EXHIBIT 4.4
SECURITY AGREEMENT
(Partnership)
Made by
HOLLYWOOD CASINO SHREVEPORT,
as Debtor
to
STATE STREET BANK AND TRUST COMPANY,
as Trustee and Secured Party
Acting on behalf of the Holders of the Notes
August 10, 1999
SECURITY AGREEMENT
------------------
(Partnership)
THIS SECURITY AGREEMENT (this "Agreement") is made as of August 10,
1999, by HOLLYWOOD CASINO SHREVEPORT, a Louisiana general partnership (the
"Debtor"), in favor of STATE STREET BANK AND TRUST COMPANY, a Massachusetts
trust company, as Trustee acting on behalf of the Holders of the Notes under the
Indenture (the "Secured Party").
W I T N E S S E T H:
A. Debtor, Shreveport Capital Corporation, a Louisiana corporation
("Shreveport Capital," and together with the Debtor, the "Issuers"), HCS I,
Inc., a Louisiana corporation, HCS II, Inc., a Louisiana corporation, and HWCC-
Louisiana, Inc., a Louisiana corporation, each as a Guarantor, have entered into
an Indenture dated as of the date hereof (as amended, supplemented, restated or
otherwise modified from time to time, the "Indenture") with the Trustee,
pursuant to which the Issuers will issue up to $150,000,000 of their 13% First
Mortgage Notes due 2006 with Contingent Interest (as the same may be amended,
supplemented, restated, exchanged, replaced or otherwise modified from time to
time, collectively, the "Notes").
B. It is a condition precedent to the purchase of the Notes under the
Indenture that Debtor shall have executed and delivered this Agreement.
C. Therefore, in order to comply with the terms and conditions of the
Indenture and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Debtor hereby agrees with Secured
Party as follows:
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions. When used herein, (a) the terms Certificated
Security, Chattel Paper, Deposit Account, Document, Equipment, Financial Asset,
Fixture, Goods, Inventory, Instrument, Investment Property, Security, Security
Entitlement and Uncertificated Security have the respective meanings assigned
thereto in the Code (as defined below); (b) capitalized terms which are not
otherwise defined have the respective meanings assigned thereto in the
Indenture; and (c) the following terms have the following meanings (such
definitions to be applicable to both the singular and plural forms of such
terms):
Account Debtor means the party who is obligated on or under any
Account Receivable, Contract Right or General Intangible.
Account Receivable means any right of Debtor to payment for goods sold
or leased or for services rendered.
Code means the Uniform Commercial Code as in effect in the State of
New York on the date of this Agreement; provided that, if by reason of mandatory
provisions of law, the
perfection or the effect of perfection or non-perfection of the security
interests in any Collateral is governed by the Uniform Commercial Code as in
effect in any jurisdiction other than the State of New York, "Code" means the
Uniform Commercial Code as in effect in such other jurisdiction for purposes of
the provisions hereof relating to such perfection or the effect of perfection or
non-perfection.
Collateral means all property and rights of Debtor in which a security
interest is granted hereunder.
Completion Reserve Account means collectively (i) account number
122884-010 established with Securities Intermediary and subject to the Control
Agreement (Completion Reserve Account), and any and all cash, cash equivalents,
Certificated Securities, Documents, Financial Assets, Instruments, Investment
Property, Securities, Securities Entitlements, Uncertificated Securities, and,
to the extent not included in the foregoing, other personal property of any kind
or description deposited in such Completion Reserve Account, and all interest,
dividends or other proceeds therefrom and (ii) any other account established
pursuant to a control agreement on essentially the terms of the Control
Agreement (Completion Reserve Account) to which assets from the account
established in subsection (i) above have been transferred, and any and all cash,
cash equivalents, Certificated Securities, Documents, Financial Assets,
Instruments, Investment Property, Securities, Securities Entitlements,
Uncertificated Securities, and, to the extent not included in the foregoing,
other personal property of any kind or description deposited in such account,
and all interest, dividends or other proceeds therefrom.
Computer Hardware and Software means all of Debtor's rights (including
rights as licensee and lessee) with respect to (i) computer and other electronic
data processing hardware, including all integrated computer systems, central
processing units, memory units, display terminals, printers, computer elements,
card readers, tape drives, hard and soft disk drives, cables, electrical supply
hardware, generators, power equalizers, accessories, peripheral devices and
other related computer hardware; (ii) all software programs designed for use on
the computers and electronic data processing hardware described in clause (i)
above, 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) any firmware
associated with any of the foregoing; and (iv) any documentation for hardware,
software and firmware described in clauses (i), (ii) and (iii) above, including
flow charts, logic diagrams, manuals, specifications, training materials, charts
and pseudo codes.
Construction Disbursement Account means collectively (i) account
number 122884-020 established with Securities Intermediary and subject to the
Control Agreement (Construction Disbursement Account), and any and all cash,
cash equivalents, Certificated Securities, Documents, Financial Assets,
Instruments, Investment Property, Securities, Securities Entitlements,
Uncertificated Securities, and, to the extent not included in the foregoing,
other personal property of any kind or description deposited in such
Construction Disbursement Account, and all interest, dividends or other proceeds
therefrom and (ii) any other account established pursuant to a control agreement
on essentially the terms of the Control Agreement (Construction Disbursement
Account) to which assets from the account established in subsection (i) above
have been transferred, and any and all cash, cash equivalents, Certificated
Securities,
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Documents, Financial Assets, Instruments, Investment Property, Securities,
Securities Entitlements, Uncertificated Securities, and, to the extent not
included in the foregoing, other personal property of any kind or description
deposited in such account, and all interest, dividends or other proceeds
therefrom.
Contract Rights means any rights of Debtor (including, without
limitation, all rights to payment) under each Contract.
Contracts means all contracts or other agreements between Debtor and
one or more additional parties, including, without limitation, all of the
contracts described on Exhibit C attached hereto.
Control Agreement means one or more of the Control Agreement
(Completion Reserve Account), the Control Agreement (Construction Disbursement
Account), the Control Agreement (Interest Reserve Account), or the Control
Agreement (Segregated Account).
Control Agreement (Completion Reserve Account) means that certain
Control Agreement (Completion Reserve Account) dated as of August 10, 1999 by
and among Securities Intermediary, Debtor and Secured Party.
Control Agreement (Construction Disbursement Account) means that
certain Control Agreement (Construction Disbursement Account) dated as of August
10, 1999 by and among Securities Intermediary, Debtor and Secured Party.
Control Agreement (Interest Reserve Account) means that certain
Control Agreement (Interest Reserve Account) dated as of August 10, 1999 by and
among Securities Intermediary, Debtor and Secured Party.
Control Agreement (Segregated Account) means that certain Control
Agreement (Segregated Account) dated as of August 10, 1999 by and among
Securities Intermediary, Debtor and Secured Party.
Event of Default has the meaning set forth in Section 6.01 hereof.
Excluded Collateral means (i) all such items of personal property (of
the type in which a security interest can be perfected pursuant to Article 9 of
the Code) constituting furniture, fixtures or equipment of the Debtor the
acquisition of which has been financed pursuant to the FF&E Financing, which
items shall constitute "Excluded Collateral" for so long as such items are
subject to a lien in favor of the lender or lenders (or one or more agents
therefor) providing such FF&E Financing, and (ii) the Equity Escrow Account.
General Intangibles means all of Debtor's "general intangibles" as
defined in the Code and, in any event, includes (without limitation) all of
Debtor's trademarks and goodwill of the business relating thereto, trade names,
patents, copyrights, trade secrets, customer lists, inventions, designs,
software programs, mask works, registrations, licenses, franchises, tax refund
claims, guarantee claims, security interests, rights to indemnification, all
contractual rights and obligations or indebtedness owing to Debtor from whatever
source arising, all things in
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action, rights represented by judgments, claims arising out of tort and other
claims relating to the Collateral (including the right to assert and otherwise
be the proper party of interest to commence and prosecute actions), and all
rights in respect of any pension plan or similar arrangement maintained for
employees of Debtor.
Intellectual Property means all past, present and future: trade
secrets and other proprietary information; trademarks, service marks, business
names, designs, logos, indicia and other source and/or business identifiers, and
the goodwill of the business relating thereto and all registrations or
applications for registrations which have heretofore been or may hereafter be
issued thereon throughout the world; copyrights (including copyrights for
computer programs) and copyright registrations or applications for registrations
which have heretofore been or may hereafter be issued throughout the world and
all tangible property embodying the copyrights; unpatented inventions (whether
or not patentable); patent applications and patents; industrial designs,
industrial design applications and registered industrial designs; license
agreements related to any of the foregoing and income therefrom; books, records,
writings, computer tapes or disks, flow diagrams, specification sheets, source
codes, object codes and other physical manifestations, embodiments or
incorporations of any of the foregoing; the right to xxx for all past, present
and future infringements of any of the foregoing; and all common law and other
rights throughout the world in and to all of the foregoing.
Interest Reserve Account means collectively (i) account number 122884-
030 established with Securities Intermediary and subject to the Control
Agreement (Interest Reserve Account), and any and all cash, cash equivalents,
Certificated Securities, Documents, Financial Assets, Instruments, Investment
Property, Securities, Securities Entitlements, Uncertificated Securities, and,
to the extent not included in the foregoing, other personal property of any kind
or description deposited in such Interest Reserve Account, and all interest,
dividends or other proceeds therefrom and (ii) any other account established
pursuant to a control agreement on essentially the terms of the Control
Agreement (Interest Reserve Account) to which assets from the account
established in subsection (i) above have been transferred, and any and all cash,
cash equivalents, Certificated Securities, Documents, Financial Assets,
Instruments, Investment Property, Securities, Securities Entitlements,
Uncertificated Securities, and, to the extent not included in the foregoing,
other personal property of any kind or description deposited in such account,
and all interest, dividends or other proceeds therefrom.
Non-Tangible Collateral means collectively, Debtor's Accounts
Receivable, Contract Rights and General Intangibles.
Obligations means (i) the payment when due of indebtedness evidenced
by the Notes in the principal sum not to exceed at any time outstanding of
$150,000,000, interest (including post-petition interest) as set forth in the
Indenture and the Notes, and premiums, penalties, and late charges thereon; (ii)
all other indebtedness and other sums (including, without limitation, all
expenses, attorneys' fees, other fees, indemnifications, reimbursements,
damages, other monetary liabilities, and other charges) and obligations that may
or shall become due hereunder or under the Notes, the Guarantees, the Indenture
or the other Collateral Documents; and (iii) any and all renewals,
modifications, amendments, extensions for any period, supplements or
restatements of any of the foregoing.
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Obligor means any Person, other than Debtor, liable (whether directly
or indirectly, primarily or secondarily) for the payment or performance of any
of the Obligations whether as maker, co-maker, endorser, guarantor,
accommodation party, general partner or otherwise.
Securities Intermediary means State Street Bank and Trust Company, a
Massachusetts chartered trust company, or its successor under a Control
Agreement with respect to the Completion Reserve Account, the Construction
Disbursement Account and the Interest Reserve Account, and Xxxxx Fargo & Company
or its successor under a Control Agreement with respect to the Segregated
Account.
Segregated Account means collectively (i) account numbers 4296917578
and 11514320 established with Securities Intermediary and subject to the Control
Agreement (Segregated Account), and any and all cash, cash equivalents,
Certificated Securities, Documents, Financial Assets, Instruments, Investment
Property, Securities, Securities Entitlements, Uncertificated Securities, and,
to the extent not included in the foregoing, other personal property of any kind
or description deposited in such Segregated Account, and all interest, dividends
or other proceeds therefrom and (ii) any other account established pursuant to a
control agreement on essentially the terms of the Control Agreement (Segregated
Account) to which assets from the account established in subsection (i) above
have been transferred, and any and all cash, cash equivalents, Certificated
Securities, Documents, Financial Assets, Instruments, Investment Property,
Securities, Securities Entitlements, Uncertificated Securities, and, to the
extent not included in the foregoing, other personal property of any kind or
description deposited in such account, and all interest, dividends or other
proceeds therefrom.
Vessel means any vessel owned by Debtor, whether now owned or acquired
or delivered to Debtor in the future, whether or not such Vessel is a vessel
within the meaning of 46 U.S.C. (S) 31322(a), and all rights of the Debtor
therein, including all equipment, parts and accessories, including, but not
limited to, all of its boilers, engines, generators, air compressors, machinery,
masts, spars, sails, riggings, boats, anchors, cables, chains, tackle, tools,
pumps and pumping equipment, motors, apparel, furniture, computer equipment,
electronic equipment used in connection with the operation of the Vessel and
belonging to the Vessel, all machinery, equipment, engines, appliances and
fixtures for generating or distributing air, water, heat, electricity, light,
fuel or refrigeration, or for ventilating or sanitary purposes, fittings and
equipment, supplies, spare parts, fuel, and all other appurtenances thereunto
appertaining or belonging, whether now owned or hereafter acquired, whether or
not on board said Vessel, and all extensions, additions, accessions,
improvements, renewals, substitutions, and replacements hereafter made in or to
said Vessel or any part thereof, or in or to any said appurtenances.
ARTICLE 2
SECURITY INTEREST
Section 2.01 Grant of Security Interest. As security for the prompt
and complete payment and performance of the Obligations, Debtor grants to
Secured Party a continuing security interest in, Lien upon, and right of set-off
against the following, whether now or hereafter existing or acquired:
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All of Debtor's right, title and interest in, to and under the
following:
(i) Accounts Receivable;
(ii) Certificated Securities;
(iii) Chattel Paper;
(iv) 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 ;
(v) all Contracts, together with all Contract Rights arising
thereunder;
(vi) Deposit Accounts;
(vii) Documents;
(viii) Financial Assets;
(ix) General Intangibles;
(x) Goods (including all of its Equipment, Fixtures and Inventory)
and all accessions, additions, attachments, improvements,
substitutions and replacements thereto and therefor;
(xi) Instruments;
(xii) Intellectual Property;
(xiii) Investment Property;
(xiv) money (of every jurisdiction whatsoever);
(xv) Security Entitlements;
(xvi) Uncertificated Securities;
(xvii) the Construction Disbursement Account, the Completion Reserve
Account, the Interest Reserve Account and the Segregated
Account;
(xviii) the Vessel; and
(xix) to the extent not included in the foregoing, other personal
property of any kind or description;
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together with all books, records, writings, data bases, information
and other property relating to, used or useful in connection with, or
evidencing, embodying, incorporating or referring to any of the
foregoing, and all proceeds, products, offspring, rents, issues,
profits and returns of and from any of the foregoing; provided that to
the extent that the provisions of any lease or license of Computer
Hardware and Software or Intellectual Property expressly prohibit
(which prohibition is enforceable under applicable law) the grant of a
security interest therein, Debtor's rights in such lease or license
shall be excluded from the foregoing grant for so long as such
prohibition continues, it being understood that upon request of the
Trustee, Debtor will in good faith use reasonable efforts to obtain
consent for the creation of a security interest in favor of the
Trustee in Debtor's rights under such lease or license.
Notwithstanding the foregoing provisions of this Section 2.01, such
grant of security interest shall not extend to, and the term
"Collateral" shall not include (i) any of the Excluded Collateral, and
(ii) any of the foregoing property that is, pursuant to restrictions
enforceable under applicable law, prohibited from being pledged as
security; provided that, with respect to this clause (ii), upon the
termination of such prohibitions for any reason whatsoever or in the
event such prohibitions are or become unenforceable under applicable
law, such foregoing property shall automatically become Collateral
hereunder and, provided further, that upon request of the Trustee,
Debtor will in good faith use reasonable efforts to obtain consent for
the creation of a security interest in favor of the Trustee in
Debtor's rights under such lease or license. Notwithstanding the
foregoing, so long as no Event of Default shall have occurred and be
continuing, all dividends, distributions, interest and principal
payments, cash, instruments, and other property and proceeds made upon
or with respect to or of the Collateral may be used by such Debtor
subject to the terms and conditions of the Indenture. Upon the
occurrence and during the continuance of an Event of Default, all
rights of such Debtor to receive all such dividends, distributions,
interest and principal payments, cash, instruments and other property
and proceeds shall cease, and such dividends, distributions, interest
and principal payments, cash, instruments and other property and
proceeds shall be paid or otherwise delivered to the Secured Party.
It is expressly contemplated that additional property may from time to
time be pledged, assigned or granted to Secured Party as additional
security for the Obligations, and the term "Collateral" as used herein
shall be deemed for all purposes hereof to include all such additional
property, together with all other property of the types described
above related thereto.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES
In order to induce Secured Party to accept this Agreement, Debtor
represents and warrants to Secured Party (which representations and warranties
will survive the creation and payment of the Obligations) that:
Section 3.01 Ownership of Collateral; Absence of Encumbrances and
Restrictions. After giving effect to the use of the proceeds of the Notes,
Debtor is, and in the case of property acquired after the date hereof, will be,
the sole legal and beneficial owner of the Collateral holding good and
indefeasible title to the same, free and clear of all Liens except for Permitted
Liens and Debtor has full right, power and authority to assign and grant a
security interest in the Collateral to Secured Party.
Section 3.02 No Required Consent. Except for such authorizations,
consents or approvals previously obtained and in effect, no authorization,
consent, approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body (other than the filing of financing
statements and the other documents required to perfect or maintain the
perfection of the Liens granted hereby) is required for (i) the due execution,
delivery and performance by Debtor of this Agreement, (ii) the grant by Debtor
of the security interest granted by this Agreement, (iii) the perfection of such
security interest or (iv) the exercise by Secured Party of its rights and
remedies under this Agreement, except as may be required by applicable gaming
laws or in connection with the disposition of Collateral or by federal or state
securities laws or antitrust laws.
Section 3.03 Security Interest. After giving effect to the use of
proceeds of the Notes, the grant of the security interest in and Lien on the
Collateral pursuant to this Agreement creates a valid and continuing security
interest in and Lien on the Collateral, enforceable against Debtor, and, upon
the filing of financing statements in the appropriate office for the locations
of the Collateral listed on Exhibit A hereof, the security interests granted
hereby will be perfected, prior to all other Liens except Permitted Liens,
enforceable against third parties and securing payment of the Obligations.
Section 3.04 No Filings By Third Parties. After giving effect to the
use of proceeds of the Notes, and other than any financing statement or other
public notice or recording naming Secured Party as the secured party therein or
financing statements with respect to Permitted Liens, no financing statement or
other public notice or recording covering the Collateral is on file in any
public office and Debtor has not signed any document or agreement authorizing
the filing of any such financing statement or other public notice or recording
so long as any of the Obligations are outstanding.
Section 3.05 Name; No Name Changes. The name of the Debtor set forth
on Exhibit A hereto is the true and correct legal name of the Debtor, and,
except as described on Exhibit A hereto, Debtor has not, during the preceding
five (5) years, entered into any contract, agreement, security instrument or
other document using a name other than, or been known by or otherwise used any
name other than, the name used by Debtor herein.
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Section 3.06 Location of Debtor and Collateral; Intellectual Property.
Debtor's chief executive office, principal place of business and the locations
of Debtor's records concerning the Collateral are set forth on Exhibit A hereto.
Any Collateral not at such location(s) nevertheless remains subject to Secured
Party's security interest. Except as disclosed on Exhibit A hereto, all tangible
Collateral of Debtor are located at the locations set forth on Exhibit A hereto.
Exhibit B hereto contains a true, correct and complete listing of all of
Debtor's Intellectual Property which have been registered or for which
applications for registration are pending.
Section 3.07 Collateral. All statements or other information provided
by Debtor to Secured Party describing or with respect to the Collateral is (or,
in the case of subsequently furnished information, will be when provided)
correct and complete in all material respects. The delivery at any time by
Debtor to Secured Party of additional descriptions of Collateral shall
constitute a representation and warranty by Debtor to Secured Party hereunder
that the representations and warranties of this Article 3 are correct in all
material respects insofar as they would pertain to such Collateral or the
descriptions thereof, except as indicated therein.
Section 3.08 Delivery of Documents. With respect to any Collateral
covered by one or more certificates of title or other documents of title
evidencing ownership or possession thereof, each of such certificates or
documents of title shall, after the occurrence and during the continuance of an
Event of Default and upon the request of the Secured Party, be delivered to
Secured Party (provided that all certificates of title and documents of title
referred to in Article 2 hereof shall be subject to the security interest
created by this Agreement irrespective of whether or not such delivery shall
have been made).
Section 3.09 Taxpayer Identification Number. The federal taxpayer
identification number of Debtor is set forth on Exhibit A hereto.
ARTICLE 4
COVENANTS AND AGREEMENTS
Debtor will at all times comply with the covenants and agreements
contained in this Article 4, from the date hereof and for so long as any part of
the Obligations are outstanding.
Section 4.01 Change in Location of Collateral or Debtor. Except with
respect to Collateral under repair or temporarily in transit between locations
(and in any such case, for a period not to exceed four (4) months), Debtor will
not change the location of the Collateral (except for (a) Collateral held by the
Trustee, (b) motor vehicles and rolling stock, and (c) Collateral temporarily in
transit between locations) to any state, county or other jurisdiction in which
Secured Party has not already filed a financing statement or taken other
necessary steps to perfect or maintain its security interests in the Collateral
without Secured Party's prior written consent and the delivery of such new
financing statements or other documentation as may be reasonably necessary or
required by Secured Party to ensure the continued perfection and priority of its
security interest in the Collateral. Debtor will not change the location of
Debtor's chief executive office, principal place of business or the locations of
Debtor's records concerning the Collateral unless Debtor shall have given
Secured Party at least thirty (30) days prior written notice thereof and shall
have delivered to Secured Party such new financing statements or other
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documentation as may be reasonably necessary or required by Secured Party to
ensure the continued perfection and priority of its security interest in the
Collateral.
Section 4.02 Change in Debtor's Name or Corporate Structure. Debtor
will not change its name, identity or corporate structure (including, without
limitation, any merger, consolidation or sale of substantially all of its
assets) unless Debtor shall have given Secured Party at least thirty (30) days
prior written notice thereof and shall have delivered to Secured Party such new
financing statements or other documentation as may be reasonably necessary or
required by Secured Party to ensure the continued perfection and priority of its
security interest on the Collateral.
Section 4.03 Documents; Collateral in Possession of Third Parties. If
certificates of title or other documents evidencing ownership or possession of
the Collateral are issued or outstanding, Debtor will, after the occurrence and
during the continuance of an Event of Default and upon the request of the
Secured Party, cause the interest of Secured Party to be properly noted thereon
and will, forthwith upon receipt, deliver same to Secured Party. If any material
portion of the Collateral is at any time in the possession or control of any
warehouseman, bailee, agent or independent contractor, Debtor shall notify such
Person of Secured Party's security interest in such Collateral. Upon Secured
Party's request, Debtor shall instruct any such Person to hold all such
Collateral for Secured Party's account subject to Debtor's instructions, or, if
an Event of Default shall have occurred, subject to Secured Party's
instructions.
Section 4.04 Delivery of Letters of Credit and Instruments. After the
occurrence and during the continuance of an Event of Default and upon the
request of the Secured Party, Debtor will deliver each letter of credit, if any,
included in the Collateral to Secured Party, in each case forthwith upon receipt
by or for the account of Debtor. After the occurrence and during the continuance
of an Event of Default and upon the request of the Secured Party, if any Non-
Tangible Collateral becomes evidenced by a promissory note, trade acceptance or
any other instrument for the payment of money (other than checks or drafts in
payment of Non-Tangible Collateral collected by Debtor in the ordinary course of
business prior to notification by Secured Party under Section 6.02(g)), Debtor
will immediately deliver such instrument to Secured Party appropriately endorsed
and, regardless of the form of presentment, demand, notice of dishonor, protest
and notice of protest with respect thereto, Debtor will remain liable thereon
until such instrument is paid in full.
Section 4.05 Sale, Disposition or Encumbrance of Collateral. Except as
permitted pursuant to the provisions of the Indenture and by Section 4.09 of
this Agreement or with Secured Party's prior written consent, Debtor will not in
any way encumber any of the Collateral (or permit or suffer any of the
Collateral to be encumbered) or sell, assign, lend, rent, lease or otherwise
dispose of or transfer any of the Collateral to or in favor of any Person other
than Secured Party.
Section 4.06 Records and Information. Debtor shall keep accurate and
complete records of the Collateral (including proceeds). Secured Party may at
any time upon reasonable prior notice have access during normal business hours
to examine, audit, make extracts from and inspect without hindrance or delay
Debtor's records, files and the Collateral. Debtor will
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promptly provide written notice to Secured Party of all information which in any
way relates to or affects the filing of any financing statement or other public
notices or recordings, or the delivery and possession of items of Collateral,
for the purpose of perfecting a security interest in the Collateral. Debtor will
also promptly furnish such information as Secured Party may from time to time
reasonably request regarding the Collateral or Secured Party's rights or
remedies with respect thereto.
Section 4.07 Reimbursement of Expenses. Debtor hereby assumes all
liability for the Collateral, the security interests created hereunder and any
use, possession, maintenance, management, enforcement or collection of any or
all of the Collateral. Debtor agrees to indemnify and hold Secured Party
harmless from and against and covenants to defend Secured Party against any and
all losses, damages, claims, costs, penalties, liabilities and expenses,
including, without limitation, court costs and reasonable attorneys' fees,
incurred because of, incident to, or with respect to the Collateral (including,
without limitation, any use, possession, maintenance or management thereof, or
any injuries to or deaths of Persons or damage to property, except to the extent
caused by the gross negligence or willful misconduct of the Secured Party). All
amounts for which Debtor is liable pursuant to this Section 4.07 shall be due
and payable by Debtor to Secured Party upon demand. If Debtor fails to make such
payment upon demand (or if demand is not made due to an injunction or stay
arising from bankruptcy or other proceedings) and Secured Party pays such
amount, the same shall be due and payable by Debtor to Secured Party, plus
interest thereon from the date of Secured Party's demand (or from the date of
Secured Party's payment if demand is not made due to such proceedings) at the
interest rate applicable to overdue principal as provided in the Notes.
Section 4.08 Further Assurances. Upon the request of Secured Party,
Debtor shall (at Debtor's expense) execute and deliver all such assignments,
certificates, financing statements or other documents and give further
assurances and do all other acts and things as Secured Party may reasonably
request to perfect Secured Party's interest in the Collateral or to protect,
enforce or otherwise effect Secured Party's rights and remedies hereunder.
Section 4.09 Inventory. Debtor may use the Inventory in any lawful
manner not inconsistent with this Agreement and the Indenture and with the terms
of insurance thereon.
Section 4.10 Use of Collateral. Debtor will not use any Collateral in
violation in any material respect of any law, statute, ordinance, regulation or
administrative order, or suffer it to be so used.
Section 4.11 Collateral Attached to Other Property. In the event that
the Collateral is to be attached or affixed to any real property, Debtor hereby
agrees that this Agreement may be filed for record in any appropriate real
estate records as a financing statement which is a fixture filing. In connection
therewith, Debtor will take whatever action is required by Section 4.08. If
Debtor is not the record owner of such real property, Debtor will provide
Secured Party with any additional security agreements or financing statements
necessary for the perfection of Secured Party's security interest in the
Collateral. If the Collateral is wholly or partly affixed to real estate or
installed in or affixed to other goods, Debtor will, on demand of Secured Party,
use its commercially reasonable efforts to furnish Secured Party with landlord's
waivers, signed by all
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Persons having an interest in the real estate or other goods to which the
Collateral may have become affixed, permitting the Secured Party to have access
to the Collateral at all reasonable times and granting the Secured Party a
reasonable period of time in which to remove the Collateral after the occurrence
and during the continuance of an Event of Default.
ARTICLE 5
RIGHTS, DUTIES AND POWERS OF SECURED PARTY
Secured Party shall have the following rights, duties and powers:
Section 5.01 Discharge Encumbrances. After the occurrence and during
the continuance of an Event of Default, Secured Party may, at its option,
discharge any taxes, Liens, security interests or other encumbrances at any time
levied or placed on the Collateral, and may pay for insurance on the Collateral
to the extent required by this Agreement or the Indenture and not obtained by
Debtor. Debtor agrees to reimburse Secured Party upon demand for any payment so
made, plus interest thereon from the date of Secured Party's demand at the
interest rate applicable to overdue principal as provided in the Notes.
Section 5.02 Licenses and Rights to Use Collateral. After the
occurrence and during the continuance of an Event of Default, in connection with
any transfer or sale (to Secured Party or any other Person) of the Collateral,
Secured Party is hereby granted a transferable license or other right to use,
without any charge, any of Debtor's Intellectual Property in completing
production, advertising or selling such Collateral except any of the foregoing
property which is expressly prohibited by its terms from being assigned or
licensed. After the occurrence and during the continuance of an Event of
Default, Debtor's rights under all licenses and franchise agreements shall inure
to the benefit of Secured Party and any transferee of all or any part of the
Collateral.
Section 5.03 Cumulative and Other Rights. The rights, powers and
remedies of Secured Party hereunder are in addition to all rights, powers and
remedies given by law or in equity. The exercise by Secured Party of any one or
more of the rights, powers and remedies herein shall not be construed as a
waiver of any other rights, powers and remedies, including, without limitation,
any other rights of set-off (which set-off rights may be exercised only after
the occurrence and during the continuance of an Event of Default). If any of the
Obligations are given in renewal, extension for any period or rearrangement, or
applied toward the payment of debt secured by any Lien, Secured Party shall be,
and is hereby, subrogated to all the rights, titles, interests and liens
securing the debt so renewed, extended, rearranged or paid.
Section 5.04 Disclaimer of Certain Duties.
(a) The powers conferred upon Secured Party by this Agreement
are to protect its interest in the Collateral and shall not impose any
duty upon Secured Party to exercise any such powers. Debtor hereby
agrees that Secured Party shall not be liable for, nor shall the
indebtedness evidenced by the Obligations be diminished by, Secured
Party's delay or failure to collect upon, foreclose, sell, take
possession of or otherwise obtain value for the Collateral. Nothing
herein shall affect any obligation of Secured Party to the Holders
under the Indenture or under applicable law.
12
(b) Except as may be required by the Indenture, and to the
fullest extent permitted by applicable law, Secured Party shall be
under no duty whatsoever to make or give any presentment, notice of
dishonor, protest, demand for performance, notice of non-performance,
notice of intent to accelerate, notice of acceleration, or other
notice or demand in connection with any Collateral or the Obligations,
or to take any steps reasonably necessary to preserve any rights
against any Obligor, Account Debtor or other Person. Debtor waives any
right of marshaling in respect of any and all Collateral, and waives
any right to require Secured Party to proceed against any Obligor,
Account Debtor or other Person, exhaust any Collateral or enforce any
other remedy which Secured Party now has or may hereafter have against
any Obligor or other Person.
Section 5.05 Modification of Obligations; Other Security. Except as
specifically provided for in the Indenture, Debtor waives (i) any and all notice
of acceptance, creation, modification, rearrangement, renewal or extension for
any period of any instrument executed by any Obligor in connection with the
Obligations and (ii) any defense of any Obligor by reason of disability, lack of
authorization, cessation of the liability of any Obligor or for any other
reason. Debtor authorizes Secured Party, without notice or demand and without
any reservation of rights against Debtor and without affecting Debtor's
liability hereunder or on the Obligations, from time to time to (x) after the
occurrence and during the continuance of an Event of Default and after the
acceleration of the Notes, apply the Collateral in the manner permitted by this
Agreement or Indenture and (y) after the occurrence and during the continuance
of an Event of Default and after the acceleration of the Notes, renew, extend
for any period, accelerate, amend or modify, supplement, enforce, compromise,
settle, waive or release the obligations of any Obligor or any instrument or
agreement of such other Person with respect to any or all of the Obligations or
Collateral.
ARTICLE 6
EVENTS OF DEFAULT
Section 6.01 Events of Default. It shall constitute an Event of
Default under this Agreement if an Event of Default occurs and is continuing
under the Indenture.
Section 6.02 Remedies. Upon the occurrence and during the continuance
of an Event of Default, Secured Party may take any or all of the following
actions without notice (except where expressly required below or in the
Indenture) or demand to Debtor:
(a) Take possession of the Collateral, or at Secured Party's
request Debtor shall, at Debtor's cost, assemble the Collateral and
make it available at a location to be specified by Secured Party which
is reasonably convenient to Debtor and Secured Party. In any event,
Debtor shall bear the risk of accidental loss or damage to or
diminution in value of the Collateral, and Secured Party shall have no
liability whatsoever for failure to obtain or maintain insurance, nor
to determine whether any insurance ever in force is adequate as to
amount or as to risk insured.
(b) Sell, in one or more sales and in one or more parcels, or
otherwise dispose of any or all of the Collateral in its then
condition or in any other commercially
13
reasonable manner as Secured Party may elect, in a public or private
transaction, at any location as deemed reasonable by Secured Party
(including, without limitation, Debtor's premises), for cash at such
price as Secured Party may deem fair, and (unless prohibited by the
Code, as adopted in any applicable jurisdiction) Secured Party may be
the purchaser of any or all Collateral so sold and may apply upon the
purchase price therefor any Obligations secured hereby. Any such sale
or transfer by Secured Party either to itself or to any other Person
shall be absolutely free from any claim of right by Debtor, including
any equity or right of redemption, stay or appraisal which Debtor has
or may have under any rule of law, regulation or statute now existing
or hereafter adopted. Upon any such sale or transfer, Secured Party
shall have the right to deliver, assign and transfer to the purchaser
or transferee thereof the Collateral so sold or transferred. It shall
not be necessary that the Collateral or any part thereof be present at
the location of any such sale or transfer. Secured Party may, at its
discretion, provide for a public sale, and any such public sale shall
be held at such time or times within ordinary business hours and at
such place or places as Secured Party may fix in the notice of such
sale. Secured Party shall not be obligated to make any sale pursuant
to any such notice. Secured Party may, without notice or publication,
adjourn any public or private sale by announcement at any time and
place fixed for such sale, and such sale may be made at any time or
place to which the same may be so adjourned. In the event any sale or
transfer hereunder is not completed or is defective in the opinion of
Secured Party, such sale or transfer shall not exhaust the rights of
Secured Party hereunder, and Secured Party shall have the right to
cause one or more subsequent sales or transfers to be made hereunder.
If only part of the Collateral is sold or transferred such that the
Obligations remain outstanding (in whole or in part), Secured Party's
rights and remedies hereunder shall not be exhausted, waived or
modified, and Secured Party is specifically empowered to make one or
more successive sales or transfers until all the Collateral shall be
sold or transferred and all the Obligations are paid. In the event
that Secured Party elects not to sell the Collateral, Secured Party
retains its rights to lease or otherwise dispose of or utilize the
Collateral or any part or parts thereof in any manner authorized or
permitted by law or in equity, and to apply the proceeds of the same
towards payment of the Obligations. Each and every method of
disposition of the Collateral described in this subsection or in
subsection (e) shall constitute disposition in a commercially
reasonable manner.
(c) Take possession of all books and records of Debtor
pertaining to the Collateral. Secured Party shall have the authority
to enter upon any real property or improvements thereon in order to
obtain any such books or records, or any Collateral located thereon,
and remove the same therefrom without liability.
(d) Apply proceeds of the disposition of the Collateral to the
Obligations in any manner elected by Secured Party and permitted by
the Code or otherwise permitted by law or in equity and in accordance
with the provisions of the Indenture. Such application may include,
without limitation, the reasonable expenses of retaking, holding,
preparing for sale or other disposition, and the reasonable attorneys'
fees and legal expenses incurred by Secured Party.
14
(e) Appoint any Person as agent to perform any act or acts
necessary or incident to any sale or transfer by Secured Party of the
Collateral. Additionally, any sale or transfer hereunder may be
conducted by an auctioneer or any officer or agent of Secured Party.
(f) Execute, assign and endorse negotiable and other
instruments for the payment of money, documents of title or other
evidences of payment, shipment or storage for any form of Collateral
on behalf of and in the name of Debtor..
(g) Notify or require Debtor to notify Account Debtors that
the Non-Tangible Collateral been assigned to Secured Party and direct
such Account Debtors to make payments on the Non-Tangible Collateral
directly to Secured Party. To the extent Secured Party does not so
elect, Debtor shall continue to collect the Non-Tangible Collateral.
Secured Party or its designee shall also have the right, in its own
name or in the name of Debtor, to do any of the following: (i) to
demand, collect, receipt for, settle, compromise any amounts due, give
acquittances for, prosecute or defend any action which may be in
relation to any monies due, or to become due by virtue of, the Non-
Tangible Collateral; (ii) to sell, transfer or assign or otherwise
deal in the Non-Tangible Collateral or the proceeds thereof or the
related goods, as fully and effectively as if Secured Party were the
absolute owner thereof; (iii) to extend the time of payment of any of
the Non-Tangible Collateral, to grant waivers and make any allowance
or other adjustment with reference thereto; (iv) to take control of
cash and other proceeds of any Collateral; (v) to send a request for
verification of the Non-Tangible Collateral to any Account Debtor; and
(vi) to do all other acts and things necessary to carry out the intent
of this Agreement.
(h) The Secured Party, instead of exercising the power of sale
herein conferred upon it, may proceed by a suit or suits to foreclose
the security interest and sell the Collateral or any portion thereof
under a judgment of a court or courts of competent jurisdiction. For
purposes of Louisiana executory process procedures, Debtor
acknowledges the Obligations and does hereby confess judgment in favor
of the Secured Party for the full amount of the Obligations. Debtor
agrees that during the continuance of an Event of Default the Secured
Party may cause the Collateral to be seized and sold under executory
or ordinary process, at the Secured Party's sole option, without
appraisement, appraisement hereby being expressly waived, as an
entirety or in parcels as the Secured Party may determine, to the
highest bidder for cash, and otherwise exercise the rights, powers and
remedies afforded herein and under applicable Louisiana law. 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. Debtor hereby waives in
favor of the Secured Party: (i) 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; (ii) the demand
and three (3) days delay accorded by Louisiana Code of Civil Procedure
Articles 2639 and 2721; (iii) the notice of seizure required by
Louisiana Code of Civil Procedure Articles 2293 and 2721; (iv) the
three (3) days delay provided by Louisiana Code of Civil Procedure
Articles 2331 and 2722; and (v) the
15
benefit of the other provisions of Louisiana Code of Civil Procedure
Articles 2331, 2722 and 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, Debtor and Secured Party agree that the court
issuing such order shall, if petitioned for by Secured Party, direct
the applicable sheriff to appoint as a keeper of the Collateral the
Secured Party or any agent designated by the Secured Party at the time
such seizure is effected. This designation is pursuant to Louisiana
Revised Statutes 9:5136-9:5140.2 and the Secured Party shall be
entitled to all of the rights and benefits afforded thereunder, as the
same may be amended. It is hereby agreed that the keeper shall be
entitled to receive as compensation, in excess of its costs and
expenses incurred in the administration or preservation of the
Collateral, an amount equal to $250.00 per day, which shall be payable
monthly on the first day of each month. The designation of keeper made
herein shall not be deemed to require the Secured Party to provoke the
appointment of such a keeper.
(i) Exercise all other rights and remedies permitted by law or
in equity.
Section 6.03 Attorney-in-Fact. Debtor hereby irrevocably appoints
Secured Party as Debtor's attorney-in-fact, with full authority in the place and
stead of Debtor and in the name of Debtor or otherwise, from time to time in
Secured Party's discretion upon the occurrence and during the continuance of an
Event of Default, but at Debtor's cost and expense and without notice to Debtor:
(a) To obtain, adjust, sell and cancel any insurance with
respect to the Collateral, and endorse any draft drawn by insurers of
the Collateral. Secured Party may apply any proceeds or unearned
premiums of such insurance to the Obligations (whether or not due).
(b) To take any action and to execute any assignment,
certificate, financing statement, notification, document or instrument
which Secured Party may reasonably deem necessary or advisable to
accomplish the purposes of this Agreement, including, without
limitation, to receive, endorse and collect all instruments made
payable to Debtor representing any payment or other distribution in
respect of the Collateral or any part thereof and to give full
discharge for the same.
Section 6.04 Account Debtors. Any payment or settlement of Non-
Tangible Collateral made by an Account Debtor will be, to the extent of such
payment or to the extent provided under such settlement, a release, discharge
and acquittance of the Account Debtor with respect to such Non-Tangible
Collateral, and Debtor shall take any action as may reasonably be required by
Secured Party in connection therewith. No Account Debtor on any Non-Tangible
Collateral will ever be bound to make inquiry as to the termination of this
Agreement or the rights of Secured Party to act hereunder, but shall be fully
protected by Debtor in making payment directly to Secured Party.
16
Section 6.05 Liability for Deficiency. If any sale or other
disposition of Collateral by Secured Party or any other action of Secured Party
hereunder results in reduction of the Obligations, such action will not release
Debtor from its liability to Secured Party for any unpaid Obligations, including
costs, charges and expenses incurred in the liquidation of Collateral, together
with interest thereon at the rate then applicable under the Indenture, and the
same shall be immediately due and payable to Secured Party at Secured Party's
address set forth in the Indenture.
Section 6.06 Reasonable Notice. If any applicable provision of any law
requires Secured Party to give reasonable notice of any sale or disposition or
other action, Debtor hereby agrees that ten days' prior written notice shall
constitute reasonable notice thereof. Such notice, in the case of public sale,
shall state the time and place fixed for such sale and in the case of private
sale, the time after which such sale is to be made.
Section 6.07 Non-judicial Enforcement. Secured Party may enforce its
rights hereunder without prior judicial process or judicial hearing, and to the
extent permitted by law Debtor expressly waives any and all legal rights which
might otherwise require Secured Party to enforce its rights by judicial process.
17
ARTICLE 7
MISCELLANEOUS PROVISIONS
Section 7.01 Notices. Any notice required or permitted to be given
under or in connection with this Agreement shall be given in accordance with the
notice provisions of the Indenture.
Section 7.02 Amendments and Waivers. Secured Party's acceptance of
partial or delinquent payments or any forbearance, failure or delay by Secured
Party in exercising any right, power or remedy hereunder shall not be deemed a
waiver of any obligation of Debtor or any Obligor, or of any right, power or
remedy of Secured Party, and no partial exercise of any right, power or remedy
shall preclude any other or further exercise thereof Secured Party may remedy
any Event of Default hereunder or in connection with the Obligations without
waiving the Event of Default so remedied. Debtor hereby agrees that if Secured
Party agrees to a waiver of any provision hereunder, or an exchange of or
release of the Collateral or the addition or release of any Obligor or other
Person, any such action shall not constitute a waiver of any of Secured Party's
other rights or of Debtor's obligations hereunder. This Agreement may be amended
only by an instrument in writing executed jointly by Debtor and Secured Party
and may be supplemented only by documents delivered or to be delivered in
accordance with the express terms hereof.
Section 7.03 Copy as Financing Statement. A photocopy or other
reproduction of this Agreement or any financing statement covering the
Collateral is sufficient as a financing statement, and the same may be filed
with any appropriate filing authority for the purpose of perfecting Secured
Party's security interest in the Collateral.
18
Section 7.04 Possession of Collateral. Secured Party shall be deemed
to have possession of any Collateral in transit to it or set apart for it (or,
in either case, any of its agents, affiliates or correspondents).
Section 7.05 Redelivery of Collateral. If any sale or transfer of
Collateral by Secured Party results in full satisfaction of the Obligations, and
after such sale or transfer and discharge there remains a surplus of proceeds,
Secured Party will deliver to Debtor such excess proceeds in a commercially
reasonable time; provided, however, that Secured Party shall not be liable for
any interest, cost or expense in connection with any reasonable delay in
delivering such proceeds to Debtor.
Section 7.06 Governing Law; Jurisdiction. This Agreement and the
security interest granted hereby shall be construed in accordance with and
governed by the laws of the State of New York (except to the extent that the
laws of any other jurisdiction govern the perfection and priority of the
security interests granted hereby).
Section 7.07 Gaming Laws and Regulations. (a) Each of the provisions
of this Agreement is subject to, and shall be enforced in compliance with, any
requirements imposed by any applicable Gaming Authority.
(b) To the extent required under applicable law, the consummation of
the transactions contemplated hereby and the exercise of remedies hereunder may
be subject to the Louisiana Riverboat Economic Development and Gaming Control
Act, La. R.S. 27:41, et seq., and the Louisiana Gaming Control Law, La. R.S.
27:1, and the regulations promulgated pursuant to each such law, all as amended
from time to time. The Gaming License held by Debtor is not part of the
Collateral of this Agreement and, under the above described legislation and
rules promulgated thereunder, the Trustee may be precluded from or otherwise
limited in taking possession of or in selling the Collateral of this Agreement
under the defaults and remedies provisions of this Agreement. Due to various
legal restrictions, including, without limitation, licensing of operators of
gaming facilities and prior approval of the sale or disposition of assets of a
licensed gaming operation, the sale of Collateral may be denied by Gaming
Authorities or delayed pending Gaming Authority approval.
Section 7.08 Continuing Security Agreement
(a) Except as may be expressly applicable pursuant to Section
9-505 of the Code, no action taken or omission to act by Secured Party
hereunder, including, without limitation, any action taken or inaction
pursuant to Section 6.02 hereof, shall be deemed to constitute a
retention of the Collateral in satisfaction of the Obligations or
otherwise to be in full satisfaction of the Obligations, and the
Obligations shall remain in full force and effect, until Secured Party
shall have applied payments (including, without limitation,
collections from Collateral) towards the Obligations in the full
amount then outstanding or until such subsequent time as is
hereinafter provided in subsection (b) below.
(b) To the extent that any payments on the Obligations or
proceeds of the Collateral are subsequently invalidated, declared to
be fraudulent or preferential set aside
19
or required to be repaid to a trustee, debtor in possession, receiver
or other Person under any bankruptcy law, common law or equitable
cause, then to such extent the Obligations so satisfied shall be
revived and continue as if such payment or proceeds had not been
received by Secured Party, and Secured Party's security interests,
rights, powers and remedies hereunder shall continue in full force and
effect. In such event, this Agreement shall be automatically
reinstated if it shall theretofore have been terminated pursuant to
Section 7.09.
Section 7.09 Termination. The grant of a security interest hereunder
and all of Secured Party's rights, powers and remedies in connection therewith
shall unless otherwise provided in the Indenture or this Agreement, remain in
full force and effect until payment in full of (A) the Notes under the terms of
the Indenture, (B) all obligations then due and owing under the Indenture, the
Notes and the Collateral Documents and (C) all other Obligations; provided,
however, that after receipt from the Debtor by the Trustee of a request for a
release of any Collateral permitted under the Indenture upon the sale, transfer,
assignment, exchange or other disposition of such Collateral not prohibited by
the Indenture (and upon receipt by the Trustee of all proceeds of such sale,
transfer, assignment, exchange or other disposition to the extent required to be
remitted to the Trustee under the Indenture or otherwise), such Collateral shall
be released from the lien and security interest created hereunder in accordance
with the provisions of the Indenture and shall no longer constitute Collateral.
Upon the payment in full of (A) the Notes under the terms of the Indenture (B)
all obligations then due and owing under the Indenture and the Collateral
Documents, and (C) all other Obligations, the Debtor shall be entitled to the
return, upon its request and at its expense, of such of the Collateral pledged
by it as shall not have been sold or otherwise applied pursuant to the terms
hereof. Notwithstanding the foregoing, the reimbursement and indemnification
provisions of Section 4.07 and the provisions of subsection 7.08(b) shall
survive the termination of this Agreement.
Upon any termination of this Agreement or release of any Collateral as
permitted by the Indenture the Trustee will, at the expense of the Debtor,
execute and deliver to the Debtor such documents and take such other actions as
the Debtor shall reasonably request to evidence the termination of this
Agreement or the release of such Collateral, as the case may be. Any such
action taken by the Trustee shall be without warranty by or recourse to the
Trustee, except as to the absence of any prior assignments by the Trustee of its
interests in the Collateral, and shall be at the expense of the Debtor. The
Trustee may conclusively rely on any certificate delivered to it by the Debtor
stating that the execution of such documents and release of the Collateral is in
accordance with and permitted by the terms of the Indenture and this Agreement.
Section 7.10 Counterparts; Effectiveness. This Agreement may be
executed in two or more counterparts. Each counterpart is deemed an original,
but all such counterparts taken together constitute one and the same instrument.
This Agreement becomes effective upon the execution hereof by Debtor and
delivery of the same to Secured Party, and it is not necessary for Secured Party
to execute any acceptance hereof or otherwise signify or express its acceptance
hereof.
Section 7.11 Indenture. This Agreement is subject to the terms,
conditions and provisions of the Indenture. To the extent a term or provision of
this Agreement conflicts with
20
the Indenture, the Indenture shall control with respect to the subject matter of
such term or provision.
Section 7.12 Rights of Noteholders. No Holder of a Note shall have any
independent rights hereunder other than those rights granted to individual
Holders of Notes pursuant to Section 6.07 of the Indenture; provided that
nothing in this Section 7.12 shall limit any rights granted to the Trustee under
the Notes, the Indenture or the Collateral Documents.
Section 7.13 No Personal Liability of Directors, Officers, Employees
and Stockholders. No past, present or future director, officer, employee,
incorporator or stockholder of the Debtor as such or any successor Person, as
such, shall have any liability for any obligations of the Debtor under the
Notes, the Collateral Documents, this Agreement or for any claim based on, in
respect of, or by reason of, such obligations or their creation.
Section 7.14 Trustee. State Street Bank and Trust Company is acting
hereunder solely in its capacity as Trustee under the Indenture, and all of the
rights of Trustee set forth in the Indenture shall apply to Trustee's actions
hereunder. To the extent this agreement contemplates payments by the Secured
Party, the Trustee shall have no liability therefor, such liability continuing
to be the liability of Debtor or realized through the value of any collateral
for the Obligations.
[SIGNATURE PAGE FOLLOWS]
21
IN WITNESS WHEREOF, Debtor has caused this Security Agreement to be
executed and delivered as of the date first set forth above.
DEBTOR: HOLLYWOOD CASINO SHREVEPORT, a
Louisiana general partnership
By: HCS I, Inc., a Louisiana
corporation, its managing general
partner
By: /s/ XXXX X. XXXXX
-----------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
[Signature Page to Security Agreement (Partnership)]
EXHIBIT A
PERFECTION
(a) Legal Name of Debtor:
Hollywood Casino Shreveport, a Louisiana general partnership
(b) Other Names:
QNOV
Queen of New Orleans at the Hilton Joint Venture
The Queen of New Orleans at the Hilton Joint Venture
(c) (i) Chief Executive Office and Principal Place of Business of Debtor:
Chief Executive Office: Dallas County, Texas
Principal Place of Business: Caddo Parish, Louisiana
Bossier Parish, Louisiana
(ii) Other Premises at which Collateral is Stored or Located:
None
(iii) Locations of Records Concerning Collateral:
Dallas County, Texas
Caddo Parish, Louisiana
Bossier Parish, Louisiana
(d) Federal Taxpayer Identification Number:
00-0000000
A-1
EXHIBIT B
INTELLECTUAL PROPERTY
None
B-1
EXHIBIT C
CONTRACTS
1. License Agreement dated as of August 10, 1999 by and between Company and
Hollywood Casino Corporation, a Delaware corporation.
2. Management Services Agreement dated as of September 27, 1998 by and between
Company and HWCC-Shreveport, Inc., a Louisiana corporation.
3. Completion Capital Agreement dated as of August 10, 1999 by and among
Company, Hollywood Casino Corporation, a Delaware corporation, HWCC-
Louisiana, Inc., a Louisiana corporation, and HCS-I, Inc., a Louisiana
corporation and HCS II, Inc., a Louisiana corporation.
4. Standard Form of Agreement Between Owner and Architect with Descriptions of
Designated Services and Terms and Conditions dated as of October 19, 1998 by
and between QNOV, a Louisiana partnership and Broadmoor Design Group.
5. Abbreviated Standard Form of Agreement Between Owner and Architect dated as
of October 19, 1998 by and between QNOV, a Louisiana partnership and
International Parking Design, Inc.
6. Standard Form of Agreement Between Owner and Architect with Descriptions of
Designated Services and Terms and Conditions dated as of October 19, 1998 by
and between QNOV, a Louisiana partnership and XXXXXX & XXXXX ARCHITECTS,
LTD.
7. Standard Form of Agreement Between Owner and Architect dated as of October
19, 1998 by and between QNOV, a Louisiana partnership and Xxxxx Xxxxxxxxxx
Gannuch.
8. Design Agreement dated as of October 19, 1998 by and between QNOV, a
Louisiana partnership and Xxxxxx & Associates, Inc., a Texas corporation.
9. QNOV 280' x 114' Paddlewheel Casino Vessel Engineering Proposal of Xxxxxx
Xxx & Associates Naval Architects dated October 19, 1998 with Xxxxxx X. Xxx
& Associates, Inc.
10. Vessel Construction Agreement dated July 16, 1999 with Leevac Shipyards,
Inc.
11. Standard Form of Agreement between Owner and Contractor Where the Basis for
Payment is the Cost of the Work Plus a Fee with a Negotiated Guaranteed
Maximum Price, dated as of July 30, 1999 between Hollywood Casino Shreveport
and Broadmoor Xxxxxxxx.
C-1