EXHIBIT 4.7
SECURITY AGREEMENT
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(Accounts, Inventory, Equipment, Chattel Paper, Documents,
Instruments, General Intangibles and Other Property)
Made by
HWCC-TUNICA, INC.,
as Debtor
to
STATE STREET BANK AND TRUST COMPANY,
as Trustee and Secured Party
Acting on behalf of the Holders of the Notes
May 19, 1999
SECURITY AGREEMENT
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Accounts, Inventory, Equipment, Chattel Paper, Documents,
Instruments, General Intangibles and Other Property
THIS SECURITY AGREEMENT (this "Agreement") is made as of May 19, 1999, by
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HWCC-Tunica, Inc., a Texas corporation with its chief executive office at Two
Galleria Tower, Suite 2200, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
("Debtor") in favor of State Street Bank and Trust Company, a Massachusetts
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trust company, with offices at Two ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as Trustee acting on behalf of the Holders of the Notes
under the Indenture (the "Secured Party").
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RECITALS
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A. Hollywood Casino Corporation, a Delaware corporation (the "Borrower"),
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the Debtor, HWCC-Shreveport, Inc. and State Street Bank and Trust Company, as
Trustee, and certain other parties have entered into an Indenture dated as of
May 19, 1999 (as the same may be amended, supplemented, restated or otherwise
modified from time to time, the "Indenture"), pursuant to which the Borrower
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will issue up to (i) $310,000,000 of its 11 1/4 % Series A and Series B Senior
Secured Notes due 2007 and (ii) $50,000,000 of its Floating Rate Series A and
Series B Senior Secured Notes due 2006 (as the same may be amended,
supplemented, restated, exchanged, replaced or otherwise modified from time to
time, collectively, the "Notes"). Debtor is an affiliate of Borrower and as
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such will derive direct and indirect benefits from the issuance of the Notes
pursuant to the Indenture.
B. It is a condition precedent to the purchase of the Notes under the
Indenture that Debtor shall have executed and delivered this Agreement.
C. Therefore, in order to comply with the terms and conditions of the
Indenture and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Debtor hereby agrees with Secured
Party as follows:
ARTICLE 1.
Security Interest
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Section 1.01. Grant of Security Interest. Debtor hereby assigns,
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endorses, delivers, pledges and grants to Secured Party a continuing security
interest in, Lien upon, and right of set-off against the assets referred to in
Section 1.02 hereof (the "Collateral") to secure the prompt and complete payment
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and performance of the Obligations (as defined in Section 2.02 hereof) and the
performance by Debtor of this Agreement.
Section 1.02. Collateral. The Collateral consists of the following types
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or items of property (including property hereafter acquired by Debtor as well as
property which Debtor now owns or in which Debtor has rights), but subject to
the exceptions and provisos as set forth herein:
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(a) All of Debtor's accounts, equipment, chattel paper, documents,
instruments, general intangibles and personal property, including, without
limitation, any of the foregoing which may be more specifically indicated
in the remainder of this Section 1.02 and including all of the Debtor's
vessel The Hollywood-Tunica, Official No. 534006 (the "Vessel"), duly
documented in the name of the Debtor under the laws of the United States,
whether or not such Vessel is a vessel within the meaning of 46 U.S.C. (S)
31322(a), and all rights of the Debtor therein, including all equipment,
parts and accessories, including, but not limited to, all of its boilers,
engines, generators, air compressors, machinery, masts, spars, sails,
riggings, boats, anchors, cables, chains, tackle, tools, pumps and pumping
equipment, motors, apparel, furniture, computer equipment, electronic
equipment used in connection with the operation of the Vessel and belonging
to the Vessel, all machinery, equipment, engines, appliances and fixtures
for generating or distributing air, water, heat, electricity, light, fuel
or refrigeration, or for ventilating or sanitary purposes, fittings and
equipment, supplies, spare parts, fuel, and all other appurtenances
thereunto appertaining or belonging, whether now owned or hereafter
acquired, whether or not on board said Vessel, and all extensions,
additions, accessions, improvements, renewals, substitutions, and
replacements hereafter made in or to said Vessel or any part thereof, or in
or to any said appurtenances;
(b) All of Debtor's inventory in all of its forms, wherever located,
now or hereafter existing (including, but not limited to, (i) all food
services products including beef, chicken, veal, pork, fish, eggs, dairy
products, salads, soups, herbs, condiments, canned foods, dried foods,
coffee, tea, jams, flour, sugar, canned and bottled sodas, confectioneries
and liquor inventory and raw materials and work in process therefor,
finished goods thereof and materials used or consumed in the manufacture or
production thereof, (ii) goods in which Debtor has an interest in mass or
in joint or other interest or right of any kind (including without
limitation, goods in which Debtor has an interest or right as consignee),
and all accessions thereto and products thereof and documents therefor, and
(iii) all motion picture memorabilia);
(c) All contracts of Debtor, including, without limitation, the
contracts described or referred to in Exhibit A attached hereto and made a
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part hereto, and each contract in which Debtor may hereafter become a
party, in each case as such agreements may be amended or otherwise modified
from time to time, including, without limitation, (i) all rights of Debtor
to receive moneys due and to become due under or pursuant to the contracts,
(ii) all rights of Debtor to receive proceeds of any insurance, indemnity,
warranty or guaranty with respect to the contracts, (iii) claims of Debtor
for damages arising out of or for breach of or default under the contracts,
(iv) the right of Debtor to terminate the contracts, to perform thereunder
and to compel performance and to otherwise exercise all remedies thereunder
and (v) all proceeds of the foregoing Collateral;
(d) All of Debtor's general intangibles of any kind whether now
existing or hereafter arising; all chattel papers, documents and
instruments relating to such general intangibles; and all rights now or
hereafter existing in and to all security agreements, leases (excluding
real property leases), and other contracts securing or otherwise relating
to any such general intangibles or any such chattel papers, documents and
instruments.
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The Debtor's general intangibles that are the subject of this Agreement and
are included as part of the Collateral covered by this Agreement include,
without limitation, the following intangible personal property in which the
Debtor presently or in the future will own any right, title or interest (to
the extent that the granting of this security interest does not violate a
valid and enforceable restriction on such grant created in the agreement by
which the Debtor acquired its right, title or interest from the prior owner
or from the lessor or licensor thereof): (i) any and all trade secrets,
ideas, information, procedures, processes, systems, methods of operation,
concepts, principles or discoveries, whether or not patentable, and all of
the intellectual property rights therein provided by State or federal laws
of the United States, such as the right of first publication and, if
applicable, the right to file applications for United States patent
protection on the preferred embodiments thereof; (ii) any and all
applications for United States patents and issued United States patents;
(iii) any and all names, tradenames, trademarks or service marks and the
goodwill of the Debtor's business, goods or services represented by such
names and marks, and all applications to register such names or marks on
State registrars or with the United States Patent and Trademark Office and
all issued State or United States registrations thereon, including, without
limitation, those listed on Exhibit B attached hereto and made a part
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hereof; (iv) all expressions embodied in a tangible medium that are the
subject matter of copyright and the intangible rights of copyright therein,
including, without limitation, both nonregistered copyrighted works and
registered copyrighted works; (v) all rights arising out of licenses (in
cases where Debtor is the licensee) to use patents, trademarks, copyrights,
trade secrets and other intellectual property rights; (vi) all rights and
proceeds arising out of licenses (in cases where Debtor is the licensor) to
use Debtor's United States patents, trademarks, copyrights, trade secrets
and other intellectual property; and (vii) in all cases, the rights to
prosecute such intellectual property rights referred to in this subsection
1.02(d), and to recover the proceeds of past, present and future
infringement of such rights by third parties; provided, however, that the
Debtor shall at all times have the right in the conduct of its business to
make and carry out decisions that affect such intangible personal property
and the intellectual property rights therein, such as, the Debtor shall
have the right to exercise the right of first publication with respect to
its ideas, information, procedures, processes, systems, methods of
operation, concepts, principles or discoveries; to determine whether
applications for patent protection will be filed or abandoned on the
preferred embodiments thereof; to determine which terms shall be used as
names and marks for its business, goods or services, when the use of such
terms will be discontinued, and the efforts, if any, that will be made to
register such terms and to maintain, or in its discretion, to abandon such
registrations or applications therefor; to determine if and when
copyrighted works will be registered; to determine whether aspects of such
intellectual property will be sold, assigned, or licensed to others in
connection with operation of the Debtor's business; and to determine the
actions that will be taken to maintain and prosecute the Debtor's
intellectual property rights in such intangible personal property;
(e) (i) Any related or additional property from time to time
delivered to or deposited with Secured Party by or for the account of
Debtor; (ii) all certificates of title or other documents evidencing
ownership or possession of or otherwise relating to any property referred
to in this Section 1.02; (iii) all property used or usable in connection
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with any property referred to in this Section 1.02; (iv) all goods which
were at any time included in the Collateral and which are returned to or
for the account of Debtor following their sale, lease or other disposition;
(v) all proceeds, products, replacements, additions to, substitutions for,
accessions to, and property necessary for the operation of any of the
property referred to in this Section 1.02, including, without limitation,
insurance payable as a result of loss or damage to any of the property
referred to in this Section 1.02, refunds of unearned premiums of any such
insurance policy and claims against third parties; and (vi) all books and
records related to any of the property referred to in this Section 1.02,
including, without limitation, any and all books of account, customer lists
and other records relating in any way to the accounts, chattel paper,
instruments or inventory referred to in this Section 1.02;
(f) All general intangibles related to any property referred to in
this Section 1.02, including, without limitation, all (i) letters of
credit, bonds, guaranties, purchase or sales agreements and other
contractual rights, rights to performance, and claims for damages, refunds
(including tax refunds, but only to the extent such refunds are assignable
under 31 U.S.C. (S) 3727) or other monies due or to become due; (ii)
orders, franchises, permits, certificates, licenses, consents, exemptions,
variances, authorizations or other approvals by any governmental agency or
court, to the extent but only to the extent permitted by applicable law to
be pledged and assigned and to the extent but only to the extent that the
perfection of the security interests therein may be obtained by the filing
of a financing statement pursuant to the applicable provisions of the Code;
(iii) books, business records, data bases, computer tapes and computer
software; (iv) goodwill; and (v) other intangible personal property,
whether similar or dissimilar to the property referred to in this Section
1.02;
provided that, the Collateral described in this Section 1.02 shall not
include (i) tort claims, (ii) rights represented by judgments, and (iii) any of
the foregoing property that is, pursuant to restrictions enforceable under
applicable law, prohibited from being pledged as security; provided that, with
respect to this clause (iii), upon the termination of such prohibitions for any
reason whatsoever or in the event such prohibitions are or become unenforceable
under applicable law, such foregoing property shall automatically be Collateral
hereunder. Notwithstanding the foregoing, so long as no Event of Default shall
have occurred and be continuing, all dividends, distributions, interest and
principal payments, cash, instruments, and other property and proceeds made upon
or with respect to or of the Collateral shall not constitute Collateral and may
be used by the Debtor subject to the terms and conditions of the Indenture. Upon
the occurrence and during the continuance of an Event of Default, all rights of
the Debtor to receive all such dividends, distributions, interest and principal
payments, cash, instruments and other property and proceeds shall cease, and
such dividends, distributions, interest and principal payments, cash,
instruments and other property and proceeds shall constitute Collateral, and
shall be paid or otherwise delivered to the Secured Party. It is expressly
contemplated that additional property may from time to time be pledged, assigned
or granted to Secured Party as additional security for the Obligations, and the
term "Collateral" as used herein shall be deemed for all purposes hereof to
include all such additional property, together with all other property of the
types described above related thereto.
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ARTICLE 2.
DEFINITIONS
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Section 2.01. Terms Defined Above or in the Indenture. As used in this
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Agreement, the terms defined above shall have the meanings respectively assigned
to them. Other capitalized terms which are defined in the Indenture but which
are not defined herein shall have the same meanings as defined in the Indenture.
Section 2.02. Certain Definitions. As used in this Agreement, the
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following terms shall have the following meanings, unless the context otherwise
requires:
"Accounts" means all accounts, chattel paper and instruments (as such
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terms are defined in the Code) at any time included in the Collateral.
"Account Debtor" means any Person liable (whether directly or
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indirectly, primarily or secondarily) for the payment or performance of any
obligations included in the Collateral, whether as an account debtor (as
defined in the Code), obligor on an instrument, issuer of documents or
securities, guarantor or otherwise.
"Agreement" means this Security Agreement, as the same may from time
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to time be amended or supplemented.
"Code" means the Uniform Commercial Code as presently in effect in the
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State of New York; provided that, if by reason of mandatory provisions of
law, the perfection or the effect of perfection or non-perfection of the
security interests in any Collateral is governed by the Uniform Commercial
Code as in effect in any jurisdiction other than the State of New York,
"Code" means the Uniform Commercial Code as in effect in such other
jurisdiction for purposes of the provisions hereof relating to such
perfection or the effect of perfection or non-perfection. Unless otherwise
indicated by the context herein, all uncapitalized terms which are defined
in the Code shall have their respective meanings as used in Article 9 of
the Code.
"Event of Default" means any event specified in Section 6.01.
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"Inventory" means all inventory (as defined in the Code) at any time
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included in the Collateral, including, without limitation, motion picture
memorabilia.
"Obligations" means (i) the payment when due of indebtedness evidenced
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by the Notes in the principal sum not to exceed at any time outstanding of
$360,000,000, interest (including post-petition interest) as set forth in
the Indenture and the Notes, and premiums, penalties, and late charges
thereon; (ii) all other indebtedness and other sums (including, without
limitation, all expenses, attorneys' fees, other fees, indemnifications,
reimbursements, damages, other monetary liabilities, and other charges) and
obligations that may or shall become due hereunder or under the Notes, the
Guarantees, the Indenture, or the other Collateral Documents; and (iii) any
and all renewals, modifications, amendments, extensions for any period,
supplements or restatements of any of the foregoing.
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"Obligor" means any Person, other than Debtor, liable (whether
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directly or indirectly, primarily or secondarily) for the payment or
performance of any of the Obligations whether as maker, co-maker, endorser,
guarantor, accommodation party, general partner or otherwise.
"Permitted Encumbrances" means the items set forth on Exhibit D
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hereto.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES
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In order to induce Secured Party to accept this Agreement, Debtor
represents and warrants to Secured Party (which representations and warranties
will survive the creation and payment of the Obligations) that:
Section 3.01. Ownership of Collateral; Absence of Encumbrances and
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Restrictions. After giving effect to the use of the proceeds of the Notes,
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Debtor is, and in the case of property acquired after the date hereof, will be,
the sole legal and beneficial owner of the Collateral holding good and
indefeasible title to the same, free and clear of all Liens except for Permitted
Encumbrances and Debtor has full right, power and authority to assign and grant
a security interest in the Collateral to Secured Party.
Section 3.02. No Required Consent. Except for such authorizations,
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consents or approvals previously obtained and in effect, no authorization,
consent, approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body (other than the filing of financing
statements and the other documents required to perfect or maintain the
perfection of the Liens granted hereby) is required for (i) the due execution,
delivery and performance by Debtor of this Agreement, (ii) the grant by Debtor
of the security interest granted by this Agreement, (iii) the perfection of such
security interest or (iv) the exercise by Secured Party of its rights and
remedies under this Agreement, except as may be required by applicable gaming
laws or in connection with the disposition of Collateral or by federal or state
securities laws or antitrust laws.
Section 3.03. Security Interest. After giving effect to the use of
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proceeds of the Notes, the grant of the security interest in and Lien on the
Collateral pursuant to this Agreement creates a valid and continuing security
interest in and Lien on the Collateral, enforceable against Debtor, and, upon
the filing of financing statements in the appropriate office for the locations
of the Collateral listed on Exhibit C hereof, the security interests granted
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hereby will be perfected, prior to all other Liens except Permitted
Encumbrances, enforceable against third parties and securing payment of the
Obligations.
Section 3.04. No Filings By Third Parties. After giving effect to the use
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of proceeds of the Notes, and other than any financing statement or other public
notice or recording naming Secured Party as the secured party therein or
financing statements with respect to Liens permitted hereunder, no financing
statement or other public notice or recording covering the Collateral is on file
in any public office and Debtor has not signed any document or agreement
authorizing the filing of any such financing statement or other public notice or
recording so long as any of the Obligations are outstanding.
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Section 3.05. Name; No Name Changes. The name of the Debtor set forth on
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Exhibit C hereto is the true and correct legal name of the Debtor, and, except
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as described on Exhibit C hereto, Debtor has not, during the preceding five (5)
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years, entered into any contract, agreement, security instrument or other
document using a name other than, or been known by or otherwise used any name
other than, the name used by Debtor herein.
Section 3.06. Location of Debtor and Collateral. Debtor's chief executive
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office, principal place of business and the locations of Debtor's records
concerning the Collateral are set forth on Exhibit C hereto. Any Collateral not
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at such location(s) nevertheless remains subject to Secured Party's security
interest. Except as disclosed on Exhibit C hereto, all tangible Collateral of
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Debtor are located at the locations set forth on Exhibit C hereto.
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Section 3.07. Collateral. All statements or other information provided by
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Debtor to Secured Party describing or with respect to the Collateral is (or, in
the case of subsequently furnished information, will be when provided) correct
and complete in all material respects. The delivery at any time by Debtor to
Secured Party of additional descriptions of Collateral shall constitute a
representation and warranty by Debtor to Secured Party hereunder that the
representations and warranties of this Article 3 are correct insofar as they
would pertain to such Collateral or the descriptions thereof, except as
indicated therein.
Section 3.08. Delivery of Documents. With respect to any Collateral
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covered by one or more certificates of title or other documents of title
evidencing ownership or possession thereof, each of such certificates or
documents of title shall, after the occurrence and during the continuance of an
Event of Default and upon the request of the Secured Party, be delivered to
Secured Party (provided that all certificates of title and documents of title
referred to in Section 1.02 shall be subject to the security interest created by
this Agreement irrespective of whether or not such delivery shall have been
made).
ARTICLE 4.
COVENANTS AND AGREEMENTS
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Debtor will at all times comply with the covenants and agreements contained
in this Article 4, from the date hereof and for so long as any part of the
Obligations are outstanding.
Section 4.01. Change in Location of Collateral or Debtor. Except with
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respect to Collateral under repair or temporarily in transit between locations
(and in any such case, for a period not to exceed four (4) months), Debtor will
not change the location of the Collateral (except for (a) Collateral held by the
Trustee, (b) motor vehicles and rolling stock, and (c) Collateral temporarily in
transit between locations) to any state, county or other jurisdiction in which
Secured Party has not already filed a financing statement or taken other
necessary steps to perfect or maintain its security interests in the Collateral
without Secured Party's prior written consent and the delivery of such new
financing statements or other documentation as may be reasonably necessary or
required by Secured Party to ensure the continued perfection and priority of its
security interest in the Collateral. Debtor will not change the location of
Debtor's chief executive office, principal place of business or the locations of
Debtor's records concerning the Collateral unless Debtor shall have given
Secured Party at least thirty (30) days prior written notice thereof and shall
have delivered to Secured Party such new financing statements or other
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documentation as may be reasonably necessary or required by Secured Party to
ensure the continued perfection and priority of its security interest in the
Collateral.
Section 4.02. Change in Debtor's Name or Corporate Structure. Debtor will
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not change its name, identity or corporate structure (including, without
limitation, any merger, consolidation or sale of substantially all of its
assets) unless Debtor shall have given Secured Party at least thirty (30) days
prior written notice thereof and shall have delivered to Secured Party such new
financing statements or other documentation as may be reasonably necessary or
required by Secured Party to ensure the continued perfection and priority of its
security interest on the Collateral.
Section 4.03. Documents; Collateral in Possession of Third Parties. If
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certificates of title or other documents evidencing ownership or possession of
the Collateral are issued or outstanding, Debtor will, after the occurrence and
during the continuance of an Event of Default and upon the request of the
Secured Party, cause the interest of Secured Party to be properly noted thereon
and will, forthwith upon receipt, deliver same to Secured Party. If any
material portion of the Collateral is at any time in the possession or control
of any warehouseman, bailee, agent or independent contractor, Debtor shall
notify such Person of Secured Party's security interest in such Collateral.
Upon Secured Party's request, Debtor shall instruct any such Person to hold all
such Collateral for Secured Party's account subject to Debtor's instructions,
or, if an Event of Default shall have occurred, subject to Secured Party's
instructions.
Section 4.04. Delivery of Letters of Credit and Instruments. After the
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occurrence and during the continuance of an Event of Default and upon the
request of the Secured Party, Debtor will deliver each letter of credit, if any,
included in the Collateral to Secured Party, in each case forthwith upon receipt
by or for the account of Debtor. After the occurrence and during the
continuance of an Event of Default and upon the request of the Secured Party, if
any Account becomes evidenced by a promissory note, trade acceptance or any
other instrument for the payment of money (other than checks or drafts in
payment of Accounts collected by Debtor in the ordinary course of business prior
to notification by Secured Party under Section 6.02(g)), Debtor will immediately
deliver such instrument to Secured Party appropriately endorsed and, regardless
of the form of presentment, demand, notice of dishonor, protest and notice of
protest with respect thereto, Debtor will remain liable thereon until such
instrument is paid in full.
Section 4.05. Sale, Disposition or Encumbrance of Collateral. Except as
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permitted pursuant to the provisions of the Indenture and by Section 4.09 of
this Agreement or with Secured Party's prior written consent, Debtor will not in
any way encumber any of the Collateral (or permit or suffer any of the
Collateral to be encumbered) or sell, assign, lend, rent, lease or otherwise
dispose of or transfer any of the Collateral to or in favor of any Person other
than Secured Party.
Section 4.06. Records and Information. Debtor shall keep accurate and
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complete records of the Collateral (including proceeds). Secured Party may at
any time upon reasonable prior notice have access during normal business hours
to examine, audit, make extracts from and inspect without hindrance or delay
Debtor's records, files and the Collateral. Debtor will promptly provide
written notice to Secured Party of all information which in any way relates to
or affects the filing of any financing statement or other public notices or
recordings, or the
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delivery and possession of items of Collateral, for the purpose of perfecting a
security interest in the Collateral. Debtor will also promptly furnish such
information as Secured Party may from time to time reasonably request regarding
the Collateral or Secured Party's rights or remedies with respect thereto.
Section 4.07. Reimbursement of Expenses. Debtor hereby assumes all
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liability for the Collateral, the security interests created hereunder and any
use, possession, maintenance, management, enforcement or collection of any or
all of the Collateral. Debtor agrees to indemnify and hold Secured Party
harmless from and against and covenants to defend Secured Party against any and
all losses, damages, claims, costs, penalties, liabilities and expenses,
including, without limitation, court costs and reasonable attorneys' fees,
incurred because of, incident to, or with respect to the Collateral (including,
without limitation, any use, possession, maintenance or management thereof, or
any injuries to or deaths of Persons or damage to property, except to the extent
caused by the gross negligence or willful misconduct of the Secured Party). All
amounts for which Debtor is liable pursuant to this Section 4.07 shall be due
and payable by Debtor to Secured Party upon demand. If Debtor fails to make
such payment upon demand (or if demand is not made due to an injunction or stay
arising from bankruptcy or other proceedings) and Secured Party pays such
amount, the same shall be due and payable by Debtor to Secured Party, plus
interest thereon from the date of Secured Party's demand (or from the date of
Secured Party's payment if demand is not made due to such proceedings) at the
interest rate applicable to overdue principal as provided in the Notes.
Section 4.08. Further Assurances. Upon the request of Secured Party,
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Debtor shall (at Debtor's expense) execute and deliver all such assignments,
certificates, financing statements or other documents and give further
assurances and do all other acts and things as Secured Party may reasonably
request to perfect Secured Party's interest in the Collateral or to protect,
enforce or otherwise effect Secured Party's rights and remedies hereunder.
Section 4.09. Inventory. Debtor may use the Inventory in any lawful
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manner not inconsistent with this Agreement and the Indenture and with the terms
of insurance thereon.
Section 4.10. Use of Collateral. Debtor will not use any Collateral in
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violation in any material respect of any law, statute, ordinance, regulation or
administrative order, or suffer it to be so used.
Section 4.11. Collateral Attached to Other Property. In the event that
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the Collateral is to be attached or affixed to any real property, Debtor hereby
agrees that this Agreement may be filed for record in any appropriate real
estate records as a financing statement which is a fixture filing. In
connection therewith, Debtor will take whatever action is required by Section
4.08. If Debtor is not the record owner of such real property, Debtor will
provide Secured Party with any additional security agreements or financing
statements necessary for the perfection of Secured Party's security interest in
the Collateral. If the Collateral is wholly or partly affixed to real estate or
installed in or affixed to other goods, Debtor will, on demand of Secured Party,
use its commercially reasonable efforts to furnish Secured Party with landlord's
waivers, signed by all Persons or entities having an interest in the real estate
or other goods to which the Collateral may have become affixed, permitting the
Secured Party to have access to the Collateral at all
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reasonable times and granting the Secured Party a reasonable period of time in
which to remove the Collateral after an Event of Default.
ARTICLE 5.
RIGHTS, DUTIES AND POWERS OF SECURED PARTY
Secured Party shall have the following rights, duties and powers:
Section 5.01. Discharge Encumbrances. After the occurrence and during the
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continuance of an Event of Default, Secured Party may, at its option, discharge
any taxes, Liens, security interests or other encumbrances at any time levied or
placed on the Collateral, and may pay for insurance on the Collateral to the
extent required by this Agreement or the Indenture and not obtained by Debtor.
Debtor agrees to reimburse Secured Party upon demand for any payment so made,
plus interest thereon from the date of Secured Party's demand at the interest
rate applicable to overdue principal as provided in the Notes.
Section 5.02. Licenses and Rights to Use Collateral. After the occurrence
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and during the continuance of an Event of Default, in connection with any
transfer or sale (to Secured Party or any other Person) of the Collateral,
Secured Party is hereby granted a transferable license or other right to use,
without any charge, any of Debtor's labels, patents, copyrights, tradenames,
trade secrets, trademarks or other similar property in completing production,
advertising or selling such Collateral except any of the foregoing property
which is expressly prohibited by its terms from being assigned or licensed.
After the occurrence and during the continuance of an Event of Default, Debtor's
rights under all licenses and franchise agreements shall inure to the benefit of
Secured Party and any transferee of all or any part of the Collateral.
Section 5.03. Cumulative and Other Rights. The rights, powers and
---------------------------
remedies of Secured Party hereunder are in addition to all rights, powers and
remedies given by law or in equity. The exercise by Secured Party of any one or
more of the rights, powers and remedies herein shall not be construed as a
waiver of any other rights, powers and remedies, including, without limitation,
any other rights of set-off (which set-off rights may be exercised only after
the occurrence and during the continuance of an Event of Default). If any of
the Obligations are given in renewal, extension for any period or rearrangement,
or applied toward the payment of debt secured by any Lien, Secured Party shall
be, and is hereby, subrogated to all the rights, titles, interests and liens
securing the debt so renewed, extended, rearranged or paid.
Section 5.04. Disclaimer of Certain Duties.
----------------------------
(a) The powers conferred upon Secured Party by this Agreement
are to protect its interest in the Collateral and shall not impose any duty
upon Secured Party to exercise any such powers. Debtor hereby agrees that
Secured Party shall not be liable for, nor shall the indebtedness evidenced
by the Obligations be diminished by, Secured Party's delay or failure to
collect upon, foreclose, sell, take possession of or otherwise obtain value
for the Collateral. Nothing herein shall affect any obligation of Secured
Party to the Holders under the Indenture or under applicable law.
(b) Except as may be required by the Indenture, and to the
fullest extent permitted by applicable law, Secured Party shall be under no
duty whatsoever to make or
10
give any presentment, notice of dishonor, protest, demand for performance,
notice of non-performance, notice of intent to accelerate, notice of
acceleration, or other notice or demand in connection with any Collateral
or the Obligations, or to take any steps reasonably necessary to preserve
any rights against any Obligor, Account Debtor or other Person. Debtor
waives any right of marshaling in respect of any and all Collateral, and
waives any right to require Secured Party to proceed against any Obligor,
Account Debtor or other Person, exhaust any Collateral or enforce any other
remedy which Secured Party now has or may hereafter have against any
Obligor or other Person.
Section 5.05. Modification of Obligations; Other Security. Except as
-------------------------------------------
specifically provided for in the Indenture, Debtor waives (i) any and all notice
of acceptance, creation, modification, rearrangement, renewal or extension for
any period of any instrument executed by any Obligor in connection with the
Obligations and (ii) any defense of any Obligor by reason of disability, lack of
authorization, cessation of the liability of any Obligor or for any other
reason. Debtor authorizes Secured Party, without notice or demand and without
any reservation of rights against Debtor and without affecting Debtor's
liability hereunder or on the Obligations, from time to time to (x) after the
occurrence and during the continuance of an Event of Default and after the
acceleration of the Notes, apply the Collateral in the manner permitted by this
Agreement or Indenture and (y) after the occurrence and during the continuance
of an Event of Default and after the acceleration of the Notes, renew, extend
for any period, accelerate, amend or modify, supplement, enforce, compromise,
settle, waive or release the obligations of any Obligor or any instrument or
agreement of such other Person with respect to any or all of the Obligations or
Collateral.
ARTICLE 6.
EVENTS OF DEFAULT
-----------------
Section 6.01. Events. It shall constitute an Event of Default under this
------
Agreement if an Event of Default occurs and is continuing under the Indenture.
Section 6.02. Remedies. Upon the occurrence and during the continuance of
--------
any Event, of Default, Secured Party may take any or all of the following
actions without notice (except where expressly required below or in the
Indenture) or demand to Debtor:
(a) Take possession of the Collateral, or at Secured Party's
request Debtor shall, at Debtor's cost, assemble the Collateral and make it
available at a location to be specified by Secured Party which is
reasonably convenient to Debtor and Secured Party. In any event, Debtor
shall bear the risk of accidental loss or damage to or diminution in value
of the Collateral, and Secured Party shall have no liability whatsoever for
failure to obtain or maintain insurance, nor to determine whether any
insurance ever in force is adequate as to amount or as to risk insured.
(b) Sell, in one or more sales and in one or more parcels, or
otherwise dispose of any or all of the Collateral in its then condition or
in any other commercially reasonable manner as Secured Party may elect, in
a public or private transaction, at any location as deemed reasonable by
Secured Party (including, without limitation, Debtor's premises), for cash
at such price as Secured Party may deem fair, and (unless prohibited
11
by the Code, as adopted in any applicable jurisdiction) Secured Party may
be the purchaser of any or all Collateral so sold and may apply upon the
purchase price therefor any Obligations secured hereby. Any such sale or
transfer by Secured Party either to itself or to any other Person shall be
absolutely free from any claim of right by Debtor, including any equity or
right of redemption, stay or appraisal which Debtor has or may have under
any rule of law, regulation or statute now existing or hereafter adopted.
Upon any such sale or transfer, Secured Party shall have the right to
deliver, assign and transfer to the purchaser or transferee thereof the
Collateral so sold or transferred. It shall not be necessary that the
Collateral or any part thereof be present at the location of any such sale
or transfer. Secured Party may, at its discretion, provide for a public
sale, and any such public sale shall be held at such time or times within
ordinary business hours and at such place or places as Secured Party may
fix in the notice of such sale. Secured Party shall not be obligated to
make any sale pursuant to any such notice. Secured Party may, without
notice or publication, adjourn any public or private sale by announcement
at any time and place fixed for such sale, and such sale may be made at any
time or place to which the same may be so adjourned. In the event any sale
or transfer hereunder is not completed or is defective in the opinion of
Secured Party, such sale or transfer shall not exhaust the rights of
Secured Party hereunder, and Secured Party shall have the right to cause
one or more subsequent sales or transfers to be made hereunder. If only
part of the Collateral is sold or transferred such that the Obligations
remain outstanding (in whole or in part), Secured Party's rights and
remedies hereunder shall not be exhausted, waived or modified, and Secured
Party is specifically empowered to make one or more successive sales or
transfers until all the Collateral shall be sold or transferred and all the
Obligations are paid. In the event that Secured Party elects not to sell
the Collateral, Secured Party retains its rights to lease or otherwise
dispose of or utilize the Collateral or any part or parts thereof in any
manner authorized or permitted by law or in equity, and to apply the
proceeds of the same towards payment of the Obligations. Each and every
method of disposition of the Collateral described in this subsection or in
subsection (e) shall constitute disposition in a commercially reasonable
manner.
(c) Take possession of all books and records of Debtor pertaining to
the Collateral. Secured Party shall have the authority to enter upon any
real property or improvements thereon in order to obtain any such books or
records, or any Collateral located thereon, and remove the same therefrom
without liability.
(d) Apply proceeds of the disposition of the Collateral to the
Obligations in any manner elected by Secured Party and permitted by the
Code or otherwise permitted by law or in equity and in accordance with the
provisions of the Indenture. Such application may include, without
limitation, the reasonable expenses of retaking, holding, preparing for
sale or other disposition, and the reasonable attorneys' fees and legal
expenses incurred by Secured Party.
(e) Appoint any Person as agent to perform any act or acts necessary
or incident to any sale or transfer by Secured Party of the Collateral.
Additionally, any sale or transfer hereunder may be conducted by an
auctioneer or any officer or agent of Secured Party.
12
(f) Execute, assign and endorse negotiable and other instruments
for the payment of money, documents of title or other evidences of payment,
shipment or storage for any form of Collateral on behalf of and in the name
of Debtor.
(g) Notify or require Debtor to notify Account Debtors that the
Accounts have been assigned to Secured Party and direct such Account
Debtors to make payments on the Accounts directly to Secured Party. To the
extent Secured Party does not so elect, Debtor shall continue to collect
the Accounts. Secured Party or its designee shall also have the right, in
its own name or in the name of Debtor, to do any of the following: (i) to
demand, collect, receipt for, settle, compromise any amounts due, give
acquittances for, prosecute or defend any action which may be in relation
to any monies due, or to become due by virtue of, the Accounts; (ii) to
sell, transfer or assign or otherwise deal in the Accounts or the proceeds
thereof or the related goods, as fully and effectively as if Secured Party
were the absolute owner thereof; (iii) to extend the time of payment of any
of the Accounts, to grant waivers and make any allowance or other
adjustment with reference thereto; (iv) to take control of cash and other
proceeds of any Collateral; (v) to send a request for verification of
Accounts to any Account Debtor; and (vi) to do all other acts and things
necessary to carry out the intent of this Agreement.
(h) Exercise all other rights and remedies permitted by law or
in equity.
Section 6.03. Attorney-in-Fact. Debtor hereby irrevocably appoints
----------------
Secured Party as Debtor's attorney-in-fact, with full authority in the place and
stead of Debtor and in the name of Debtor or otherwise, from time to time in
Secured Party's discretion upon the occurrence and during the continuance of an
Event of Default, but at Debtor's cost and expense and without notice to Debtor:
(a) To obtain, adjust, sell and cancel any insurance with
respect to the Collateral, and endorse any draft drawn by insurers of the
Collateral. Secured Party may apply any proceeds or unearned premiums of
such insurance to the Obligations (whether or not due).
(b) To take any action and to execute any assignment,
certificate, financing statement, notification, document or instrument
which Secured Party may reasonably deem necessary or advisable to
accomplish the purposes of this Agreement, including, without limitation,
to receive, endorse and collect all instruments made payable to Debtor
representing any payment or other distribution in respect of the Collateral
or any part thereof and to give full discharge for the same.
Section 6.04. Account Debtors. Any payment or settlement of an Account
---------------
made by an Account Debtor will be, to the extent of such payment or to the
extent provided under such settlement, a release, discharge and acquittance of
the Account Debtor with respect to such Account, and Debtor shall take any
action as may reasonably be required by Secured Party in connection therewith.
No Account Debtor on any Account will ever be bound to make inquiry as to the
termination of this Agreement or the rights of Secured Party to act hereunder,
but shall be fully protected by Debtor in making payment directly to Secured
Party.
13
Section 6.05. Liability for Deficiency. If any sale or other disposition
------------------------
of Collateral by Secured Party or any other action of Secured Party hereunder
results in reduction of the Obligations, such action will not release Debtor
from its liability to Secured Party for any unpaid Obligations, including costs,
charges and expenses incurred in the liquidation of Collateral, together with
interest thereon at the rate then applicable under the Indenture, and the same
shall be immediately due and payable to Secured Party at Secured Party's address
set forth in the Indenture.
Section 6.06. Reasonable Notice. If any applicable provision of any law
-----------------
requires Secured Party to give reasonable notice of any sale or disposition or
other action, Debtor hereby agrees that ten days' prior written notice shall
constitute reasonable notice thereof. Such notice, in the case of public sale,
shall state the time and place fixed for such sale and in the case of private
sale, the time after which such sale is to be made.
Section 6.07. Non-judicial Enforcement. Secured Party may enforce its
------------------------
rights hereunder without prior judicial process or judicial hearing, and to the
extent permitted by law Debtor expressly waives any and all legal rights which
might otherwise require Secured Party to enforce its rights by judicial process.
ARTICLE 7.
MISCELLANEOUS PROVISIONS
------------------------
Section 7.01. Notices. Any notice required or permitted to be given under
-------
or in connection with this Agreement shall be given in accordance with the
notice provisions of the Indenture.
Section 7.02. Amendments and Waivers. Secured Party's acceptance of
----------------------
partial or delinquent payments or any forbearance, failure or delay by Secured
Party in exercising any right, power or remedy hereunder shall not be deemed a
waiver of any obligation of Debtor or any Obligor, or of any right, power or
remedy of Secured Party, and no partial exercise of any right, power or remedy
shall preclude any other or further exercise thereof Secured Party may remedy
any Event of Default hereunder or in connection with the Obligations without
waiving the Event of Default so remedied. Debtor hereby agrees that if Secured
Party agrees to a waiver of any provision hereunder, or an exchange of or
release of the Collateral or the addition or release of any Obligor or other
Person, any such action shall not constitute a waiver of any of Secured Party's
other rights or of Debtor's obligations hereunder. This Agreement may be
amended only by an instrument in writing executed jointly by Debtor and Secured
Party and may be supplemented only by documents delivered or to be delivered in
accordance with the express terms hereof.
Section 7.03. Copy as Financing Statement. A photocopy or other
---------------------------
reproduction of this Agreement or any financing statement covering the
Collateral is sufficient as a financing statement, and the same may be filed
with any appropriate filing authority for the purpose of perfecting Secured
Party's security interest in the Collateral.
14
Section 7.04. Possession of Collateral. Secured Party shall be deemed to
------------------------
have possession of any Collateral in transit to it or set apart for it (or, in
either case, any of its agents, affiliates or correspondents).
Section 7.05. Redelivery of Collateral. If any sale or transfer of
------------------------
Collateral by Secured Party results in full satisfaction of the Obligations, and
after such sale or transfer and discharge there remains a surplus of proceeds,
Secured Party will deliver to Debtor such excess proceeds in a commercially
reasonable time; provided, however, that Secured Party shall not be liable for
any interest, cost or expense in connection with any reasonable delay in
delivering such proceeds to Debtor.
Section 7.06. Governing Law; Jurisdiction. This Agreement and the
---------------------------
security interest granted hereby shall be construed in accordance with and
governed by the laws of the State of New York (except to the extent that the
laws of any other jurisdiction govern the perfection and priority of the
security interests granted hereby).
Section 7.07. Gaming Authority. Each of the provisions of this Agreement
----------------
is subject to, and shall be enforced in compliance with, any requirements
imposed by any applicable Gaming Authority.
Section 7.08. Continuing Security Agreement
-----------------------------
(a) Except as may be expressly applicable pursuant to Section 9-
505 of the Code, no action taken or omission to act by Secured Party
hereunder, including, without limitation, any action taken or inaction
pursuant to Section 6.02 hereof, shall be deemed to constitute a retention
of the Collateral in satisfaction of the Obligations or otherwise to be in
full satisfaction of the Obligations, and the Obligations shall remain in
full force and effect, until Secured Party shall have applied payments
(including, without limitation, collections from Collateral) towards the
Obligations in the full amount then outstanding or until such subsequent
time as is hereinafter provided in subsection (b) below.
(b) To the extent that any payments on the Obligations or
proceeds of the Collateral are subsequently invalidated, declared to be
fraudulent or preferential set aside or required to be repaid to a trustee,
debtor in possession, receiver or other Person under any bankruptcy law,
common law or equitable cause, then to such extent the Obligations so
satisfied shall be revived and continue as if such payment or proceeds had
not been received by Secured Party, and Secured Party's security interests,
rights, powers and remedies hereunder shall continue in full force and
effect. In such event, this Agreement shall be automatically reinstated if
it shall theretofore have been terminated pursuant to Section 7.09.
Section 7.09. Termination. The grant of a security interest hereunder and
-----------
all of Secured Party's rights, powers and remedies in connection therewith shall
unless otherwise provided in the Indenture or this Agreement, remain in full
force and effect until payment in full of (A) the Notes under the terms of the
Indenture, (B) all obligations then due and owing under the Indenture, the Notes
and the Collateral Documents and (C) all other Obligations; provided, however,
-------- -------
that after receipt from the Debtor by the Trustee of a request for a release of
any
15
Collateral permitted under the Indenture upon the sale, transfer, assignment,
exchange or other disposition of such Collateral not prohibited by the Indenture
(and upon receipt by the Trustee of all proceeds of such sale, transfer,
assignment, exchange or other disposition to the extent required to be remitted
to the Trustee under the Indenture or otherwise), such Collateral shall be
released from the lien and security interest created hereunder in accordance
with the provisions of the Indenture and shall-no longer constitute Collateral.
Upon the payment in full of (A) the Notes under the terms of the Indenture (B)
all obligations then due and owing under the Indenture and the Collateral
Documents, and (C) all other Obligations, the Debtor shall be entitled to the
return, upon its request and at its expense, of such of the Collateral pledged
by it as shall not have been sold or otherwise applied pursuant to the terms
hereof. Notwithstanding the foregoing, the reimbursement and indemnification
provisions of Section 4.07 and the provisions of subsection 7.08(b) shall
survive the termination of this Agreement.
Upon any termination of this Agreement or release of any Collateral as
permitted by the Indenture the Trustee will, at the expense of the Debtor,
execute and deliver to the Debtor such documents and take such other actions as
the Debtor shall reasonably request to evidence the termination of this
Agreement or the release of such Collateral, as the case may be. Any such
action taken by the Trustee shall be without warranty by or recourse to the
Trustee, except as to the absence of any prior assignments by the Trustee of its
interests in the Collateral, and shall be at the expense of the Debtor. The
Trustee may conclusively rely on any certificate delivered to it by the Debtor
stating that the execution of such documents and release of the Collateral is in
accordance with and permitted by the terms of the Indenture and this Agreement.
Section 7.10. Counterparts; Effectiveness. This Agreement may be executed
---------------------------
in two or more counterparts. Each counterpart is deemed an original, but all
such counterparts taken together constitute one and the same instrument. This
Agreement becomes effective upon the execution hereof by Debtor and delivery of
the same to Secured Party, and it is not necessary for Secured Party to execute
any acceptance hereof or otherwise signify or express its acceptance hereof.
Section 7.11. Indenture. This Agreement is subject to the terms,
---------
conditions and provisions of the Indenture. To the extent a term or provision
of this Agreement conflicts with the Indenture, the Indenture shall control with
respect to the subject matter of such term or provision.
Section 7.12. Rights of Noteholders. No Holder of a Note shall have any
---------------------
independent rights hereunder other than those rights granted to individual
Holders of Notes pursuant to Section 6.07 of the Indenture; provided that
nothing in this Section 7.12 shall limit any rights granted to the Trustee under
the Notes, the Indenture or the Collateral Documents.
Section 7.13. No Personal Liability of Directors, Officers, Employees and
-----------------------------------------------------------
Stockholders. No past, present or future director, officer, employee,
------------
incorporator or stockholder of the Debtor as such or any successor Person, as
such, shall have any liability for any obligations of the Debtor under the
Notes, the Collateral Documents, this Agreement or for any claim based on, in
respect of, or by reason of, such obligations or their creation.
16
Section 7.14. Fraudulent Conveyance Savings Clause. Notwithstanding any
------------------------------------
provision of this Agreement to the contrary, it is intended that neither this
Agreement nor any Lien granted by Debtor to secure the Obligations shall
constitute a "Fraudulent Conveyance" (as defined below). Consequently, Debtor
agrees that if the Agreement or any Liens securing this Agreement, would, but
for the application of this sentence, constitute a Fraudulent Conveyance, this
Agreement and each such Lien shall be valid and enforceable only to the maximum
extent that would not cause this Agreement or such Lien to constitute a
Fraudulent Conveyance, and this Agreement shall automatically be deemed to have
been amended accordingly at all relevant times. For purposes hereof, a
"Fraudulent Conveyance" means a fraudulent conveyance under ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, as amended (or any successor section) or a fraudulent
conveyance or fraudulent transfer under the provisions of any applicable
fraudulent conveyance or fraudulent transfer law or similar law of any state,
nation or other governmental unit, as in effect from time to time.
[SIGNATURE PAGE FOLLOWS]
17
IN WITNESS WHEREOF, Debtor has caused this Security Agreement to be
executed and delivered as of the date first set forth above.
DEBTOR: HWCC-TUNICA, INC.
------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President, General
Council and Secretary
18
EXHIBIT A
---------
CONTRACTS
---------
1. Computer Services Agreement dated as of January 1, 1994, by and
between HWCC-Tunica, Inc., as assignee of the Summit Tunica Partnership, a
Mississippi limited partnership, and Advanced Casino Systems Corporation.
2. Consulting Agreement dated as of January 1, 1994, by and between HWCC-
Tunica, Inc. and ▇▇▇▇▇ Casino Corporation.
EXHIBIT B
---------
TRADEMARKS
----------
None
EXHIBIT C
---------
PERFECTION
----------
(a) Legal Name of Debtor:
--------------------
TWCC-Tunica, Inc., a Texas corporation
(b) Other Names:
-----------
Summit Tunica Partnership, A Mississippi Limited Partnership
Summit Riverboat Casinos-Tunica, Inc., a Mississippi corporation
Hollywood Casino Tunica
(c) (i) Chief Executive Office and Principal Place of Business of Debtor:
----------------------------------------------------------------
Chief Executive Office--Dallas County, Texas
Principal Place of Business--Tunica County, Mississippi
(ii) Other Premises at which Collateral is Stored or Located:
-------------------------------------------------------
None
(iii) Locations of Records Concerning Collateral:
------------------------------------------
Tunica County, Mississippi; Dallas County, Texas
EXHIBIT D
---------
PERMITTED ENCUMBRANCES
----------------------
1. Liens on the assets of the Company and any Guarantor created by the
Indenture and the Collateral Documents securing the Notes and the Note
Guarantees;
2. Liens in favor of the Company or the Guarantors;
3. Liens on property of a Person existing at the time such Person is
merged with or into or consolidated with the Company or any Restricted
Subsidiary of the Company; provided, however, that such Liens were in existence
prior to the contemplation of such merger or consolidation and do not extend to
any assets other than those of the Person merged into or consolidated with the
Company or the Restricted Subsidiary;
4. Liens on property existing at the time of acquisition thereof by the
Company or any Restricted Subsidiary of the Company, provided that such Liens
were in existence prior to the contemplation of such acquisition;
5. Liens to secure the performance of statutory obligations, surety or
appeal bonds, performance bonds or other obligations of a like nature incurred
in the ordinary course of business;
6. Liens to secure Indebtedness permitted by clause (a) of Section 4.09
of the Indenture covering only inventory and accounts receivable;
7. Liens to secure Indebtedness (including Capital Lease Obligations)
permitted by clause (d) of the second paragraph of Section 4.09 of the Indenture
covering only the assets acquired with such Indebtedness;
8. Liens of record on the date of the Indenture;
9. Liens for taxes, assessments or governmental charges or claims that
are not yet delinquent or that are being contested in good faith by appropriate
proceedings promptly instituted and diligently concluded, provided that any
reserve or other appropriate provisions as shall be required in conformity with
GAAP shall have been made therefor;
10. Liens arising from UCC financing statements regarding property leased
by the Company or any of its Restricted Subsidiaries;
11. Liens of carriers, warehousemen, mechanics, landlords, materialmen,
repairmen or other like Liens arising by operation of law or in the ordinary
course of business and consistent with industry practices and Liens on deposits
made to obtain the release of such Liens if:
(a) the underlying Obligations are not overdue for a period of more than
60 days, or
(b) such Liens are being contested in good faith and by appropriate
proceedings by the Company and adequate reserves with respect thereto are
maintained on the books of the Company in accordance with GAAP, and
(c) the Company is in compliance with the terms of the security documents
applicable to such Liens;
12. A Lien on a vessel to secure FF&E Financing or Capital Lease
Obligations in accordance with Section 4.09(d) of the Indenture where (a) the
creditor under such FF&E Financing or Capital Lease Obligations agrees to
release such Lien upon satisfaction of the
Obligations under such FF&E Financing or Capital Lease Obligations, (b) the
creditor under such FF&E Financing or Capital Lease Obligations agrees to
release such Lien upon payment of the proceeds from the sale of such vessel
attributable to such FF&E Financing or Capital Lease Obligations, (c) the
creditor under such FF&E Financing or Capital Lease Obligations acknowledges
that such Lien does not create rights on the hull or other equipment
constituting such vessel, but shall be limited to the FF&E specifically
identified in such creditor's financing or lease and Lien documents, (d) such
Lien is expressly subject and subordinate to the Liens granted in favor of the
Trustee, (e) the creditor under such FF&E Financing or Capital Lease Obligations
agrees to promptly notify the Trustee of the occurrence of any event of default
under such creditor's financing or lease documents, and (f) the creditor under
such FF&E Financing or Capital Lease Obligations acknowledges and agrees that it
has no right to possess or use such vessel or anything on board such vessel,
except for its right to come on board the vessel to inspect the related FF&E
and, after the occurrence and continuance of an event of default under such
creditor's financing or lease documents, to remove or repossess the subject
FF&E, provided that such creditor's efforts to remove or repossess such FF&E
shall be commercially reasonable and shall not damage the vessel, its hull or
any other equipment constituting such vessel.
13. Liens incurred in the ordinary course of business of the Company or
any Restricted Subsidiary of the Company with respect to Obligations that do not
exceed Five Million Dollars ($5,000,000) at any one time outstanding.
14. Liens incurred and pledges made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and Social
Security benefits.