Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration Statement 181 972K
2: EX-1.1 Purchase Agreement 93 331K
3: EX-3.1 Certificate of Formation 1 22K
12: EX-3.10 Amended and Restated Operating Agreement 11 53K
13: EX-3.11 Articles of Organization 3 27K
14: EX-3.12 Certificate of Amendment of the Art. of Org. 2 25K
15: EX-3.13 Operating Agreement 14 59K
4: EX-3.2 Limited Liability Company Agreement 5 40K
5: EX-3.3 Certificate of Incorporation 2 25K
6: EX-3.4 By-Laws 15 81K
7: EX-3.5 Amended and Restated Articles of Organization 3 28K
8: EX-3.6 Operating Agreement 14 68K
9: EX-3.7 Certificate of Formation 3 27K
10: EX-3.8 Certificate of Amendment to Certif. of Formation 3 25K
11: EX-3.9 Certificate of Amendment to Certif. of Formation 4 27K
16: EX-4.1 Indenture 106 405K
25: EX-4.10 Deed of Trust 44 160K
26: EX-4.11 Intercreditor Agreement 15 75K
27: EX-4.12 Loan and Security Agreement 98 386K
28: EX-4.13 General Continuing Guaranty 11 57K
29: EX-4.14 Guarantor Security Agreement 17 76K
30: EX-4.15 First Preferred Vessel Mortgage 16 79K
31: EX-4.16 Deed of Trust 51 193K
32: EX-4.17 Deed of Trust 56 214K
33: EX-4.18 Deed of Trust 51 181K
34: EX-4.19 Stock Pledge Agreement 15 67K
17: EX-4.2 Registration Rights Agreement 37 126K
35: EX-4.20 Guarantor Trademark Security Agreement 12 54K
36: EX-4.21 Subordination of First Referred Vessel Mortgage 2 27K
37: EX-4.22 Subordination Agreement 7 38K
38: EX-4.23 Subordination Agreement 7 38K
39: EX-4.24 Subordination Agreement 8 38K
18: EX-4.3 Guarantee 2 25K
19: EX-4.4 Pledge and Security Agreement 48 186K
20: EX-4.5 Pledge Agreement 23 110K
21: EX-4.6 Trademark Security Agreement 4 31K
22: EX-4.7 First Preferred Vessel Mortgage 22 97K
23: EX-4.8 Deed of Trust 47 165K
24: EX-4.9 Deed of Trust 50 175K
40: EX-5.1 Opinion of Latham & Watkins 3 30K
41: EX-5.2 Opinion of Schreck Brignone Godfrey 2 27K
42: EX-5.3 Opinion of Watkins Ludlam Winter & Stennis, P.A. 3 30K
43: EX-5.4 Opinion of Robinson Waters & O'Dorisio 2 27K
44: EX-10.1 Employment Agreement 1 24K
58: EX-10.10 Lease Agreement 17 60K
59: EX-10.10.1 Amendment to Lease Agreement 7 39K
68: EX-10.10.10 Second Amendment to Masonic Ground Lease 7 38K
69: EX-10.10.11 Lease Agreement and Estoppel Certificate 17 65K
70: EX-10.10.12 Assignment of Ground Lease 10 45K
60: EX-10.10.2 Assignment 7 36K
61: EX-10.10.3 Supplemental Agreement 3 28K
62: EX-10.10.4 Assignment 7 36K
63: EX-10.10.5 Assignment 4 32K
64: EX-10.10.6 Articles of Amendment 11 47K
65: EX-10.10.7 Assignment 5 30K
66: EX-10.10.8 Amendment to Masonic Lodge Ground Lease 21 73K
67: EX-10.10.9 Lease Agreement 11 49K
71: EX-10.11 Lease 16 52K
72: EX-10.11.1 Amendments to Ham Ground Lease 23 77K
73: EX-10.11.2 Lease Agreement 6 39K
74: EX-10.11.3 Second Amendment to Ham Ground Lease 12 49K
75: EX-10.11.4 Assignment of Ground Lease 10 43K
76: EX-10.12 Agreement Regarding Ground Leases 8 36K
77: EX-10.13 Agreement Regarding Ground Leases 6 34K
45: EX-10.2 Employment Agreement 8 51K
46: EX-10.3 Amended and Restated Management Agreement 6 38K
47: EX-10.4 Expense Reimbursement Agreement 3 28K
48: EX-10.5 Member Agreement 7 42K
49: EX-10.6 Assignment of Membership 1 23K
50: EX-10.7 Contribution and Assignment Agreement 3 28K
51: EX-10.8 Lease Agreement 37 90K
52: EX-10.8.1 Assigment of Ground Lease 7 35K
53: EX-10.9 Lease Agreement 27 75K
54: EX-10.9.1 Amendment to Kramer Ground Lease 20 66K
55: EX-10.9.2 Lease Amendment 10 47K
56: EX-10.9.3 Second Amendment to the Kramer Ground Lease 6 37K
57: EX-10.9.4 Assignment of Ground Lease 11 43K
78: EX-12.1 Computation of Ratio of Earnings to Fixed Charges 1 22K
79: EX-21.1 List of Subsidiaries 1 21K
80: EX-23.5 Consent of Pricewaterhousecoopers LLP 1 22K
81: EX-23.6 Consent of Deloitte & Touche LLP 1 23K
82: EX-25.1 Statement of Eligibility 6 36K
83: EX-99.1 Form of Letter of Transmittal 11 76K
84: EX-99.2 Form of Notice of Guaranteed Delivery 5 37K
85: EX-99.3 Form of Letter to Dtc Participants 2 25K
86: EX-99.4 Form of Letter to Beneficial Owners 4 30K
87: EX-99.5 Guidelines for Cert. of Taxpayer Id Number 4± 32K
88: EX-99.6 Form of Exchange Agent Agreement 10 47K
EXHIBIT 4.4
PLEDGE AND SECURITY AGREEMENT
DATED AS OF DECEMBER 6, 2001
BETWEEN
MAJESTIC INVESTOR HOLDINGS, LLC
MAJESTIC INVESTOR CAPITAL CORP.
BARDEN NEVADA GAMING, LLC,
BARDEN MISSISSIPPI GAMING, LLC AND
BARDEN COLORADO GAMING, LLC,
AS DEBTORS
AND
THE BANK OF NEW YORK,
AS SECURED PARTY
TABLE OF CONTENTS
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PAGE
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1. DEFINITIONS 1
1.1 GENERAL DEFINITIONS............................................... 1
1.2 DEFINITIONS; INTERPRETATION....................................... 7
2. GRANT OF SECURITY 8
2.1 GRANT OF SECURITY................................................. 8
2.2 CERTAIN LIMITED EXCLUSIONS........................................ 9
2.3 INTERCREDITOR AGREEMENT........................................... 9
3. SECURITY FOR OBLIGATIONS. 9
3.1 SECURITY FOR OBLIGATIONS.......................................... 9
3.2 OBLIGATIONS REMAIN................................................ 9
4. REPRESENTATIONS AND WARRANTIES AND COVENANTS. 10
4.1 GENERALLY......................................................... 10
4.2 EQUIPMENT AND INVENTORY........................................... 13
4.3 RECEIVABLES....................................................... 14
4.4 INVESTMENT RELATED PROPERTY....................................... 14
4.5 INTELLECTUAL PROPERTY............................................. 19
4.6 COMMERCIAL TORT CLAIMS............................................ 23
5. FURTHER ASSURANCES; ADDITIONAL DEBTORS. 23
5.1 FURTHER ASSURANCES................................................ 24
5.2 ADDITIONAL DEBTORS................................................ 24
6. ATTORNEY-IN-FACT. 24
6.1 POWER OF ATTORNEY................................................. 24
6.2 NO DUTY ON THE PART OF SECURED PARTY.............................. 25
7. REMEDIES. 26
7.1 GENERALLY......................................................... 26
7.2 APPLICATION OF PROCEEDS........................................... 28
7.3 INVESTMENT RELATED PROPERTY....................................... 28
7.4 INTELLECTUAL PROPERTY............................................. 28
7.5 CASH PROCEEDS..................................................... 30
7.6 REGULATORY MATTERS................................................ 30
8. CONTINUING SECURITY INTEREST; TRANSFER OF NOTES. 31
9. STANDARD OF CARE; SECURED PARTY MAY PERFORM. 31
10. INDEMNITY AND EXPENSES. 31
11. MISCELLANEOUS. 32
11.1 NOTICES.......................................................... 32
11.2 EXPENSES......................................................... 32
11.3 AMENDMENTS AND WAIVERS........................................... 33
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11.4 SUCCESSORS AND ASSIGNS........................................... 33
11.5 INDEPENDENCE OF COVENANTS........................................ 33
11.6 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS........... 33
11.7 NO WAIVER; REMEDIES CUMULATIVE................................... 33
11.8 MARSHALING; PAYMENTS SET ASIDE................................... 33
11.9 SEVERABILITY..................................................... 34
11.10 HEADINGS......................................................... 34
11.11 APPLICABLE LAW................................................... 34
11.12 CONSENT TO JURISDICTION.......................................... 34
11.13 WAIVER OF JURY TRIAL............................................. 34
11.14 COUNTERPARTS..................................................... 35
11.15 GAMING LAWS...................................................... 35
11.16 EFFECTIVENESS.................................................... 35
11.17 ENTIRE AGREEMENT................................................. 35
11.18 INDENTURE CONTROLS............................................... 36
11.19 TRUST INDENTURE ACT CONTROLS..................................... 36
SCHEDULE 4.1 - (A) FULL LEGAL NAME/JURISDICTION OF
ORGANIZATION/CHIEF EXECUTIVE OFFICE
(B) OTHER NAMES
(C) FINANCING STATEMENTS
SCHEDULE 4.2 - LOCATION OF EQUIPMENT AND INVENTORY
SCHEDULE 4.4 - INVESTMENT RELATED PROPERTY
SCHEDULE 4.5 - INTELLECTUAL PROPERTY
SCHEDULE 4.6 - COMMERCIAL TORT CLAIMS
EXHIBIT A - FORM OF PLEDGE SUPPLEMENT
EXHIBIT B - FORM OF PLEDGE JOINDER
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This PLEDGE AND SECURITY AGREEMENT, dated as of December 6, 2001 (this
"AGREEMENT"), among MAJESTIC INVESTOR HOLDINGS, LLC, a Delaware limited
liability company ("COMPANY"), MAJESTIC INVESTOR CAPITAL CORP., a Delaware
corporation (together with Company, "ISSUERS" and each an "ISSUER"), each of the
undersigned Subsidiaries of Company (Issuers and such Subsidiaries, together
with each Subsidiary that subsequently becomes a party hereto, each a "DEBTOR"
and collectively, "DEBTORS"), and THE BANK OF NEW YORK (together with any
successor Trustee pursuant to the terms of the Indenture, "SECURED PARTY"),
acting in the capacity of collateral agent for the benefit of the holders of the
Notes of Issuers issued under the Indenture referred to below.
R E C I T A L S:
WHEREAS, reference is made to that certain Indenture, dated as of the date
hereof (as it may be amended, restated, supplemented or otherwise modified from
time to time, the "INDENTURE"), by and among Issuers, the other Debtors party
thereto and Secured Party.
WHEREAS, in consideration of the extension of credit as set forth in the
Indenture each Debtor has agreed to secure all obligations under the Indenture.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, each Debtor and Secured Party agree
as follows:
1. DEFINITIONS
1.1 GENERAL DEFINITIONS. In this Agreement, the following terms shall have
the following meanings:
"ACCOUNT DEBTOR" shall mean each Person who is obligated on a
Receivable or any Supporting Obligation related thereto.
"ACCOUNTS" shall mean all "accounts" as defined in Article 9 of the
UCC.
"AGREEMENT" shall have the meaning set forth in the preamble.
"ADDITIONAL DEBTORS" shall mean those additional Persons that may
become parties to this Agreement as additional Debtors, by executing a Pledge
Joinder.
"ASSIGNED AGREEMENTS" shall mean all agreements and contracts to which
any Debtor is a party as of the date hereof, or to which each such Debtor
becomes a party after the date hereof, as each such agreement may be amended,
restated, supplemented or otherwise modified from time to time.
"CASH PROCEEDS" shall mean all proceeds of any Collateral received by
any Debtor consisting of cash, checks and cash equivalents.
"CHATTEL PAPER" shall mean all "chattel paper" as defined in Article 9
of the UCC, including, without limitation, "electronic chattel paper" or
"tangible chattel paper", as each term is defined in Revised Article 9 of the
UCC.
"COLLATERAL" shall have the meaning set forth in Section 2.1.
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"COLLATERAL RECORDS" shall mean books, records, ledger cards, files,
correspondence, customer lists, blueprints, technical specifications, manuals,
computer software, computer printouts, tapes, disks and related data processing
software and similar items that at any time evidence or contain information
relating to any of the Collateral or are otherwise necessary or helpful in the
collection thereof or realization thereupon.
"COLLATERAL SUPPORT" shall mean all property (real or personal)
assigned, hypothecated or otherwise securing any Collateral and shall include
any security agreement or other agreement granting a lien or security interest
in such real or personal property.
"COMMERCIAL TORT CLAIMS" shall mean all "commercial tort claims" as
defined in the UCC, including, without limitation, all commercial tort claims
listed on Schedule 4.6 (as such schedule may be amended or supplemented from
time to time).
"COMMODITIES ACCOUNTS" (i) shall mean all "commodity accounts" as
defined in Article 9 of the UCC and (ii) shall include, without limitation, all
of the accounts listed on Schedule 4.4 under the heading "Commodities Accounts"
(as such schedule may be amended or supplemented from time to time).
"CONTROLLED FOREIGN CORPORATION" shall mean "controlled foreign
corporation" as defined in the Tax Code.
"COPYRIGHT LICENSES" shall mean any and all agreements providing for
the granting of any right in or to Copyrights (whether such Debtor is licensee
or licensor thereunder) including, without limitation, each agreement referred
to in Schedule 4.5(B) (as such schedule may be amended or supplemented from time
to time).
"COPYRIGHTS" shall mean all United States, state and foreign
copyrights, whether registered or unregistered, now or hereafter in force
throughout the world, all registrations and applications therefor including,
without limitation, the applications referred to in Schedule 4.5(A) (as such
schedule may be amended or supplemented from time to time), all rights
corresponding thereto throughout the world, all extensions and renewals of any
thereof, the right to sue for past, present and future infringements of any of
the foregoing, and all proceeds of the foregoing, including, without limitation,
licenses, royalties, income, payments, claims, damages, and proceeds of suit.
"CREDIT FACILITY SECURED PARTY" shall mean the agent or any other
Person acting on behalf and for the benefit of the lender(s) under the Credit
Facility.
"DEPOSIT ACCOUNTS" (i) shall mean all "deposit accounts" as defined in
Article 9 of the UCC and (ii) shall include, without limitation, all of the
accounts listed on Schedule 4.4 under the heading "Deposit Accounts" (as such
schedule may be amended or supplemented from time to time).
"DOCUMENTS" shall mean all "documents" as defined in Article 9 of the
UCC.
"EQUIPMENT" shall mean: (i) all "equipment" as defined in the UCC,
(ii) all machinery, manufacturing equipment, data processing equipment,
computers, office equipment, furnishings, furniture, appliances, fixtures and
tools (in each case, regardless of whether characterized as equipment under the
UCC), (iii) slot machines, electronic gaming devices and related equipment and
(iv) all accessions or additions thereto, all parts thereof, whether or not at
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any time of determination incorporated or installed therein or attached thereto,
and all replacements therefor, wherever located, now or hereafter existing,
including any fixtures.
"GAMING SUBSIDIARY" shall mean Barden Nevada Gaming, LLC, a Nevada
limited liability company; Barden Mississippi Gaming, LLC, a Mississippi limited
liability company; Barden Colorado Gaming, LLC, a Colorado limited liability
company, and together with any other Subsidiary of Company that holds a Gaming
License.
"GENERAL INTANGIBLES" (i) shall mean all "general intangibles" as
defined in Article 9 of the UCC and (ii) shall include, without limitation, all
interest rate or currency protection or hedging arrangements, all tax refunds,
all licenses, permits, concessions and authorizations, all Assigned Agreements
and all Intellectual Property (in each case, regardless of whether characterized
as general intangibles under the UCC) and exclude all Gaming Licenses held by a
Debtor.
"GOODS" (i) shall mean all "goods" as defined in Article 9 of the UCC
and (ii) shall include, without limitation, all Inventory and Equipment (in each
case, regardless of whether characterized as goods under the UCC).
"GOVERNMENTAL AUTHORITY" shall mean any federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, or any court, in each case whether of the United States or
foreign, including any Gaming Authority.
"INDEMNITEE" shall mean Secured Party, and its and its Affiliates'
officers, partners, directors, trustees, employees, agents.
"INDENTURE" shall have the meaning set forth in the recitals hereto.
"INDENTURE DOCUMENTS" shall mean the Indenture, the Notes, the
Security Documents and the Registration Rights Agreement, and such other
agreements, instruments and certificates executed and delivered (or issued) by
Issuers or Debtors pursuant to the Indenture or any of the foregoing, as any or
all of the same may be amended, restated, supplemented or otherwise modified
from time to time.
"INSTRUMENTS" shall mean all "instruments" as defined in Article 9 of
the UCC.
"INSURANCE" shall mean: (i) all insurance policies covering any or all
of the Collateral (regardless of whether Secured Party is the loss payee
thereof) and (ii) any key man life insurance policies.
"INTELLECTUAL PROPERTY" shall mean, collectively, the Copyrights, the
Copyright Licenses, the Patents, the Patent Licenses, the Trademarks, the
Trademark Licenses, the Trade Secrets, and the Trade Secret Licenses.
"INVENTORY" shall mean: (i) all "inventory" as defined in the UCC and
(ii) all goods held for sale or lease or to be furnished under contracts of
service or so leased or furnished, all raw materials, work in process, finished
goods, and materials used or consumed in the manufacture, packing, shipping,
advertising, selling, leasing, furnishing or production of such inventory or
otherwise used or consumed in any Debtor's business; all goods in which any
Debtor has an interest in mass or a joint or other interest or right of any
kind; and all goods which are returned to or repossessed by any Debtor, all
computer programs embedded in any goods and all
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accessions thereto and products thereof (in each case, regardless of whether
characterized as inventory under the UCC).
"INVESTMENT RELATED PROPERTY" shall mean: (i) all "investment
property" (as such term is defined in Article 9 of the UCC) and (ii) all of the
following (regardless of whether classified as investment property under the
UCC): all Pledged Equity Interests, Pledged Debt, the Securities Accounts,
Commodities Accounts, the Deposit Accounts and certificates of deposit.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on (i)
the business, operations, properties, assets, condition (financial or otherwise)
or prospects of Company and its Subsidiaries taken as a whole; (ii) the ability
of any Debtor to fully and timely perform its Obligations; (iii) the legality,
validity, binding effect or enforceability against a Debtor of an Indenture
Document to which it is a party; or (iv) the rights, remedies and benefits
available to, or conferred upon, Secured Party under any Indenture Document.
"MONEY" shall mean "money" as defined in the UCC.
"PATENT LICENSES" shall mean all agreements providing for the granting
of any right in or to Patents (whether such Debtor is licensee or licensor
thereunder) including, without limitation, each agreement referred to in
Schedule 4.5(D) (as such schedule may be amended or supplemented from time to
time).
"PATENTS" shall mean all United States, state and foreign patents and
applications for letters patent throughout the world, including, but not limited
to each patent and patent application referred to in Schedule 4.5(C) (as such
schedule may be amended or supplemented from time to time), all reissues,
divisions, continuations, continuations-in-part, extensions, renewals, and
reexaminations of any of the foregoing, all rights corresponding thereto
throughout the world, and all proceeds of the foregoing including, without
limitation, licenses, royalties, income, payments, claims, damages, and proceeds
of suit and the right to sue for past, present and future infringements of any
of the foregoing.
"PAYMENT INTANGIBLE" shall have the meaning specified in the UCC.
"PLEDGED DEBT" shall mean all Indebtedness owed to such Debtor,
including, without limitation, all Indebtedness described on Schedule 4.4 under
the heading "Pledged Debt" (as such schedule may be amended or supplemented from
time to time), issued by the obligors named therein, the instruments evidencing
such Indebtedness, and all interest, cash, instruments and other property or
proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such Indebtedness.
"PLEDGED EQUITY INTERESTS" shall mean all Pledged Stock, Pledged LLC
Interests, Pledged Partnership Interests and Pledged Trust Interests.
"PLEDGED LLC INTERESTS" shall mean all interests in any limited
liability company including, without limitation, all limited liability company
interests listed on Schedule 4.4 under the heading "Pledged LLC Interests" (as
such schedule may be amended or supplemented from time to time) and the
certificates, if any, representing such limited liability company interests and
any interest of such Debtor on the books and records of such limited liability
company or on the books and records of any securities intermediary pertaining to
such interest and all dividends, distributions, cash, warrants, rights, options,
instruments, securities and other property or proceeds from time to time
received, receivable or otherwise distributed in
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respect of or in exchange for any or all of such limited liability company
interests. Notwithstanding anything in the foregoing sentence to the contrary,
"Pledged LLC Interests" shall not include any interests in any limited liability
company that is classified as an Unrestricted Subsidiary under the Indenture.
"PLEDGED PARTNERSHIP INTERESTS" shall mean all interests in any
general partnership, limited partnership, limited liability partnership or other
partnership including, without limitation, all partnership interests listed on
Schedule 4.4 under the heading "Pledged Partnership Interests" (as such schedule
may be amended or supplemented from time to time) and the certificates, if any,
representing such partnership interests and any interest of such Debtor on the
books and records of such partnership or on the books and records of any
securities intermediary pertaining to such interest and all dividends,
distributions, cash, warrants, rights, options, instruments, securities and
other property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such partnership
interests. Notwithstanding anything in the foregoing sentence to the contrary,
"Pledged Partnership Interests" shall not include any interests in any shares of
capital stock in any general partnership, limited partnership, limited liability
partnership or other partnership that is classified as an Unrestricted
Subsidiary under the Indenture.
"PLEDGED TRUST INTERESTS" shall mean all interests in a Delaware
business trust or other trust including, without limitation, all trust interests
listed on Schedule 4.4 under the heading "Pledged Trust Interests" (as such
schedule may be amended or supplemented from time to time) and the certificates,
if any, representing such trust interests and any interest of such Debtor on the
books and records of such trust or on the books and records of any securities
intermediary pertaining to such interest and all dividends, distributions, cash,
warrants, rights, options, instruments, securities and other property or
proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such trust interests.
Notwithstanding anything in the foregoing sentence to the contrary, "Pledged
Trust Interests" shall not include any interests in any shares of capital stock
in any Delaware business trust or other trust that is classified as an
Unrestricted Subsidiary under the Indenture.
"PLEDGED STOCK" shall mean all shares of capital stock owned by such
Debtor, including, without limitation, all shares of capital stock described on
Schedule 4.4 under the heading "Pledged Stock" (as such schedule may be amended
or supplemented from time to time), and the certificates, if any, representing
such shares and any interest of such Debtor in the entries on the books of the
issuer of such shares or on the books of any securities intermediary pertaining
to such shares, and all dividends, distributions, cash, warrants, rights,
options, instruments, securities and other property or proceeds from time to
time received, receivable or otherwise distributed in respect of or in exchange
for any or all of such shares. Notwithstanding anything in the foregoing
sentence to the contrary, "Pledged Stock" shall not include any interests in any
shares of capital stock in any entity that is classified as an Unrestricted
Subsidiary under the Indenture.
"PLEDGE JOINDER" shall mean any joinder to this agreement in
substantially the form of Exhibit B.
"PLEDGE SUPPLEMENT" shall mean any supplement to this agreement in
substantially the form of Exhibit A.
"PROCEEDS" shall mean: (i) all "proceeds" as defined in Article 9 of
the UCC, (ii) payments or distributions made with respect to any Investment
Related Property and
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(iii) whatever is receivable or received when Collateral or proceeds are sold,
exchanged, collected or otherwise disposed of, whether such disposition is
voluntary or involuntary.
"RECEIVABLES" shall mean all rights to payment, whether or not earned
by performance, for goods or other property sold, leased, licensed, assigned or
otherwise disposed of, or services rendered or to be rendered, including,
without limitation all such rights constituting or evidenced by any Account,
Chattel Paper, Instrument, General Intangible or Investment Related Property,
together with all of Debtors' rights, if any, in any goods or other property
giving rise to such right to payment and all Collateral Support and Supporting
Obligations related thereto and all Receivables Records.
"RECEIVABLES RECORDS" shall mean (i) all original copies of all
documents, instruments or other writings or electronic records or other Records
evidencing the Receivables, (ii) all books, correspondence, credit or other
files, Records, ledger sheets or cards, invoices, and other papers relating to
Receivables, including, without limitation, all tapes, cards, computer tapes,
computer discs, computer runs, record keeping systems and other papers and
documents relating to the Receivables, whether in the possession or under the
control of Debtor or any computer bureau or agent from time to time acting for
Debtor or otherwise, (iii) all evidences of the filing of financing statements
and the registration of other instruments in connection therewith, and
amendments, supplements or other modifications thereto, notices to other
creditors or secured parties, and certificates, acknowledgments, or other
writings, including, without limitation, lien search reports, from filing or
other registration officers, (iv) all credit information, reports and memoranda
relating thereto and (v) all other written or non-written forms of information
related in any way to the foregoing or any Receivable.
"RECORD" shall have the meaning specified in Article 9 of the UCC.
"SECURED OBLIGATIONS" shall have the meaning specified in Section 3.1.
"SECURED PARTY" shall have the meaning set forth in the preamble.
"SECURITIES" shall mean any stock, shares, partnership interests,
voting trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
"SECURITIES ACCOUNTS" (i) shall mean all "securities accounts" as
defined in Article 8 of the UCC and (ii) shall include, without limitation, all
of the accounts listed on Schedule 4.4 under the heading "Securities Accounts"
(as such schedule may be amended or supplemented from time to time).
"SUPPORTING OBLIGATION" shall mean all "supporting obligations" as
defined in the UCC.
"TAX CODE" shall mean the United States Internal Revenue Code of 1986,
as amended from time to time.
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"TRADEMARK LICENSES" shall mean any and all agreements providing for
the granting of any right in or to Trademarks (whether such Debtor is licensee
or licensor thereunder) including, without limitation, each agreement referred
to in Schedule 4.5(F) (as such schedule may be amended or supplemented from time
to time).
"TRADEMARKS" shall mean all United States, state and foreign
trademarks, trade names, corporate names, company names, business names,
fictitious business names, Internet domain names, trade styles, service marks,
certification marks, collective marks, logos, other source or business
identifiers, designs and general intangibles of a like nature, all registrations
and applications for any of the foregoing including, but not limited to the
registrations and applications referred to in Schedule 4.5(E) (as such schedule
may be amended or supplemented from time to time), all extensions or renewals of
any of the foregoing, all of the goodwill of the business connected with the use
of and symbolized by the foregoing, the right to sue for past, present and
future infringement or dilution of any of the foregoing or for any injury to
goodwill, and all proceeds of the foregoing, including, without limitation,
licenses, royalties, income, payments, claims, damages, and proceeds of suit.
"TRADE SECRET LICENSES" shall mean any and all agreements providing
for the granting of any right in or to Trade Secrets (whether such Debtor is
licensee or licensor thereunder) including, without limitation, each agreement
referred to in Schedule 4.5(G) (as such schedule may be amended or supplemented
from time to time).
"TRADE SECRETS" shall mean all trade secrets and all other
confidential or proprietary information and know-how now or hereafter owned by
or used in, or contemplated at any time for use in, the business of such Debtor
(all of the foregoing being collectively called a "Trade Secret"), whether or
not such Trade Secret has been reduced to a writing or other tangible form,
including all documents and things embodying, incorporating, or referring in any
way to such Trade Secret, the right to sue for past, present and future
infringement of any Trade Secret, and all proceeds of the foregoing, including,
without limitation, licenses, royalties, income, payments, claims, damages, and
proceeds of suit.
"UCC" shall mean the Uniform Commercial Code as in effect from time to
time in the State of New York or, when the context implies, the Uniform
Commercial Code as in effect from time to time in any other applicable
jurisdiction.
1.2 DEFINITIONS; INTERPRETATION. All capitalized terms used herein
(including the preamble and recitals hereto) and not otherwise defined herein
shall have the meanings ascribed thereto in the Indenture or, if not defined
therein, in the UCC. References to "Sections," "Exhibits" and "Schedules" shall
be to Sections, Exhibits and Schedules, as the case may be, of this Agreement
unless otherwise specifically provided. Section headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose or be given any substantive effect.
Any of the terms defined herein may, unless the context otherwise requires, be
used in the singular or the plural, depending on the reference. The use herein
of the word "include" or "including", when following any general statement, term
or matter, shall not be construed to limit such statement, term or matter to the
specific items or matters set forth immediately following such word or to
similar items or matters, whether or not nonlimiting language (such as "without
limitation" or "but not limited to" or words of similar import) is used with
reference thereto, but rather shall be deemed to refer to all other items or
matters that fall within the broadest possible scope of such general statement,
term or matter. If any conflict or inconsistency exists between this Agreement
and the Indenture,
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the Indenture shall govern. All references herein to provisions of the UCC shall
include all successor provisions under any subsequent version or amendment to
any Article of the UCC.
2. GRANT OF SECURITY
2.1 GRANT OF SECURITY. Each Debtor hereby grants to Secured Party a
security interest and continuing lien on all of such Debtor's right, title and
interest in, to and under all property of such Debtor including, but not limited
to the following, in each case whether now owned or existing or hereafter
acquired or arising and wherever located (collectively, such Debtor's
"COLLATERAL"):
(i) Accounts;
(ii) Chattel Paper;
(iii) Documents;
(iv) General Intangibles;
(v) Goods;
(vi) Instruments;
(vii) Insurance;
(viii) Intellectual Property;
(ix) Investment Related Property;
(x) Money;
(xi) Receivables and Receivable Records;
(xii) Commercial Tort Claims;
(xiii) all ships, boats, barges and vessels (whether under
construction or completed), including, without limitation,
the Fitzgeralds Tunica, U.S.C.G. Official Number
262757, and any and all masts, bowsprints, boilers,
engines, sails, fittings, anchors, cables, chains,
riggings, tackle, apparel, capstans, outfits, gears,
appliances, fittings and spare and replacement parts
and other appurtenances, accessories and additions,
improvements and replacements thereto, whether on board
or not on board, in or to any ship, boat, barge or
vessel, and all stones, wood, steel and other materials
used or to be used in the building, construction,
repair, renovation, refurbishment or otherwise with
respect to improvements or ships, boats, barges or
vessels;
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(xiv) to the extent not otherwise included above, all Collateral
Records, Collateral Support and Supporting Obligations relating
to any of the foregoing; and
(xv) to the extent not otherwise included above, all Proceeds,
products, accessions, rents and profits of or in respect of any
of the foregoing.
2.2 CERTAIN LIMITED EXCLUSIONS. Notwithstanding anything herein to the
contrary, in no event shall the Collateral include any Excluded Assets.
2.3 INTERCREDITOR AGREEMENT. Notwithstanding anything herein to the
contrary, the relative rights and remedies of Secured Party hereunder and the
Credit Facility Secured Party shall be subject to and governed by the terms of
the Intercreditor Agreement at any time the Intercreditor Agreement is in
effect. In the event of any inconsistency between the terms hereof and the
Intercreditor Agreement, the Intercreditor Agreement shall control at any time
the Intercreditor Agreement is in effect.
3. SECURITY FOR OBLIGATIONS.
3.1 SECURITY FOR OBLIGATIONS. With respect to each Debtor, this Agreement
secures, and the Collateral granted by such Debtor is collateral security for,
the prompt and complete payment or performance in full 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. ss.362(a) (and any successor provision thereof)), of all Obligations of
such Debtor under the Indenture Documents (the "SECURED OBLIGATIONS").
3.2 OBLIGATIONS REMAIN.
(a) Anything contained herein to the contrary notwithstanding:
(i) each Debtor shall remain liable under any partnership
agreement or limited liability company agreement relating
to any Pledged Partnership Interest or Pledged LLC
Interest, any Assigned Agreement and/or any other contracts
and agreements included in the Collateral, to the extent
set forth therein, to perform all of its duties and
obligations thereunder to the same extent as if this
Agreement had not been executed;
(ii) the exercise by Secured Party of any of its rights
hereunder shall not release any Debtor from any of its
duties or obligations under the contracts and agreements
included in the Collateral; and
(iii) Secured Party shall not have any obligation or liability
under any partnership agreement or limited liability
company agreement relating to any Pledged Partnership
Interests or Pledged LLC Interests, any Assigned Agreement
or any other contracts and agreements included in the
Collateral by reason of this Agreement, nor shall Secured
Party, be obligated to perform any
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of the obligations or duties of any Debtor thereunder or
to take any action to collect or enforce any claim for
payment assigned hereunder.
(b) Neither Secured Party nor any purchaser at a foreclosure sale
under this Agreement shall be obligated to assume any obligation or liability
under any partnership agreement or limited liability company agreement relating
to any Pledged Partnership Interests or Pledged LLC Interests, any Assigned
Agreement or any other contracts and agreements included in the Collateral.
4. REPRESENTATIONS AND WARRANTIES AND COVENANTS.
4.1 GENERALLY.
(a) Representations and Warranties. Each Debtor hereby represents and
warrants that:
(i) it owns the Collateral purported to be owned by it or
otherwise has the rights it purports to have in each item
of Collateral and, as to all Collateral whether now
existing or hereafter acquired, will continue to own or
have such rights in each item of the Collateral, in each
case free and clear of any and all Liens, rights or claims
of all other Persons other than Permitted Liens, including,
without limitation, liens arising as a result of such
Debtor becoming bound (as a result of merger or otherwise)
as debtor under a security agreement entered into by
another Person;
(ii) it has indicated on Schedule 4.1(A) (as such schedule may
be amended or supplemented from time to time): (x) the type
of organization of such Debtor, (y) the jurisdiction of
organization of such Debtor and (z) the jurisdiction where
the chief executive office or its sole place of business
is, and for the lesser of the one-year period preceding the
date hereof or the period since its formation or
incorporation, as applicable, has been, located;
(iii) the full legal name of such Debtor is as set forth on
Schedule 4.1(A) and it has not done in the lesser of the
five-year period preceding the date hereof or the period
since its formation or incorporation, as applicable, and
does not do, business under any other name (including any
trade-name or fictitious business name) except for those
names set forth on Schedule 4.1(B) (as such schedule may be
amended or supplemented from time to time);
(iv) such Debtor has not within the lesser of the five-year
period preceding the date hereof or the period since its
formation or incorporation, as applicable, become bound
(whether as a result of merger or otherwise) as debtor
under a security agreement entered into by another Person,
which has not heretofore been terminated;
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(v) upon the filing of all UCC financing statements naming each
Debtor as "debtor" and Secured Party as "Secured Party" and
describing the Collateral in the filing offices set forth
opposite such Debtor's name on Schedule 4.1(C) hereof (as
such schedule may be amended or supplemented from time to
time) and, to the extent not subject to Article 9 of the
UCC, upon the recordation of the security interest granted
hereunder in Trademarks and Copyrights in the applicable
patent, trademark and copyright registries (including the
United states Patent and Trademark Office and the United
States Copyright Office), the registration of all
unregistered Copyrights and other filings delivered by each
Debtor, and the execution of the agreements referred to in
Section 4.4(c), security interests granted to Secured Party
hereunder constitute valid and perfected Liens (subject in
the case of priority only to Permitted Liens);
(vi) all actions and consents, including all filings, notices,
registrations and recordings necessary or desirable for the
exercise by Secured Party of the voting or other rights
provided for in this Agreement or the exercise of remedies
in respect of the Collateral have been made or obtained
except to the extent any consents or approvals are required
under applicable Gaming Laws, the Intercreditor Agreement
or any Intellectual Property license, contract or
agreement;
(vii) other than the financing statements filed in favor of
Secured Party, no effective UCC financing statement,
fixture filing or other instrument similar in effect under
any applicable law covering all or any part of the
Collateral is on file in any filing or recording office
except for (x) financing statements for which proper
termination statements have been delivered to Secured Party
for filing and (y) financing statements filed in connection
with Permitted Liens;
(viii) no authorization, approval or other action by, and no
notice to or filing with, any Governmental Authority is
required for either (i) the pledge or grant by any Debtor
of the Liens purported to be created in favor of Secured
Party hereunder or (ii) the exercise by Secured Party of
any rights or remedies in respect of any Collateral
(whether specifically granted or created hereunder or
created or provided for by applicable law), except (A) for
the filings contemplated by clause (v) above, (B) as may be
required, in connection with the disposition of any
Investment Related Property, by laws generally affecting
the offering and sale of Securities and (C) to the extent
any consents or approvals are required under applicable
Gaming Laws, the Intercreditor Agreement or any
Intellectual Property license, contract or agreement;
(ix) all information supplied by any Debtor with respect to any
of the Collateral (in each case taken as a whole with
respect to any
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particular Collateral) is accurate and complete in all
material respects; and
(x) none of the Collateral constitutes, or is the Proceeds of,
"farm products" (as defined in the UCC).
(b) Covenants and Agreements. Each Debtor hereby covenants and agrees
that:
(i) except for the security interest created by this Agreement,
it shall not create or suffer to exist any Lien upon or
with respect to any of the Collateral, except Permitted
Liens, and such Debtor shall defend the Collateral against
all Persons at any time claiming any interest therein;
(ii) it shall not produce, 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;
(iii) it shall not change such Debtor's name, identity, corporate
structure, sole place of business, chief executive office
or jurisdiction of organization or establish any trade
names unless it shall have (a) notified Secured Party in
writing, by executing and delivering to Secured Party a
completed Pledge Supplement, substantially in the form of
Exhibit A attached hereto, together with all Supplements to
Schedules thereto, at least thirty (30) days prior to any
such change or establishment, identifying such new proposed
name, identity, corporate structure, sole place of
business, chief executive office, jurisdiction of
organization or trade name and providing such other
information in connection therewith as Secured Party may
reasonably request and (b) taken all actions necessary or
advisable to maintain the continuous validity and
perfection of Secured Party's security interest in the
Collateral intended to be granted and agreed to hereby;
(iv) it shall pay promptly when due all property and other
taxes, assessments and governmental charges or levies
imposed upon, and all claims (including claims for labor,
materials and supplies) against, the Collateral, except to
the extent the validity thereof is being contested in good
faith; provided, such Debtor shall in any event pay such
taxes, assessments, charges, levies or claims not later
than five (5) days prior to the date of any proposed sale
under any judgment, 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;
(v) upon such Debtor or any officer of such Debtor obtaining
knowledge thereof, it shall promptly notify Secured Party
in writing of any event that may materially and adversely
affect the value of the Collateral (other than Pledged
Equity Interests) or
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any portion thereof, the ability of any Debtor or Secured
Party to dispose of the Collateral or any portion thereof,
or the rights and remedies of Secured Party in relation
thereto, including, without limitation, the levy of any
legal process against the Collateral or any portion
thereof; and
(vi) it shall use commercially reasonable efforts to deliver to
Secured Party landlord consents, to the extent it occupies
and has business activities on any premises as a lessee
under a lease, executed by the landlord in respect of such
lease the effect of which would subordinate the claims of
such landlord to the Liens created under this Agreement and
enable Secured Party to access such premises without delay
for the purpose of enforcing such Liens.
4.2 EQUIPMENT AND INVENTORY.
(a) Representations and Warranties. Each Debtor represents and
warrants, on the Issue Date, that all of the Equipment and Inventory included in
the Collateral is kept only at the locations specified in Schedule 4.2.
(b) Covenants and Agreements. Each Debtor covenants and agrees that:
(i) it shall not deliver any Document evidencing any Equipment
and Inventory to any Person other than the issuer of such
Document to claim the Goods evidenced therefor or Secured
Party or the Credit Facility Secured Party or any other
holder or representative of a holder of a Permitted Lien;
and
(ii) if any Equipment or Inventory is in possession or control
of any third party, it shall join with Secured Party in
notifying the third party of Secured Party's security
interest and use its reasonable efforts in obtaining an
acknowledgment from the third party that it is holding the
Equipment and Inventory for the benefit of Secured Party
and other holders of Permitted Liens.
4.3 RECEIVABLES. Covenants and Agreements: Each Debtor hereby covenants and
agrees that:
(a) it shall keep and maintain at its own cost and expense
satisfactory and complete records of the Receivables, including, but not limited
to, the originals of all documentation with respect to all Receivables and
records of all payments received and all credits granted on the Receivables, all
merchandise returned and all other dealings therewith;
(b) it shall mark conspicuously, in form and manner reasonably
satisfactory to Secured Party, all Chattel Paper, Instruments and other evidence
of Receivables (other than any delivered to Secured Party as provided herein),
as well as the Receivables Records with an appropriate reference to the fact
that Secured Party has a security interest therein;
(c) other than in the ordinary course of business as generally
conducted by it on and prior to the date hereof, and except as otherwise
provided in Section 4.3(e) below,
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following an Event of Default, such Debtor shall not (w) grant any extension or
renewal of the time of payment of any Receivable, (x) compromise or settle any
dispute, claim or legal proceeding with respect to any Receivable for less than
the total unpaid balance thereof, (y) release, wholly or partially, any Person
liable for the payment thereof, or (z) allow any credit or discount thereon;
(d) except as otherwise provided in this subsection, it shall continue
to collect all amounts due or to become due to such Debtor under the Receivables
and any Supporting Obligation and diligently exercise each material right it may
have under any Receivable, any Supporting Obligation or Collateral Support, in
each case, at its own expense; and
(e) it shall use reasonable efforts to keep in full force and effect
any Supporting Obligation or Collateral Support relating to any Receivable.
4.4 INVESTMENT RELATED PROPERTY.
(a) Representations and Warranties. Each Debtor hereby represents and
warrants that:
(i) Schedule 4.4 (as such schedule may be amended or
supplemented from time to time) sets forth under the
headings "Pledged Stock, "Pledged LLC Interests," "Pledged
Partnership Interests" and "Pledged Trust Interests,"
respectively, all of the Pledged Stock, Pledged LLC
Interests, Pledged Partnership Interests and Pledged Trust
Interests owned by any Debtor and such Pledged Equity
Interests constitute the percentage of issued and
outstanding shares of stock, percentage of membership
interests, percentage of partnership interests or
percentage of beneficial interest of the respective issuers
thereof indicated on such Schedule;
(ii) it is the record and beneficial owner of the Pledged Equity
Interests free of all Liens, rights or claims of other
Persons other than Permitted Liens;
(iii) without limiting the generality of Section 4.1(a)(v), no
consent of any Person including any other general or
limited partner, any other member of a limited liability
company, any other shareholder or any other trust
beneficiary is necessary or desirable in connection with
the creation or perfection of the security interest of
Secured Party in any Pledged Equity Interests or (other
than approvals required by applicable Gaming Laws) the
exercise by Secured Party of the voting or other rights
provided for in this Agreement or the exercise of remedies
in respect thereof;
(iv) as of the Issue Date, none of the Pledged LLC Interests nor
Pledged Partnership Interests are or represent interests in
issuers that are: (a) registered as investment companies or
(b) are dealt in or traded on securities exchanges or
markets;
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(v) Schedule 4.4 (as such schedule may be amended or
supplemented from time to time) sets forth under the
heading "Pledged Debt" all of the Pledged Debt owned by any
Debtor and, as of the Issue Date, all of such Pledged Debt
has been duly authorized, authenticated or issued, and
delivered and is the legal, valid and binding obligation of
the issuers thereof and is not in default and constitutes
all of the issued and outstanding inter-company
Indebtedness evidenced by an instrument or certificated
security of the respective issuers thereof owing to such
Debtor;
(vi) Schedule 4.4 sets forth under the headings "Securities
Accounts" and "Commodities Accounts," respectively, all of
the Securities Accounts and Commodities Accounts in which
the each Debtor has an interest. Each Debtor is the sole
entitlement holder of each such Securities Account and
Commodities Account, and such Debtor has not consented to,
and is not otherwise aware of, any Person having "control"
(as defined in Section 9-115(e) of the UCC) over, or any
other interest in, any such Securities Account or Commodity
Account or any securities or other property credited
thereto (other than the Credit Facility Secured Party);
(vii) Schedule 4.4 sets forth under the heading "Deposit
Accounts" all of the Deposit Accounts in which each Debtor
has an interest and each Debtor is the sole account holder
of each such Deposit Account and such Debtor has not
consented to, and is not otherwise aware of, any Person
(other than Credit Facility Secured Party pursuant to the
terms of the Intercreditor Agreement to the extent then in
effect) having either sole dominion and control or
"control" (within the meaning of Section 9-104 of Revised
Article 9) over, or any other interest in, any such Deposit
Account or any money or other property deposited therein;
and
(viii) each Debtor has taken all actions necessary or desirable,
including those specified in Section 4.4(c), to: (a)
establish Secured Party's "control" (within the meaning of
Section 9-106 of the UCC) over any portion of the
Investment Related Property constituting Certificated
Securities, Uncertificated Securities, Securities Accounts
or Securities Entitlements; (b) establish Secured Party's
"control" (within the meaning of Section 9-104 of the UCC)
over all Deposit Accounts; and (d) to deliver all
Instruments to Secured Party or Credit Facility Secured
Party pursuant to the terms of the Intercreditor Agreement
to the extent then in effect.
(b) Covenants and Agreements. Each Debtor hereby covenants and agrees
that:
15
(i) it shall not vote to enable or take any other action to:
(a) amend or terminate any partnership agreement, limited
liability company agreement, certificate of incorporation,
by-laws or other organizational documents in any way that
materially changes the rights of such Debtor with respect
to any Investment Related Property or adversely affects the
validity, perfection or priority of Secured Party's
security interest, (b) other than as permitted under the
Indenture, permit any issuer of any Pledged Equity Interest
to dispose of all or a material portion of their assets,
(c) waive any default under or breach of any terms of
organizational document relating to the issuer of any
Pledged Equity Interest or the terms of any Pledged Debt,
or (d) cause any issuer of any Pledged Partnership
Interests or Pledged LLC Interests which are not securities
(for purposes of the UCC) on the date hereof to elect or
otherwise take any action to cause such Pledged Partnership
Interests or Pledged LLC Interests to be treated as
securities for purposes of the UCC; provided, however,
notwithstanding the foregoing, if any issuer of any Pledged
Partnership Interests or Pledged LLC Interests takes any
such action in violation of the foregoing in this clause
(d), such Debtor shall promptly notify Secured Party in
writing of any such election or action and, in such event,
shall take all steps necessary or advisable to establish
Secured Party's "control" thereof;
(ii) in the event it acquires rights in any Investment Related
Property after the date hereof, it shall deliver to Secured
Party a completed Pledge Supplement, substantially in the
form of Exhibit A attached hereto, together with all
Supplements to Schedules thereto, reflecting such new
Investment Related Property and all other Investment
Related Property. Notwithstanding the foregoing, it is
understood and agreed that the security interest of Secured
Party shall attach to all Investment Related Property
immediately upon any Debtor's acquisition of rights therein
and shall not be affected by the failure of any Debtor to
deliver a supplement to Schedule 4.4 as required hereby;
(iii) except as provided in the next sentence, in the event such
Debtor receives any dividends, interest or distributions on
any Investment Related Property, or any securities or other
property upon the merger, consolidation, liquidation or
dissolution of any issuer of any Investment Related
Property, then (a) such dividends, interest or
distributions and securities or other property shall be
included in the definition of Collateral without further
action and (b) such Debtor shall immediately take all
steps, if any, necessary or advisable to ensure the
validity and perfection, priority and, if applicable,
control of Secured Party over such Investment Related
Property (including, without limitation, delivery thereof
to Secured Party or Credit Facility Secured Party pursuant
to the terms of the Intercreditor
16
Agreement to the extent then in effect) and pending any
such action such Debtor shall be deemed to hold such
dividends, interest, distributions, securities or other
property in trust for the benefit of Secured Party and
shall be segregated from all other property of such Debtor.
Notwithstanding the foregoing, so long as no Event of
Default shall have occurred and be continuing, Secured
Party authorizes each Debtor to retain all ordinary cash
dividends and distributions paid in the normal course of
business and all scheduled payments of interest;
(iv) it shall comply with all of its obligations under any
partnership agreement or limited liability company
agreement relating to Pledged Partnership Interests or
Pledged LLC Interests and shall enforce all of its rights
with respect to any Investment Related Property;
(v) it shall not permit any issuer of any Pledged Equity
Interest to merge or consolidate unless (i) such issuer
creates a security interest that is perfected by a filed
financing statement (that is not effective solely under
section 9-508 of the UCC) in collateral in which such new
debtor has or acquires rights, and (ii) all the outstanding
capital stock or other equity interests of the surviving or
resulting corporation, limited liability company,
partnership or other entity is, upon such merger or
consolidation, pledged hereunder and no cash, securities or
other property is distributed in respect of the outstanding
equity interests of any other constituent company; provided
that if the surviving or resulting company upon any such
merger or consolidation involving an issuer which is a
Controlled Foreign Corporation, then such Debtor shall only
be required to pledge equity interests in accordance with
Section 2.2; and
(vi) each Debtor consents to the grant by each other Debtor of a
security interest in all Investment Related Property to
Secured Party.
(c) Delivery and Control. Each Debtor agrees that (i) with respect to
any Investment Related Property (other than Deposit Accounts) in which it has
rights as of the Closing Date it shall comply with the provisions of this
Section 4.4(c) on or before the Closing Date; (ii) with respect to any Deposit
Accounts in which it has rights as of the Closing Date it shall comply with the
provisions of this Section 4.4(c) no later than 40 days after the Closing Date;
and (iii) with respect to any Investment Related Property hereafter acquired by
such Debtor it shall comply with the provisions of this Section 4.4(c)
immediately upon acquiring rights therein, in each case in form and substance
satisfactory to Secured Party. With respect to any Investment Related Property
that is now or hereafter represented by a certificate or that is an "instrument"
(other than any Investment Related Property credited to a Securities Account) it
shall cause such certificate or instrument to be delivered to the Credit
Facility Secured Party (in accordance with the terms of the Intercreditor
Agreement to the extent then in effect), indorsed in blank by an "effective
indorsement" (as defined in Section 8-107 of the UCC), regardless of whether
such certificate constitutes a "certificated security" for purposes of the UCC.
In the event that at any time after the date of this Agreement any Pledged LLC
Interest or Pledged
17
Partnership Interest is (i) dealt in or traded on a securities exchange or in a
securities market, (ii) by its terms expressly provides that it is a security
governed by Article 8 of the UCC, (iii) is an investment company security or
(iv) is held in a securities account, the applicable Debtor will immediately
notify Secured Party in writing of such event, and will immediately execute such
documents, and do such other acts or things deemed appropriate by Secured Party
to deliver to Secured Party (subject to the terms of the Intercreditor Agreement
to the extent then in effect) control (within the meaning of Article 8 of the
UCC) of the Pledged LLC Interest or Pledged Partnership Interest, as applicable.
Each Debtor represents and warrants that none of the events described in clauses
(i), (ii), (iii) or (iv) above has occurred and is existing as of the date of
this Agreement. No Debtor will contest in any manner the perfection or priority
of Secured Party's lien on any Pledged LLC Interest or any Pledged Partnership
Interest. With respect to any Investment Related Property consisting of
Securities Accounts or Securities Entitlements, it shall cause the securities
intermediary maintaining such Securities Account or Securities Entitlement to
enter into an agreement in form and substance satisfactory to Secured Party
pursuant to which it shall, subject to the Intercreditor Agreement to the extent
then in effect, agree to comply with Secured Party's "entitlement orders"
without further consent by such Debtor. With respect to any Investment Related
Property that is a "Deposit Account," it shall cause the depositary institution
maintaining such account to enter into an agreement in form and substance
satisfactory to Secured Party, pursuant to which Secured Party, subject to the
terms of the Intercreditor Agreement to the extent then in effect, shall have
both dominion and control over such Deposit Account (within the meaning of the
common law) and "control" (as defined in Section 9-104 of Revised Article 9)
over such Deposit Account. In addition to the foregoing, if any issuer of any
Investment Related Property is located in a jurisdiction outside of the United
States, each Debtor shall take such additional actions, including, without
limitation, causing the issuer to register the pledge on its books and records
or making such filings or recordings, in each case as may be necessary or
advisable, under the laws of such issuer's jurisdiction to insure the validity,
perfection and priority of the security interest of Secured Party. Upon the
occurrence of an Event of Default, subject to the terms of the Intercreditor
Agreement to the extent then in effect, any applicable Gaming Laws and other
applicable laws (including, without limitation, Liquor Laws) and Section 7
hereof, Secured Party shall have the right to have all or any portion of the
Pledged LLC Interests and the Pledged Partnership Interests registered in its
name or the name of a nominee or agent on the books of the Company, to the
extent necessary to enforce its rights to receive distributions with respect
thereto or vote such Pledged LLC Interests and Pledged Partnership Interests;
provided that no such registration shall constitute a transfer of ownership and
no Debtor shall be deemed to have waived its rights under Section 9-610 of the
UCC to have the Pledged LLC Interests and the Pledged Partnership Interests sold
in a public sale. In addition, Secured Party (subject to and in accordance with
the terms of the Intercreditor Agreement to the extent then in effect) shall
have the right at any time, without notice to any Debtor, to exchange any
certificates or instruments representing any Investment Related Property for
certificates or instruments of smaller or larger denominations.
(d) Voting and Distributions.
(i) So long as no Event of Default shall have occurred and be
continuing, subject to applicable Gaming Laws:
(A) each Debtor shall be entitled to exercise or refrain
from exercising any and all voting and other consensual
rights pertaining to the Investment Related Property or
any part thereof for any purpose not inconsistent with
the terms of this Agreement or the Indenture; and
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(B) Secured Party shall promptly execute and deliver (or
cause to be executed and delivered) to each Debtor all
proxies, and other instruments as such Debtor may from
time to time reasonably request for the purpose of
enabling such Debtor to exercise the voting and other
consensual rights when and to the extent which it is
entitled to exercise pursuant to clause (A) above; and
(ii) Upon the occurrence and during the continuation of an Event
of Default subject to Section 7.6(a), applicable Gaming
Laws and the terms of the Intercreditor Agreement, to the
extent then in effect:
(A) all rights of each Debtor to exercise or refrain from
exercising the voting and other consensual rights which
it would otherwise be entitled to exercise pursuant
hereto shall cease and all such rights shall thereupon
become vested in Secured Party who shall thereupon have
the sole right to exercise such voting and other
consensual rights; and
(B) in order to permit Secured Party to exercise the voting
and other consensual rights which it may be entitled to
exercise pursuant hereto and to receive all dividends
and other distributions which it may be entitled to
receive hereunder: (1) each Debtor shall promptly
execute and deliver (or cause to be executed and
delivered) to Secured Party all proxies, dividend
payment orders and other instruments as necessary or as
Secured Party may from time to time reasonably request
and (2) each Debtor acknowledges that Secured Party may
utilize the power of attorney set forth in Section 6.
4.5 INTELLECTUAL PROPERTY.
(a) Representations and Warranties. Except as disclosed in Schedule
4.5(H) (as such schedule may be amended or supplemented from time to time), each
Debtor hereby represents and warrants, on the Issue Date, that:
(i) Schedule 4.5 sets forth a true and complete list of (i) all
United States, state and foreign registrations of and
applications for Patents, Trademarks, and Copyrights owned
by each Debtor and material to the business of such Debtor
(ii) all Patent Licenses, Trademark Licenses and Copyright
Licenses material to the business of such Debtor;
(ii) it is the sole and exclusive owner of the entire right,
title, and interest in and to all Intellectual Property on
Schedule 4.5 (as such schedule may be amended or
supplemented from time to time), and owns or has the valid
right to use all other Intellectual
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Property used in or necessary to conduct its business, free
and clear of all Liens, claims, encumbrances and licenses,
except for Permitted Liens and the licenses set forth on
Schedule 4.5(B), (D), (F) and (G) (as each may be amended
or supplemented from time to time);
(iii) all Intellectual Property material to the business of each
Debtor is subsisting and has not been adjudged invalid or
unenforceable, in whole or in part, and each Debtor has
performed all acts and has paid all renewal, maintenance,
and other fees and taxes required to maintain each and
every registration and application of Intellectual Property
material to the business of such Debtor in full force and
effect;
(iv) all Intellectual Property material to the business of each
Debtor is valid and enforceable; no holding, decision, or
judgment has been rendered in any action or proceeding
before any court or administrative authority challenging
the validity of, such Debtor's right to register, or such
Debtor's rights to own or use, any Intellectual Property
material to the business of such Debtor and no such action
or proceeding is pending or, to the best of such Debtor's
knowledge, threatened;
(v) all registrations and applications for Copyrights, Patents
and Trademarks material to the business of such Debtor are
standing in the name of each Debtor, and none of the
Trademarks, Patents, Copyrights or Trade Secret Collateral
has been licensed by any Debtor to any affiliate or third
party, except as disclosed in Schedule 4.5(B), (D), (F), or
(G);
(vi) each Debtor has been using appropriate statutory notice of
registration in connection with its use of registered
Trademarks, proper marking practices in connection with the
use of Patents, and appropriate notice of copyright in
connection with the publication of Copyrights material to
the business of such Debtor;
(vii) each Debtor uses adequate standards of quality in the
manufacture, distribution, and sale of all products sold
and in the provision of all services rendered under or in
connection with all Trademark Collateral and has taken all
action necessary to ensure that all licensees of the
Trademark Collateral owned by such Debtor use such adequate
standards of quality;
(viii) to the best of such Debtor's knowledge, the conduct of such
Debtor's business does not infringe upon any trademark,
patent, copyright, trade secret or similar intellectual
property right owned or controlled by a third party; as of
the date hereof, to the best of such Debtor's knowledge, no
claim has been made that the use of any Intellectual
Property owned or used by Debtor (or
20
any of its respective licensees) violates the asserted
rights of any third party;
(ix) to the best of such Debtor's knowledge, no third party is
infringing upon any Intellectual Property owned or used by
such Debtor, or any of its respective licensees;
(x) no settlement or consents, covenants not to sue,
nonassertion assurances, or releases have been entered into
by any Debtor or to which any Debtor is bound that
adversely affects such Debtor's rights to own or use any
Intellectual Property material to the business of such
Debtor; and
(xi) each Debtor has not made a previous assignment, sale,
transfer or agreement constituting a present or future
assignment, sale, transfer or agreement of any Intellectual
Property material to the business of such Debtor that has
not been terminated or released. There is no effective
financing statement or other document or instrument now
executed, or on file or recorded in any public office,
granting a security interest in or otherwise encumbering
any part of such Intellectual Property, other than
Permitted Liens and a security interest in favor of Secured
Party.
(b) Covenants and Agreements. Each Debtor hereby covenants and agrees
as follows:
(i) it shall not do any act or omit to do any act whereby any
of the Intellectual Property which is material to the
business of Debtor may lapse, or become abandoned,
dedicated to the public, or unenforceable, or which would
adversely affect the validity, grant, or enforceability of
the security interest granted therein;
(ii) it shall not, with respect to any Trademarks which are
material to the business of any Debtor, cease the use of
any of such Trademarks or fail to maintain the level of the
quality of products sold and services rendered under any of
such Trademark at a level at least substantially consistent
with the quality of such products and services as of the
date hereof, and each Debtor shall take all steps necessary
to insure that licensees of such Trademarks use such
consistent standards of quality;
(iii) it shall take all reasonable steps in the United States
Patent and Trademark Office, the United States Copyright
Office, any state registry or any foreign counterpart of
the foregoing, to pursue any application and maintain any
registration of each Trademark, Patent, and Copyright owned
by any Debtor and material to its business which is now or
shall become included in the Intellectual Property (except
for such works with respect to which such Debtor has
determined in the exercise of its commercially reasonable
judgment that it shall not seek registration) including,
but not limited to, those items on
21
Schedule 4.5(A), (C) and (E) (as each may be amended or
supplemented from time to time);
(iv) in the event that any Intellectual Property owned by or
exclusively licensed to any Debtor that is material to such
Debtor's business is infringed, misappropriated, or diluted
by a third party, such Debtor shall promptly take all
reasonable actions to stop such infringement,
misappropriation, or dilution and protect its exclusive
rights in such Intellectual Property including, but not
limited to, the initiation of a suit for injunctive relief
and to recover damages;
(v) it shall promptly following the time it obtains knowledge
thereof report to Secured Party (i) the filing of any
application to register any Intellectual Property with the
United States Patent and Trademark Office, the United
States Copyright Office, or any state registry or foreign
counterpart of the foregoing (whether such application is
filed by such Debtor or through any agent, employee,
licensee, or designee thereof) and (ii) the registration of
any Intellectual Property by any such office, in each case
by executing and delivering to Secured Party a completed
Pledge Supplement, substantially in the form of Exhibit A
attached hereto, together with all Supplements to Schedules
thereto;
(vi) it shall, promptly execute and deliver to Secured Party any
document required to acknowledge, confirm, register,
record, or perfect Secured Party's interest in any part of
the Intellectual Property, whether now owned or hereafter
acquired;
(vii) except as permitted under the Indenture, no Debtor shall
execute, and there will not be on file in any public
office, any financing statement or other document or
instruments, except financing statements or other documents
or instruments filed or to be filed in favor of Secured
Party and the Credit Facility Secured Party, and no Debtor
shall sell, assign, transfer, license, grant any option, or
create or suffer to exist any Lien upon or with respect to
the Intellectual Property, except for the Lien created by
and under this Security Agreement and the other Loan
Documents and the Lien in favor of the Credit Facility
Secured Party;
(viii) it shall hereafter use commercially reasonable efforts so
as not to permit the inclusion in any contract to which it
hereafter becomes a party of any provision that could or
might in any way materially impair or prevent the creation
of a security interest in, or the assignment of, such
Debtor's rights and interests in any property included
within the definitions of any Intellectual Property
acquired under such contracts;
(ix) it shall use proper statutory notice in connection with its
use of any of the Intellectual Property; and
22
(x) it shall continue to collect, at its own expense, all
amounts due or to become due to such Debtor in respect of
the Intellectual Property or any portion thereof. In
connection with such collections, each Debtor may take such
action as such Debtor may deem reasonably necessary or
advisable to enforce collection of such amounts.
Notwithstanding the foregoing, Secured Party shall have the
right at any time, to notify, or require any Debtor to
notify, any obligors with respect to any such amounts of
the existence of the security interest created hereby.
4.6 COMMERCIAL TORT CLAIMS.
(a) Representations and Warranties. Each Debtor hereby represents and
warrants, on the Issue Date, that Schedule 4.6 sets forth all Commercial Tort
Claims of each Debtor; and
(b) Covenants and Agreements. Each Debtor hereby covenants and agrees
that with respect to any Commercial Tort Claim hereafter arising it shall
deliver to Secured Party a completed Pledge Supplement, substantially in the
form of Exhibit A attached hereto, together with all Supplements to Schedules
thereto, identifying such new Commercial Tort Claims.
5. FURTHER ASSURANCES; ADDITIONAL DEBTORS.
5.1 FURTHER ASSURANCES.
(a) Each Debtor agrees that from time to time, at the expense of such
Debtor, it shall promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary or desirable in
order to create and/or maintain the validity, perfection or priority of and
protect any security interest granted or purported to be granted hereby or to
enable Secured Party 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) execute and file such financing or continuation statements,
or amendments thereto, and execute and deliver such other
agreements, instruments, endorsements, powers of attorney
or notices, as may be necessary or desirable, in order to
perfect and preserve the security interests granted or
purported to be granted hereby;
(ii) take all actions necessary to ensure the recordation of
appropriate evidence of the liens and security interest
granted hereunder in the Intellectual Property with any
intellectual property registry in which said Intellectual
Property is registered or in which an application for
registration is pending including, without limitation, the
United States Patent and Trademark Office, the United
States Copyright Office, the various Secretaries of State,
and the foreign counterparts on any of the foregoing;
23
(iii) at any reasonable time, upon request by Secured Party,
exhibit the Collateral to and allow inspection of the
Collateral by Secured Party, or persons designated by
Secured Party; and
(iv) appear in and defend any action or proceeding that may
affect such Debtor's title to or Secured Party's security
interest in all or any part of the Collateral.
(b) Each Debtor hereby authorizes Secured Party to file a Record or
Records, including, without limitation, financing or continuation statements,
and amendments thereto, in all jurisdictions and with all filing offices as are
necessary or advisable to perfect the security interest granted to Secured Party
herein. Such financing statements may describe the Collateral in the same manner
as described herein or may contain an indication or description of collateral
that describes such property in any other manner as is necessary, advisable or
prudent to ensure the perfection of the security interest in the Collateral
granted to Secured Party herein. Each Debtor shall furnish to Secured Party from
time to time statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral, all in
reasonable detail.
(c) Each Debtor hereby authorizes Secured Party to modify this
Agreement after obtaining such Debtor's approval of or signature to such
modification by amending Schedule 4.5 (as such schedule may be amended or
supplemented from time to time) to include reference to any right, title or
interest in any existing Intellectual Property or any Intellectual Property
acquired or developed by any Debtor after the execution hereof or to delete any
reference to any right, title or interest in any Intellectual Property in which
any Debtor no longer has or claims any right, title or interest.
5.2 ADDITIONAL DEBTORS. From time to time subsequent to the date hereof,
additional Guarantors may become Additional Debtors pursuant to the terms of the
Indenture, by executing a Pledge Joinder substantially in the form attached
hereto as Exhibit B. Upon delivery of any such counterpart agreement to Secured
Party, notice of which is hereby waived by Debtors, (a) each Additional Debtor
shall be a Debtor and shall be as fully a party hereto as if Additional Debtor
were an original signatory hereto and (b) the supplemental schedules thereto
shall be incorporated into and become a part of and supplement the respective
schedules to this Agreement; and each reference to such Schedules shall mean and
be a reference to such Schedules as supplemented pursuant to each Security
Agreement Supplement. Each Debtor expressly agrees that its obligations arising
hereunder shall not be affected or diminished by the addition or release of any
other Debtor hereunder, nor by any election of Secured Party not to cause any
Subsidiary of Company to become an Additional Debtor hereunder. This Agreement
shall be fully effective as to any Debtor that is or becomes a party hereto
regardless of whether any other Person becomes or fails to become or ceases to
be a Debtor hereunder.
6. ATTORNEY-IN-FACT.
6.1 POWER OF ATTORNEY. Each Debtor hereby irrevocably appoints Secured
Party (such appointment being coupled with an interest) as such Debtor's
attorney-in-fact, with full authority in the place and stead of such Debtor and
in the name of such Debtor, Secured Party or the Credit Facility Secured Party,
from time to time in its discretion to take any action and to execute any
instrument that it may deem reasonably necessary or advisable to accomplish the
purposes of this Agreement (subject to the Intercreditor Agreement to the extent
then in effect), including, without limitation, the following:
24
(a) upon the occurrence and during the continuance of any Event of
Default, to obtain and adjust insurance required to be maintained by such Debtor
pursuant to the Indenture;
(b) upon the occurrence and during the continuance of any Event of
Default, to ask for, demand, collect, sue 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;
(c) upon the occurrence and during the continuance of any Event of
Default, to receive, endorse and collect any drafts or other instruments,
documents and chattel paper in connection with clause (b) above, subject in all
respects to the rights of any lender under the Credit Facility to receive,
endorse and collect the same;
(d) upon the occurrence and during the continuance of any Event of
Default, to file any claims or take any action or institute any proceedings
necessary or desirable for the collection of any of the Collateral or otherwise
to enforce the rights of Secured Party with respect to any of the Collateral;
(e) to prepare and file any UCC financing statements against such
Debtor as debtor;
(f) to prepare, sign, and file for recordation in any intellectual
property registry, appropriate evidence of the lien and security interest
granted herein in the Intellectual Property in the name of such Debtor as
assignor;
(g) to take or cause to be taken all actions necessary to perform or
comply or cause performance or compliance with the terms of this Agreement,
including, without limitation, access 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, any such payments made by Secured Party to become
obligations of such Debtor to Secured Party, due and payable immediately without
demand; and
(h) upon the occurrence and during the continuance of any Event of
Default and subject to the provisions of the UCC, 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 Secured Party were the absolute
owner thereof for all purposes, and to do, at Secured Party's option and such
Debtor's expense, at any time or from time to time, all acts and things
necessary to protect, preserve or realize upon the Collateral and Secured
Party's security interest therein in order to effect the intent of this
Agreement, all as fully and effectively as such Debtor might do.
6.2 NO DUTY ON THE PART OF SECURED PARTY. The powers conferred on Secured
Party hereunder are solely to protect the interests of Secured Party in the
Collateral and shall not impose any duty upon Secured Party to exercise any such
powers. Secured Party shall be accountable only for amounts that it actually
receives as a result of the exercise of such powers, and neither it nor any of
its officers, directors, employees or agents shall be responsible to any Debtor
for any act or failure to act hereunder, except for their own gross negligence
or willful misconduct.
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7. REMEDIES.
7.1 GENERALLY.
(a) If any Event of Default shall have occurred and be continuing,
subject to applicable Gaming Laws, Secured Party may exercise in respect of the
Collateral, in addition to all other rights and remedies provided for herein or
otherwise available to it at law or in equity, all the rights and remedies of
Secured Party on default under the UCC (whether or not the UCC applies to the
affected Collateral) to collect, enforce or satisfy any Secured Obligations then
owing, whether by acceleration or otherwise, and also may pursue any of the
following separately, successively or simultaneously:
(i) require any Debtor to, and each Debtor hereby agrees that
it shall at its expense and promptly upon request of
Secured Party forthwith, assemble all or part of the
Collateral as directed by Secured Party and make it
available to Secured Party at a place to be designated by
Secured Party that is reasonably convenient to both
parties;
(ii) enter onto the property where any Collateral is located and
take possession thereof with or without judicial process;
(iii) 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
Secured Party deems appropriate;
(iv) without notice except as specified below or under the UCC,
sell, assign, lease, license (on an exclusive or
nonexclusive basis) or otherwise dispose of the Collateral
or any part thereof in one or more parcels at public or
private sale, at any of Secured Party'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 Secured Party may deem commercially
reasonable; and
(v) subject to the terms of the Intercreditor Agreement, apply
the balance from any Deposit Account or instruct the bank
at which any Deposit Account is maintained to pay the
balance of any Deposit Account to or for the benefit of
Secured Party.
(b) Secured Party may be a purchaser of any or all of the Collateral
at any public or private (to the extent permitted by applicable law, including
any applicable Gaming Law) sale in accordance with the UCC and Secured Party, as
Secured Party for and representative of the Holders, 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 sale made in accordance
with the UCC, to use and apply any of the Secured Obligations as a credit on
account of the purchase price for any Collateral payable by Secured Party 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 any Debtor, and each
Debtor hereby waives (to the extent permitted by applicable law) all rights of
26
redemption, stay and/or appraisal which it now has or may at any time in the
future have under any rule of law or statute now existing or hereafter enacted.
Each Debtor agrees that, to the extent notice of sale shall be required by law,
at least ten (10) days notice to such Debtor 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. Secured Party shall not be obligated to make any sale
of Collateral regardless of notice of sale having been given. Secured Party 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. Each Debtor agrees that it
would not be commercially unreasonable for Secured Party to dispose of the
Collateral or any portion thereof by using Internet sites that provide for the
auction of assets of the types included in the Collateral or that have the
reasonable capability of doing so, or that match buyers and sellers of assets.
Each Debtor hereby waives any claims against Secured Party 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 Secured Party 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 Secured
Obligations, each Debtor shall be liable for the deficiency and the fees of any
attorneys employed by Secured Party to collect such deficiency. Each Debtor
further agrees that a breach of any of the covenants contained in this Section
will cause irreparable injury to Secured Party, that Secured Party has no
adequate remedy at law in respect of such breach and, as a consequence, that
each and every covenant contained in this Section shall be specifically
enforceable against such Debtor, and such Debtor hereby waives and agrees not to
assert any defenses against an action for specific performance of such covenants
except for a defense that no default has occurred giving rise to the Secured
Obligations becoming due and payable prior to their stated maturities. Nothing
in this Section shall in any way alter the rights of Secured Party hereunder.
(c) Secured Party may sell the Collateral without giving any
warranties as to the Collateral. Secured Party may specifically disclaim or
modify any warranties of title or the like. This procedure will not be
considered to adversely effect the commercial reasonableness of any sale of the
Collateral.
(d) If Secured Party sells any of the Collateral on credit, the
Secured Obligations will be credited only with payments actually made by the
purchaser and received by Secured Party and applied to the indebtedness of the
purchaser. In the event the purchaser fails to pay for the Collateral, Secured
Party may resell the Collateral, subject to applicable Gaming Laws.
(e) Secured Party shall have no obligation to marshall any of the
Collateral.
(f) All amounts and proceeds (including checks and other instruments)
received by any Debtor in respect of amounts due to such Debtor in respect of
the Collateral or any portion thereof following the occurrence and during the
continuance of an Event of Default shall be received in trust for the benefit of
Secured Party hereunder, shall be segregated from other funds of such Debtor and
shall be forthwith paid over or delivered (subject to the Intercreditor
Agreement to the extent then in effect) to Secured Party in the same form as so
received (with any necessary endorsement) to be held as cash Collateral and
applied as provided by Section 7.5 following the occurrence and during the
continuance of an Event of Default. Upon demand from Secured Party, Debtors
shall not adjust, settle or compromise the amount or payment of any such amount
or release wholly or partly any obligor with respect thereto or allow any credit
or discount thereon.
27
7.2 APPLICATION OF PROCEEDS. Except as expressly provided elsewhere in this
Agreement, all proceeds received by Secured Party in respect of any sale, any
collection from, or other realization upon all or any part of the Collateral
shall be applied in full or in part by Secured Party against, the Secured
Obligations in the following order of priority: first, to the payment of all
costs and expenses of such sale, collection or other realization, including
reasonable compensation to Secured Party and its agents and counsel, and all
other expenses, liabilities and advances made or incurred by Secured Party in
connection therewith, and all amounts for which Secured Party is entitled to
indemnification hereunder and all advances made by Secured Party hereunder for
the account of the applicable Debtor, and to the payment of all costs and
expenses paid or incurred by Secured Party in connection with the exercise of
any right or remedy hereunder or under the Indenture, all in accordance with the
terms hereof or thereof; second, to the extent of any excess of such proceeds,
to the payment of all other Secured Obligations for the ratable benefit of the
Holders; and third, to the extent of any excess of such proceeds, to the payment
to or upon the order of such Debtor or to whosoever may be lawfully entitled to
receive the same as a court of competent jurisdiction may direct.
7.3 INVESTMENT RELATED PROPERTY. Each Debtor recognizes that, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws, Secured Party may be compelled, with respect to any sale of all
or any part of the Investment Related Property conducted without prior
registration or qualification of such Investment Related Property under the
Securities Act and/or such state securities laws, to limit purchasers to those
who will agree, among other things, to acquire the Investment Related Property
for their own account, for investment and not with a view to the distribution or
resale thereof and to comply with applicable Gaming Laws. Each Debtor
acknowledges that any such sale may be at prices and on terms less favorable
than those obtainable through a sale without such restrictions (including a
public offering made pursuant to a registration statement under the Securities
Act) and each Debtor agrees that any such sale shall not be deemed to have not
been made in a commercially reasonable manner by reason of such circumstances
and that Secured Party shall have no obligation to engage in public sales and no
obligation to delay the sale of any Investment Related Property for the period
of time necessary to permit the issuer thereof to register it for a form of
public sale requiring registration under the Securities Act or under applicable
state securities laws, even if such issuer would, or should, agree to so
register it. If Secured Party determines to exercise its right to sell any or
all of the Investment Related Property, upon written request, each Debtor shall
and shall cause each issuer of any Pledged Stock to be sold hereunder, each
partnership and each limited liability company from time to time to furnish to
Secured Party all such information as Secured Party may request in order to
determine the number and nature of interests, shares or other instruments
included in the Investment Related Property which may be sold by Secured Party
in exempt transactions under the Securities Act and the rules and regulations of
the Securities and Exchange Commission thereunder, as the same are from time to
time in effect.
7.4 INTELLECTUAL PROPERTY.
(a) Anything contained herein to the contrary notwithstanding, upon
the occurrence and during the continuation of an Event of Default and subject to
the Intercreditor Agreement to the extent then in effect:
(i) Secured Party shall have the right (but not the obligation)
to bring suit or otherwise commence any action or
proceeding in the name of any Debtor, Secured Party or
otherwise, in Secured Party's sole discretion, to enforce
any Intellectual Property which
28
is material to any Debtor's business, in which event such
Debtor shall, at the request of Secured Party, do any and
all lawful acts and execute any and all documents required
by Secured Party in aid of such enforcement and such Debtor
shall promptly, upon demand, reimburse and indemnify
Secured Party as provided in Section 10 hereof in
connection with the exercise of its rights under this
Section, and, to the extent that Secured Party shall elect
not to bring suit to enforce any Intellectual Property
which is material to any Debtor's business as provided in
this Section, each Debtor agrees to use all reasonable
measures, whether by action, suit, proceeding or otherwise,
to prevent the infringement of any such Intellectual
Property by others and for that purpose agrees to
diligently maintain any action, suit or proceeding against
any Person so infringing as shall be necessary to prevent
such infringement;
(ii) upon written demand from Secured Party, each Debtor shall
grant, assign, convey or otherwise transfer to Secured
Party all of such Debtor's right, title and interest in and
to the Intellectual Property and shall execute and deliver
to Secured Party such documents as are necessary or
appropriate to carry out the intent and purposes of this
Agreement;
(iii) each Debtor agrees that such an assignment and/or recording
shall be applied to reduce the Secured Obligations
outstanding only to the extent that Secured Party receives
cash proceeds in respect of the sale of, or other
realization upon, the Intellectual Property; and
(iv) Secured Party shall have the right to notify, or require
each Debtor to notify, any obligors with respect to amounts
due or to become due to such Debtor in respect of the
Intellectual Property, of the existence of the security
interest created herein, to direct such obligors to make
payment of all such amounts directly to Secured Party, and,
upon such notification and at the expense of such Debtor,
to enforce collection of any such amounts and to adjust,
settle or compromise the amount or payment thereof, in the
same manner and to the same extent as such Debtor might
have done.
(b) If (i) an Event of Default shall have occurred and, by reason of
cure, waiver, modification, amendment or otherwise, no longer be continuing,
(ii) no other Event of Default shall have occurred and be continuing, (iii) an
assignment or other transfer to Secured Party of any rights, title and interests
in and to the Intellectual Property shall have been previously made and shall
have become absolute and effective, and (iv) the Secured Obligations shall not
have become immediately due and payable, upon the written request of any Debtor,
Secured Party shall promptly execute and deliver to such Debtor, at such
Debtor's sole cost and expense, such assignments or other transfer as may be
necessary to reassign to such Debtor any such rights, title and interests as may
have been assigned to Secured Party as aforesaid, subject to any disposition
thereof that may have been made by Secured Party; provided, after giving effect
to such reassignment, Secured Party's security interest granted pursuant hereto,
as well as all
29
other rights and remedies of Secured Party granted hereunder, shall continue to
be in full force and effect; and provided further, the rights, title and
interests so reassigned shall be free and clear of any Liens granted by or on
behalf of Secured Party.
(c) Solely for the purpose of enabling Secured Party to exercise
rights and remedies under this Section 7 and at such time as Secured Party shall
be lawfully entitled to exercise such rights and remedies, each Debtor hereby
grants to Secured Party, to the extent it has the right to do so, an
irrevocable, nonexclusive license (exercisable without payment of royalty or
other compensation to such Debtor), subject, in the case of Trademarks, to
sufficient rights to quality control and inspection in favor of such Debtor to
avoid the risk of invalidation of said Trademarks, to use, operate under,
license, or sublicense any Intellectual Property now owned or hereafter acquired
by such Debtor, and wherever the same may be located.
7.5 CASH PROCEEDS. In addition to the rights of Secured Party specified in
Section 4.3 with respect to payments of Receivables, Cash Proceeds shall be held
by such Debtor in trust for Secured Party, segregated from other funds of such
Debtor, and shall, forthwith upon receipt by such Debtor, unless otherwise
provided pursuant to Section 4.4, be turned over to Secured Party in the exact
form received by such Debtor (duly indorsed by such Debtor to Secured Party, if
required). Any Cash Proceeds received by Secured Party (whether from a Debtor or
otherwise): (i) if no Event of Default shall have occurred and be continuing,
shall be held by Secured Party for the ratable benefit of the Holders, as
collateral security for the Secured Obligations (whether matured or unmatured)
and (ii) if an Event of Default shall have occurred and be continuing, may, in
the sole discretion of Secured Party, (A) be held by Secured Party for the
ratable benefit of the Holders, as collateral security for the Secured
Obligations (whether matured or unmatured) and/or (B) then or at any time
thereafter may be applied by Secured Party against the Secured Obligations then
due and owing.
7.6 REGULATORY MATTERS. Secured Party acknowledges and agrees that:
(a) In the event that, upon the occurrence and during the continuance
of an Event of Default, Secured Party exercises any of the voting and consensual
rights afforded under this Agreement, or one or more of the remedies set forth
in Section 7 of this Agreement, including but not limited to (i) re-registration
of the Pledged Equity Interests in respect of a Gaming Subsidiary or (ii)
foreclosure, transfer or other enforcement of security interests in the Pledged
Equity Interests, pursuant to applicable Gaming Laws, such exercise of remedies
shall require the separate and prior approval of the applicable Gaming
Authorities and/or licensing of Secured Party (unless such licensing requirement
is waived by such Gaming Authorities upon application of Secured Party) pursuant
to applicable Gaming Laws.
(b) The approval of the applicable Gaming Authorities of this
Agreement shall not act or be construed as the approval, either express or
implied, for Secured Party to take any actions or steps provided for in this
Agreement for which prior approval of such Gaming Authority is required, without
first obtaining such prior and separate approval of the Gaming Authorities to
the extent then required by applicable law.
(c) To the extent Secured Party takes possession of the certificates
or instruments representing or evidencing the Pledged Equity Interests of Barden
Nevada Gaming, LLC, Secured Party shall be required to maintain such Pledged
Equity Interests within the State of Nevada at all times at a location
designated to the Nevada Board, and shall make such certificates or instruments
representing or evidencing such Pledged Equity Interests available for
30
inspection by agents or employees of the Nevada Board immediately upon request
during normal business hours.
8. CONTINUING SECURITY INTEREST; TRANSFER OF NOTES.
This Agreement shall create a continuing security interest in the
Collateral and shall remain in full force and effect until the payment in full
of all Secured Obligations, be binding upon each Debtor, its successors and
assigns (except to the extent otherwise provided in the Indenture), and inure,
together with the rights and remedies of Secured Party hereunder, to the benefit
of Secured Party and its successors, transferees and assigns. Without limiting
the generality of the foregoing, but subject to the terms of the Indenture, any
Holder may assign or otherwise transfer any Note held by it to any other Person,
and such other Person shall thereupon become vested with all the benefits in
respect thereof granted to Holders herein or otherwise. Upon the payment in full
of all Secured Obligations, the security interest granted hereby shall terminate
hereunder and of record and all rights to the Collateral granted hereunder shall
revert to Debtors. Upon any such termination Secured Party shall, at Debtors'
expense and upon documents provided by it, execute and deliver to Debtors such
documents as Debtors shall reasonably request to evidence such termination.
9. STANDARD OF CARE; SECURED PARTY MAY PERFORM.
The powers conferred on Secured Party hereunder are solely to protect its
interest in the Collateral 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, Secured Party shall have no duty as to any Collateral or as to the
taking of any necessary steps to preserve rights against prior parties or any
other rights pertaining to any Collateral. Secured Party 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 Secured Party accords its own property. Neither Secured Party nor any of
its directors, officers, employees or agents shall be liable for failure to
demand, collect or realize upon all or any part of the Collateral or for any
delay in doing so or shall be under any obligation to sell or otherwise dispose
of any Collateral upon the request of any Debtor or otherwise. If any Debtor
fails to perform any agreement contained herein, Secured Party may itself
perform, or cause performance of, such agreement, and the expenses of Secured
Party incurred in connection therewith shall be payable by each Debtor under
Section 11.2 hereof.
10. INDEMNITY AND EXPENSES.
(a) Each Debtor agrees:
(i) to defend (subject to Indemnitees' selection of counsel),
indemnify, pay and hold harmless each Indemnitee, from and
against any and all claims, losses, damages, expenses
(including reasonable legal fees and expenses) and
liabilities in any way relating to, growing out of or
resulting from this Agreement and the transactions
contemplated hereby (including without limitation
enforcement of this Agreement), except to the extent such
claims, losses or liabilities result from such Indemnitee's
own gross negligence or willful misconduct as finally and
31
unappeallably determined by a court of competent
jurisdiction; and
(ii) to pay to Secured Party promptly following written demand
the amount of any and all costs and expenses, including the
reasonable fees and expenses of its counsel and of any
experts and agents in accordance with the terms and
conditions of the Indenture.
(b) The obligations of each Debtor in this Section 10 shall survive
the termination of this Agreement and the discharge of such Debtor's other
obligations under this Agreement and the Indenture.
11. MISCELLANEOUS.
11.1 NOTICES. Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given to a Debtor or
Secured Party, shall be sent to such Person's address as set forth in the
Indenture. Each notice hereunder shall be in writing and may be personally
served or sent by telefacsimile or United States mail or courier service and
shall be deemed to have been given when delivered in person or by courier
service and signed for against receipt thereof, upon receipt of telefacsimile or
three Business Days after depositing it in the United States mail with postage
prepaid and properly addressed; provided, no notice to Secured Party shall be
effective until received by Secured Party.
11.2 EXPENSES. Debtors agree to pay promptly all the costs and expenses of
preparation of the Collateral Agreements and any consents, amendments, waivers
or other modifications thereto; all the costs of furnishing all opinions by
counsel for Debtors; the reasonable fees, expenses and disbursements of counsel
to Secured Party (in each case including allocated costs of internal counsel) in
connection with the negotiation, preparation, execution and administration of
the Collateral Agreements and any consents, amendments, waivers or other
modifications thereto and any other documents or matters requested by Debtors;
all the actual costs and reasonable expenses of creating and perfecting Liens in
favor of Secured Party, for the benefit of Holders pursuant hereto, including
filing and recording fees, expenses and taxes, stamp or documentary taxes,
search fees, title insurance premiums and reasonable fees, expenses and
disbursements of counsel to Secured Party and of counsel providing any opinions
in respect of the Collateral or the Liens created pursuant to the Collateral
Agreements; all the actual costs and reasonable fees, expenses and disbursements
of any auditors, accountants, consultants or appraisers; all the actual costs
and reasonable expenses (including the reasonable fees, expenses and
disbursements of any appraisers, consultants, advisors and agents employed or
retained by Secured Party and its counsel) in connection with the custody or
preservation of any of the Collateral; and after the occurrence of a Default or
an Event of Default, all costs and expenses, including reasonable attorneys'
fees (including allocated costs of internal counsel) and costs of settlement,
incurred by Secured Party in enforcing any Secured Obligations of or in
collecting any payments due from any Debtor hereunder or under the other
Indenture Documents by reason of such Default or Event of Default (including in
connection with the sale of, collection from, or other realization upon any of
the Collateral) or in connection with any refinancing or restructuring of the
credit arrangements provided hereunder in the nature of a "work-out" or pursuant
to any insolvency or bankruptcy cases or proceedings.
32
11.3 AMENDMENTS AND WAIVERS.
(a) Secured Party's Consent. Subject to Section 11.3(b) and 11.3(c)
and the terms of the Indenture, no amendment, modification, termination or
waiver of any provision of this Agreement, or consent to any departure by any
Debtor therefrom, shall in any event be effective without the written
concurrence of Secured Party.
(b) Other Consents. No amendment, modification, termination or waiver
of any provision of this Agreement, or consent to any departure by any Debtor
therefrom, shall amend, modify, terminate or waive any provision herein as the
same applies to Secured Party without the consent of Secured Party except as
provided in accordance with the Indenture.
(c) Waiver. Any waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it was given. No notice
to or demand on any Debtor in any case shall entitle any Debtor to any other or
further notice or demand in similar or other circumstances.
11.4 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns including all persons
who become bound as debtor to this Agreement. No Debtor shall, except as
permitted under the Indenture, assign any right, duty or obligation hereunder.
11.5 INDEPENDENCE OF COVENANTS. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any of such covenants, the fact that it would be permitted by an exception
to, or would otherwise be within the limitations of, another covenant shall not
avoid the occurrence of a Default or an Event of Default if such action is taken
or condition exists.
11.6 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties and agreements made herein shall survive the
execution and delivery hereof. Notwithstanding anything herein or implied by law
to the contrary, the agreements of each Debtor set forth in Sections 10 and 11.2
shall survive the payment of the Obligations under the Indenture and the
termination hereof.
11.7 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the part of
Secured Party in the exercise of any power, right or privilege hereunder or
under any other Indenture Document shall impair such power, right or privilege
or be construed to be a waiver of any default or acquiescence therein, nor shall
any single or partial exercise of any such power, right or privilege preclude
other or further exercise thereof or of any other power, right or privilege. All
rights, powers and remedies existing under this Agreement and the other
Indenture Documents are cumulative, and not exclusive of, any rights or remedies
otherwise available. Any forbearance or failure to exercise, and any delay in
exercising, any right, power or remedy hereunder shall not impair any such
right, power or remedy or be construed to be a waiver thereof, nor shall it
preclude the further exercise of any such right, power or remedy.
11.8 MARSHALING; PAYMENTS SET ASIDE. Secured Party shall not be under any
obligation to marshal any assets in favor of any Debtor or any other Person or
against or in payment of any or all of the Secured Obligations.
33
11.9 SEVERABILITY. In case any provision in or obligation hereunder shall
be invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
11.10 HEADINGS. Section headings herein are included herein for convenience
of reference only and shall not constitute a part hereof for any other purpose
or be given any substantive effect.
11.11 APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION
SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
11.12 CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY
DEBTOR ARISING OUT OF OR RELATING HERETO OR ANY OTHER INDENTURE DOCUMENT, OR ANY
OF THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND
DELIVERING THIS AGREEMENT, EACH DEBTOR, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS; WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS; 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 THE APPLICABLE DEBTOR AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SECTION 11.1; AGREES THAT SERVICE AS PROVIDED ABOVE IS SUFFICIENT TO CONFER
PERSONAL JURISDICTION OVER THE APPLICABLE DEBTOR IN ANY SUCH PROCEEDING IN ANY
SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT; AND AGREES SECURED PARTY RETAINS THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY DEBTOR IN THE
COURTS OF ANY OTHER JURISDICTION.
11.13 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO
WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING HEREUNDER. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS,
TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT
TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS
WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON
THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS
AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT
IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
34
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING
THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL
WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 11.13 AND EXECUTED BY EACH
OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO. IN THE EVENT OF
LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
11.14 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument.
11.15 GAMING LAWS AND LIQUOR LAWS.
(a) Secured Party acknowledges, understands and agrees that the Gaming
Laws and Liquor Laws may impose certain licensing or transaction approval
requirements prior to the exercise of the rights and remedies granted to it
under this Agreement with respect to the Collateral subject to the Gaming Laws
and Liquor Laws.
(b) If any consent under the Gaming Laws or Liquor Laws is required in
connection with the taking of any of the actions which may be taken by Secured
Party in the exercise of its rights hereunder, then each Debtor agrees to use
its best efforts to secure such consent and to cooperate with Secured Party in
obtaining any such consent. Upon the occurrence and during the continuation of
any Event of Default, each Debtor shall promptly execute and/or cause the
execution of all applications, certificates, instruments, and other documents
and papers that Secured Party may be required to file in order to obtain any
necessary approvals under the Gaming Laws or Liquor Laws, and if such Debtor
fails or refuses to execute such documents, Secured Party or the clerk of the
court with jurisdiction may execute such documents on behalf of such Debtor.
(c) Notwithstanding any other provision of this Agreement to the
contrary other than as set forth in Section 7.6, nothing in this Agreement shall
(i) effect any transfer of any ownership interest in a Debtor or (ii) effect any
transfer, sale, purchase, lease or hypothecation of, or any borrowing or loaning
of money against, or any establishment of any voting trust agreement or other
similar agreement with respect to any certificate of suitability or any owner's
license heretofore or hereafter issued to any person, including any Debtor,
under any of the Gaming Laws or Liquor Laws.
11.16 EFFECTIVENESS. Agreement shall become effective upon the execution of
a counterpart hereof by each of the parties hereto and receipt by Secured Party
of written or telephonic notification of such execution and authorization of
delivery thereof.
11.17 ENTIRE AGREEMENT. This Agreement and the other Indenture Documents
embody the entire agreement and understanding between Debtors and Secured Party
and supersede all prior agreements and understandings between such parties
relating to the subject matter hereof and thereof. Accordingly, the Indenture
Documents may not be contradicted by evidence of prior, contemporaneous or
subsequent oral agreements of the parties. There are no unwritten oral
agreements between the parties.
35
11.18 INDENTURE CONTROLS. All terms, covenants, conditions, provisions and
requirements of the Indenture, including without limitation Article 7, are
incorporated by reference in this Agreement. In the event of any conflict or
inconsistency between the provisions of this Agreement and those of the
Indenture, including, without limitation, any conflicts or inconsistencies in
any definitions herein or therein, the provisions or definitions of the
Indenture shall govern.
11.19 TRUST INDENTURE ACT CONTROLS. If any provision of this Agreement
limits, qualifies or conflicts with the duties imposed by the Trust Indenture
Act of 1939 as in effect on the date of this Agreement, the imposed duties shall
control.
36
IN WITNESS WHEREOF, each Debtor and Secured Party have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
MAJESTIC INVESTOR HOLDINGS, LLC
By: /s/ Don H. Barden
--------------------------------------
Name: Don H. Barden
Title: Manager
MAJESTIC INVESTOR CAPITAL CORP.
By: /s/ Don H. Barden
--------------------------------------
Name: Don H. Barden
Title: Manager
BARDEN NEVADA GAMING, LLC
By: /s/ Don H. Barden
--------------------------------------
Name: Don H. Barden
Title: Manager
BARDEN MISSISSIPPI GAMING, LLC
By: /s/ Don H. Barden
--------------------------------------
Name: Don H. Barden
Title: Manager
BARDEN COLORADO GAMING, LLC
By: Don H. Barden
--------------------------------------
Name: Don H. Barden
Title: Manager
THE BANK OF NEW YORK,
as Secured Party
By: /s/ Robert A. Massimillo
--------------------------------------
Name: Robert A. Massimillo
Title: Vice President
Security Agreement
EXHIBIT A
TO PLEDGE AND SECURITY AGREEMENT
FORM OF PLEDGE SUPPLEMENT
This PLEDGE SUPPLEMENT, dated [MM/DD/YY], is delivered pursuant to the
Pledge and Security Agreement, dated as of December __, 2001 (as it may be from
time to time amended, restated, modified or supplemented, the "SECURITY
AGREEMENT"), among Majestic Investor Holdings, LLC, Majestic Investor Capital
Corp., the other Debtors named therein, and The Bank of New York, as Secured
Party. Capitalized terms used herein not otherwise defined herein shall have the
meanings ascribed thereto in the Security Agreement.
Debtor hereby confirms, as of the date first written above, the grant to
Secured Party set forth in the Security Agreement of, does hereby grant to
Secured Party, a security interest in all of Debtor's right, title and interest
in and to all Collateral to secure the Secured Obligations, in each case whether
now or hereafter existing or in which Debtor now has or hereafter acquires an
interest and wherever the same may be located and hereby agrees, as of the date
first above written, to continue to be bound as a Debtor by all of the terms and
provisions of the Security Agreement, as supplemented by this Pledge Supplement.
Debtor hereby makes each representation, warranty and covenant set forth in
Section 4 of the Security Agreement and hereby represents and warrants that the
attached Supplements to Schedules accurately and completely set forth all
additional information required pursuant to the Security Agreement and hereby
agrees that such Supplements to Schedules shall constitute part of the Schedules
to the Security Agreement.
IN WITNESS WHEREOF, Debtor has caused this Pledge Supplement to be
duly executed and delivered by its duly authorized officer as of [mm/dd/yy].
[NAME OF DEBTOR]
By:_____________________________
Name:
Title:
EXHIBIT B
TO PLEDGE AND SECURITY AGREEMENT
FORM OF PLEDGE JOINDER
This PLEDGE JOINDER, dated [MM/DD/YY], is delivered pursuant to the Pledge
and Security Agreement, dated as of December __, 2001 (as it may be from time to
time amended, restated, modified or supplemented, the "SECURITY AGREEMENT"),
among Majestic Investor Holdings, LLC, Majestic Investor Capital Corp., the
other Debtors named therein, and The Bank of New York, as Secured Party.
Capitalized terms used herein not otherwise defined herein shall have the
meanings ascribed thereto
SECTION 1. GRANT OF SECURITY INTEREST. The undersigned hereby grants to
Secured Party a security interest and continuing lien on all of its right, title
and interest in, to and under all personal property of the undersigned that may
be perfected by the filing of UCC financing statements in the appropriate
jurisdictions, including without limitation, the property and assets of the
undersigned set forth on the attached supplemental schedules to the Schedules to
the Security Agreement, in each case whether now owned or existing or hereafter
acquired or arising and wherever located (the undersigned's "COLLATERAL"),
subject to the same limited exclusions set forth in the Security Agreement
including all applicable Gaming Laws.
SECTION 2. SECURITY FOR OBLIGATIONS. The grant of security interest and
continuing lien under this Pledge Joinder secures, and the Collateral is
collateral security for, the prompt and complete payment or performance in full
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. Section362(a) (and any successor provision
thereof)), of all Obligations of each Debtor.
SECTION 3. SUPPLEMENTS TO SECURITY AGREEMENT SCHEDULES. The undersigned
has attached hereto supplemental Schedules 4.1, 4.2, 4.4, 4.5 and 4.6 to
Schedules 4.1, 4.2, 4.4, 4.5 and 4.6, respectively, to the Security Agreement,
and the undersigned hereby certifies, as of the date first above written, that
such supplemental schedules have been prepared by the undersigned in
substantially the form of the equivalent Schedules to the Security Agreement and
are complete and correct in all material respects.
SECTION 4. REPRESENTATIONS AND WARRANTS AND COVENANTS. The undersigned
hereby makes each representation and warranty and covenant set forth in Section
4 of the Security Agreement (as supplemented by the attached supplemental
schedules) to the same extent as each other Debtor.
SECTION 5. OBLIGATIONS UNDER THE SECURITY AGREEMENT. The undersigned
hereby agrees, as of the date first above written, to be bound as a Debtor by
all of the terms and provisions of the Security Agreement to the same extent as
each of the other Debtors. The undersigned further agrees, as of the date first
above written, that each reference in the Security Agreement to an "Additional
Debtor" or a "Debtor" shall also mean and be a reference to the undersigned.
The terms of Sections 11.11, 11.12, 11.13 and 11.14 of the Security
Agreement are hereby incorporated by reference.
IN WITNESS WHEREOF, the undersigned has caused this Pledge Joinder to be
duly executed and delivered by its duly authorized officer as of [mm/dd/yy].
[NAME OF ADDITIONAL DEBTOR]
By:_____________________________
Name:
Title:
SUPPLEMENT TO SCHEDULE 4.1
TO PLEDGE AND SECURITY AGREEMENT
Additional Information:
(A) Full Legal Name, Jurisdiction of Organization and Chief Executive Office of
each Debtor:
[Download Table]
Jurisdiction of Chief Executive
Full Legal Name Type of Organization Organization Office
(B) Other Names (including any Trade-Name or Fictitious Business Name) under
which each Debtor has conducted Business for the past Five (5) Years:
Full Legal Trade Name or Fictitious
Name Business Name
(C) Financing Statements:
Name of Debtor Filing Jurisdiction(s)
SUPPLEMENT TO SCHEDULE 4.2
TO PLEDGE AND SECURITY AGREEMENT
Additional Information:
Name of Debtor Location of Equipment and Inventory
SUPPLEMENT TO SCHEDULE 4.4
TO PLEDGE AND SECURITY AGREEMENT
Additional Information:
Pledged Stock:
Pledged Partnership Interests:
Pledged LLC Interests:
Pledged Trust Interests:
Pledged Debt:
Securities Account:
Commodities Accounts:
SUPPLEMENT TO SCHEDULE 4.5
TO PLEDGE AND SECURITY AGREEMENT
Additional Information:
(A) Copyrights
(B) Copyright Licenses
(C) Patents
(D) Patent Licenses
(E) Trademarks
(F) Trademark Licenses
(G) Trade Secret Licenses
(H) Intellectual Property Matters
SUPPLEMENT TO SCHEDULE 4.6
TO PLEDGE AND SECURITY AGREEMENT
Additional Information:
Name of Debtor Commercial Tort Claims
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
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| This ‘S-4’ Filing | | Date | | First | | Last | | | Other Filings |
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| |  |
| Filed on: | | 1/29/02 | | | | | | | None on these Dates |
| | 12/6/01 | | 1 | | 4 |
| List all Filings |
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