material Patent or Copyright except as permitted by the Credit Agreement and the
Mortgage Notes Indenture, absent prior written approval of the Intercreditor
Agent, such approval not to be unreasonably withheld or delayed.
(A) Each Debtor shall, at its own expense, diligently prosecute
all applications for material Patents and material Copyrights listed
in ANNEX 3 and ANNEX 4 hereto, respectively, and shall not abandon
any such application prior to exhaustion of all reasonable
administrative and judicial remedies, absent written consent of the
Intercreditor Agent, such consent not to be unreasonably withheld or
delayed. Each Debtor shall do all acts and things reasonably
necessary to maintain the Patents and Copyrights listed in ANNEX 3
and ANNEX 4, respectively, and all Patents and Copyrights hereafter
obtained or acquired by such Debtor, including, without limitation,
making timely payment of all post-issuance fees required pursuant to
35 U.S.C. Section 41 to maintain in force rights under each Patent.
(B) Within thirty days of acquisition of a Patent or Copyright,
or of filing of an application for a Patent or Copyright by a Debtor,
such Debtor shall deliver to the Intercreditor Agent, the
Administrative Agent and the Mortgage Notes Indenture Trustee a copy
of said Patent or Copyright or such application, as the case may be,
with a grant of security as to such Patent or Copyright, as the case
may be, confirming the grant thereof hereunder together with all
cover sheets or other documents or instruments required to be filed
with the United States Patent and Trademark Office in order to create
or perfect a lien in respect of such Patent or Copyright.
(C) Each Debtor agrees, promptly upon learning thereof, to
notify the Intercreditor Agent, the Administrative Agent and the
Mortgage Notes Indenture Trustee in writing of the name and address
of, and to furnish such pertinent information available to such
Debtor with respect to any party who Debtor believes is infringing or
otherwise violating any of such Debtor's rights in any material
Patent or material Copyright, or with respect to any party claiming
that Debtor's practice of any Patent or use of any Copyright violates
any property right of that third party. Each Debtor further agrees,
unless otherwise agreed by the Intercreditor Agent, diligently to
prosecute any Person infringing any material Patent or material
Copyright.
5.13 ACCOUNTS. With respect to any deposit accounts, securities accounts,
investment accounts or like accounts (other than the accounts of Debtors located
outside the United States), Debtors shall use commercially reasonable efforts to
obtain from the financial institutions with whom such accounts are maintained,
agreements with the Intercreditor Agent and the Debtors in form and substance
reasonably satisfactory to Intercreditor Agent and Debtors pursuant to which
control over such account is granted to the Intercreditor Agent and pursuant to
which such financial institution confirms and acknowledges the security interest
of Secured Parties in such account and waives its right of set-off with respect
to amounts held therein. From and after 60 days from the Closing Date, Debtors
will provide a list of such accounts to the Intercreditor
18
Agent and use commercially reasonable efforts to take such further actions and
execute such further documents in connection therewith as Intercreditor Agent
may reasonably request in order to perfect, or maintain the perfection of the
security interest of Secured Parties in such accounts. To the extent that
Debtors are unable to cause the Intercreditor Agent to have control over any
such account after 60 days from the Closing Date, the security interest in such
account shall be deemed to be released by the Intercreditor Agent for purposes
of Section 10.03(a)(ix) of the Mortgage Notes Indenture. The Debtors shall,
within 6 months of the Closing Date, take such action as may be necessary to
provide the Intercreditor Agent to have perfected security interests in all such
accounts maintained outside the United States.
5.14 FUTURE MATERIAL CONTRACTS. If any Debtor enters into any Material
Contract related to the construction of the Phase I-A Project after the date
hereof, such Debtor shall (i) deliver the Intercreditor Agent, the
Administrative Agent and the Mortgage Notes Indenture Trustee an executed
counterpart or certified copy of such Material Contract and (ii) shall cause the
counterparty to such additional Material Contract to enter into a consent to
such assignment, such consent to be in substantially the form of EXHIBIT O to
the Credit Agreement (subject to any changes thereto requested by such party and
reasonably satisfactory to the Intercreditor Agent).
6. REMEDIES UPON EVENT OF DEFAULT.
6.1 Subject to compliance with applicable Nevada Gaming Laws, if any
Event of Default shall have occurred and be continuing, the Intercreditor Agent
may exercise in respect of the Collateral, in addition to all other rights and
remedies provided for herein or otherwise available to it, all the rights and
remedies of a secured party on default under the UCC (whether or not the UCC
applies to the affected Collateral), and also may (a) require Debtors to, and
Debtors hereby agree that they will at their expense and upon request of the
Intercreditor Agent forthwith, assemble all or part of the Collateral as
directed by the Intercreditor Agent and make it available to the Intercreditor
Agent at a place to be designated by the Intercreditor Agent that is reasonably
convenient to both parties, (b) enter onto the property where any Collateral is
located and take possession thereof with or without judicial process, (c) prior
to the disposition of the Collateral, store, process, repair or recondition the
Collateral or otherwise prepare the Collateral for disposition in any manner to
the extent the Intercreditor Agent deems appropriate, (d) take possession of
Debtors' premises or place custodians in exclusive control thereof, remain on
such premises and use the same and any of Debtors' equipment for the purpose of
completing any work in process, taking any actions described in the preceding
clause (c) and collecting any Obligation, and (e) without notice except as
specified below, sell the Collateral or any part thereof in one or more parcels
at public or private sale, at any of the Intercreditor Agent's offices or
elsewhere, for cash, on credit or for future delivery, at such time or times and
at such price or prices and upon such other terms as the Intercreditor Agent may
deem commercially reasonable. The Intercreditor Agent or any of the Secured
Parties may be the purchaser of any or all of the Collateral at any such sale
and the Intercreditor Agent as agent for and representative of the Secured
Parties shall be entitled, for the purpose of bidding and making settlement or
payment of the purchase price for all or any portion of the Collateral sold at
any such public sale, to use and apply any of the Obligations as a credit on
account of the purchase price for any Collateral payable by the Intercreditor
Agent at such sale. Each purchaser at any such sale shall hold the property sold
absolutely free from any claim or right on the part of Debtors, and Debtors
hereby waive (to the extent permitted by applicable law) all rights of
redemption, stay and/or appraisal
19
which they now have or may at any time in the future have under any rule of law
or statute now existing or hereafter enacted. Debtors agree that, to the extent
notice of sale shall be required by law, at least ten days' notice to Debtors of
the time and place of any public sale or the time after which any private sale
is to be made shall constitute reasonable notification. The Intercreditor Agent
shall not be obligated to make any sale of Collateral regardless of notice of
sale having been given. The Intercreditor Agent may adjourn any public or
private sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time and
place to which it was so adjourned. Debtors hereby waive any claims against the
Intercreditor Agent arising by reason of the fact that the price at which any
Collateral may have been sold at such a private sale was less than the price
which might have been obtained at a public sale, even if the Intercreditor Agent
accepts the first offer received and does not offer such Collateral to more than
one offeree. If the proceeds of any sale or other disposition of the Collateral
are insufficient to pay all the Obligations, Debtors shall be liable for the
deficiency and the reasonable fees of any attorneys employed by the
Intercreditor Agent to collect such deficiency. Upon written demand from the
Intercreditor Agent, each Debtor shall execute and deliver to the Intercreditor
Agent an assignment or assignments of the Patents, Copyrights, and Marks and
such other documents as are necessary or appropriate to carry out the intent and
purposes of this Agreement. Each Debtor agrees that such an assignment and/or
recording shall be applied to reduce the Obligations outstanding only to the
extent that the Intercreditor Agent receives cash proceeds in respect of the
sale of, or other realization upon, the Collateral.
7. REMEDIES CUMULATIVE; DELAY NOT WAIVER.
7.1 No right, power or remedy herein conferred upon or reserved to the
Intercreditor Agent is intended to be exclusive of any other right, power or
remedy and every such right, power and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right, power and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder or otherwise shall not
prevent the concurrent assertion or employment of any other appropriate right or
remedy. Resort to any or all security now or hereafter held by the Intercreditor
Agent may be taken concurrently or successively and in one or several
consolidated or independent judicial actions or lawfully taken nonjudicial
proceedings, or both.
7.2 No delay or omission of the Intercreditor Agent to exercise any right
or power accruing upon the occurrence and during the continuance of any Event of
Default as aforesaid shall impair any such right or power or shall be construed
to be a waiver of any such Event of Default or an acquiescence therein; and
every power and remedy given by this Agreement may be exercised from time to
time, and as often as shall be deemed expedient, by the Intercreditor Agent.
8. APPLICATION OF PROCEEDS.
All proceeds received by the Intercreditor Agent in respect of any sale
of, collection from, or other realization upon all or any part of the Collateral
shall be applied to repay the Secured Obligations as provided in the
Intercreditor Agreement.
9. ATTORNEY-IN-FACT.
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Subject to compliance with applicable Nevada Gaming Laws, each Debtor
hereby irrevocably appoints the Intercreditor Agent as Debtors'
attorney-in-fact, with full authority in the place and stead of Debtor and in
the name of such Debtor, the Intercreditor Agent or otherwise, from time to time
upon and following the occurrence and continuation of an Event of Default,
Default (as defined in the Mortgage Notes Indenture) or Potential Event of
Default in the Intercreditor Agent's discretion to take any action and to
execute any instrument that the Intercreditor Agent may deem necessary or
advisable to accomplish the purposes of this Agreement, including:
9.1 to obtain and adjust insurance required to be maintained by Debtors
or paid to the Intercreditor Agent pursuant to this Agreement;
9.2 to ask for, demand, collect, xxx for, recover, compound, receive and
give acquittance and receipts for moneys due and to become due under or in
respect of any of the Collateral;
9.3 to receive, endorse and collect any drafts or other instruments,
documents and chattel paper in connection with clauses (a) and (b) above;
9.4 to file any claims or take any action or institute any proceedings
that the Intercreditor Agent may deem necessary or desirable for the collection
of any of the Collateral or otherwise to enforce the rights of the Intercreditor
Agent with respect to any of the Collateral;
9.5 to pay or discharge taxes or Liens (other than Permitted Liens)
levied or placed upon or threatened against the Collateral, the legality or
validity thereof and the amounts necessary to discharge the same to be
determined by the Intercreditor Agent in its sole discretion, any such payments
made by the Intercreditor Agent to become obligations of Debtor to the
Intercreditor Agent, due and payable immediately without demand;
9.6 to sign and endorse any invoices, freight or express bills, bills of
lading, storage or warehouse receipts, drafts against debtors, assignments,
verifications and notices in connection with accounts and other documents
relating to the Collateral; and
9.7 upon the occurrence and during the continuation of an Event of
Default, generally to sell, transfer, pledge, make any agreement with respect to
or otherwise deal with any of the Collateral as fully and completely as though
the Intercreditor Agent were the absolute owner thereof for all purposes, and to
do, at the Intercreditor Agent's option and Debtors' expense, at any time or
from time to time, all acts and things that the Intercreditor Agent deems
necessary to protect, preserve or realize upon the Collateral and the
Intercreditor Agent's security interest therein in order to effect the intent of
this Agreement, all as fully and effectively as Debtor might do.
10. THE INTERCREDITOR AGENT MAY PERFORM.
Upon the occurrence and during the continuance of an Event of Default, if
Debtor fails to perform any agreement contained herein, the Intercreditor Agent
may itself perform, or cause performance of, such agreement, and the reasonable
expenses of the Intercreditor Agent incurred in connection therewith shall be
part of the Obligations of the relevant Secured Parties.
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11. PERFECTION; FURTHER ASSURANCES.
11.1 Each Debtor agrees that from time to time, at the expense of such
Debtor, such Debtor shall promptly execute and deliver all further instruments
and documents, and take all further action, that may be reasonably necessary, or
that the Intercreditor Agent may reasonably request, in order to perfect and
protect the assignment and security interest granted, purported or intended to
be granted hereby in favor of the Secured Parties or to enable the Intercreditor
Agent to exercise and enforce its rights and remedies hereunder with respect to
any Collateral. Without limiting the generality of the foregoing, each Debtor
shall (i) if any Collateral shall be evidenced by a promissory note or other
instrument in excess of $5,000, deliver and pledge to the Intercreditor Agent
for the benefit of the Secured Parties granted a security interest in such
Collateral such note duly endorsed without recourse, and accompanied by duly
executed instruments of transfer or assignment, all in form and substance
satisfactory to Intercreditor Agent, (ii) execute and deliver to the
Intercreditor Agent such financing or continuation statements, or amendments
thereto, and such other instruments, endorsements or notices, as may be
reasonably necessary or desirable or as such Secured Parties may reasonably
request, in order to perfect and preserve the assignments and security interests
granted, purported or intended to be granted hereby in favor of the relevant
Secured Parties and (iii) at the Intercreditor Agent's reasonable request,
appear in and defend any action or proceeding that may affect Debtor's title to
or the Intercreditor Agent's or any of the Secured Parties security interest in
all or any part of the Collateral.
11.2 Each Debtor hereby authorizes the Administrative Agent, the Mortgage
Notes Indenture Trustee and the Intercreditor Agent to file one or more
financing or continuation statements, and amendments thereto, relative to all or
any part of the Collateral in which such Secured Party has been granted a
security interest.
11.3 Each Debtor shall pay all filing, registration and recording fees and
all refiling, re-registration and re-recording fees, and all reasonable expenses
incident to the execution and acknowledgment of this Agreement, any assurance,
and all federal, state, county and municipal stamp taxes and other taxes (other
than income taxes), duties, imports, assessments and charges arising out of or
in connection with the execution and delivery of this Agreement, any agreement
supplemental hereto, any financing statements, and any instruments of further
assurance.
11.4 Each Debtor shall, promptly upon request, provide to the
Intercreditor Agent, all information and evidence it may reasonably request
concerning the Collateral to enable the Intercreditor Agent to enforce the
provisions of this Agreement.
12. PLACE OF BUSINESS; LOCATION OF RECORDS.
Unless the Intercreditor Agent is otherwise notified under SECTION 5.4, the
place of business and chief executive office of each Debtor is, and all records
of such Debtor concerning the Collateral are and will be, located at the address
of such Debtor set forth on the signature pages to this Agreement.
22
13. CONTINUING ASSIGNMENT AND SECURITY INTEREST; TRANSFER OF DEBT.
This Agreement shall create a continuing assignment of, and security
interest in, the Collateral and shall (a) remain in full force and effect until
payment in full of all Obligations, (b) be binding upon each Debtor, its
successors and assigns; PROVIDED, HOWEVER, that the obligations of each Debtor,
its successors and assigns hereunder may not be assigned without the prior
written consent of the Intercreditor Agent, and (c) inure, together with the
rights and remedies of the Intercreditor Agent hereunder, to the benefit of the
Intercreditor Agent, its successors, transferees and assigns, the other Secured
Parties and their respective successors, transfers and assigns (whether as a
result of a refinancing or otherwise). Without limiting the generality of the
foregoing but subject to the terms of the Financing Agreements evidencing the
Obligations owed to particular Secured Parties, such Secured Parties may assign
or otherwise transfer all or any part of or interest in such Financing
Agreements or other evidence of indebtedness held by them to any other Person to
the extent permitted by such Financing Agreements, and such other Person shall
thereupon become vested with all or an appropriate part of the benefits in
respect thereof granted to the Secured Parties herein or otherwise. The release
of the security interest in any or all of the Collateral, the taking or
acceptance of additional security, or the resort by any Secured Party or the
Intercreditor Agent to any security it may have in any order it may deem
appropriate, shall not affect the liability of any person on the Obligations
secured hereby. If this Agreement shall be terminated or revoked by operation of
law, each Debtor will indemnify and save the Secured Parties harmless from any
loss which may be suffered or incurred by the Secured Parties in acting
hereunder prior to the receipt by the Intercreditor Agent, its successors,
transfers, or assigns of notice of such termination or revocation. Each Debtor
acknowledges and agrees that, pursuant to and in accordance with the terms of
the Intercreditor Agreement, one or more additional or successor Intercreditor
Agents, or other agents or representatives of the Intercreditor Agent or other
secured Parties may be appointed, by written notice to each Debtor, and such
person or persons shall be entitled to exercise or perform all or a portion of
the duties or obligations of the Intercreditor Agent hereunder in accordance
with the terms of such appointment.
14. TERMINATION AND RELEASE OF SECURITY INTEREST.
14.1 On the Termination Date, the security interest granted under
Subsection 2.1 and 2.2 in favor of the Intercreditor Agent on behalf of the Bank
Secured Parties shall terminate; PROVIDED that such termination shall not affect
the rights of the other Secured Parties hereunder. Upon any such termination,
the Intercreditor Agent will, at the Debtors' expense, execute and deliver to
the Debtors such documents (including, without limitation, UCC-3 termination
statements) as the Debtors shall reasonably request to evidence such
termination. Following any such termination any references to the Administrative
Agent and the Credit Agreement shall be deemed to be deleted.
14.2 Upon the payment in full of the Mortgage Note Secured Obligations,
the security interest granted under Subsection 2.3 in favor of the Mortgage
Notes Indenture Trustee shall terminate; PROVIDED that such termination shall
not affect the rights of the other Secured Parties hereunder. Upon any such
termination, the Intercreditor Agent will, at the Debtors' expense, execute and
deliver to the Debtors such documents (including, without limitation, UCC-3
termination statements) as the Debtors shall reasonably request to evidence such
termination.
23
Following any such termination any references to the Mortgage Note Secured
Parties, the Mortgage Notes Indenture Trustee and the Mortgage Note Indenture
shall be deemed to be deleted.
14.3 To the extent any property (including Specified FF&E) is financed by
any lender pursuant to an FF&E Facility rather than Bank Secured Parties, the
Intercreditor Agent shall release the Liens in favor of the Secured Parties on
such property and in connection therewith at the Debtor's expense, execute and
deliver to the Debtors such documents (including, without limitation UCC-3
termination statements) as the Debtors may reasonably request to evidence such
termination.
14.4 Upon the termination of the security interests of the Bank Secured
Parties in accordance with Section 14.1 above, the appointment of Intercreditor
Agent shall terminate and all duties, rights and remedies vested in
Intercreditor Agent shall thereupon be vested in the Mortgage Notes Indenture
Trustee.
14.5 In the event that any part of the Collateral is sold, transferred or
otherwise disposed of in accordance with the Credit Agreement and the Mortgage
Notes Indenture or is otherwise released in accordance with the Credit Agreement
and the Mortgage Notes Indenture or with the consent of the Requisite Lenders
and, if required, the Mortgage Notes Secured Parties, such Collateral will be
sold, transferred or otherwise disposed of, and released free and clear of the
Liens created by this Agreement and the Intercreditor Agent, at the request and
expense of the relevant Debtor, will duly and promptly assign, transfer, deliver
and release to the applicable Debtor or its designee (without recourse and
without any representation or warranty) such of the Collateral as is then being
(or has been) so sold, transferred or otherwise disposed of or released.
Furthermore, upon the release of any Subsidiary Guarantor from the Subsidiary
Guaranty and the Guaranty (as defined in the Mortgage Notes Indenture) in each
case, in accordance with the provisions of the Credit Agreement and the Mortgage
Notes Indenture, such Debtor (and the Collateral at such time assigned by such
Debtor pursuant hereto) shall be released from this Agreement. In connection
with any disposition or release pursuant to this Section 14.5, the Intercreditor
Agent shall, at the Debtors' expense, execute and deliver to Debtors such
documents (including UCC-3 termination statements) as Debtors may reasonably
request.
15. INDEMNITY AND EXPENSES.
To the extent not covered by the Credit Agreement or the Mortgage Notes
Indenture, the Debtors agree, jointly and severally, to indemnify the
Intercreditor Agent and each other Secured Party from and against any and all
claims, losses and liabilities growing out of or resulting from this Agreement
(including enforcement of this Agreement), except claims, losses or liabilities
resulting from such Secured Party's gross negligence or willful misconduct as
finally determined by a court of competent jurisdiction.
16. ATTORNEYS' FEES.
In the event any legal action or proceeding (including any of the remedies
provided for herein or at law) is commenced to enforce or interpret this
Agreement or any provision thereof,
24
the Debtors shall indemnify each of the Secured Parties and the Intercreditor
Agent for their reasonable attorneys' fees and other costs and expenses incurred
therein, and if a judgment or award is entered in any such action or proceeding,
such reasonable attorneys' fees and other costs and expenses may be made a part
of such judgment or award.
17. AMENDMENTS; WAIVERS; CONSENTS.
No amendment, modification, termination or waiver of any provision of this
Agreement, or consent to any departure by the Debtors therefrom, shall in any
event be effective without the written concurrence of the Intercreditor Agent
(as set forth in the Credit Agreement) and the Debtors subject to the terms of
the Intercreditor Agreement. The parties hereto acknowledge that to the extent
provided in the second paragraph of Section 9.01 of the Mortgage Notes
Indenture, this Agreement may be amended, modified, terminated or waived at the
direction of the Bank Secured Parties (with the consent of the Debtors but
without the consent of the Mortgage Notes Indenture Trustee or any other
Mortgage Notes Secured Party) and the Intercreditor Agent shall concur in such
amendment, modification, termination or waiver so long as the Mortgage Notes
Secured Parties are treated equally with and in the same manner as the Bank
Secured Parties with respect to such amendment, modification, termination or
waiver.
18. NOTICES.
All notices or other communications required or permitted to be given
hereunder shall be in writing and shall be considered as properly given (a) if
delivered in person, (b) if sent by reputable overnight delivery service, (c) in
the event overnight delivery services are not readily available, if mailed by
first class mail, postage prepaid, registered or certified with return receipt
requested or (d) if sent by prepaid telex, or by telecopy with correct answer
back received. Notice so given shall be effective upon receipt by the addressee,
except that communication or notice so transmitted by telecopy or other direct
written electronic means shall be deemed to have been validly and effectively
given on the day (if a Business Day and, if not, on the next following Business
Day) on which it is validly transmitted if transmitted before 4 p.m.,
recipient's time, and if transmitted after that time, on the next following
Business Day; PROVIDED, HOWEVER, that if any notice is tendered to an addressee
and the delivery thereof is refused by such addressee, such notice shall be
effective upon such tender. The addresses of the parties for purposes hereof
shall be as set forth on the signature pages hereof unless and until notice
changing such address is given in accordance with this Section 18 (and any
notice sent to a Subsidiary Guarantor may be sent to it at the address of either
Borrower). Any party shall have the right to change its address for notice
hereunder to any other location by giving of no less than twenty (20) days'
notice to the other parties in the manner set forth hereinabove.
19. GOVERNING LAW.
Subject to the application of Nevada Gaming Laws, this Agreement, including
all matters of construction, validity, performance and the creation, validity,
enforcement or priority of the lien of, and security interests created by, this
Agreement in or upon the Collateral shall be governed by the laws of the state
of New York, without reference to conflicts of law (other than Section 5-1401 of
the New York General Obligations Law), except as required by mandatory
provisions of law and except to the extent that the validity or perfection of
the lien and security
25
interest hereunder, or remedies hereunder, in respect of any particular
Collateral are governed by the laws of a jurisdiction other than the state of
New York.
20. CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST DEBTORS ARISING OUT OF OR RELATING
TO THIS AGREEMENT, OR ANY OBLIGATIONS HEREUNDER MAY BE BROUGHT IN ANY STATE OR
FEDERAL COURT OF COMPETENT JURISDICTION IN XXX XXXXX, XXXXXX XXX XXXX XX XXX
XXXX. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH DEBTOR, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION
AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH
COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO DEBTOR AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 18;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT
TO CONFER PERSONAL JURISDICTION OVER DEBTOR IN ANY SUCH PROCEEDING IN ANY
SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN
EVERY RESPECT;
(V) AGREES THAT INTERCREDITOR AGENT RETAINS THE RIGHT TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST EACH
DEBTOR IN THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SECTION 20 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST
EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR
OTHERWISE.
21. REINSTATEMENT.
This Agreement shall continue to be effective or be reinstated, as the case
may be, if at any time any amount received by any Secured Party in respect of
the Obligations is rescinded or must otherwise be restored or returned by such
Secured Party upon the insolvency, bankruptcy, reorganization or liquidation of
a Debtor or upon the dissolution of, or appointment of any intervenor or
conservator of, or trustee or similar official for, a Debtor or any substantial
part of a Debtor's assets, or otherwise, all as though such payments had not
been made.
22. SEVERABILITY.
26
The provisions of this Agreement are severable, and if any clause or
provision shall be held invalid or unenforceable in whole or in part in any
jurisdiction, then such invalidity or unenforceability shall affect only such
clause or provision, or part thereof, in such jurisdiction and shall not in any
manner affect such clause or provision in any other jurisdiction, or any other
clause or provision of this Agreement in any jurisdiction.
23. SURVIVAL OF PROVISIONS.
All agreements, representations and warranties made herein shall survive
the execution and delivery of this Agreement and the other Financing Agreements
and extensions of credit thereunder. Notwithstanding anything in this Agreement
or implied by law to the contrary, the agreements, representations and
warranties of Debtors set forth herein shall terminate only upon full repayment
of the Obligations.
24. HEADINGS DESCRIPTIVE.
The headings in this Agreement are for convenience of reference only and
shall not constitute a part of this Agreement for any other purpose or be given
any substantive effect.
25. ENTIRE AGREEMENT.
This Agreement, together with any other agreement executed in connection
herewith, is intended by the parties as a final expression of their agreement
and is intended as a complete and exclusive statement of the terms and
conditions thereof.
26. TIME.
Time is of the essence of this Agreement.
27. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original but all of which shall together constitute one and
the same agreement.
28. WAIVER OF JURY TRIAL.
EACH DEBTOR AND THE INTERCREDITOR AGENT HEREBY WAIVE THEIR RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF
THIS AGREEMENT AND THE RELATIONSHIP AMONG THEM THAT IS BEING ESTABLISHED. EACH
DEBTOR AND THE INTERCREDITOR AGENT ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT IT HAS ALREADY RELIED ON
THE WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT IT WILL CONTINUE TO RELY ON
THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH SUCH PERSON FURTHER WARRANTS
AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT
IT
27
KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION
WITH LEGAL COUNSEL.
29. RESPONSIBILITIES OF THE INTERCREDITOR AGENT.
The powers conferred on the Intercreditor Agent hereunder are solely to
protect its interest in the Collateral granted for the benefit of the Secured
Parties and shall not impose any duty upon it to exercise any such powers.
Except for the exercise of reasonable care in the custody of any Collateral in
its possession and the accounting for moneys actually received by it hereunder,
the Intercreditor Agent shall have no duty as to any Collateral, it being
understood that the Intercreditor Agent shall have no responsibility for (a)
taking any necessary steps (other than steps taken in accordance with the
standard of care set forth above to maintain possession of the Collateral) to
preserve rights against any parties with respect to any Collateral or (b) taking
any necessary steps to collect or realize upon the Obligations or any guarantee
therefor, or any part thereof, or any of the Collateral. The Intercreditor Agent
shall be deemed to have exercised reasonable care in the custody and
preservation of Collateral in its possession if such Collateral is accorded
treatment substantially equal to that which such Person accords its own property
of like kind.
30. ADDITIONAL DEBTORS.
Upon the execution and delivery by any other Person of a supplement in the
form of EXHIBIT A hereto, such Person shall become a "Debtor" hereunder with the
same force and effect as if it were originally a party to this Agreement and
named as a "Debtor" hereunder. The execution and delivery of such supplement
shall not require the consent of any other Debtor hereunder, and the rights and
obligations of each Debtor hereunder shall remain in full force and effect
notwithstanding the addition of any new Debtor as a party to this Agreement.
31. JOINT AND SEVERAL OBLIGATIONS.
The provisions of Section 2.9 of the Credit Agreement are incorporated
herein by reference and each Debtor agrees that the provisions of the aforesaid
sections shall apply with respect to each Debtor hereunder.
32. AMENDMENT FOR NEW CREDIT PARTIES. Upon any refinancing, refunding,
replacement or restructuring, in whole or in part, of the Credit Agreement or,
the Indebtedness under the Mortgage Notes Indenture or any Future First Lien
Credit Facility, or the entering into of a Future First Lien Credit Facility or
agreements relating to Hedging Obligations (as defined in the Intercreditor
Agreement) with Permitted Counterparties (subject to the rights of the existing
Secured Parties under their respective Financing Agreements with respect to any
such refinancing or other Indebtedness or such Hedging Obligations), the
applicable lender or Permitted Counterparty and the Intercreditor Agent shall
execute and deliver a joinder, amendment or supplement to this Agreement to
provide that the new lender(s) (or the agent or trustee for the new lender(s))
shall be a "Secured Party" hereunder. Upon the execution and delivery by such
lender(s) or Permitted Counterparties and the other parties thereto of such
joinder, amendment or supplement, such lender(s) or Permitted Counterparties
shall become a "Secured Party" hereunder with the same force and effect as if it
were originally a party to this Agreement and named as a "Secured Party" herein.
The execution and delivery of such joinder,
28
amendment or supplement shall not require the consent of any other Secured Party
hereunder, and the rights and obligations of each Secured Party hereunder shall
remain in full force and effect notwithstanding the addition of any new Secured
Party as a party to this Agreement.
29
Exhibit 4.3
IN WITNESS WHEREOF, each of the undersigned has caused this Company
Security Agreement to be duly executed and delivered as of the day and year
first written above.
DEBTORS:
LAS VEGAS SANDS, INC.,
a Nevada Corporation
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxx
----------------------------
Title: Secretary
---------------------------
VENETIAN CASINO RESORT, LLC,
a Nevada limited liability company
By: LAS VEGAS SANDS, INC.,
a Nevada corporation,
its managing member
By: /s/ Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
-----------------------
Title: Secretary
----------------------
MALL INTERMEDIATE HOLDING
COMPANY, LLC
By: Venetian Casino Resort, LLC, its Managing
Member
By: Las Vegas Sands, Inc., its
Managing Member
By: /s/ Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary
GRAND CANAL SHOPS MALL
CONSTRUCTION, LLC
By: Venetian Casino Resort, LLC,
its Managing Member
By: Las Vegas Sands, Inc., its
Managing Member
By: /s/ Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary
LIDO INTERMEDIATE HOLDING
COMPANY, LLC
By: Venetian Casino Resort, LLC,
its Managing Member
By: Las Vegas Sands, Inc., its
Managing Member
By: /s/ Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary
VENETIAN VENTURE DEVELOPMENT,
LLC
By: Venetian Casino Resort, LLC,
its Managing Member
By: Las Vegas Sands, Inc., its
Managing Member
By: /s/ Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary
VENETIAN OPERATING COMPANY, LLC
By: Venetian Casino Resort, LLC,
its Managing Member
By: Las Vegas Sands, Inc., its
Managing Member
By: /s/ Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary
VENETIAN MARKETING, INC.
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary
VENETIAN CASINO RESORT ATHENS, LLC
By: Las Vegas Sands, Inc., its
Managing Member
By: /s/ Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary
Notice Address for Debtors:
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: General Counsel
Telefax: (000) 000-0000
INTERCREDITOR AGENT:
THE BANK OF NOVA SCOTIA,
a Canadian chartered bank,
as Intercreditor Agent
By: /s/ Xxxx Xxxxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxxxx
---------------------------
Title: Managing Director
--------------------------
Notice Address: The Bank of Nova Scotia
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxx
Relationship Manager
Facsimile Number: (000) 000-0000
with a copy to: The Bank of Nova Scotia
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxx
Facsimile Number: (000) 000-0000
