Exhibit 10.1
MANAGER SUBORDINATION AGREEMENT
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THIS MANAGER SUBORDINATION AGREEMENT (as amended, supplemented or
otherwise modified from time to time, this "Agreement") is made as of June 15,
2001, by and among STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust
company, as trustee (in such capacity, together with its successors and assigns,
the "Trustee"), for the benefit of itself and the holders of the Notes (as
defined below), HWCC-SHREVEPORT, INC., a Louisiana corporation (the "Manager"),
and HOLLYWOOD CASINO SHREVEPORT, a Louisiana partnership (f/k/a QNOV and Queen
of New Orleans at the Hilton Joint Venture) (the "Company").
RECITALS
A. The Company and Shreveport Capital Corporation, a Louisiana
corporation ("Shreveport Capital", and together with the Company, the
"Issuers"), shall issue up to $39,000,000 of their 13% Senior Secured Notes due
2006 with Contingent Interest (the "Original Notes" and together with any new
notes issued in replacement of and exchange therefor, the "Notes") pursuant to
that certain Indenture dated as of even date herewith (as amended, supplemented
or otherwise modified from time to time, the "Indenture"), by and among the
Issuers, the Trustee and certain other parties. All terms used and not otherwise
defined herein shall have the meanings given in the Indenture.
B. The Manager and the Company are parties to that certain Management
Services Agreement dated as of September 22, 1998 (as amended, supplemented or
otherwise modified from time to time, the "Management Agreement"), pursuant to
which the Company shall pay the Manager a management fee in consideration of the
Manager's services relating to the management and operation of the Shreveport
Resort and reimburse the Manager for services supplied to the Company in
accordance with the terms thereof.
C. As a condition to the purchase of the Notes, the parties have agreed
to enter into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the
provisions set forth herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Trustee, the
Manager and the Company agree as follows:
1. Subordination to Senior Debt. Notwithstanding any other
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provision of the Management Agreement, all fees payable to the Manager pursuant
to the Management Agreement (other than expense reimbursement payable to the
Manager in accordance with the terms of the Management Agreement) (the
"Management Fees") are and shall be subordinate and junior in right of payment,
to the extent and in the manner hereinafter set forth, to the prior
indefeasible payment in full, satisfaction and discharge or defeasance in
accordance with the Indenture of all Senior Debt (as defined below).
"Senior Debt" means (a) all indebtedness, liabilities and obligations
of every kind or nature, absolute or contingent, now existing or hereafter
arising, of the Company, its successors and assigns, under the Indenture, the
Notes, any Collateral Documents or any other documents, instruments or
agreements executed in connection with any of the foregoing (the foregoing,
collectively, the "Transaction Documents"), to the Trustee or any holder of
Notes and their successors and assigns, including without limitation the
principal of, and interest on (including any interest accruing after the
commencement of any bankruptcy, insolvency or similar proceeding with respect to
the Company and any interest which would have accrued but for the commencement
of any such proceeding whether or not allowed as a claim in that proceeding),
and all premiums, fees, charges, expenses and indemnities arising under or in
connection with the Indenture, the Notes or any other Transaction Document; and
(b) any modifications, amendments or extensions of any indebtedness or
obligation described in clause (a) above. Except as and to the extent provided
hereinafter, the Manager will not ask, demand, xxx for, take or receive from the
Company, by set-off or in any other manner, direct or indirect payment (whether
in cash or property), of the whole or any part of the Management Fees, or any
transfer of any property in payment of or as security therefor, so long as there
exists an Event of Default under the Indenture.
2. Distributions in Liquidation and Bankruptcy. In the event of any
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distribution, division or application, partial or complete, voluntary or
involuntary, by operation of law or otherwise, of all or any part of the assets
of the Company or the proceeds thereof (including any assets now or hereafter
securing any Management Fees) to creditors of the Company or upon any
indebtedness of the Company, by reason of the liquidation, dissolution or other
winding up, partial or complete, of the Company, or any receivership, insolvency
or bankruptcy proceeding, or assignment for the benefit of creditors or
marshalling of assets, or any proceeding by or against the Company for any
relief under any bankruptcy or insolvency law or laws relating to the relief of
debtors, readjustment of indebtedness, arrangements, reorganizations,
compositions or extensions (each of the foregoing, a "Liquidation Event"), then
and in any such event:
(a) The holders of Senior Debt shall be entitled to receive
payment in full in cash of all Senior Debt before the Manager shall be
entitled to receive any payment or other distributions on, or with respect
to, the Management Fees;
(b) Any payment or distribution of any kind or character,
whether in cash, securities or other property, which but for these
provisions would be payable or deliverable upon or with respect to the
Management Fees shall instead be paid or delivered directly to the Trustee
for the benefit of the holders of the Senior Debt for application on the
Senior Debt, whether then due or not due, until the Senior Debt shall have
first been fully and indefeasibly paid in cash, satisfied and discharged or
otherwise defeased under the Indenture, subject to the rights of the
Existing Notes Trustee with respect to the same;
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(c) The Manager hereby irrevocably authorizes and empowers the
Trustee, and appoints the Trustee as attorney-in-fact, to demand, xxx for,
collect and receive every such payment or distribution and give acquittance
therefor, and to file and vote claims (in bankruptcy proceedings or
otherwise) and take such other actions, in the Trustee's own name or
otherwise, as the Trustee may deem necessary or advisable for the
enforcement of these provisions. The Manager shall duly and promptly take
such action as may be reasonably requested by the Trustee to assist in the
collection of the Management Fees for the account of any holder of the
Senior Debt, and to file appropriate proofs of claim with respect to the
Management Fees and to vote the same, and to execute and deliver to the
Trustee on demand such powers of attorney, proofs of claim, assignments of
claim or other instruments as may be reasonably requested by the Trustee to
enable the Trustee or any other holder of the Senior Debt to enforce any
and all claims upon or with respect to the Management Fees and to collect
and receive any and all payments or distributions which may be payable or
deliverable at any time upon or with respect to the Management Fees,
subject to the rights of the Existing Notes Trustee with respect to the
same. In addition, the Manager shall take no action (whether oral, written
or otherwise) in contravention of any action of the Trustee duly taken and
permitted hereunder. Such appointment as attorney-in-fact pursuant to this
Section 2(c) is irrevocable and coupled with an interest until payment in
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full and complete performance of all the Senior Debt. The Trustee may
appoint a substitute attorney-in-fact. The Manager ratifies all actions
reasonably taken by the attorney-in-fact but, nevertheless, if the Trustee
requests, the Manager will specifically ratify any action taken by the
attorney-in-fact by executing and delivering to the attorney-in-fact or to
any entity designated by the attorney-in-fact all documents necessary to
effect such ratification;
(d) The Manager will forthwith deliver any direct or indirect
payment made to the Manager upon or with respect to the Management Fees
prior to the payment in full, satisfaction and discharge or defeasance of
the Senior Debt in accordance with the Indenture and following any
Liquidation Event or Default or Event of Default to the Trustee in
precisely the form received (except for the endorsement or assignment of
the Manager where necessary) for application on the Senior Debt, whether
then due or not due, subject to the rights of the Existing Notes Trustee
with respect to the same. Until so delivered, the payment or distribution
shall be held in trust by the Manager as property of the holders of the
Senior Debt. In the event of the failure of the Manager to make any such
endorsement or assignment, the Trustee, or any of its officers or
employees, are hereby irrevocably authorized to make the same; and
(e) Each of the parties hereby agrees that it shall be bound by
the terms and provisions hereof, notwithstanding the confirmation of a plan
of reorganization of the Company under Section 1129(b) of the Bankruptcy
Code.
3. Permitted Payments. Subject to the provisions of Paragraphs 2
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and 4 of this Agreement, the Company may pay to and the Manager may accept
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payment of amounts due under the Management Agreement, a true and correct copy
of which is attached hereto as Exhibit A. Any amounts not permitted to be paid
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pursuant to the provisions of Paragraph 4 of
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this Agreement shall be deferred and shall accrue and may be paid only at such
time as such amounts would otherwise be permitted to be paid pursuant to the
provisions of this Agreement. Except as otherwise expressly provided in the
Indenture, the Company and the Manager shall not change, alter, amend, waive or
otherwise modify the Management Agreement without the Trustee's prior written
consent.
4. Default on Senior Debt; Other Subordinated Obligation Payment
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Restrictions.
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(a) In the event that any Default or Event of Default shall
occur and be continuing with respect to any Senior Debt, or if any payment
of Management Fees would create a Default or Event of Default, unless and
until all Senior Debt shall have been indefeasibly paid in full in cash,
satisfied and discharged or otherwise defeased under the Indenture, the
right of the Manager to receive any payments or other distributions with
respect to Management Fees shall be deferred during the continuance of such
Default or Event of Default.
(b) Unless and until all Senior Debt shall have been
indefeasibly paid in full in cash, satisfied and discharged or otherwise
defeased under the Indenture, the right of the Manager to receive any
payments or other distributions with respect to the Management Fees shall
be deferred if and to the extent that, as of the date which such Management
Fees are to be paid, the payment of such Management Fees would cause the
Company's Fixed Charge Coverage Ratio for its most recently ended four (4)
full fiscal quarters for which internal financial statements are available
immediately preceding the date on which such Management Fee is proposed to
be paid to be less than 1.5 to 1 (calculated on a pro forma basis after
adding back Management Fees that were deducted in arriving at Consolidated
Cash Flow during such period and deducting to arrive at Consolidated Cash
Flow Management Fees to be paid pursuant to this Section 4(b)); provided,
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however, that with respect to periods prior to the time when internal
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financial statements are available for four (4) full fiscal quarters, such
Fixed Charge Coverage Ratio shall be calculated with respect to the actual
number of full fiscal quarters (but in no event less than one (1) full
fiscal quarter) for which internal financial statements are available for
the fiscal year 2001.
If, notwithstanding the foregoing provisions of this Paragraph 4,
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the Manager shall receive any payment or distribution of any kind with
respect to the Management Fees (whether from any collateral securing the
Management Fees or otherwise) following any Event of Default until cured,
such payment or distribution shall be received in trust for, and shall be
delivered to the Trustee promptly in precisely the form received (except
for the endorsement or assignment of the Manager where necessary) for
application on the Senior Debt, whether then due or not due, subject to the
rights of the Existing Notes Trustee with respect to the same. Until so
delivered, the payment or distribution shall be held in trust by the
Manager as property of the holders of Senior Debt.
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(c) Manager agrees that any deferral pursuant hereto of payments
under the Management Agreement shall not constitute a default under the
Management Agreement.
(d) No amounts payable pursuant to the Management Agreement
shall be prepaid.
5. No Acceleration or Exercise of Remedies. So long as any Senior
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Debt remains unpaid, the Manager will not (a) cause any portion of the
Management Fees to become due prior to the due date for such Management Fees as
set forth in the Management Agreement; (b) accept any payment, prepayment or
defeasance of any portion of the Management Fees prior to the due date for such
Management Fees as set forth in the Management Agreement or in violation of this
Agreement; (c) modify or alter in any way the provisions of the Management
Agreement if the effect of such is to accelerate the payments of the Management
Fees due thereon; or (d) exercise any remedies with respect to the Management
Fees or any collateral at any time securing payment or performance thereof
unless and until, in each such case, all of the Senior Debt shall have
indefeasibly paid in full in cash, satisfied and discharged or otherwise
defeased under the Indenture, or the Trustee shall have otherwise consented in
writing.
6. Bankruptcy. Until the Senior Debt shall have been indefeasibly
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paid in full in cash, satisfied and discharged or otherwise defeased under the
Indenture, the Manager will not, without the prior consent of the Trustee,
commence, or join with any other person in commencing, any proceeding against
any Person with respect to the Management Fees under any bankruptcy,
reorganization, readjustment of debt, dissolution, receivership, liquidation or
insolvency law or statute now or hereafter in effect in any jurisdiction.
7. Continuing Subordination. The subordination effected by these
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provisions is a continuing subordination and may not be modified or terminated
by the Manager or any other holder of any Management Fees until all of the
Senior Debt shall have been indefeasibly paid in full in cash, satisfied and
discharged or otherwise defeased under the Indenture. At any time and from time
to time, without consent of or notice to the Manager or any other holder of the
Management Fees, and without impairing or affecting the obligations of any of
them hereunder:
(a) The time for the Company's performance of, or compliance
with, any of its agreements contained in the Indenture, the Notes or the
other Transaction Documents, or any other agreement, instrument or document
relating to the Senior Debt, may be modified or extended or such
performance or compliance may be waived;
(b) The Trustee may exercise or refrain from exercising any
rights under the Indenture, the Notes or the other Transaction Documents,
or any other agreement, instrument or document relating to the Senior Debt;
(c) The Indenture, the Notes or the other Transaction Documents,
or any other agreement, instrument or document relating to the Senior Debt,
may be revised, amended or otherwise modified for the purpose of adding or
changing any provisions
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thereof (including, but not limited to, an increase in the interest
charges), or changing in any manner the rights of the Trustee or the
Company;
(d) Payment of the Senior Debt or any portion thereof may be
extended or refunded or any notes evidencing such Senior Debt may be
renewed in whole or in part;
(e) The maturity of the Senior Debt may be accelerated, and any
collateral security therefor or any other rights of the Trustee may be
exchanged, sold, surrendered, released or otherwise dealt with in
accordance with the terms of any present or future agreement with the
Company and any other agreement of subordination (and the debt covered
thereby) may be surrendered, released or discharged, or the terms thereof
modified or otherwise dealt with in any manner;
(f) Any person liable in any manner for payment of the Senior
Debt may be released by holders of Senior Debt; and
(g) Notwithstanding the occurrence of any of the foregoing,
these subordination provisions shall remain in full force and effect with
respect to the Senior Debt, as the same shall have been extended, renewed,
modified or refunded.
8. Waivers. The Manager hereby waives, and agrees not to assert (a)
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any right, now or hereafter existing, to require the Trustee to proceed against
or exhaust any collateral at any time securing the Senior Debt, or to marshal
any assets in favor of the Manager or any other holder of any Management Fees;
(b) any notice of the incurrence of Senior Debt, it being understood advances
may be made under the Indenture, or any other agreement, document or instrument
now or hereafter relating to the Senior Debt, without notice to or authorization
of the Manager in reliance upon these subordination provisions.
It is not the intent of this Agreement to cause the Manager to become
a surety. However, in the event this Agreement may cause the Manager to be
deemed a surety, the following provisions apply; provided, however, that nothing
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contained herein shall be deemed to be a guarantee by the obligor of any
obligations for the payment of principal and interest of the Issuers under the
Notes. The Manager hereby waives and relinquishes all rights and remedies
accorded by applicable law to sureties or guarantors and agrees not to assert or
take advantage of any such rights or remedies, including, without limitation,
(a) any right to require the Trustee or any of the Holders (each a "Benefitted
Party") to proceed against the Company or any other Person or to proceed against
or exhaust any security held by a Benefitted Party at any time or to pursue any
other remedy in the power of a Benefitted Party before proceeding against the
Manager with respect to the Management Fees or other Person, (b) the defense of
the statute of limitations in any action with respect to the Management Fees
hereunder or in any action for the collection or performance of the obligations
owing on account of the Senior Debt, (c) any defense that may arise by reason of
the incapacity, lack of authority, death or disability of any Person or the
failure of a Benefitted Party to file or enforce a claim against the estate (in
administration, bankruptcy or any other proceeding) of any Person, (d)
appraisal, valuation, stay,
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extension, marshalling of assets, redemption, exemption, demand, presentment,
protest and notice of any kind, including, without limitation, notice of the
existence, creation or incurring of any new or additional indebtedness or
obligation or of any action or non-action on the part of a Benefitted Party, the
Company, any endorser, guarantor or creditor of the Company or on the part of
any Person under this or any other instrument or document in connection with any
obligation or evidence of indebtedness held by a Benefitted Party as collateral
or in connection with the Senior Debt, (e) any defense based upon an election of
remedies by a Benefitted Party, including, without limitation, an election to
proceed by non-judicial rather than judicial foreclosure, which destroys or
otherwise impairs the subrogation rights of the Manager, the right of the
Manager to proceed against the Company or any other Person for reimbursement, or
both, (f) any defense based upon any statute or rule of law which provides that
the obligation of a surety must be neither larger in amount nor in other
respects more burdensome than that of the principal, (g) any duty on the part of
a Benefitted Party to disclose to the Manager any facts a Benefitted Party may
now or hereafter know about the Company or any other Person, regardless of
whether a Benefitted Party has reason to believe that any such facts materially
increase the risk beyond that which the Manager intends to assume, or has reason
to believe that such facts are unknown to the Manager, or has a reasonable
opportunity to communicate such facts to the Manager, because the Manager
acknowledges that the Manager is fully responsible for being and keeping
informed of the financial condition of the Company of any other Person and of
all circumstances bearing on the risk of non-payment of any Senior Debt, (h) any
defense arising because of the election of a Benefitted Party, in any proceeding
instituted under the Federal Bankruptcy Code, of the application of Section
1111(b)(2) of the Federal Bankruptcy Code, (i) any defense based upon any
borrowing or grant of a security interest under Section 364 of the Federal
Bankruptcy Code, (j) any claim or other rights which it may now or hereafter
acquire against the Company or any other Person that arises from the existence
of performance obligations under the Indenture, the Notes or any Collateral
Document, including, without limitation, any right of subrogation,
reimbursement. Notwithstanding the foregoing, nothing in this Section 8 shall be
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deemed to impair the rights otherwise expressly given to the Manager in any of
the Transaction Documents. No failure or delay on the Trustee's part in
exercising any power, right or privilege under this Agreement shall impair or
waive any such power, right or privilege. The Manager acknowledges and agrees
that any nonrecourse or exculpation provided for in the Indenture, the Notes or
any Collateral Document, or any other provision of this Indenture, the Notes or
any Collateral Document, limiting the Benefitted Parties' recourse to specific
collateral, or limiting the Benefitted Parties' right to enforce a deficiency
judgment against the Company, shall have absolutely no application to the
Manager's or the Company's liability under the Indenture, the Notes or any
Collateral Documents.
9. Lien Subordination. Any Lien, security interest, encumbrance,
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charge or claim of the Manager on any assets or property of the Company or any
proceeds or revenues therefrom which the Manager may have at any time as
security for any Management Fees shall be, and hereby is, subordinated to all
Liens, security interests, or encumbrances now or hereafter granted to the
Trustee by the Company or by law, notwithstanding the date or order of
attachment or perfection of any such Lien, security interest, encumbrance or
claim or charge or the provision of any applicable law. Until all holders of
Senior Debt have received payment in full in cash of the Senior Debt, or the
Senior Debt is satisfied and discharged or defeased under the Indenture,
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the Manager agrees that the Manager will not assert or seek to enforce against
the Company the Management Fees or any interest of the Manager in any collateral
for any portion of the Management Fees and that the Trustee may dispose of any
or all of the collateral for the Senior Debt free of any and all Liens,
including, but not limited to, Liens created in favor of the Manager, through
judicial or non-judicial proceedings, in accordance with applicable law
including taking title, after five (5) days written notice to the Manager. The
Manager hereby acknowledges that such notice if given five (5) days prior to
such disposition of any of all of the collateral for the Senior Debt is
sufficient and commercially reasonable. The Manager hereby agrees that any such
sale or other disposition of so much of the collateral for the Senior Debt as is
necessary to satisfy in full in cash all of the Senior Debt shall be free and
clear of any security interest granted to the Manager; provided that the entire
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proceeds (after deducting reasonable expenses of sale) are applied in reduction
of the Senior Debt. Upon the Trustee's request, the Manager shall execute and
deliver any releases or other documents and agreements that the Trustee in its
reasonable discretion deems necessary to dispose of the collateral for the
Senior Debt free of the Manager's interest in same. The Manager retains all of
its rights as a junior secured creditor with respect to the surplus, if any,
arising from any such disposition of the collateral for the Senior Debt.
10. Default by Company Under Management Agreement. In the event of a
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default by the Company under the Management Agreement, Manager shall promptly
give written notice thereof to Trustee, and Trustee shall have the right (but
not the obligation) to cure such default within the cure periods provided to the
Company under the Management Agreement. Manager shall not take any action with
respect to such default under the Management Agreement, including without
limitation any action to terminate the Management Agreement, unless and until
Trustee fails to cure such default within the applicable cure periods provided
therefor.
11. Subrogation. The Manager hereby subordinates all rights of
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subrogation to the rights of the holders of Senior Debt to receive payments or
distributions, and any rights of subrogation to any collateral for the Senior
Debt, until the Senior Debt shall have been indefeasibly paid in full in cash,
satisfied and discharged or defeased in accordance with the Indenture. Upon
such payment in full, the Manager shall be subrogated to all rights of the
holders of Senior Debt.
12. Subordination Not Impaired by the Company. No right of the
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Trustee or any holder of Senior Debt to enforce the subordination of the
Management Fees shall be impaired by any act or failure to act by the Company or
by its failure to comply with these provisions.
13. No Third Party Beneficiaries. This Agreement is not intended to
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give or confer any rights to any Person other than the holders of the Senior
Debt. No other party, including the Company, is intended to be a third party
beneficiary of this Agreement.
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14. Legend on Note. If any portion of the Management Fees is
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evidenced by a promissory note, stock certificate or other instrument, the
Manager agrees to promptly add a legend thereto stating that the rights of any
holder thereof are subject to this Agreement.
15. Representations and Warranties. The Manager hereby represents
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and warrants that (a) the execution and delivery of this Agreement and the
performance by the Manager of its obligations hereunder have received all
necessary approvals and do not and will not contravene or conflict with any
provision of law or of any indenture, instrument or other agreement to which the
Manager is a party or by which it or its property may be bound or affected or
result in or require the creation or imposition of any mortgage, Lien, pledge,
security interest, charge or other encumbrance in, upon or of any of its
properties or assets under any such indenture, instrument or other agreement,
(b) the Manager has full power, authority and legal right to make and perform
this Agreement, (c) the Manager has not assigned or transferred any indebtedness
owing by the Company or any of the collateral for the Management Fees and that
the Manager will not assign or transfer same, (d) this Agreement is the legal,
valid and binding obligation of the Manager, enforceable against the Manager in
accordance with its terms, and (e) the Management Fees are not subject to any
other subordination agreement, other than in favor of the Existing Notes
Trustee.
16. No Waiver. No failure on the part of the Trustee to exercise, no
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delay in exercising, and no course of dealing with respect to, any right or
remedy hereunder will operate as a waiver thereof; nor will any single or
partial exercise of any right or remedy hereunder preclude any other or further
exercise thereof or the exercise of any other right or remedy. This Agreement
may not be amended or modified except by written agreement of the Trustee, the
Manager, and the Company, and no consent or waiver hereunder shall be valid
unless in writing and signed by the Trustee.
17. Successors and Assigns. This Agreement, and the terms, covenants
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and conditions hereof, shall be binding upon and inure to the benefit of the
parties hereto, and their respective successors and assigns.
18. GOVERNING LAW. THIS AGREEMENT WILL BE CONSTRUED IN ACCORDANCE
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WITH AND GOVERNED BY THE INTERNAL LAW OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO CHOICE OF LAW PRINCIPLES.
19. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
20. Severability. The invalidity, illegality or unenforceability in
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any jurisdiction of any provision in or obligation under this Agreement shall
not affect or impair the validity, legality or enforceability of the remaining
provisions or obligations under this Agreement or of such provision or
obligation in any other jurisdiction.
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21. Consent. Manager hereby consents to the collateral assignment by
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the Company of its right, title and interest under the Management Agreement to
the Trustee, and any exercise of remedies pursuant thereto.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Manager Subordination Agreement has been duly
executed as of the day and year first above written.
MANAGER:
HWCC-SHREVEPORT, INC., a Louisiana
corporation
By:____________________________________
Name: Xxxxxx X. Xxxxx III
Title: President
COMPANY:
HOLLYWOOD CASINO SHREVEPORT, a Louisiana
general partnership
By: HCS I, Inc., a Louisiana corporation, its
managing general partner
By:______________________________
Name: Xxxxxx X. Xxxxx III
Title: President
TRUSTEE:
STATE STREET BANK AND TRUST COMPANY, a
Massachusetts trust company
By:___________________________________
Name:
Title:
[Signature Page to Manager Subordination Agreement]
EXHIBIT A
TO
MANAGER SUBORDINATION AGREEMENT
Management Agreement
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[Previously filed]
A-1
