EXHIBIT 10.05
SECURITY AGREEMENT
Dated as of November __, 1998
By and Between
LOUISIANA CASINO CRUISES, INC.
and
U.S. BANK TRUST NATIONAL ASSOCIATION
AS TRUSTEE
TABLE OF CONTENTS
SECTION PAGE
------- ----
1. Grant of Security.................................................1
2. Security for Obligations..........................................4
3. Company Remains Liable............................................4
4. Delivery of Security Collateral and Account Collateral............5
5. Maintaining the Collateral Account................................5
6. Intentionally Omitted.............................................6
7. Investing of Amounts in the Collateral Account and the
Construction Account.............................................6
8. Release of Amounts................................................6
9. Representations and Warranties....................................6
10. Certain Covenants.................................................9
11. Insurance........................................................12
12. Place of Perfection; Records; Collection of Receivables..........12
13. Voting Rights; Dividends; Etc....................................14
14. As to the Assigned Agreements....................................15
15. Payments Under the Assigned Agreements...........................16
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16. Transfers and Other Liens; Pledged Shares........................17
17. Trustee Appointed Attorney-in-Fact...............................17
18. Trustee May Perform..............................................18
19. The Trustee's Duties.............................................18
20. Remedies.........................................................18
21. Registration Rights..............................................21
22. Regulatory Matters...............................................22
23. Indemnity and Expenses...........................................23
24. Security Interest Absolute.......................................24
25. Amendments; Waivers; Etc.........................................25
26. Addresses for Notices............................................25
27. Continuing Security Interest; Assignment Under the Indenture.....26
28. Release and Termination..........................................26
29. Gaming Laws......................................................26
30. The Mortgages....................................................26
31. Governing Law; Terms.............................................27
32. Execution in Counterparts........................................27
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Schedule I - Assigned Agreements
Schedule II - Locations of Equipment and Inventory
Schedule III - Trade Names
Schedule IV - Deposit Accounts
Exhibit A - Form of Deposit Account Letter
Exhibit B - Form of Consent and Agreement
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SECURITY AGREEMENT
SECURITY AGREEMENT dated as of November __, 1998 made by and
between LOUISIANA CASINO CRUISES, INC., a Louisiana corporation, with an office
at 0000 Xxxxx Xxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxx 00000 (the "COMPANY") and U.S.
BANK TRUST NATIONAL ASSOCIATION, as trustee (in such capacity, together with any
successor appointed pursuant to Sections 608 and 609 of the Indenture, the
"TRUSTEE") for the holders (the "Holders") under an Indenture dated as of
November __, 1998 (such Indenture, as it may be amended, supplemented or
otherwise modified from time to time in accordance with its terms, the
"Indenture"). Capitalized terms not otherwise defined in this Agreement shall
have the meanings set forth in the Indenture.
PRELIMINARY STATEMENTS:
(1) The Company has entered into the Indenture pursuant to
which the Company will issue up to $50,000,000 of Senior Secured Increasing Rate
Notes Due 2001 (the "Notes").
(2) The Company has opened a collateral account (the
"COLLATERAL ACCOUNT") with U.S. Bank Trust National Association, Account No.
00-00000-0, in the name of Louisiana Casino Cruises, Inc. but under the sole
dominion and control of
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the Trustee and subject to the terms of this Agreement (on the date hereof, the
balance in the Collateral Account is $0).
(3) It is a condition precedent to the execution of the
Indenture by the Trustee and the purchase of the Notes by the Holders that the
Company shall have granted to the Trustee the assignment and security interest
and made the pledge and assignment contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises, the Company
hereby agrees with the Trustee for its benefit and the ratable benefit of the
Holders as follows:
SECTION 1. GRANT OF SECURITY. The Company hereby assigns and
pledges to the Trustee for its benefit and the ratable benefit of the Holders,
and hereby grants to the Trustee for its benefit and the ratable benefit of the
Holders a security interest in, the collateral described in paragraphs (a), (b),
(c), (d), (e), (f) and (g) of this Section 1 (collectively, the "COLLATERAL"):
(a) all of the Company's right, title and interest, whether
now owned or hereafter acquired, in and to (i) all equipment in all of
its forms, wherever located (other than any equipment that is or was
acquired with the proceeds of Indebtedness provided by one or more
lenders that are not Affiliates of the Company and any equipment
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that is or becomes subject to a perfected security interest in such
equipment or equipment securing any obligations under the Revolving
Credit Facility (the "EXCLUDED GAMING EQUIPMENT")), now or hereafter
existing (including, but not limited to, security and surveillance
equipment, cash registers, telephone, facsimile and other
communications equipment, chairs, desks, cabinets and other furniture),
all furniture, fixtures and all parts thereof and all accessions
thereto and (ii) the vessel (Official Number 1027353), together with
all boilers, engines, machinery, masts, spars, sails, boats, anchors,
cables, chains, rigging, tackle, apparel and fittings relating thereto
(any and all such equipment, furniture, fixtures, parts and accessions
being the "EQUIPMENT");
(b) all of the Company's right, title and interest, whether
now owned or hereafter acquired, in and to all inventory in all of its
forms, wherever located, now or hereafter existing (including, but not
limited to, (i) all food, beverages, linens and other hotel supplies,
glasses, china and other restaurant supplies and all raw materials and
work in process therefor, finished goods thereof and materials used or
consumed in the manufacture or production thereof, (ii) goods in which
the Company has an interest in mass or a joint or other interest or
right of
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any kind (including, without limitation, goods in which the Company has
an interest or right as consignee) and (iii) goods that are returned to
or repossessed by the Company), and all accessions thereto and products
thereof and documents therefor (any and all such inventory, accessions,
products and documents being the "INVENTORY");
(c) all of the Company's right, title and interest, whether
now owned or hereafter acquired, in and to all accounts, contract
rights, chattel paper, instruments, deposit accounts (including the
deposit accounts listed on Schedule IV hereto), general intangibles and
other obligations of any kind, now or hereafter existing, whether or
not arising out of or in connection with the sale or lease of goods or
the rendering of services, 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, contract rights, chattel
paper, instruments, deposit accounts, general intangibles or
obligations, but excluding any gaming license issued by the State of
Louisiana or any subdivision or agency thereof to the extent granting
of a security interest in such gaming license would violate applicable
governing law (any and all such accounts, contract rights, chattel
paper, instruments, deposit
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accounts, general intangibles and obligations, to the extent not
referred to in paragraph (e) or (f) of this Section 1, being the
"RECEIVABLES", and any and all such leases, security agreements and
other contracts being the "RELATED CONTRACTS");
(d) all of the Company's right, title and interest in and to
each of the agreements listed on Schedule I hereto, as such agreements
may be amended, supplemented or otherwise modified from time to time
(collectively, the "ASSIGNED AGREEMENTS"), including, without
limitation, (i) all rights of the Company to receive moneys due and to
become due under or pursuant to the Assigned Agreements, (ii) all
rights of the Company to receive proceeds of any insurance, indemnity,
warranty or guaranty with respect to the Assigned Agreements, (iii) any
claims of the Company for damages arising out of or for breach of or
default under one or more of the Assigned Agreements and (iv) all
rights of the Company to terminate the Assigned Agreements, to perform
thereunder and to compel performance and otherwise exercise all
remedies thereunder (all such Collateral being the "AGREEMENT
COLLATERAL");
(e) all of the following (collectively, the "ACCOUNT
COLLATERAL"):
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(i) the Collateral Account, all funds held therein
and all certificates and instruments, if any, from time to
time representing or evidencing the Collateral Account;
(ii) Collateral Investments (as hereinafter defined)
from time to time and all certificates and instruments, if
any, from time to time representing or evidencing the
Collateral Investments;
(iii) all notes, certificates of deposit, deposit
accounts, checks and other instruments from time to time
hereafter delivered to or otherwise possessed by the Trustee
for or on behalf of the Company, in substitution for or in
addition to any or all of the then existing Account
Collateral; and
(iv) all interest, dividends, cash, instruments and
other property and assets from time to time received,
receivable or otherwise distributed in respect of or in
exchange for any or all of the then existing Account
Collateral; and
(f) any and all shares of stock of, or other equity interests
in, any Restricted Subsidiary or any other Person owned, as of the date
hereof, or from time to time acquired by the Company in any manner
after the date
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hereof (the "PLEDGED SHARES"), the certificates representing the
Pledged Shares, and all dividends, 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 Shares (the
"SECURITY COLLATERAL");
(g) all proceeds of any and all of the foregoing Collateral
(including, without limitation, proceeds that constitute property of
the types described in paragraphs (a) - (f) of this Section 1) and, to
the extent not otherwise included, all (i) payments under insurance
(whether or not the Trustee is the loss payee thereof), or any
indemnity, warranty or guaranty payable by reason of loss or damage to
or otherwise with respect to any of the foregoing Collateral and (ii)
cash.
SECTION 2. SECURITY FOR OBLIGATIONS. This Agreement secures
the payment of all obligations of the Company now or hereafter existing under or
with respect to the Notes, the Indenture or any of the Security Documents,
whether for principal, premium, interest, fees, expenses or otherwise (all such
obligations being the "SECURED OBLIGATIONS"). Without limiting the generality of
the foregoing, this Agreement secures the payment of all amounts that constitute
part of the Secured Obligations and would be owed by the Company to the
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Trustee or the Holders under or with respect to the Notes, the Indenture or the
Security Documents but for the fact that they are unenforceable or not allowable
due to the existence of a bankruptcy, reorganization or similar proceeding
involving the Company.
SECTION 3. COMPANY REMAINS LIABLE. Anything herein to the
contrary notwithstanding, (a) the Company shall remain liable under the
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, (b) the exercise by the
Trustee of any of the rights hereunder shall not release the Company from any of
its duties or obligations under the contracts and agreements included in the
Collateral and (c) neither the Trustee nor any Holder shall have any obligation
or liability under the contracts and agreements included in the Collateral by
reason of this Agreement, nor shall the Trustee or any Holder be obligated to
perform any of the obligations or duties of the Company thereunder or to take
any action to collect or enforce any claim for payment assigned hereunder.
SECTION 4. DELIVERY OF SECURITY COLLATERAL AND ACCOUNT
COLLATERAL. All certificates or instruments representing or evidencing Security
Collateral or Account Collateral shall be delivered to and held by or on behalf
of
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the Trustee pursuant hereto and shall be in suitable form for transfer by
delivery or shall be accompanied by duly executed instruments of transfer or
assignment in blank, all in form and substance satisfactory to the Trustee. The
Trustee shall have the right, at any time and without notice to the Company, to
transfer to or to register in the name of the Trustee or any of its nominees any
or all of the Security Collateral and Account Collateral, subject only to the
revocable rights specified in Section 13(a) hereof. In addition, the Trustee
shall have the right at any time to exchange certificates or instruments
representing or evidencing Account Collateral for certificates or instruments of
smaller or larger denominations.
SECTION 5. MAINTAINING THE COLLATERAL ACCOUNT. So long as any
Secured Obligation shall remain unpaid and until such time as the Indenture
shall have been satisfied and discharged in accordance with Section 401 thereof:
(a) The Company will maintain the Collateral Account with the
Trustee.
(b) It shall be a term and condition of the Collateral
Account, notwithstanding any term or condition to the contrary in any
other agreement relating to the Collateral Account and except as
otherwise provided in Sections 8 and 20 hereof, that no amount
(including
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interest on Collateral Investments, as hereinafter defined) shall be
paid or released to or for the account of, or withdrawn by or for the
account of, the Company or any other Person from the Collateral
Account.
The Collateral Account shall be subject to such applicable laws, and such
applicable regulations of the Board of Governors of the Federal Reserve System
and of any other appropriate banking or governmental authority, as may now or
hereafter be in effect.
SECTION 6. INTENTIONALLY OMITTED.
SECTION 7. INVESTING OF AMOUNTS IN THE COLLATERAL ACCOUNT. The
Trustee will upon receipt of the written instructions of the Company from time
to time, subject to Sections 8 and 20 hereof, (a) invest amounts on deposit in
the Collateral Account in such Marketable Securities in the name of the Trustee
as the Company may select and (b) invest interest paid on the Marketable
Securities referred to in clause (a) above, and reinvest other proceeds of any
such Marketable Securities that may mature or be sold in the name of the Trustee
as the Company may select (the Marketable Securities referred to in clauses (a)
and (b) above being, collectively, "COLLATERAL INVESTMENTS"). Interest and
proceeds that are not invested or reinvested in Collateral Investments as
provided in
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the immediately preceding sentence shall be deposited and held in the Collateral
Account.
SECTION 8. RELEASE OF AMOUNTS. Subject to Section 20 hereof,
amounts held in the Collateral Account shall be released only in accordance with
the terms and conditions of Section 1204(a) of the Indenture.
SECTION 9. REPRESENTATIONS AND WARRANTIES. The Company
represents, warrants and agrees for itself and its Collateral as follows:
(a) LOCATION OF COMPANY AND COLLATERAL, ETC. All of the
Equipment and Inventory is located at one or more of the places
specified in Schedule II hereto. The principal place of business of the
Company or, if the Company has more than one place of business, the
chief executive office of the Company and the office where the Company
keeps its records concerning its Receivables, copies of each Assigned
Agreement to which it is a party and copies of all chattel paper that
evidence Receivables, are located, in each case, at the address listed
below the name of the Company on the signature pages hereof. Copies of
each Assigned Agreement (certified by the Secretary of the Company to
be true and complete) and originals of all chattel paper that evidence
Receivables have been
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delivered to the Trustee. None of the Receivables or the Agreement
Collateral is evidenced by a promissory note, chattel paper or other
instrument, except for promissory notes, chattel paper or other
instruments that have been delivered to the Trustee pursuant to the
terms of this Agreement.
(b) OWNERSHIP OF COLLATERAL. The Company is the legal and
beneficial owner of the Collateral in which it is granting a security
interest free and clear of any Lien, except for (i) Liens created
hereunder in favor of the Trustee and (ii) Permitted Liens. No
effective financing statement or other instrument similar in effect
covering all or any part of the Collateral is on file in any recording
office, except such as may have been filed in favor of the Trustee
relating to this Agreement. The Company has exclusive possession and
control of the Equipment and Inventory. All of the trade names of the
Company are listed below its name on Schedule III hereto.
(c) AGREEMENT COLLATERAL. The Assigned Agreements, copies of
which (certified by the Secretary of the Company to be true and
complete) have been furnished to the Trustee, have been duly
authorized, executed and delivered by (i) the Company and (ii) to the
knowledge of the officers and directors of the Company, each other
party
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thereto, have not been amended, supplemented or otherwise modified
except as set forth on Schedule I hereto, are in full force and effect
and are binding upon and enforceable against all parties thereto in
accordance with their terms, subject, as to enforcement of remedies, to
applicable bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), moratorium or other laws
affecting enforcement of creditors' rights generally from time to time
in effect and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law). There exists no default under any
Assigned Agreement by (i) the Company and (ii) to the knowledge of the
officers and directors of the Company, each other party thereto. Each
Party to each Assigned Agreement other than the Company has executed
and delivered to the Company a consent, in substantially the form of
Exhibit B hereto, to the assignment of the Agreement Collateral to the
Trustee pursuant to this Agreement.
(d) VALID AND PERFECTED PRIORITY SECURITY INTEREST. This
Agreement and the pledge and assignment of the Collateral pursuant
hereto create, a valid and perfected first priority security interest
in the Collateral,
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enforceable against all third parties and securing the payment of the
Secured Obligations, and all filings and other actions necessary or
desirable and requested by the Trustee prior to the date hereof to
create, perfect and protect such security interest have been duly made
or taken or will be duly made or taken on or immediately after the
Issue Date.
(e) THIRD PARTY AUTHORIZATIONS. No authorization, approval or
other action by, and no notice to or filing with, any governmental
authority or regulatory body or other third party is required for
(i) the grant by the Company of the assignment and
security interest granted hereby, for the pledge by the
Company of the Security Collateral pursuant hereto or for the
execution, delivery or performance of this Agreement by the
Company, or
(ii) the perfection or maintenance of the pledge,
assignment and security interest created hereby (including the
first priority nature thereof), except for the filing of
financing and continuation statements under the Uniform
Commercial Code, which financing statements have been duly
filed, and
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(iii) the exercise by the Trustee of its voting or
other rights provided for in this Agreement or the remedies in
respect of the Collateral pursuant to this Agreement, except
as may be required in connection with the disposition of any
portion of the Security Collateral by laws affecting the
offering and sale of securities generally.
(f) INVENTORY. All Inventory produced by the Company has been
produced by the Company in compliance with all requirements of the Fair
Labor Standards Act.
(g) ASSETS INCLUDED IN COLLATERAL. The Collateral (together
with the property and assets of the Company subject to other Security
Documents) consists of all of the property and assets owned by the
Company or any of its Subsidiaries other than Excluded Gaming
Equipment. The Collateral includes all property and assets other than
Excluded Gaming Equipment necessary to operate the business of the
Company and its Subsidiaries in the same manner as such business is
conducted on the date hereof and as such business is intended to be
conducted.
(h) FEDERAL IDENTIFICATION NUMBER. The Company's federal tax
identification number is 00-0000000 and the Company shall not change
such number, except upon at least
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30 days' prior written notice to the Trustee and upon the taking or
causing to be taken at the Company's expense such actions as may be
reasonably requested by the Trustee.
SECTION 10. CERTAIN COVENANTS. So long as any Secured
Obligation shall remain unpaid and until such time as the Indenture shall have
been satisfied and discharged in accordance with Section 401 thereof, the
Company will:
(a) COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
laws, rules, regulations and orders, such compliance to include,
without limitation, compliance with the Employment Retirement Income
Security Act of 1974, as amended, and the Racketeer Influenced and
Corrupt Organizations Chapter of the Organized Crime Control Act Of
1970.
(b) PAYMENT OF TAXES, ETC. To the extent required under,
Section 1005 of the Indenture pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become
delinquent (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon the Collateral and (ii) all lawful
claims
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that, if unpaid, might by law become a Lien upon the Collateral.
(c) LOCATION OF EQUIPMENT AND INVENTORY. Keep all Equipment
and Inventory (other than Inventory sold in the ordinary course of
business) at the places therefor specified in Section 9(a) hereof or,
upon 30 days' prior written notice to the Trustee, at such other places
in a jurisdiction where all action required by Section 10(h) hereof
shall have been taken with respect to such Equipment and Inventory.
(d) MAINTENANCE OF Equipment. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all Equipment in
which the Company is granting a security interest in accordance with,
and to the extent required under, Section 1006 of the Indenture.
(e) PRODUCTION OF INVENTORY. Produce, and cause each of its
Subsidiaries to produce, all Inventory in compliance with all
requirements of the Fair Labor Standards Act.
(f) VISITATION RIGHTS. Permit the Trustee (at the Company's
expense) or any agents or representatives thereof at any reasonable
time and from time to time to examine and make copies of and abstracts
from the records
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and books of account of, and visit the properties of, the Company and
any of its Subsidiaries, and to discuss the affairs, finances and
accounts of the Company and any of its Subsidiaries with any of their
officers or directors and with their independent public accountants.
(g) LIMITATION ON ACCOUNTS. Not maintain, or permit any of its
Subsidiaries to maintain, any deposit accounts other than the
Collateral Account, the deposit accounts set forth on Schedule IV
hereto or such other accounts to the extent that the bank maintaining
any such account shall have delivered to the Trustee a deposit account
letter substantially in the form of Exhibit A hereto.
(h) FURTHER ASSURANCES. From time to time at the sole expense
of the Company,
(i) promptly execute and deliver all further
instruments and documents, and take all further action, that
may be necessary or desirable, or that the Trustee may
request, in order to perfect and protect any pledge,
assignment or security interest granted or purported to be
granted hereby or to enable the Trustee to exercise and
enforce its rights and remedies hereunder with respect to any
Collateral, including, without limitation:
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(A) marking conspicuously each document
included in the Inventory, each chattel paper
included in the Receivables, each Related Contract,
each Assigned Agreement and, at the request of the
Trustee, each of its records pertaining to the
Collateral with a legend, in form and substance
satisfactory to the Trustee, indicating that such
document, chattel paper, Related Contract or Assigned
Agreement is subject to the security interest granted
hereby;
(B) if any Collateral shall be evidenced by
a promissory note or other instrument (other than a
draft or check received in the ordinary course of
business) or chattel paper, delivering and pledging
to the Trustee hereunder such note or instrument or
chattel paper duly indorsed and accompanied by duly
executed instruments of transfer or assignment, all
in form and substance satisfactory to the Trustee;
(C) executing and filing such financing or
continuation statements, or amendments thereto, and
such other instruments or notices, as may be
necessary or desirable, or as the Trustee may
request, in order to perfect and preserve the
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pledge, assignment and security interest granted or
purported to be granted hereby; and
(D) causing each Restricted Subsidiary (each
a "COLLATERAL GRANTOR" and, collectively, the
"COLLATERAL GRANTORS") to enter into a supplement to
this Agreement or a security agreement (either of
which shall become a part of this Agreement upon its
execution), in either case substantially in the form
of this Agreement and providing the Trustee with a
security interest in the assets of such Collateral
Grantor substantially similar to the security
interest in the Collateral granted herein by the
Company to the Trustee; and
(ii) furnish to the Trustee statements and schedules
further identifying and describing the Collateral and such
other reports in connection with the Collateral as the Trustee
may reasonably request, all in reasonable detail.
The Company hereby authorizes the Trustee (at the Company's
expense) to file one or more financing or continuation statements, and
amendments thereto, relating to all or any part of the Collateral without the
signature of the
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Company where permitted by law. A photocopy or other reproduction of this
Agreement or any financing statement covering the Collateral or any part thereof
shall be sufficient as a financing statement where permitted by law.
SECTION 11. INSURANCE. (a) The Company shall, at its own
expense, maintain insurance with respect to any Equipment and Inventory in which
it is granting a security interest with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar properties
in the same general areas in which the Company operates. Each policy for
liability insurance shall provide for all losses to be paid on behalf of the
Trustee and the Company as their interests may appear, and each policy for
property damage insurance shall provide for all losses (except for losses of
less than $100,000 per occurrence) to be paid directly to the Trustee; it is
acknowledged that any such payments received by the Trustee that are not related
to an Event of Loss will be promptly endorsed or otherwise paid by the Trustee
to the Company. Each such policy shall in addition (i) the Company and the
Trustee as insured parties thereunder (without any representation or warranty by
or obligation upon the Trustee) as their interests may appear, (ii) provide that
there shall be no recourse against the Trustee for payment of
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premiums or other amounts with respect thereto and (iii) provide that at least
30 days' prior written notice of cancellation or of lapse shall be given to the
Trustee by the Insurer. The Company shall, if so requested by the Trustee,
deliver to the Trustee original or duplicate policies of such insurance and, as
often as the Trustee may reasonably request, a report of a reputable insurance
broker with respect to such insurance. Furthermore, the Company shall, at the
request of the Trustee, duly exercise and deliver instruments of assignment of
such insurance policies to comply with the requirements of Section 10(h) hereof
and cause the insurers to acknowledge notice of such assignment.
(b) Reimbursement under any liability insurance maintained by
the Company pursuant to this Section 11 may be paid directly to the Person who
shall have incurred liability covered by such insurance. In case of any loss
involving damage to Equipment or Inventory, the Company shall make or cause to
be made the necessary repairs to or replacements of such Equipment or Inventory
to the extent required by Section 1006 of the Indenture, and any proceeds of
insurance maintained by the Company pursuant to this Section 11 shall be paid to
the Company as reimbursement for the costs of such repairs or replacements
pursuant to Section 1204 of the Indenture.
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SECTION 12. PLACE OF PERFECTION; RECORDS; COLLECTION OF
RECEIVABLES. (a) The Company shall keep its principal place of business and
chief executive office and the office where it keeps its records concerning the
Collateral, and copies of any Assigned Agreements and copies of all chattel
paper that evidence Receivables, at the location therefor specified in Section
9(a) hereof, or upon 30 days' prior written notice to the Trustee, at such other
locations in a jurisdiction where all actions required by Section 10(h) hereof
shall have been taken with respect to the Collateral. The Company will hold and
preserve such records, Assigned Agreements and chattel paper and will permit
representatives of the Trustee (at the Company's expense) at any time during
normal business hours to inspect and make copies of and abstracts from such
records and chattel paper.
(b) Except as otherwise provided in this subsection (b), the
Company shall continue to collect, at its own expense, all amounts due or to
become due the Company under the Receivables. In connection with such
collections, the Company may take (and, at the Trustee's direction, shall take)
such action as the Company or the Trustee may deem reasonable, necessary or
advisable to enforce collection of the Receivables; PROVIDED, HOWEVER, that the
Trustee shall have the right at any time, upon the occurrence and during the
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continuance of an Event of Default and upon written notice to the Company of its
intention to do so, to notify the obligors under any Receivables of the
assignment of such Receivables to the Trustee and to direct such obligors to
make payment of all amounts due or to become due to the Company thereunder
directly to the Trustee and, upon such notification and at the expense of the
Company, to enforce collection of any such Receivables, and to adjust, settle or
compromise (on reasonable terms) the amount or payment thereof, in the same
manner and to the same extent as the Company might have done. After receipt by
the Company of the notice from the Trustee referred to in the PROVISO to the
immediately preceding sentence, (i) all amounts and proceeds (including
instruments) received by the Company in respect of the Receivables shall be
received in trust for the benefit of the Trustee hereunder, shall be segregated
from other property and funds of the Company and shall be forthwith paid over to
the Trustee in the same form as so received (with any necessary indorsement) and
shall be deposited in the Collateral Account and, thereafter, applied in
accordance with Section 20(b) hereof and (ii) the Company shall not adjust,
settle or compromise the amount or payment of any Receivable, release wholly or
partly any obligor thereof, or allow any credit or discount thereon.
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SECTION 13. VOTING RIGHTS; DIVIDENDS; ETC. (a) So long as no
Event of Default shall have occurred and be continuing:
(i) The Company shall be entitled to exercise or refrain from
exercising any and all voting and other consensual rights pertaining to
the Security Collateral or any part thereof for any purpose not
inconsistent with the terms of this Agreement; PROVIDED, HOWEVER, that
the Company shall not exercise or refrain from exercising any such
right if such action would have a material adverse effect on the value
of the Security Collateral or any part thereof.
(ii) The Company shall be entitled to receive and retain any
and all dividends, distributions and interest paid in respect of the
Security Collateral; PROVIDED, HOWEVER, that any and all
(A) dividends and interest paid or payable other than
in cash in respect of, and instruments and other property
received, receivable or otherwise distributed in respect of or
in exchange for any Security Collateral,
(B) dividends and other distributions paid or payable
in cash in respect of any Security Collateral
-26-
in connection with a partial or total liquidation or
dissolution or in connection with a reduction of capital,
capital surplus or paid-in-surplus, and
(C) cash paid, payable or otherwise distributed in
respect of principal of, or in redemption of or in exchange
for, any Security Collateral shall be, and shall be forthwith
delivered to the Trustee to hold as, Security Collateral and
shall, if received by the Company, be received in trust for
the benefit of the Trustee, be segregated from the other
property or funds of the Company and be forthwith delivered to
the Trustee as Security Collateral in the same form as so
received (with any necessary endorsement). The Company shall,
upon request of the Trustee, promptly execute such documents
and do such acts as may be necessary or advisable to give
effect to this paragraph (ii).
(iii) Upon not less than ten Business Days' prior notice,
accompanied by an Officer's Certificate to the effect that any and all
conditions under this Agreement have been met, the Trustee shall
execute and deliver (or cause to be executed and delivered) to the
Company all such proxies and other instruments as the Company may
reasonably request for the purpose of enabling the Company
-27-
to exercise the voting and other consensual rights that it is entitled
to exercise pursuant to paragraph (i) above and to receive the
dividends, distributions or interest payments that it is authorized to
receive and retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuance of an Event
of Default:
(i) All rights of the Company (A) to exercise or refrain from
exercising the voting and other consensual rights that it would
otherwise be entitled to exercise pursuant to Section 13(a)(i) hereto
shall, upon notice to the Company by the Trustee, cease and (B) to
receive the dividends, distributions and interest payments that it
would otherwise be authorized to receive and retain pursuant to Section
13(a)(ii) hereto shall automatically cease, and all such rights shall
thereupon become vested in the Trustee, which shall thereupon have the
sole right to exercise or refrain from exercising such voting and other
consensual rights and to receive and hold as Security Collateral such
dividends, distributions and interest payments.
(ii) All dividends, distributions and interest payments that
are received by the Company contrary to the
-28-
provisions of Section 13(b)(i) shall be received in trust for the
benefit of the Trustee, shall be segregated from other property and
funds of the Company and shall be forthwith paid over to the Trustee as
Security Collateral in the same form as so received (with any necessary
endorsement).
SECTION 14. AS TO THE ASSIGNED AGREEMENTS. (a) The Company
shall, at its own expense:
(i) perform and observe all the terms and provisions of each
Assigned Agreement to be performed or observed by it, maintain each
such Assigned Agreement in full force and effect on its part, enforce
each such Assigned Agreement in accordance with its terms and take all
such action to such end as may be from time to time reasonably
requested by the Trustee; and
(ii) furnish to the Trustee promptly upon the Trustee's request
therefor copies of all notices, requests and other documents received
by the Company under or pursuant to the Assigned Agreements, and from
time to time (A) furnish to the Trustee such information and reports
regarding the Collateral as the Trustee may reasonably request and (B)
upon request of the Trustee make to each other party to any Assigned
Agreement such demands and
-29-
requests for information and reports or for action as the Company is
entitled to make thereunder.
(b) Except as otherwise expressly permitted pursuant to the
Indenture, the Company shall not cancel or terminate, or consent or accept any
cancellation or termination of, any Assigned Agreement, or enter into any
amendment to any Assigned Agreement to which it is a party, or grant any consent
or waiver from any of the terms thereof, except amendments, waivers or consents
for certain specified purposes, including, among other things, (i) curing
ambiguities, defects or inconsistencies, (ii) making any change that does not
adversely affect the rights of any Holder or (iii) mortgaging, pledging or
granting a security interest in favor of the Company as additional security for
the payment and performance of the Secured Obligations in any property or assets
(including any additional collateral that is required to be mortgaged, pledged
or hypothecated, or in which a security interest is required to be granted,
pursuant to such Assigned Agreement or otherwise).
SECTION 15. PAYMENTS UNDER THE ASSIGNED AGREEMENTS.
Notwithstanding that all payments under the Assigned Agreements shall be made in
accordance with their terms so long as no Event of Default has occurred and is
continuing, the Company agrees, and has effectively so instructed each other
party to each Assigned Agreement that, upon the occurrence and during
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the continuation of an Event of Default, all payments due or to become due under
or in connection with such Assigned Agreement shall be received in trust for the
benefit of the Trustee hereunder, shall be segregated from other property and
funds of the Company and shall be forthwith paid over to the Trustee in the same
form as so received (with any necessary indorsement) to be deposited in the
Collateral Account and, thereafter, applied by the Trustee in accordance with
Section 20(b) hereof.
SECTION 16. TRANSFERS AND OTHER LIENS; PLEDGED SHARES. (a)
Except as otherwise expressly permitted pursuant to the Indenture, the Company
shall not (i) sell, assign (by operation of law or otherwise) or otherwise
dispose of, or grant any option with respect to, any of the Collateral, or (ii)
create or suffer to exist any Lien upon or with respect to any of the
Collateral, except for the pledge, assignment and security interest created by
this Agreement and Permitted Liens.
(b) The Company shall (i) cause each of its Restricted
Subsidiaries not to issue any stock or other equity securities, except to the
Company or as otherwise permitted under the Indenture, and (ii) pledge
hereunder, immediately upon its acquisition (directly or indirectly) thereof,
any and all shares of stock or other equity securities of each of its
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Subsidiaries or any other Person to the Trustee, except as otherwise permitted
under the Indenture.
SECTION 17. TRUSTEE APPOINTED ATTORNEY-IN-FACT. The Company
hereby irrevocably appoints the Trustee its attorney-in-fact, with full
authority in the place and stead of the Company and in the name of the Company
or otherwise, from time to time, to take any action and to execute any
instrument necessary to accomplish the purposes of this Agreement (subsequent to
an Event of Default subject to the rights of the Company under Section 12
hereof), including, without limitation:
(a) to obtain and adjust insurance required to be paid to the
Trustee pursuant to Section 11 hereof,
(b) to ask for, demand, collect, xxx for, recover, compromise
(on reasonable terms), receive and give acquittance and receipts for
moneys due and to become due under or in respect of any of the
Collateral,
(c) to receive, indorse and collect any drafts or other
instruments, documents and chattel paper, in connection with clause (a)
or (b) above, and
(d) to file any claims or take any action or institute any
proceedings necessary for the collection of
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any of the Collateral or otherwise to enforce compliance with the terms
and conditions of any Assigned Agreement or any other agreements that
are part of the Collateral, or the rights of the Trustee with respect
to any of the Collateral.
SECTION 18. TRUSTEE MAY PERFORM. If the Company fails to
perform any agreement contained herein, the Trustee may itself perform, or cause
performance of, such agreement, and the expenses of the Trustee incurred in
connection therewith shall be payable by the Company under Section 23(b) hereof.
SECTION 19. THE TRUSTEE'S DUTIES. The powers conferred on the
Trustee 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 safe
custody of any Collateral in its possession and the accounting for moneys
actually received by it hereunder, the Trustee shall have no duty as to any
Collateral, as to ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any
Security Collateral, whether or not the Trustee or any Holder has or is deemed
to have knowledge of such matters, or as to the taking of any necessary steps to
preserve rights against any parties or any other rights pertaining to any
Collateral.
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SECTION 20. REMEDIES. If any Event of Default under the
Indenture shall have occurred and be continuing:
(a) The Trustee may exercise in respect of the collateral, in
addition to other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies of a secured party upon
default under the Uniform Commercial Code in effect in the State of
Louisiana at such time (the "LOUISIANA UNIFORM COMMERCIAL CODE")
(whether or not the Louisiana Uniform Commercial Code applies to the
affected collateral) and also may (i) require the Company to, and the
Company hereby agrees that it will at its expense and upon request of
the Trustee forthwith, assemble all or part of the Collateral as
directed by the Trustee and make it available to the Trustee at a place
to be designated by the Trustee that is reasonably convenient to both
parties and (ii) without notice except as specified below, sell the
Collateral or any part thereof in one or more parcels at public or
private sale, at any of the Trustee's offices or elsewhere, for cash,
on credit or for future delivery, and upon such other terms as the
Trustee may deem commercially reasonable. The Company agrees that, to
the extent notice of sale shall be required by law, at least ten days'
notice to the Company of the time and place of any public
-34-
sale or the time after which any private sale is to be made shall
constitute reasonable notification. The Trustee shall not be obligated
to make any sale of Collateral regardless of notice of sale having been
given. The Trustee 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.
(b) Any cash held by the Trustee as Collateral and all cash
proceeds received by the Trustee in respect of any sale of, collection
from, or other realization upon all or any part of the Collateral may
be held by the Trustee as collateral for, and/or then or at any time
thereafter applied (after payment of any amounts payable to the Trustee
pursuant to Section 23(b) hereof), in whole or in part, by the Trustee
for the ratable benefit of the Holders against, all or any part of the
Secured Obligations in such order as is set forth in Section 506 of the
Indenture. Any surplus of such cash or cash proceeds held by the
Trustee and remaining after payment in full of all the Secured
Obligations shall be paid over to the Company or to whomsoever may be
lawfully entitled to receive such surplus.
-35-
(c) The Trustee may exercise any and all rights and remedies
of the Company under or in connection with the Assigned Agreements or
otherwise in respect of the Collateral, including, without limitation,
any and all rights of the Company to demand or otherwise require
payment of any amount under, or performance of any provision of, any
Assigned Agreement.
(d) All payments received by the Company under or in
connection with any Assigned Agreement or otherwise in respect of the
Collateral shall be received in trust for the benefit of the Trustee,
shall be segregated from other property and funds of the Company and
shall be forthwith paid over to the Trustee in the same form as so
received (with any necessary indorsement).
(e) The Trustee may, without notice to the Company except as
required by law and at any time or from time to time, charge, set off
and otherwise apply all or any part of the Secured Obligations against
the Collateral Account or any part thereof.
(f) The following provisions shall apply if the remedies
indicated are governed by the laws of Louisiana. The Trustee shall have
the right to cause the Collateral to be seized and sold under Louisiana
executory or
-36-
ordinary process, at the Trustee's sole option, without appraisement,
appraisement being hereby expressly waived, as an entirety or in
portions as the Trustee may determine, to the highest bidder for cash,
and otherwise exercise the rights, powers and remedies afforded herein
and under applicable Louisiana law. For purposes of Louisiana executory
process procedures, the Company acknowledges the Secured Obligations
and does hereby confess judgment in favor of the Trustee and the
Holders for the full amount of the Secured Obligations. Any and all
declarations of fact made by authentic act before a notary public in
the presence of two witnesses by a person declaring that such facts lie
within his knowledge shall constitute authentic evidence of such facts
for the purpose of executory process. The Company hereby waives: (a)
the benefit of appraisement as provided in Louisiana Code of Civil
Procedure Articles 2332, 2336, 2723 and 2724, and all other laws
conferring the same; (b) the demand and three days' delay accorded by
Louisiana Code of Civil Procedure Articles 2639 and 2721; (c) the
notice of seizure required by Louisiana Code of Civil Procedure
Articles 2293 and 2721; (d) the three days' delay provided by Louisiana
Code of Civil Procedure Articles 2331 and 2722; and (e) the benefit of
the other provisions of Louisiana Code of Civil Procedure Articles
2331, 2722 and
-37-
2723, not specifically mentioned above. In the event the Collateral or
any part thereof is seized as an incident to an action for the
recognition or enforcement of this Agreement by executory process,
ordinary process, sequestration, writ of fieri facias, or otherwise,
the Company and the Trustee agree that the court issuing any such order
shall, if petitioned for by the Trustee, direct the applicable sheriff
to appoint as a keeper of the Collateral, the Trustee or any agent
designated by the Trustee or any person named by the Trustee at the
time such seizure is effected. This designation is pursuant to
Louisiana Revised Statutes 9:5136-9:5140.2 and the Trustee shall be
entitled to all the rights and benefits afforded thereunder as the same
may be amended. The designation of keeper made herein shall not be
deemed to require the Trustee to provoke the appointment of such a
keeper.
SECTION 21. REGISTRATION RIGHTS. If the Trustee shall
determine to exercise its right to sell all or any of the Security Collateral
pursuant to Section 20 hereof, the Company agrees that, upon request of the
Trustee, it will, at its own expense:
(a) execute and deliver, and cause each issuer of the Security
Collateral contemplated to be sold and the directors and officers
thereof to execute and deliver, all
-38-
such instruments and documents, and do or cause to be done all such
other acts and things, as may be necessary to: (i) register such
Security Collateral under the provisions of the Securities Act of 1933,
as from time to time amended (the "SECURITIES ACT"), (ii) cause the
registration statement relating thereto to become effective and to
remain effective for such period as prospectuses are required by law to
be furnished and (iii) make all amendments and supplements thereto and
to the related prospectus that are necessary or advisable, all in
conformity with the requirements of the Securities Act and the rules
and regulations of the Commission applicable thereto;
(b) use its best efforts to qualify the Security Collateral
under the state securities or "blue sky" laws and to obtain all
necessary governmental approvals for the sale of the Security
Collateral, as requested by the Trustee;
(c) cause each such issuer to make available to its security
holders, as soon as practicable, an earnings statement that will
satisfy the provisions of Section 11(a) of the Securities Act and the
rules and regulations thereunder;
-39-
(d) provide the Trustee with such other information and
projections as may be reasonably necessary or advisable to enable the
Trustee to effect the sale of such Security Collateral; and
(e) do or cause to be done all such other acts and things as
may be necessary to make such sale of the Security Collateral or any
part thereof valid and binding and in compliance with applicable law.
The Trustee is authorized, in connection with any sale of the Security
Collateral pursuant to Section 20 hereof, to deliver or otherwise disclose to
any prospective purchaser of the Security Collateral (i) any registration
statement or prospectus, and all supplements and amendments thereto, prepared
pursuant to clause (a) above, (ii) any information and projections provided to
it pursuant to clause (d) above and (iii) any other material information in its
possession relating to the Security Collateral.
The Company acknowledges the impossibility of ascertaining the
amount of damages that would be suffered by the Trustee or the Holders by reason
of the failure by the Company to perform any of the covenants contained in this
Section 21 and, consequently, agrees that, if the Company shall fail to perform
any of such covenants, it shall pay, as
-40-
liquidated damages and not as a penalty, an amount equal to the value of the
Security Collateral on the date the Trustee shall demand compliance with this
Section 21.
SECTION 22. REGULATORY MATTERS. (a) The Company shall take,
and shall cause each issuer of any of the Pledged Shares to take, all action
that the Trustee may request in the exercise of its rights and remedies
hereunder, which includes the right to require the Company or any issuer of any
of the Pledged Shares to transfer or assign the Pledged Shares to any party or
parties. In furtherance of this right, the Company shall, and shall cause each
issuer of the Pledged Shares, (i) to cooperate fully with the Trustee in
obtaining all approvals and consents from each Governmental Authority that the
Trustee may deem necessary or advisable to accomplish any such transfer or
assignment of any part of the Pledged Shares and (ii) to prepare, execute and
file with any Governmental Authority any application, request for consent,
certificate or instrument that the Trustee may deem necessary or advisable to
accomplish any such transfer or assignment of any part of the Pledged Shares;
PROVIDED, HOWEVER, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not otherwise so
subject. If the Company fails to execute, or fails to cause
-41-
each issuer or owner of the Pledged Shares to execute, such applications,
requests for consent, certificates or instruments, the clerk of any court that
has jurisdiction over the Security Documents may execute and file the same on
behalf of the Company.
(b) To enforce the provisions of this Section 22, the Trustee
is authorized to request the consent or approval of any Governmental Authority
to a voluntary or an involuntary transfer of control of any issuer of any of the
Pledged Shares. In connection with the exercise of its remedies under this
Agreement, the Trustee may obtain the appointment of a trustee or receiver to
assume, upon receipt of all necessary judicial or other Governmental Authority
consents or approvals, control of any issuer of any of the Pledged Shares. Such
trustee or receiver shall have all rights and powers provided to it by law or by
court order or provided to the Trustee under this Agreement.
(c) Notwithstanding anything to the contrary contained in this
Agreement:
(i) the Trustee will not take any action hereunder that would
constitute or result in any transfer of control of any issuer of any of
the Pledged Shares without obtaining all necessary Governmental
Authority approvals;
-42-
PROVIDED that the Trustee and the Holders shall be entitled to rely on
the advice of regulatory counsel selected by the Trustee to determine
whether approvals of any Governmental Authority are required; and
(ii) the Trustee shall not foreclose on, sell, transfer or
otherwise dispose of, or exercise any right to vote or consent with
respect to, any of the Pledged Shares as provided herein or take any
other action that would affect the operational, voting or other control
of the issuer of any Pledged Shares, unless such action is taken in
accordance with the applicable provisions of the Gaming Laws; PROVIDED
that the Trustee and the Holders shall be entitled to rely on the
advice of regulatory counsel selected by the Trustee to determine
compliance with applicable provision of the Gaming Laws.
(d) The Company acknowledges that the approval of each
appropriate Governmental Authority to the transfer of control of an issuer of
Pledged Shares may be required, that the ownership thereof is integral to the
Trustee's realization of the value of such Pledged Shares, that there is no
adequate remedy at law for failure by the Company to comply with the provisions
of this Section 22 and that such failure could not be adequately compensable in
damages and, therefore, the
-43-
Company agrees that the provisions of this Section 22 may be specifically
enforced.
SECTION 23. INDEMNITY AND EXPENSES. (a) The Company agrees to
indemnify the Trustee from and against any and all claims, losses and
liabilities growing out of or resulting from this Agreement (including, without
limitation, enforcement of this Agreement), except claims, losses or liabilities
resulting from the Trustee's gross negligence or bad faith as determined by a
final judgment of a court of competent jurisdiction. The indemnification of the
Trustee set forth in the immediately preceding sentence is cumulative and not
exclusive of any indemnity of the Trustee set forth in the Indenture or provided
for under the TIA.
(b) The Company will pay upon demand to the Trustee the amount
of any and all reasonable expenses, including the reasonable fees and expenses
of its counsel and of any experts and agents, that the Trustee may incur in
connection with (i) the administration of this Agreement, (ii) the custody,
preservation, use or operation of, or the sale of, collection from or other
realization upon, any of the Collateral, (iii) the exercise or enforcement of
any of the rights of the Trustee or the Holders hereunder or (iv) the failure by
the Company to perform or observe any of the provisions hereof, and all
-44-
amounts so incurred by the Trustee shall be entitled to the benefits of Section
606 of the Indenture.
SECTION 24. SECURITY INTEREST ABSOLUTE. The obligations of any
Collateral Grantor under this Agreement are independent of the Secured
Obligations, and a separate action or actions may be brought and prosecuted
against any Collateral Grantor to enforce this Agreement irrespective of whether
any action is brought against the Company or whether the Company is joined in
any such action or actions. All rights of the Trustee and the pledge, assignment
and security interest hereunder, and all obligations of each Collateral Grantor
hereunder, shall be absolute and unconditional, irrespective of:
(a) any lack of validity or enforceability of the Indenture or
any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Secured Obligations or any
other amendment or waiver of or any consent to any departure from the
Indenture, including, without limitation, any increase in the Secured
Obligations resulting from the issuance of additional
-45-
Notes by the Company or any of its subsidiaries or otherwise;
(c) any taking, exchange, release or nonperfection of any
other collateral, or any taking, release or amendment or waiver of or
consent to departure from any guaranty, for all or any of the Secured
Obligations;
(d) any manner of application of Collateral, or proceeds
thereof, to all or any of the Secured Obligations, or any manner of
sale or other disposition of any collateral for all or any of the
Secured Obligations or any other assets of the Company or any of its
subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of the Company or any of its subsidiaries; or
(f) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Company or a third party
grantor of a security interest.
SECTION 25. AMENDMENTS; WAIVERS; ETC. No amendment or waiver
of any provision of this Agreement, and no consent to any departure by the
Company herefrom, shall in any event be effective unless the same shall be in
writing and signed by the
-46-
Trustee, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. No failure on the part of
the Trustee to exercise, and no delay in exercising any right hereunder, shall
operate as a waiver thereof or consent thereto, nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right.
SECTION 26. ADDRESSES FOR NOTICES. All notices and other
communications provided for hereunder shall be in writing (including telecopier,
telegraphic, telex or cable communication) and, mailed (first class, postage
prepaid), telegraphed, telecopied, telexed, cabled or delivered to the Company
or to the Trustee, as the case may be, addressed to it at its address specified
in the Indenture or below its signature line on the signature pages hereof or,
as to any party, at such other address as shall be designated by such party in a
written notice to each other party complying as to delivery with the terms of
this Section 26. All such notices and other communications shall, when mailed
(first class, postage prepaid), telecopied, telegraphed, telexed or cabled,
respectively, be effective when deposited in the mails, telecopied, delivered to
the telegraph company confirmed by telex answerback or delivered to the cable
company, respectively, addressed as aforesaid.
-47-
SECTION 27. CONTINUING SECURITY INTEREST; ASSIGNMENT UNDER THE
INDENTURE. This Agreement shall create a continuing security interest in the
Collateral and shall (a) remain in full force and effect until the date on which
the Secured Obligations shall have been paid in full and the Indenture shall
have been satisfied and discharged in accordance with Section 401 thereof, (b)
be binding upon the Company, its successors and assigns and (c) inure, together
with the rights and remedies of the Trustee hereunder, to the benefit of the
Trustee, the Holders and their respective successors, transferees and assigns.
Without limiting the generality of the foregoing clause (c), any Holder may
assign or otherwise transfer all or any portion of its rights and obligations
under the Notes held by it to any other Person, and such other Person shall
thereupon become vested with all the benefits in respect thereof granted to such
Holder herein or otherwise.
SECTION 28. RELEASE AND TERMINATION. (a) On the date on which
the Secured Obligations shall have been paid in full and the Indenture shall
have been satisfied and discharged in accordance with Section 401 thereof, the
pledge, assignment and security interest granted hereby shall terminate and all
rights to the Collateral shall revert to the Company. Upon any such termination,
the Trustee, at the Company's expense, will return to the Company such of the
Collateral in its possession
-48-
as shall not have been sold, transferred or otherwise applied pursuant to the
terms of the Notes, the Indenture and the Security Documents, and will execute
and deliver to the Company such documents prepared by the Company and delivered
to the Trustee as the Company shall reasonably request to evidence such
termination.
(b) Upon satisfaction of the applicable conditions set forth
in Article 12 of the Indenture, the Trustee will take the applicable action
specified therein regarding the release of any Collateral.
SECTION 29. GAMING LAWS. Each of the provisions of this
Agreement is subject to and shall be enforced in compliance with, the provisions
of the Gaming Laws.
SECTION 30. THE MORTGAGES. In the event that any of the
Collateral hereunder is also subject to a valid and enforceable Lien under the
terms of any Mortgage and the terms of such Mortgage are inconsistent with the
terms of this Agreement, then with respect to such Collateral, the terms of such
Mortgage shall be controlling in the case of fixtures and leases, letting and
licenses of, and contracts and agreements relating to real property or leases of
real property, and the terms of this Agreement shall be controlling in the case
of all other Collateral.
-49-
SECTION 31. GOVERNING LAW; TERMS. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of
Louisiana, except to the extent that the validity or perfection of the security
interest hereunder, or remedies hereunder, in respect of any particular
Collateral are governed by the laws of a jurisdiction other than the State of
Louisiana. Unless otherwise defined herein or in the Indenture, terms used in
Article 9 of the Uniform Commercial Code adopted by the State of Louisiana are
used herein as therein defined.
SECTION 32. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page of this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
-50-
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their
-51-
officers thereunto duly authorized as of the date first above written.
LOUISIANA CASINO CRUISES, INC.
By:
---------------------------------------------
Name: Xxx X. Xxxxxxx
Title: President
Address: 0000 Xxxxx Xxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
U.S. BANK TRUST NATIONAL ASSOCIATION
By:
---------------------------------------------
Name:
Title:
Address: 000 Xxxx 0xx Xxxxxx
Xx. Xxxx Xxxxxxxxx 00000
Attention: Corporate Trust Administration
