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EXHIBIT 10.22
SECURITY AGREEMENT
This Security Agreement (this "Security Agreement") is made
and given as of this 22nd day of October, 1998, by PRINCESA PARTNERS, a Florida
general partnership (the "Borrower") and BAYFRONT VENTURES, a Florida general
partnership ("Bayfront")in favor of each lender listed on Exhibit A hereto
(collectively, the "Lenders" and each a "Lender").
Recitals
A. The Lenders and the Borrower have entered into a Loan
Agreement of even date herewith (the "Loan Agreement"), pursuant to which the
Lenders collectively will lend to the Borrower $8,400,000 (the "Loan") to
finance the Project more specifically defined in the Loan Agreement. The Loan
is evidenced by notes defined and described in the Loan Agreement
(collectively, the "Notes"). The National City Bank of Evansville is acting as
Servicer (the "Servicer") for the Lenders pursuant to the Servicing and
Intercreditor Agreement of even date herewith among the Borrower, the Lenders
and the Servicer (the "Servicing Agreement"). All capitalized terms used
herein, unless otherwise defined shall have the meaning ascribed to such terms
in the Loan Agreement.
B. The Borrower and Bayfront are and will be the owners of
certain furniture, fixtures and equipment more fully described in Exhibit B
attached hereto (collectively, the "Equipment"), free and clear of any liens or
security interests, except such liens as are permitted by the Loan Agreement.
C. The Equipment will be used in connection with the Project.
D. As security for the repayment of the Loan, the Lenders
have required that the Borrower and Bayfront execute and deliver to the Lenders
this Security Agreement, granting a security interest to the Lenders in, among
other things, the Equipment.
E. The Notes, the Loan Agreement, this Security Agreement and
any other instruments or documents given as security for the Loan are referred
to herein as the "Loan Documents".
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged by the Borrower, it is agreed as follows:
1. Grant of Security Interest. As security for the payment
and performance of the Notes and all other liabilities, obligations and
indebtedness of the Borrower to the Lenders, or any of them, due or to become
due, direct or indirect, absolute or contingent, joint or several, howsoever
created, arising or evidenced, now or hereafter at any time created, arising or
evidenced under or pursuant to the Loan Documents (hereinafter collectively
referred to as the "Obligations"), the Borrower and Bayfront do hereby
transfer,
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assign and grant to the Lenders a security interest in all of their rights,
title and interest in and to the following (hereinafter collectively referred
to as the "Collateral"), whether now owned or hereafter acquired or arising:
(a) The Equipment; and
(b) All improvements, accessions, appurtenances,
substitutions and replacements to the Equipment, and all insurance
proceeds and condemnation awards payable therefrom or with respect
thereto, together with all proceeds and products thereof and all
rights thereto.
2. The Borrower and Bayfront represent, warrant, covenant and
agree:
(a) Organization. The Borrower and Bayfront are general
partnerships, duly organized and existing pursuant to their respective
partnership agreements, and the Borrower and Bayfront have full power
and authority to execute, deliver and perform the Loan Documents and
to own property and conduct business as presently conducted and as
proposed to be conducted.
(b) Authorization, Etc. The execution, delivery and
performance of this Security Agreement have been duly authorized by
all necessary action on the part of the Borrower and Bayfront and will
not (i) require any consent or approval of any entity which has not
been obtained; (ii) to their knowledge after due inquiry, violate any
provision of law, or (iii) violate any order of any court or other
agency of government having jurisdiction over the Borrower or
Bayfront, the partnership agreement of the Borrower, the partnership
agreement of Bayfront, or any provision of any indenture, agreement or
other instrument to which the Borrower or Bayfront is a party or by
which they or any of their properties are bound. This Security
Agreement constitutes the legal, valid and binding obligation of the
Borrower and Bayfront, enforceable against them in accordance with its
terms (subject to limitations as to enforceability which might result
from bankruptcy, insolvency or other similar laws affecting creditors'
rights generally).
(c) Performance by Borrower. Without the Lenders' prior
written consent, neither the Borrower nor Bayfront shall:
(i) sell, transfer or assign, or offer to sell, transfer
or assign, all or any part of the Collateral or permit all or
any part of the Collateral to be sold, transferred or
assigned;
(ii) remove or consent to the removal of any of the
Equipment from the Project, except as necessary for repair of
such Equipment, in the ordinary course of business;
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unless any such Equipment sold, transferred, assigned or removed is
promptly replaced with Equipment of at least equal value and utility,
and the security interest granted pursuant to this Security Agreement
attaches as a valid first priority security interest in such
replacement Equipment.
(d) Title to Collateral. The Borrower or Bayfront, as the
case may be, has good marketable title to all of the Collateral and
none of the Collateral is subject to any lien or security interest
except for the security interest created by this Security Agreement
and purchase money security interests in and financing leases of
equipment used in the Facilities (as defined in the Loan Agreement),
created from time to time, securing only indebtedness incurred for the
purchase or lease thereof having an aggregate initial or stated amount
not to exceed $500,000 at any time (the "Permitted Liens"). The
Borrower and Bayfront, other than as disclosed, have not granted, and
will not grant or permit to exist, any lien or security interests in
all or a portion of the Collateral except Permitted Liens. The
Borrower and Bayfront shall defend the Collateral against all claims
and demands of all and any other persons at any time claiming any
interest therein adverse to any Lender except for persons claiming
Permitted Liens.
(e) Actions and Proceedings. To the best of the Borrower's or
Bayfront's knowledge, there is no action, suit or proceeding at law or
in equity or by or before any governmental instrumentality or other
agency now pending or threatened against or affecting the Borrower or
Bayfront which, if adversely determined, would have a material adverse
effect on the Borrower's or Bayfront's interest in the Collateral or
would adversely affect the rights of the Borrower or Bayfront to
pledge and assign all or a part of the Collateral or the rights and
security afforded the Lenders hereunder.
(f) Insurance. The Borrower or Bayfront, as the case may be,
agrees it will keep the Equipment insured at all times in accordance
with the requirements set forth in Section 6.2 of the Loan Agreement.
(g) Costs of Collection. In the event of any action or
proceeding to collect or realize upon the Collateral or to enforce any
of the Lenders' rights hereunder, the Borrower shall pay all of the
Lenders' reasonable costs and expenses, including without limitation
attorneys' fees and legal expenses incurred by the Lenders, in
connection with or arising out of such collection or enforcement.
(h) Equipment to Remain Personal Property. The Borrower and
Bayfront agree that, regardless of the manner of affixation, the
Equipment shall remain personal property and shall not become part of
the vessel Princesa, aboard which it is to be used, or any leasehold
interest in real estate comprising the Project or a fixture.
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3. Events of Default. It shall be an Event of Default under
this Security Agreement upon the happening of any of the following:
(a) an "Event of Default" shall occur and be continuing under
the Loan Agreement; or
(b) failure to comply with or perform in any material respect
any of the terms, conditions or covenants of this Security Agreement.
4. Remedies. Upon an Event of Default, the Lenders may
declare all Obligations immediately due and payable, and may, at their option,
without notice, exercise any one or more of the following rights or remedies:
(a) either in person or by agent, with or without bringing
any action or proceeding, or by a receiver to be appointed by a court,
enforce and exercise all of the powers, rights and privileges of the
Borrower or Bayfront, as the case may be, in respect of rights of
payment constituting Collateral and all of the powers, rights and
privileges reserved or granted to the Lenders under this Security
Agreement; and
(b) may without demand, advertisement or notice of any kind
(except such notice as may be required under the applicable Uniform
Commercial Code (the "Code")) all of which are, to the extent
permitted by law, hereby expressly waived, lease or dispose of the
Collateral by public or private sale; and
(c) exercise any of the remedies available to a secured party
under the Code; and
(d) proceed to protect and enforce this Security Agreement by
suits or proceedings or otherwise, for the enforcement of any other
legal or equity available to the Lenders; and
(e) take possession of the Collateral.
In the event that any notice is required to be given under
the Code such requirements for reasonable notice shall be satisfied by giving
at least ten (10) days' notice prior to the event or thing giving rise to the
requirement of notice. Upon an Event of Default, the Borrower and Bayfront
shall make the Collateral available to the Lenders at their direction.
5. Further Assurances. The Borrower shall execute and deliver
to the Lenders, promptly and at the Borrower's expense, such other documents
and assurances and take such further action as the Lenders may reasonably
request in order to effectively carry out the intent and purpose of this
Security Agreement and to establish and protect the rights, interests and
remedies of the Lenders hereunder. This shall include, without limitation,
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providing Code financing statements and evidence of tax filings and payments.
The Borrower and Bayfront agree that the Lenders are authorized, at their
option, to file a carbon, photographic or other reproduction of this Security
Agreement as a financing statement, and such shall be sufficient as a financing
statement under the Code, and to file financing statements or amendments
thereto without the signature of the Borrower or Bayfront and, if a signature
is required by law, then the Borrower or Bayfront, as the case may be, appoints
each Lender as the Borrower's attorney-in-fact solely for the purpose of
executing any such financing statements.
6. Cumulative Remedies. All of the Borrower's and Bayfront's
rights and remedies herein are cumulative and in addition to any rights or
remedies available at law or in equity including the Code, and may be exercised
concurrently or separately. The Borrower shall pay all reasonable costs,
expenses, losses and legal costs (including attorneys' fees) incurred by the
Lenders as a result of enforcing any terms or conditions of this Security
Agreement.
7. No Liability Imposed on Lenders. The Lenders shall not be
obligated to perform or discharge, nor do they hereby undertake to perform or
discharge any obligation, duty or liability, nor shall this Security Agreement
operate to place responsibility for the control, care, management or repair of
the Equipment upon the Lenders, nor shall it operate to make the Lenders
responsible for any dangerous or defective condition of the Equipment.
8. Indemnification. The Borrower and Bayfront shall and do
hereby agree to indemnify against and to hold the Lenders, their respective
officers, agents and employees, harmless of and from any and all liability,
loss or damage which any one or more of them may or might incur under or by
reason of this Security Agreement and of and from any and all claims and
demands whatsoever which may be asserted against any one or more of them by
reason of any alleged obligations or undertakings on their part to perform or
discharge any of the terms, covenants or agreements, excepting the gross
negligence or willful misconduct of any Lender, its officers, agents and
employees. Should any Lender incur any such liability, should any Lender be
required to defend against any such claims or demands or should a judgment be
entered against any Lender, the amount thereof, including costs, expenses, and
reasonable attorneys' fees, which upon payment by Lender shall bear interest
thereon at the highest Default Rate (as defined in the Loan Agreement) which
would be applicable to any Note upon the occurrence of an Event of Default
under the Loan Agreement, shall be secured hereby, and shall be added to the
Obligations and the Borrower shall reimburse the applicable Lender for the same
immediately upon demand.
9. Attorney in Fact. Upon the occurrence of any Event of
Default and at any time during the continuance thereof, the Borrower hereby
irrevocably appoints the Servicer and its successors and assigns as its agent
and attorney-in-fact, which appointment shall be irrevocable during the term of
this Agreement, and which appointment is coupled
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with an interest, to exercise any rights or remedies hereunder with respect to
the Collateral or to endorse any checks which constitute part of the
Collateral.
10. Expenses of Lenders. All reasonable expenses in
protecting, storing, warehousing, insuring, handling and shipping of the
Collateral, all costs of keeping the Collateral free of liens, encumbrances and
security interests (other than the security interests created by this
Agreement) and the removing of the same and all excise, property, sales and use
taxes imposed by state, federal or local authority on any of the Collateral or
with respect to the sale thereof, shall be borne and paid for by the Borrower
or Bayfront, as the case may be, and if the Borrower fails promptly to pay any
amounts thereof when due, the Lenders may, at their option, but shall not be
required to, pay the same, and upon payment, the same shall constitute
Obligations and shall bear interest at the highest interest rate specified in
the Notes and shall be secured by the security interests granted hereunder.
11. Continuing Rights. The rights and powers of the Lenders
or receiver hereunder shall continue and remain in full force and effect until
all Obligations are paid in full.
12. Books and Records. The Lenders shall have the same rights
to inspect, and the same duties with regards to confidentiality of, the
Borrower's books and records with respect to the Collateral, as are provided in
the Loan Agreement. The Lenders shall have the authority, at any time, to
require the Borrower to place upon the Borrower's books and records relating to
the Collateral and other rights to payment covered by the security interest
created in this Security Agreement hereby a notation stating that any such
Collateral and other rights of payment are subject to a security interest in
favor of the Lenders.
13. Principal Place of Business. The location of the
principal places of business of the Borrower and Bayfront are set forth on the
signature page and will not be changed without thirty (30) days' prior written
notice to the Lenders. The Borrower and Bayfront represent that their
respective books and records concerning their respective accounts and chattel
paper are located at such address.
14. Name of Borrower. The Borrower's true name is as set
forth in the preamble hereto. The Borrower has not used any other name within
the past five (5) years. The Borrower agrees that it will not change its name
without thirty (30) days' written notice to the Lenders.
15. Successors and Assigns. This Security Agreement and each
and every covenant, agreement and provision hereof shall be binding upon the
Borrower and its successors and assigns and shall inure to the benefit of the
Lenders and their respective successors and assigns.
16. Severability. It is the intent of this Security Agreement
to confer to the Lenders the rights and benefits hereunder to the full extent
allowable by law including all
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rights available under the Code. The unenforceability or invalidity of any
provisions hereof shall not render any other provision or provisions herein
contained unenforceable or invalid. Any provisions found to be unenforceable
shall be severable from this Security Agreement.
17. Notices. Notices permitted or required to be given
hereunder shall be deemed sufficient if given in the manner specified in the
Loan Agreement.
18. Captions and Headings. The captions and headings of the
various sections of this Security Agreement are for convenience only and are
not to be construed as confining or limiting in any way the scope or intent of
the provisions hereof. Whenever the context requires or permits, the singular
shall include the plural, the plural shall include the singular and the
masculine, feminine and neuter shall be freely interchangeable.
19. Governing Law; Jurisdiction, Etc. The provisions of the
Loan Agreement regarding governing law, jurisdiction, choice of forum and
enforcement of remedies are incorporated into this Security Agreement by
reference.
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IN WITNESS WHEREOF, the Borrower and Bayfront have caused
this Security Agreement to be executed as of the date first above written.
PRINCESA PARTNERS
By CONAMI, INC., Its General Partner
By /s/ Xxxxx X. Xxxx
-----------------------------------
Its President
Address of Principal Place of Business:
Princesa Partners
000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 000
Xxxxx, XX 00000
Tax Identification No. 00-0000000
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BAYFRONT VENTURES
By CONCORDE CRUISES, INC., Its
General Partner
By /s/ Xxxxx X. Xxxx
-----------------------------------
Its President
Address of Principal Place of Business:
000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx, XX 00000
Tax Identification No. 00-0000000
----------
Signature Page to Security Agreement
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EXHIBIT A
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LENDERS
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The National City Bank of Evansville
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Linn County State Bank
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First National Bank
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United Prairie Bank - Xxxxxxx
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Peoples National Bank of Kewanee
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A-1
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Description of Furniture, Fixtures and Equipment
The "Equipment" consists of all furniture, furnishings,
machinery and equipment of the Borrower or Bayfront, whether now or hereafter
existing or owned, that is now or hereafter used, usable or intended to be used
in connection with, or located or intended to be located in, on or at, the
gaming vessel Princesa (as defined in the other Loan Documents), and shall
include, without limitation, all present and future slot, "keno" and other
gaming machines, equipment and devices, and all machinery, equipment, supplies,
furniture and furnishings used for or in connection with coin and money
changing, counting or storage, kitchen, dining room and food service
facilities, cleaning and maintenance, security and surveillance, office,
bookkeeping and back room facilities, and internal and external communications,
and all furniture, furnishings, equipment and supplies.
