Exhibit 10.13


 


SECURITY AGREEMENT


 


This SECURITY AGREEMENT (as amended, restated,
supplemented or otherwise modified from time to time, this “Agreement”), dated
as of May 30, 2003, is made by Hard Rock Hotel, Inc., a Nevada corporation
(“Grantor”), in favor of Bank of America, N.A., as the Administrative Agent
(“Administrative Agent”) under the Credit Agreement hereafter referred to, for
each of the lenders therein named (the “Lenders” and together with the
Administrative Agent, each a “Secured Party”, and collectively, the “Secured
Parties”), with reference to the following facts:


 


RECITALS


 


A.            Pursuant
to a Credit Agreement (as amended, restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”) of even date herewith between Grantor
and the Secured Parties, the Lenders have agreed to make loans, issue letters
of credit and make other credit accommodations available to Grantor.


 


B.            It is
a condition to the credit facilities under the Credit Agreement that Grantor
enter into this Agreement, and Grantor has covenanted to cause any Subsidiary
hereafter formed or acquired by Grantor to enter into a joinder hereto.


 


AGREEMENT


 


NOW,
THEREFORE, in order to induce the Lenders to extend the aforementioned credit
facilities, and for other good and valuable consideration, the receipt and
adequacy of which hereby is acknowledged, Grantor hereby represents, warrants,
covenants, agrees and grants as follows:


 


1.             Definitions.  This Agreement is the Security Agreement
referred to in the Credit Agreement and is one of the “Loan Documents” referred
to therein.  Terms defined in the Credit
Agreement and not otherwise defined in this Agreement shall have the meanings
assigned to those terms in the Credit Agreement.  Terms defined in the UCC (defined below) and not otherwise
defined in this Agreement or in the Credit Agreement shall have the meanings
assigned to those terms in the UCC.  As
used in this Agreement the term “including” shall indicate an example and not a
limitation.  As used in this Agreement,
the following terms shall have the meanings respectively set forth after each:


 


“Agreement” has
the meaning set forth in the preamble hereof.


 


“Collateral” means
and includes all present and future right, title and interest of Grantor in or
to any Property or assets whatsoever, and all rights and powers of Grantor to
transfer any interest in or to any Property or assets whatsoever, including,
any and all of the following Property:


 


(a)           All present and future Accounts,
accounts receivable, agreements, contracts, leases, contract rights, rights to
payment, Instruments, Documents, Chattel Paper, security agreements,
guaranties, Letter-of-Credit Rights and letters


 

















 


of credit, undertakings,
surety bonds, insurance policies (whether or not required by the terms of the
Loan Documents), notes and drafts, and all forms of obligations owing to
Grantor or in which Grantor may have any interest, however created or arising
and whether or not earned by performance, and all rights now or hereafter
existing in and to all security agreements, leases and other contracts securing
or otherwise relating to any such Accounts, accounts receivable, agreements,
contracts, leases, contract rights, rights to payment, Instruments, Documents,
Chattel Paper, security agreements, guaranties, Letter-of-Credit Rights and
letters of credit, undertakings, surety bonds, insurance policies, notes and
drafts (the foregoing in this clause (a) together with Deposit Accounts and
General Intangibles, to the extent not referred to in any of clauses (b),
through (l) below, collectively referred to herein as the “Receivables”);


 


(b)           All present and future General
Intangibles, all tax refunds of every kind and nature to which Grantor now or
hereafter may become entitled, however arising, all other refunds, and all
deposits, reserves, loans, royalties, cost savings, deferred payments,
goodwill, choses in action, liquidated damages, rights to indemnification,
trade secrets, computer programs, software, customer lists, trademarks, trade
names, patents, licenses (except for gaming licenses and liquor licenses, that
are not transferable) copyrights, technology, processes, proprietary
information and insurance proceeds of which Grantor is a beneficiary;


 


(c)           Whether characterized as accounts,
general intangibles or otherwise, all rents (including prepaid rents, fixed,
additional and contingent rents), issues, profits, receipts, earnings, revenue,
income, security deposits, occupancy charges, hotel room charges, cabana
charges, casino revenues, show ticket revenues, food and beverage revenues,
room service revenues, merchandise sales revenues, parking, maintenance, common
area, tax, insurance, utility and service charges and contributions, green
fees, cart rental fees, instruction fees, membership charges, restaurant, snack
bar and pro shop revenues;


 


(d)           All present and future Deposit
Accounts of Grantor, including any demand, time, savings, passbook or like
account maintained by Grantor with any bank, savings and loan association,
credit union or like organization, and all money, Cash and Cash Equivalents of
Grantor, whether or not deposited in any such deposit account;


 


(e)           All present and future books and
records, including books of account and ledgers of every kind and nature, all
electronically recorded data relating to Grantor or the business thereof, all
receptacles and containers for such records, and all files and correspondence;


 


(f)            All present and future Goods and
Equipment, including all goods which are held for sale or lease or to be
furnished (or which have been furnished) under any contract of service, or
which are raw materials, work in process therefor, finished goods thereof or
materials used or consumed in the manufacture or production thereof, goods in
which Grantor has an interest in mass or a joint or


 


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other interest or right
of any kind (including, goods in which Grantor has an interest or right as
consignee), goods that are returned to or repossessed by Grantor, all consumer
goods, farm products, inventory, all manufacturing, distribution, selling, data
processing and office equipment, rock and roll memorabilia, gaming devices and
associated equipment (including, gaming devices and associated equipment as
defined in Nevada Revised Statutes Chapter 463), machinery, tools, molds, dies,
furniture, furnishings, Fixtures, trade fixtures, vehicles, vessels, barges,
including any buildings, construction or other improvements thereon, aircraft
and all other goods used in connection with or in the conduct of Grantor’s
business;


 


(g)           All present and future Inventory and
merchandise, including all present and future goods held for sale or lease or
to be furnished under a contract of service, all raw materials, work in process
and finished goods, all packing materials, supplies and containers relating to
or used in connection with any of the foregoing, and all bills of lading,
warehouse receipts or documents of title relating to any of the foregoing;


 


(h)           All present and future stocks, bonds,
debentures, securities, subscription rights, options, warrants, puts, calls,
certificates, partnership interests, joint venture interests, investment
property, Investments and/or brokerage accounts and all rights, preferences,
privileges, dividends, distributions, redemption payments, or liquidation
payments with respect thereto;


 


(i)            All present and future accessions,
appurtenances, components, repairs, repair parts, spare parts, replacements,
substitutions, additions, issue and/or improvements to or of or with respect to
any of the foregoing;


 


(j)            All other tangible and intangible
Property of Grantor;


 


(k)           All rights, remedies, powers and/or
privileges of Grantor with respect to any of the foregoing;


 


(l)            all of the following (the “Security
Collateral”):


 


(i)            the indebtedness (the “Pledged
Debt”) described on Schedule I and owing to Grantor by the issuers named
therein and the Instruments evidencing the Pledged Debt, and all interest,
cash, Instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the
Pledged Debt; and


 


(ii)           all additional indebtedness from time
to time owed to Grantor by any obligor of the Pledged Debt or any other Person
and the Instruments evidencing such indebtedness, and all interest, cash,
Instruments and other property 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 indebtedness;


 


(m)          all Investment Property;


 


(n)           all computer and other electronic
data processing hardware, whether now or hereafter owned, licensed or leased by
such Grantor, including (i) all integrated computer systems, central processing
units, memory units, display terminals, printers, features, computer elements,
card readers, tape drives, hard and soft disk drives, cables, electrical supply
hardware, generators, power equalizers, accessories and all peripheral devices
and other related computer hardware; (ii) all software programs, whether now or
hereafter owned, licensed or leased by Grantor, designed for used on the computers
and electronic data processing hardware described in clause (i) of this
paragraph (n), including all operating system software, utilities and
application programs in whatsoever form (source code and object code in
magnetic tape, disk or hard copy format or any other listings whatsoever),
(iii) all firmware associated therewith, whether now or hereafter owned,
licensed or leased by Grantor, and (iv) all documentation for such hardware,
software and firmware described in the preceding clauses (i), (ii) and
(iii), whether now or hereafter owned, licensed or leased by Grantor,
including, flow charts, logic diagrams, manuals, specifications, training
materials, charts and pseudo codes (collectively, the “Computer Hardware and
Software”), and all rights with respect thereto, including, any and all
licenses, options, warranties, service contracts, program services, test
rights, maintenance rights, support rights, improvement rights, renewal rights
and indemnifications, and any substitutions, replacements, additions or model
conversions of any of the foregoing;


 


(o)           to the extent not included in the
foregoing, maps, surveys and similar items used or useful in Grantor’s
business;


 


(p)           Any and all proceeds and products of
any of the foregoing, including all money, Accounts, General Intangibles,
Deposit Accounts, Documents, Instruments, Chattel Paper, Goods, insurance
proceeds, and any other tangible or intangible property received upon the sale
or disposition of any of the foregoing;


 


provided that, the term “Collateral”,
shall not include (i) Real Property or any interest therein; (ii) any
stock of gaming licensees that is not transferable (provided that Grantor shall
be obligated to proceed diligently to obtain all required approvals of
Governmental Agencies to the grant of a security interest in such stock as
contemplated by this Agreement); (iii) any other lease, license, contract,
property rights or agreement to which Grantor is a party, or any of its rights
or interests thereunder, if and only for so long as, the grant of such security
interest constitutes or results in (A) the abandonment, invalidation or
unenforceability of any right, title or interest of Grantor therein, or (B) in
a breach or termination pursuant to the terms of, or a default under, any such
lease, license, contract, property rights or agreement (other than to the
extent that any such term


 


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would be rendered
ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the Uniform
Commercial Code (or any successor provision or provisions) of any relevant
jurisdiction or any other applicable law or principles of equity), provided
that, such security interest shall attach immediately at such time as the
condition causing such abandonment, invalidation or unenforceability is remedied
and, to the extent severable, shall attach immediately to any portion of such
lease, license, contract, property rights or agreement that does not result in
any of the consequences specified in subclause (A) of this clause (iii); or
(iv) Equity Interests in excess of 65.0% of all the Equity Interests of any
Foreign Subsidiary of Grantor.


 


“Computer Hardware and
Software” has the meaning set forth in paragraph (n) of the definition of
Collateral.


 


“Credit Agreement”
has the meaning set forth in the preamble hereof.


 


“Equity Interests”
means, with respect to any Person, any and all shares, interests,
participations or other equivalents, including membership interests (however
designated, whether voting or nonvoting), of capital of such Person, including,
if such Person is a partnership, partnership interests (whether general or
limited) and any other interest (other than an interest constituting
Indebtedness) or participation that confers on any other Person the right to
receive a share of the profits or losses of, or distributions of assets of,
such partnership, whether outstanding on or issued after the date hereof.


 


“Grantor” has the
meaning set forth in the preamble hereof.


 


“Investment Collateral”
has the meaning set forth in Section 10.


 


“Pledged Debt” has
the meaning set forth in paragraph (l)(i) of the definition of Collateral.


 


“Receivables” has
the meaning set forth in paragraph (a) of the definition of Collateral.


 


“Secured Obligations”
has the meaning assigned to the term “Obligations” in the Credit Agreement.


 


“Secured Party”
and “Secured Parties” have the meanings set forth in the preamble
hereof.


 


“Security Collateral”
has the meaning set forth in paragraph (l) of the definition of Collateral.


 


“UCC” means the
Uniform Commercial Code in effect from time to time in the State of Nevada.


 


2.             Further Assurances.  At any time and from time to time at the
request of Administrative Agent, Grantor shall execute and deliver to
Administrative Agent all such financing statements and other instruments and
documents in form and substance satisfactory to


 


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Administrative Agent as
shall be necessary or desirable to fully perfect, when filed and/or recorded,
Administrative Agent’s security interests granted pursuant to Section 3
of this Agreement.  At any time and from
time to time, Administrative Agent shall be entitled to file and/or record any
or all such financing statements, instruments and documents held by it, and any
or all such further financing statements, documents and instruments, and to
take all such other actions, as Administrative Agent may deem appropriate to
perfect and to maintain perfected the security interests granted in Section 3
of this Agreement.  Before and after the
occurrence of any Event of Default, at Administrative Agent’s request, Grantor
shall execute all such further financing statements, instruments and documents,
and shall do all such further acts and things, as may be deemed necessary or
desirable by Administrative Agent to create and perfect, and to continue and
preserve, an indefeasible security interest in the Collateral in favor of
Administrative Agent, or the priority thereof. 
With respect to any Collateral consisting of certificated securities,
instruments, documents, certificates of title or the like, as to which
Administrative Agent’s security interest need be perfected by, or the priority
thereof need be assured by, possession of such Collateral, Grantor will upon
demand of Administrative Agent deliver possession of same in pledge to
Administrative Agent.  With respect to
any Collateral consisting of securities, instruments, partnership or joint
venture interests or the like, Grantor hereby consents and agrees that the
issuers of, or obligors on, any such Collateral, or any registrar or transfer
agent or trustee for any such Collateral, shall be entitled to accept the
provisions of this Agreement as conclusive evidence of the right of
Administrative Agent to effect any transfer or exercise any right hereunder or
with respect to any such Collateral, notwithstanding any other notice or
direction to the contrary heretofore or hereafter given by Grantor or any other
Person to such issuers or such obligors or to any such registrar or transfer
agent or trustee.


 


3.             Grant of Security Interest.  For valuable consideration, Grantor hereby
grants to Administrative Agent for the benefit of all Secured Parties a
security interest in, all presently existing and hereafter acquired Collateral,
as security for the timely payment and performance of the Secured Obligations,
and each of them.  This Agreement is a
continuing and irrevocable agreement and all the rights, powers, privileges and
remedies hereunder shall apply to any and all Secured Obligations, including
those arising under successive transactions which shall either continue the Secured
Obligations, increase or decrease them, or from time to time create new Secured
Obligations after all or any prior Secured Obligations have been satisfied, and
notwithstanding the bankruptcy of Grantor or any other Person or any other
event or proceeding affecting any Person.


 


4.             Grantor’s Representations,
Warranties and  Agreements. 
Except as otherwise disclosed to Administrative Agent in writing
concurrently herewith, Grantor represents, warrants and agrees that:
(a) Grantor will pay, prior to delinquency, all taxes, charges, Liens and
assessments against the portion of the Collateral owned by it, except
such as are timely contested in good faith, and upon its failure to pay or so
contest such taxes, charges, Liens and assessments, Administrative Agent at its
option may pay any of them, and Administrative Agent shall be the sole judge of
the legality or validity thereof and the amount necessary to discharge the
same; (b) the Collateral will not be used for any unlawful purpose or in
violation of any Law, regulation or ordinance, nor used in any way that will
void or impair any insurance required to be carried in connection therewith;
(c) Grantor will, to the extent consistent with good business practice,
keep the portion of the Collateral owned by it in reasonably good repair,
working order


 


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and condition, and from time to time make all
needful and proper repairs, renewals, replacements, additions and improvements
thereto and, as appropriate and applicable, will otherwise deal with such
portion of the Collateral in all such ways as are considered good practice by
owners of like Property; (d) Grantor will take all reasonable steps to
preserve and protect the Collateral; (e) Grantor will maintain, with
responsible insurance companies, insurance covering the Collateral against such
insurable losses as is required by the Credit Agreement and as is consistent
with sound business practice, and will cause Administrative Agent for the
benefit of all Secured Parties to be designated as an additional insured and
loss payee with respect to all insurance, will obtain the written agreement of
the insurers that such insurance shall not be cancelled, terminated or
materially modified to the detriment of Secured Parties without at least
30 days prior written notice to Secured Parties, and will furnish copies
of such insurance policies or certificates to Secured Parties promptly upon
request therefor; (f) Grantor will promptly notify Administrative Agent in
writing in the event of any substantial or material damage to the Collateral
from any source whatsoever, and, except for the disposition of
collections and other proceeds of the Collateral permitted by Section 6
hereof, Grantor will not remove or permit to be removed any part of the
Collateral from its place of business without the prior written consent of
Administrative Agent, except for such items of the Collateral as are
removed in the ordinary course of business or in connection with any
transaction or disposition otherwise permitted by the Loan Documents;
(g) in the event Grantor changes its name, its address or its jurisdiction
of formation from that set forth herein or in the Credit Agreement, Grantor
will notify Administrative Agent of such name and/or address change promptly,
but in any event, within thirty days; (h) all of the Equipment and Inventory
are located at the places specified on Schedule II hereto, except for
(x) Inventory and Equipment in transit and (y) other Equipment and
Inventory with an aggregate value that does not exceed $250,000; (i) except as
previously disclosed to Administrative Agent in writing, during the five years
preceding the date hereof Grantor has not been known by any legal name
different from the one set forth on the signature page of this Agreement nor
has Grantor been the subject of any merger or other corporate reorganization;
(j) none of the Receivables is evidenced by a promissory note or other
instrument; (k) Grantor is the legal and beneficial owner of the Collateral
free and clear of any Lien, other than Liens expressly permitted under the
Credit Agreement and no effective financing statement or other instrument
similar in effect covering all or any part the Collateral is on file in any
recording office, except such as may have been filed in favor of the Secured
Parties relating to this Agreement or any other Loan Document or as may have
been filed to reflect any Lien expressly permitted under the Credit Agreement;
(l) Grantor has exclusive possession and control of the Equipment and Inventory
of Grantor except for (x) Equipment leased by Grantor as a lessee, Equipment in
the possession and control of Grantor’s lessees and licensees under written
lease and license agreements entered into in the ordinary course of business
and consistent with past practice, and (y) Equipment and Inventory in transit
with common or other carriers; (m) the Pledged Debt of Grantor, if any, is in
all respects what it purports to be and represents genuine debt owing to
Grantor arising from bona fide transactions completed in accordance with the terms
and provisions contained in the document (if any) delivered to the
Administrative Agent with respect thereto; (n) the pledge of the Pledged Debt,
if any, pursuant to this Agreement creates a valid and first priority perfected
security interest in the Pledged Debt, respectively, subject to Liens expressly
permitted under the Credit Agreement; (o) the Pledged Debt constitutes, as of
the date hereof, all of the notes and instruments payable to or owned by
Grantor, except for notes and instruments with an outstanding principal amount
of less than


 


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$250,000 and except for notes and instruments
received in the ordinary course of business and which Grantor is not required
to deliver to the Administrative Agent pursuant to this Agreement or of which
the Administrative Agent has not at any time requested possession and which are
not a material portion of the Collateral either singly or in the aggregate; and
(p) no authorization, approval or other action by, and no notice to or filing
with, any governmental authority (other than such authorizations, approvals and
other actions as have already been taken or are in full force and effect) is
required (x) for the pledge of the Security Collateral, for the grant of the
security interest in the Collateral held by Grantor hereby or for the
execution, delivery or performance of this Agreement by Grantor, or (y) for the
exercise by the Administrative Agent of any rights or remedies in respect of
the Collateral hereunder except as may be required for the Administrative Agent
to receive payments directly from the United States government under the
Assignment of Claims Act of 1940 (31 U.S.C. § 3727 and 41 U.S.C. § 15).


 


5.             Administrative Agent’s Rights Re
Collateral.  At any time (whether or
not an Event of Default has occurred), without notice or demand and at the
expense of Grantor, Administrative Agent may, to the extent it may be necessary
or desirable to protect the security hereunder, but Administrative Agent shall
not be obligated to: (a) enter upon any premises on which Collateral is
situated and examine the same or (b) perform any obligation of Grantor
under this Agreement or any obligation of any other Person under the Loan
Documents.  At any time and from time to
time, at the expense of Grantor, Administrative Agent may, to the extent it may
be necessary or desirable to protect the security hereunder, but Administrative
Agent shall not be obligated to: 
(i) notify obligors on the Collateral that the Collateral has been
assigned to Administrative Agent; (ii) at any time and from time to time
request from obligors on the Collateral, in the name of Grantor or in the name
of Administrative Agent, information concerning the Collateral and the amounts
owing thereon; and (iii) cause the Collateral to be registered in the name of
Administrative Agent, as legal owner. 
Grantor shall maintain books and records pertaining to the Collateral in
such detail, form and scope as Administrative Agent shall reasonably require
consistent with Administrative Agent’s interests hereunder.  Grantor shall at any time at Administrative
Agent’s request mark the Collateral and/or Grantor’s ledger cards, books of
account and other records relating to the Collateral with appropriate notations
satisfactory to Administrative Agent disclosing that they are subject to
Administrative Agent’s security interests. 
Administrative Agent shall at all reasonable times on reasonable notice
have full access to and the right to audit any and all of Grantor’s books and
records pertaining to the Collateral, and to confirm and verify the value of
the Collateral and to do whatever else Administrative Agent reasonably may deem
necessary or desirable to protect its interests; provided, however,
that any such action which involves communicating with customers of Grantor shall
be carried out by Administrative Agent through Grantor’s independent auditors
unless Administrative Agent shall then have the right directly to notify
obligors on the Collateral as provided in Section 9.  Administrative Agent shall be under no duty
or obligation whatsoever to take any action to preserve any rights of or
against any prior or other parties in connection with the Collateral, to
exercise any voting rights or managerial rights with respect to any Collateral,
whether or not an Event of Default shall have occurred, or to make or give any
presentments, demands for performance, notices of non-performance, protests,
notices of protests, notices of dishonor or notices of any other nature
whatsoever in connection with the Collateral or the Secured Obligations.  Administrative Agent shall be under no duty
or obligation whatsoever to take any action to protect or preserve the
Collateral or any rights of Grantor


 


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therein, or to make collections or enforce
payment thereon, or to participate in any foreclosure or other proceeding in
connection therewith.


 


6.             Collections on the Collateral.  Except as otherwise provided in any Loan
Document, Grantor shall have the right to use and to continue to make
collections on and receive dividends and other proceeds of all of the
Collateral in the ordinary course of business so long as no Event of Default
shall have occurred and be continuing. 
Upon the occurrence and during the continuance of an Event of Default,
at the option of Administrative Agent, Grantor’s right to make collections on
and receive dividends and other proceeds of the Collateral and to use or
dispose of such collections and proceeds shall terminate, and any and all
dividends, proceeds and collections, including all partial or total prepayments,
then held or thereafter received on or on account of the Collateral will be
held or received by Grantor in trust for Administrative Agent on behalf of the
Secured Parties and immediately delivered in kind to Administrative Agent.  Any remittance received by Grantor from any
Person shall be presumed to relate to the Collateral and to be subject to
Administrative Agent’s security interests. 
Upon the occurrence and during the continuance of an Event of Default,
Administrative Agent shall have the right at all times to receive, receipt for,
endorse, assign, deposit and deliver, in the name of Administrative Agent or in
the name of Grantor, any and all checks, notes, drafts and other instruments
for the payment of money constituting proceeds of or otherwise relating to the
Collateral; and Grantor hereby authorizes Administrative Agent to affix, by
facsimile signature or otherwise, the general or special endorsement of it, in
such manner as Administrative Agent shall deem advisable, to any such
instrument in the event the same has been delivered to or obtained by
Administrative Agent without appropriate endorsement, and Administrative Agent
and any collecting bank are hereby authorized to consider such endorsement to
be a sufficient, valid and effective endorsement by Grantor, to the same extent
as though it were manually executed by the duly authorized officer of Grantor,
regardless of by whom or under what circumstances or by what authority such
facsimile signature or other endorsement actually is affixed, without duty of
inquiry or responsibility as to such matters, and Grantor hereby expressly
waives demand, presentment, protest and notice of protest or dishonor and all
other notices of every kind and nature with respect to any such instrument.


 


7.             Possession of Collateral by
Administrative Agent.  All the
Collateral now, heretofore or hereafter delivered to Administrative Agent shall
be held by Administrative Agent in its possession, custody and control.  Any or all of the Collateral delivered to
Administrative Agent may be held in an interest-bearing or non-interest-bearing
account, in Administrative Agent’s sole and absolute discretion, and
Administrative Agent may, in its discretion, apply any such interest to payment
of the Secured Obligations.  Nothing
herein shall obligate Administrative Agent to invest any Collateral or obtain
any particular return thereon.  Upon the
occurrence and during the continuance of an Event of Default, whenever any of
the Collateral is in Administrative Agent’s possession, custody or control,
Administrative Agent may use, operate and consume the Collateral, whether for
the purpose of preserving and/or protecting the Collateral, or for the purpose
of performing any of Grantor’s obligations with respect thereto, or otherwise.  Administrative Agent may at any time deliver
or redeliver the Collateral or any part thereof to Grantor, and the receipt of
any of the same by Grantor shall be complete and full acquittance for the
Collateral so delivered, and Administrative Agent thereafter shall be
discharged from any liability or responsibility therefor.  So long as Administrative Agent exercises
reasonable care with respect to any Collateral in its possession, custody or
control,


 


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Administrative Agent shall have no liability
for any loss of or damage to such Collateral, and in no event shall
Administrative Agent have liability for any diminution in value of Collateral
occasioned by economic or market conditions or events.  Administrative Agent shall be deemed to have
exercised reasonable care within the meaning of the preceding sentence if the
Collateral in the possession, custody or control of Administrative Agent is
accorded treatment substantially equal to that which Administrative Agent
accords its own property, it being understood that Administrative Agent shall
not have any responsibility for (a) ascertaining or taking action with
respect to calls, conversions, exchanges, maturities, tenders or other matters
relating to any Collateral, whether or not Administrative Agent has or is deemed
to have knowledge of such matters, or (b) taking any necessary steps to
preserve rights against any Person with respect to any Collateral.


 


8.             Events of Default.  There shall be an Event of Default hereunder
upon the occurrence and during the continuance of an Event of Default under the
Credit Agreement.


 


9.             Rights Upon Event of Default.  Upon the occurrence and during the
continuance of an Event of Default, Administrative Agent shall have, in any
jurisdiction where enforcement hereof is sought, in addition to all other
rights and remedies that Administrative Agent may have under applicable Law or
in equity or under this Agreement (including, all rights set forth in Section 6
hereof) or under any other Loan Document, all rights and remedies of a secured
party under the Uniform Commercial Code as enacted in any jurisdiction, and, in
addition, the following rights and remedies, all of which may be exercised with
or without notice to Grantor and without affecting the Obligations of Grantor
hereunder or under any other Loan Document, or the enforceability of the Liens
and security interests created hereby: (a) to foreclose the Liens and
security interests created hereunder or under any other agreement relating to
any Collateral by any available judicial procedure or without judicial process;
(b) to enter any premises where any Collateral may be located for the
purpose of securing, protecting, inventorying, appraising, inspecting,
repairing, preserving, storing, preparing, processing, taking possession of or
removing the same; (c) to sell, assign, lease or otherwise dispose of any
Collateral or any part thereof, either at public or private sale or at any
broker’s board, in lot or in bulk, for cash, on credit or otherwise, with or
without representations or warranties and upon such terms as shall be
acceptable to Administrative Agent; (d) to notify obligors on the
Collateral that the Collateral has been assigned to Administrative Agent and
that all payments thereon are to be made directly and exclusively to Administrative
Agent; (e) to collect by legal proceedings or otherwise all dividends,
distributions, interest, principal or other sums now or hereafter payable upon
or on account of the Collateral; (f) to cause the Collateral to be
registered in the name of Administrative Agent, as legal owner; (g) to
enter into any extension, reorganization, deposit, merger or consolidation
agreement, or any other agreement relating to or affecting the Collateral, and
in connection therewith Administrative Agent may deposit or surrender control
of the Collateral and/or accept other Property in exchange for the Collateral;
(h) to settle, compromise or release, on terms acceptable to
Administrative Agent, in whole or in part, any amounts owing on the Collateral
and/or any disputes with respect thereto; (i) to extend the time of
payment, make allowances and adjustments and issue credits in connection with
the Collateral in the name of Administrative Agent or in the name of Grantor;
(j) to enforce payment and prosecute any action or proceeding with respect
to any or all of the Collateral and take or bring, in the name of
Administrative Agent or in the name of Grantor, any and all steps, actions,
suits or proceedings deemed by Administrative Agent necessary or desirable to
effect collection of or to realize upon


 


10

















 


the Collateral, including any judicial
or nonjudicial foreclosure thereof or thereon, and Grantor specifically
consents to any nonjudicial foreclosure of any or all of the Collateral or any
other action taken by Administrative Agent which may release any obligor from
personal liability on any of the Collateral, and Grantor waives any right not
expressly provided for in this Agreement to receive notice of any public or
private judicial or nonjudicial sale or foreclosure of any security or any of
the Collateral; and any money or other property received by Administrative
Agent in exchange for or on account of the Collateral, whether representing
collections or proceeds of Collateral, and whether resulting from voluntary
payments or foreclosure proceedings or other legal action taken by
Administrative Agent or Grantor may be applied by Administrative Agent without
notice to Grantor to the Secured Obligations in such order and manner as
Administrative Agent in its sole discretion shall determine; (k) to
insure, process and preserve the Collateral; (l) to exercise all
rights, remedies, powers or privileges provided under any of the Loan
Documents; (m) to remove, from any premises where the same may be located,
the Collateral and any and all documents, instruments, files and records, and
any receptacles and cabinets containing the same, relating to the Collateral,
and Administrative Agent may, at the cost and expense of Grantor, use such of
its supplies, equipment, facilities and space at its places of business as may
be necessary or appropriate to properly administer, process, store, control,
prepare for sale or disposition and/or sell or dispose of the portion of the
Collateral owned by Grantor or to properly administer and control the handling
of collections and realizations thereon, and Administrative Agent shall be
deemed to have a rent-free tenancy of premises of Grantor for such purposes and
for such periods of time as reasonably required by Administrative Agent;
(n) to receive, open and dispose of all mail addressed to Grantor and
notify postal authorities to change the address for delivery thereof to such
address as Administrative Agent may designate; provided that
Administrative Agent agrees that it will promptly deliver over to Grantor such
opened mail as does not relate to the Collateral; and (o) to exercise all
other rights, powers, privileges and remedies of an owner of the Collateral;
all at Administrative Agent’s sole option and as Administrative Agent in its
sole discretion may deem advisable. 
Grantor will, at Administrative Agent’s request, assemble the Collateral
and make it available to Administrative Agent at places which Administrative
Agent may designate, whether at the premises of Grantor or elsewhere, and will
make available to Administrative Agent, free of cost, all premises, equipment
and facilities of Grantor for the purpose of Administrative Agent’s taking
possession of the Collateral or storing same or removing or putting the
Collateral in salable form or selling or disposing of same.


 


Upon the occurrence and during the continuance of an
Event of Default, Administrative Agent also shall have the right, without
notice or demand, either in person, by agent or by a receiver to be appointed
by a court (and Grantor hereby expressly consents upon the occurrence and
during the continuance of an Event of Default to the appointment of such a
receiver), and without regard to the adequacy of any security for the Secured
Obligations, to take possession of the Collateral or any part thereof and to
collect and receive the rents, issues, profits, income and proceeds
thereof.  Taking possession of the
Collateral shall not cure or waive any Event of Default or notice thereof or
invalidate any act done pursuant to such notice.  The rights, remedies and powers of any receiver appointed by a
court shall be as ordered by said court.


 


Any public or private sale or other disposition of the
Collateral may be held at any office of Administrative Agent, or at Grantor’s
places of business, or at any other place permitted by applicable Law, and
without the necessity of the Collateral’s being within the view of


 


11

















 


prospective purchasers.  The Administrative Agent may also request,
in connection therewith, the Nevada Gaming Commission to petition a District
Court of the State of Nevada for the appointment of a supervisor to conduct the
normal gaming activities on the premises following the appointment of a
receiver.  Administrative Agent may
direct the order and manner of sale of the Collateral, or portions thereof, as
it in its sole and absolute discretion may determine, and Grantor expressly
waives any right to direct the order and manner of sale of any Collateral.  Administrative Agent or any Person on
Administrative Agent’s behalf may bid and purchase at any such sale or other
disposition.  The net cash proceeds
resulting from the collection, liquidation, sale, lease or other disposition of
the Collateral shall be applied, first, to the expenses (including reasonable
attorneys’ fees and disbursements) of retaking, holding, storing, processing
and preparing for sale or lease, selling, leasing, collecting, liquidating and
the like, and then to the satisfaction of the Secured Obligations in such order
as shall be determined by Administrative Agent in its sole and absolute
discretion.  Grantor and any other
Person then obligated therefor shall pay to Administrative Agent on demand any
deficiency with regard thereto which may remain after such sale, disposition,
collection or liquidation of the Collateral.


 


Unless the Collateral is perishable or threatens to
decline speedily in value or is of a type customarily sold on a recognized
market, Administrative Agent will send or otherwise make available to Grantor
reasonable notice of the time and place of any public sale thereof or of the
time on or after which any private sale thereof is to be made.  The requirement of sending reasonable notice
conclusively shall be met if such notice is mailed, first class mail, postage
prepaid, to Grantor at its address set forth in the Credit Agreement, or
delivered or otherwise sent to Grantor, at least five (5) days before the date
of the sale.  Grantor expressly waives
any right to receive notice of any public or private sale of any Collateral or
other security for the Secured Obligations except as expressly provided
for in this paragraph.


 


With respect to any Collateral consisting of
securities, partnership interests, joint venture interests, Investments or the
like, and whether or not any of such Collateral has been effectively registered
under the Securities Act of 1933, as amended, or other applicable Laws,
Administrative Agent may, in its sole and absolute discretion, sell all or any
part of such Collateral at private sale in such manner and under such circumstances
as provided in the UCC.  Without
limiting the foregoing, Administrative Agent may (i) approach and
negotiate with a limited number of potential purchasers, and (ii) restrict
the prospective bidders or purchasers to persons who will represent and agree
that they are purchasing such Collateral for their own account for investment
and not with a view to the distribution or resale thereof.  In the event that any such Collateral is
sold at private sale, Grantor agrees that if such Collateral is sold for a price
which Administrative Agent in good faith believes to be reasonable under the
circumstances then existing, then (a) the sale shall be deemed to be
commercially reasonable in all respects, (b) Grantor shall not be entitled
to a credit against the Secured Obligations in an amount in excess of the
purchase price, and (c) Administrative Agent shall not incur any liability
or responsibility to Grantor in connection therewith, notwithstanding the
possibility that a substantially higher price might have been realized at a
public sale.  Grantor recognizes that a
ready market may not exist for such Collateral if it is not regularly traded on
a recognized securities exchange, and that a sale by Administrative Agent of
any such Collateral for an amount substantially less than a pro rata share of
the fair market value of the issuer’s assets minus liabilities may be
commercially reasonable in view of the difficulties that may be


 


12

















 


encountered in attempting to sell a large
amount of such Collateral or Collateral that is privately traded.


 


Upon consummation of any sale of Collateral hereunder,
Administrative Agent shall have the right to assign, transfer and deliver to
the purchaser or purchasers thereof the Collateral so sold.  Each such purchaser at any such sale shall
hold the Collateral so sold absolutely free from any claim or right upon the
part of Grantor or any other Person, and Grantor hereby waives (to the extent
permitted by applicable Laws) all rights of redemption, stay and 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. 
If the sale of all or any part of the Collateral is made on credit or
for future delivery, Administrative Agent shall not be required to apply any
portion of the sale price to the Secured Obligations until such amount actually
is received by Administrative Agent, and any Collateral so sold may be retained
by Administrative Agent until the sale price is paid in full by the purchaser
or purchasers thereof.  Administrative
Agent shall not incur any liability in case any such purchaser or purchasers
shall fail to pay for the Collateral so sold, and, in case of any such failure,
the Collateral may be sold again.


 


10.           Voting Rights; Dividends; etc.  With respect to any Collateral consisting of
securities, partnership interests, joint venture interests, Investments or the
like (referred to collectively and individually in this Section 10
and in Section 11 as the “Investment Collateral”), so long
as no Event of Default occurs and remains continuing:


 


10.1         Voting Rights.  Grantor shall be entitled to exercise any
and all voting and other consensual rights pertaining to the Investment
Collateral, or any part thereof, for any purpose not inconsistent with the
terms of this Agreement, the Credit Agreement, or the other Loan Documents; provided,
however, that Grantor shall not exercise, or shall refrain from
exercising, any such right if it would result in a Default.


 


10.2         Dividend and Distribution Rights.  Except as otherwise provided in any Loan
Document, Grantor shall be entitled to receive and to retain and use any and
all dividends or distributions paid in respect of the Investment Collateral; provided,
however, that any and all such dividends or distributions received in
the form of capital stock, certificated securities, warrants, options or rights
to acquire capital stock or certificated securities forthwith shall be, and the
certificates representing such capital stock or certificated securities, if
any, forthwith shall be delivered to Administrative Agent to hold as pledged
Collateral and shall, if received by Grantor, be received in trust for the
benefit of Administrative Agent, be segregated from the other Property of
Grantor, and forthwith be delivered to Administrative Agent as pledged
Collateral in the same form as so received (with any necessary endorsements).


 


11.           Rights During Event of Default.  With respect to any Investment Collateral,
so long as an Event of Default has occurred and is continuing:


 


11.1         Voting, Dividend, and Distribution
Rights.  At the option of
Administrative Agent, all rights of Grantor to exercise the voting and other
consensual rights which it would otherwise be entitled to exercise pursuant to Section 10.1
above, and to receive the dividends and distributions which it would otherwise
be authorized to receive and retain pursuant to Section 10.2 above,
shall cease, and all such rights thereupon shall become vested in


 


13

















 


Administrative Agent which thereupon shall
have the sole right to exercise such voting and other consensual rights and to
receive and to hold as pledged Collateral such dividends and distributions.


 


11.2         Dividends and Distributions Held in
Trust.  All dividends and other
distributions which are received by Grantor contrary to the provisions of this
Agreement shall be received in trust for the benefit of Administrative Agent,
shall be segregated from other funds of Grantor, and forthwith shall be paid
over to Administrative Agent as pledged Collateral in the same form as so
received (with any necessary endorsements).


 


11.3         Irrevocable Proxy.  Grantor does hereby revoke all previous
proxies with regard to the Investment Collateral and appoint Administrative
Agent as its proxyholder to attend and vote at any and all meetings of the
shareholders or other equity holders of the Persons that issued the Investment
Collateral and any adjournments thereof, held on or after the date of the
giving of this proxy and prior to the termination of this proxy, and to execute
any and all written consents of shareholders or equity holders of such Persons
executed on or after the date of the giving of this proxy and prior to the
termination of this proxy, with the same effect as if Grantor had personally
attended the meetings or had personally voted its shares or other interests or
had personally signed the written consents; provided, however,
that the proxyholder shall have rights hereunder only upon the occurrence and
during the continuance of an Event of Default. 
Grantor hereby authorizes Administrative Agent to substitute another
Person as the proxyholder and, upon the occurrence and during the continuance
of any Event of Default, hereby authorizes the proxyholder to file this proxy
and any substitution instrument with the secretary or other appropriate
official of the appropriate Person. 
This proxy is coupled with an interest and is irrevocable until such
time as all Secured Obligations have been paid and performed in full.


 


12.           Attorney-in-Fact.  Grantor hereby irrevocably nominates and
appoints Administrative Agent as its attorney-in-fact for the following
purposes:  (a) to do all acts and
things which Administrative Agent may deem necessary or advisable to perfect
and continue perfected the security interests created by this Agreement and,
upon the occurrence and during the continuance of an Event of Default, to
preserve, process, develop, maintain and protect the Collateral; (b) upon
the occurrence and during the continuance of an Event of Default, to do any and
every act which Grantor is obligated to do under this Agreement, at the expense
of Grantor and without any obligation to do so; (c) to prepare, sign, file
and/or record, for Grantor, in the name of Grantor, any financing statement,
application for registration, or like paper, and to take any other action
deemed by Administrative Agent necessary or desirable in order to perfect or
maintain perfected the security interests granted hereby; and (d) upon the
occurrence and during the continuance of an Event of Default, to execute any
and all papers and instruments and do all other things necessary or desirable
to preserve and protect the Collateral and to protect Administrative Agent’s
security interests therein; provided, however, that
Administrative Agent shall be under no obligation whatsoever to take any of the
foregoing actions, and, absent bad faith or actual malice, Administrative Agent
shall have no liability or responsibility for any act taken or omission with
respect thereto.


 


13.           Reserved.


 


14

















 


14.           Statute of Limitations and Other
Laws.  Until the Secured Obligations
shall have been paid and performed in full, the power of sale and all other
rights, privileges, powers and remedies granted to Administrative Agent
hereunder shall continue to exist and may be exercised by Administrative Agent
at any time and from time to time irrespective of the fact that any of the
Secured Obligations may have become barred by any statute of limitations.  Grantor expressly waives the benefit of any
and all statutes of limitation, and any and all Laws providing for exemption of
property from execution or for valuation and appraisal upon foreclosure, to the
maximum extent permitted by applicable Law.


 


15.           Other Agreements.  Nothing herein shall in any way modify or
limit the effect of terms or conditions set forth in any other security or
other agreement executed by Grantor or in connection with the Secured
Obligations, but each and every term and condition hereof shall be in addition
thereto.  All provisions contained in
the Credit Agreement or any other Loan Document that apply to Loan Documents
generally are fully applicable to this Agreement and are incorporated herein by
this reference.


 


16.           Continuing Effect.  This Agreement shall remain in full force
and effect and continue to be effective should any petition be filed by or
against Grantor for liquidation or reorganization, should Grantor become
insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of Grantor’s
assets, and shall continue to be effective or be reinstated, as the case may
be, if at any time payment and performance of the Secured Obligations, or any
part thereof, is, pursuant to applicable Law, rescinded or reduced in amount,
or must otherwise be restored or returned by the Administrative Agent or any
Lender, whether as a “voidable preference,” “fraudulent conveyance,” or
otherwise, all as though such payment or performance had not been made.  In the event that any payment or any part
thereof is rescinded, reduced, restored or returned, the Secured Obligations
shall be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.


 


17.           Release of Collateral.  This Agreement shall be terminated and the
security interests in the Collateral provided for hereunder shall be released
when all Secured Obligations have been paid in full in cash or otherwise
performed in full and when no portion of the Commitment remains outstanding
and, in connection with any sale or other disposition of Collateral permitted
by the terms of the Credit Agreement, Administrative Agent’s security interest
in such Collateral shall be released in accordance with the terms hereof.  Upon the occurrence of any such event,
Administrative Agent shall release and return the applicable pledged Collateral
to Grantor, or to the Person or Persons legally entitled thereto, and shall
endorse, execute, deliver, record and file all instruments and documents, and
do all other acts and things, reasonably required for the release and return of
the Collateral to Grantor, or to the Person or Persons legally entitled
thereto, and to evidence or document the release of Administrative Agent’s
interests in such Collateral arising under this Agreement, all as reasonably
requested by, and at the sole expense of, Grantor.


 


18.           Counterparts.  This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and all of which,
taken together, shall constitute one and the same agreement.


 


15

















 


19.           Additional Powers and
Authorization.  The Administrative
Agent has been appointed as the Administrative Agent hereunder pursuant to the
Credit Agreement and shall be entitled to the benefits of the Credit Agreement
and the other Loan Documents. 
Notwithstanding anything contained herein to the contrary, the
Administrative Agent may employ agents, trustees, or attorneys-in-fact and may
vest any of them with any Property (including, any Collateral pledged
hereunder), title, right or power deemed necessary for the purposes of such
appointment.


 


20.           GOVERNING
LAW.  THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LOCAL LAWS OF THE
STATE OF NEVADA, WITHOUT REFERENCE TO THE CHOICE OF LAW OR CONFLICTS OF LAWS PROVISIONS
THEREOF.


 


21.           WAIVER OF JURY TRIAL.  GRANTOR AND ADMINISTRATIVE AGENT EXPRESSLY
WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT,
THE CREDIT AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE
BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER NOW
EXISTING OR HEREAFTER ARISING AND WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE.  GRANTOR AND
ADMINISTRATIVE AGENT AGREE THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY.  WITHOUT LIMITING THE FOREGOING, THE PARTIES
FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY
OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY
OF THIS AGREEMENT, THE CREDIT AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY
PROVISION HEREOF OR THEREOF.  THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT, THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS.  ANY PARTY HERETO MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.


 


16

















 


IN WITNESS WHEREOF, the parties hereto have executed
this Agreement by their respective duly authorized officer as of the date first
written above.


 


	
   

  	
  “Grantor”

  
	
   

  	
   

  
	
   

  	
  HARD ROCK HOTEL, INC.,

  
	
   

  	
  a Nevada corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


ACCEPTED AND AGREED


AS OF THE DATE FIRST


ABOVE WRITTEN:


 


“Administrative Agent”


 


BANK OF AMERICA, N.A.,


as Administrative Agent, and


for and on behalf of the
Lenders


 


 


	
  By:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


17

















 


SCHEDULE I


 


Pledged Debt


 


18

















 


SCHEDULE II


 


Locations of Equipment and Inventory


 


19