EXHIBIT 2.3
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (this "Agreement"), made as of the 22th day of
July, 1997, is by PRESIDENT XXXXXXXXXX HOTEL, L.L.C., a Mississippi limited
liability company ("Borrower"), whose address is 0000 Xxxxx Xxxxxxxxx, Xxxxxx,
Xxxxxxxxxxx 00000, PRESIDENT CASINOS, INC., a Delaware corporation ("President
Casinos"), whose address is 000 Xxxxx Xxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000,
THE PRESIDENT RIVERBOAT CASINO-MISSISSIPPI, INC., a Mississippi corporation
("President Mississippi"), whose address is 0000 Xxxxx Xxxxxxxxx, Xxxxxx,
Xxxxxxxxxxx 00000, jointly and severally (Borrower, President Casinos and
President Mississippi being hereinafter referred to collectively as
"Indemnitors" and individually as "Indemnitor"), in favor of XXXXXX BROTHERS
HOLDINGS INC., a Delaware corporation ("Lender"), whose address is 3 World
Financial Center, 12th Floor, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000.
W I T N E S S E T H:
WHEREAS, Lender has extended to Borrower a loan in the principal amount of
Thirty Million and No/100 Dollars ($30,000,000.00) (the "Loan"); and
WHEREAS, the Loan is evidenced by a Promissory Note dated of even date
pherewith (the "Note"), executed by Borrower and payable to the order of
Lender in the stated principal amount of Thirty Million and No/100 Dollars
($30,000,000.00), and the Loan is secured by, among other things, a Deed of
Trust, Security Agreement and Fixture Filing dated of even date herewith (the
"Security Instrument"), from Borrower to Lender encumbering that certain real
property situated in the County of Xxxxxxxx, State of Mississippi, as is more
particularly described on Exhibit "A" attached hereto and incorporated herein
by this reference, together with the buildings, structures and other
improvements now or hereafter located thereon (said real property, buildings,
structures and other improvements being hereinafter collectively referred to
as the "Property") and by other documents and instruments (the Note, the
Security Instrument and such other documents and instruments, as the same may
from time to time be amended, consolidated, renewed or replaced, being
collectively referred to herein as the "Loan Documents"); and
WHEREAS, as a condition to making the Loan, Lender has required that
Indemnitors indemnify Lender with respect to hazardous wastes on, in, under or
affecting the Property as herein set forth.
NOW, THEREFORE, to induce Lender to extend the Loan to Borrower and in
consideration of the foregoing premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Indemnitors, jointly and severally hereby covenant and agree for the benefit
of Lender, as follows:
1. INDEMNITY. INDEMNITORS, JOINTLY AND SEVERALLY HEREBY ASSUME LIABILITY
FOR, AND HEREBY AGREE TO PAY, PROTECT, DEFEND (AT TRIAL AND APPELLATE LEVELS
AND WITH ATTORNEYS, CONSULTANTS AND EXPERTS ACCEPTABLE TO LENDER), AND SAVE
LENDER HARMLESS FROM AND AGAINST, AND HEREBY INDEMNIFY LENDER FROM AND AGAINST
ANY AND ALL LIENS, DAMAGES, LOSSES, LIABILITIES, OBLIGATIONS, SETTLEMENT
PAYMENTS, FINES, PENALTIES, ASSESSMENTS, CITATIONS, DIRECTIVES, CLAIMS,
LITIGATION, DEMANDS, DEFENSES, JUDGMENTS, SUITS, PROCEEDINGS, COSTS, RESPONSE
COSTS, DISBURSEMENTS AND EXPENSES OF ANY KIND OR OF ANY NATURE WHATSOEVER
(INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS', CONSULTANTS' AND
EXPERTS' FEES AND DISBURSEMENTS ACTUALLY INCURRED IN INVESTIGATING, DEFENDING,
SETTLING OR PROSECUTING ANY CLAIM, LITIGATION OR PROCEEDING) (COLLECTIVELY
"COSTS") WHICH MAY AT ANY TIME BE IMPOSED UPON, INCURRED BY OR ASSERTED OR
AWARDED AGAINST LENDER OR THE PROPERTY (INCLUDING ANY CLAIMS DUE TO THE
NEGLIGENT ACTS OR OMISSIONS OF LENDER), AND ARISING DIRECTLY OR INDIRECTLY
FROM OR OUT OF: (i) THE VIOLATION OF ANY LOCAL, STATE OR FEDERAL LAW, RULE OR
REGULATION, ORDINANCE, ORDER OR DECREE NOW OR HEREAFTER IN EFFECT PERTAINING
TO ENVIRONMENTAL REGULATION, CONTAMINATION OR CLEAN-UP (COLLECTIVELY,
"ENVIRONMENTAL LAWS"), INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980 (42 U.S.C. 9601
SECTION ET SEQ. AND 40 CFR SECTION 302.1 ET SEQ.), THE RESOURCE CONSERVATION
AND RECOVERY ACT OF 1976 (42 U.S.C. SECTION 6901 ET SEQ.), THE FEDERAL WATER
POLLUTION CONTROL ACT (33 U.S.C. SECTION 1251 ET SEQ. AND 40 CFR SECTION 116.1
ET SEQ.), AND THE HAZARDOUS MATERIALS TRANSPORTATION ACT (49 U.S.C. SECTION
1801 ET SEQ.), AND THE REGULATIONS PROMULGATED PURSUANT TO SAID LAWS, ALL AS
AMENDED, RELATING TO OR AFFECTING THE PROPERTY, WHETHER OR NOT CAUSED BY OR
WITHIN THE CONTROL OF INDEMNITORS; (II) THE PRESENCE, RELEASE OR THREAT OF
RELEASE OF ANY HAZARDOUS, TOXIC OR HARMFUL SUBSTANCES, WASTES, MATERIALS,
POLLUTANTS OR CONTAMINANTS (INCLUDING, WITHOUT LIMITATION, ASBESTOS,
POLYCHLORINATED BIPHENYLS, PETROLEUM PRODUCTS, FLAMMABLE EXPLOSIVES,
RADIOACTIVE MATERIALS, INFECTIOUS SUBSTANCES OR RAW MATERIALS WHICH INCLUDE
HAZARDOUS CONSTITUENTS) OR ANY OTHER SUBSTANCES OR MATERIALS WHICH ARE
INCLUDED UNDER OR REGULATED BY ENVIRONMENTAL LAWS (COLLECTIVELY, "HAZARDOUS
SUBSTANCES"), ON, IN, UNDER OR AFFECTING ALL OR ANY PORTION OF THE PROPERTY OR
ANY SURROUNDING AREAS, REGARDLESS OF WHETHER OR NOT CAUSED BY OR WITHIN THE
CONTROL OF INDEMNITORS; (iii) THE FAILURE BY INDEMNITORS TO COMPLY FULLY WITH
THE TERMS AND CONDITIONS OF THIS AGREEMENT; (iv) THE BREACH OF ANY
REPRESENTATION OR WARRANTY CONTAINED IN THIS AGREEMENT; OR (v) THE
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ENFORCEMENT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE COST OF
ASSESSMENT, CONTAINMENT AND/OR REMOVAL OF ANY AND ALL HAZARDOUS SUBSTANCES
FROM ALL OR ANY PORTION OF THE PROPERTY OR ANY SURROUNDING AREAS, THE COST OF
ANY ACTIONS TAKEN IN RESPONSE TO THE PRESENCE, RELEASE OR THREAT OF RELEASE OF
ANY HAZARDOUS SUBSTANCES ON, IN, UNDER OR AFFECTING ANY PORTION OF THE
PROPERTY OR ANY SURROUNDING AREAS TO PREVENT OR MINIMIZE SUCH RELEASE OR
THREAT OF RELEASE SO THAT IT DOES NOT MIGRATE OR OTHERWISE CAUSE OR THREATEN
DANGER TO PRESENT OR FUTURE PUBLIC HEALTH, SAFETY, WELFARE OR THE ENVIRONMENT,
AND COSTS INCURRED TO COMPLY WITH THE ENVIRONMENTAL LAWS IN CONNECTION WITH
ALL OR ANY PORTION OF THE PROPERTY OR ANY SURROUNDING AREAS. "COSTS" AS USED
IN THIS AGREEMENT SHALL ALSO INCLUDE ANY DIMINUTION IN THE VALUE OF THE
SECURITY AFFORDED BY THE PROPERTY OR ANY FUTURE REDUCTION OF THE SALES PRICE
OF THE PROPERTY BY REASON OF ANY MATTER SET FORTH IN THIS SECTION 1. THE
FOREGOING INDEMNITY SHALL SPECIFICALLY NOT INCLUDE ANY SUCH COSTS RELATING TO
HAZARDOUS SUBSTANCES WHICH ARE INITIALLY PLACED ON, IN OR UNDER THE PROPERTY
AFTER FORECLOSURE OR OTHER TAKING OF TITLE TO THE PROPERTY BY LENDER. THE
BURDEN OF PROOF AS TO THE TIME ANY HAZARDOUS SUBSTANCE WAS INITIALLY PLACED
ON, IN OR UNDER THE PROPERTY SHALL BE UPON INDEMNITORS.
2. Representations Regarding Hazardous Substances. Indemnitors hereby
represent and warrant to and covenant and agree with Lender as follows,
subject to any contrary information contained in any written environmental
report provided by Borrower to Lender prior to the date hereof:
(a) To the best of Indemnitors' knowledge, information and belief, the
Property is not in direct or indirect violation of any Environmental Law;
(b) To the best of Indemnitors' knowledge, information and belief, no
Hazardous Substances are located on or have been handled, generated, stored,
processed or disposed of on or released or discharged from the Property
(including underground contamination) or transported to or from the Property
except for those substances used by Borrower in the ordinary course of its
business and in compliance with all Environmental Laws;
(c) The Property is not subject to any private or governmental lien or
judicial or administrative notice or action relating to Hazardous Substances;
(d) There are no existing or closed underground storage tanks or other
underground storage receptacles for Hazardous Substances on the Property;
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(e) Indemnitors have received no notice of, and to the best of
Indemnitors' knowledge and belief, there exists no investigation, action,
proceeding or claim by any agency, authority or unit of government or by any
third party which could result in any liability, penalty, sanction or judgment
under any Environmental Laws with respect to any condition, use or operation
of the Property nor do Indemnitors know of any basis for such a claim; and
(f) Indemnitors have received no notice that, and to the best of
Indemnitors' knowledge and belief, there has been no claim by any party that,
any use, operation or condition of the Property has caused any nuisance or any
other liability or adverse condition on any other property nor do Indemnitors
know of any basis for such a claim.
3. Covenants of Indemnitors.
(a) Indemnitors shall keep or cause the Property to be kept free from
Hazardous Substances (except those substances used by Borrower or President
Mississippi in the ordinary course of its business and in compliance with all
Environmental Laws) and in compliance with all Environmental Laws, shall not
install or use any underground storage tanks, shall expressly prohibit the
use, generation, handling, storage, production, processing and disposal of
Hazardous Substances by all tenants of space in the Improvements, and, without
limiting the generality of the foregoing, during the term of this Agreement,
shall not install in the Improvements or permit to be installed in the
Improvements asbestos or any substance containing asbestos.
(b) Indemnitors shall immediately notify Lender should Indemnitors, or
any of them, become aware of (i) any Hazardous Substances, or other potential
environmental problem or liability, with respect to the Property, (ii) any
lien, action or notice affecting the Property, Borrower or President
Mississippi resulting from any violation or alleged violation of any
Environmental Law, (iii) the institution of any investigation, inquiry or
proceeding concerning Borrower, the Property or President Mississippi pursuant
to any Environmental Law or otherwise relating to Hazardous Substances, or
(iv)the discovery of any occurrence, condition or state of facts which would
render any representation or warranty contained in this Agreement incorrect in
any respect if made at the time of such discovery. Indemnitors shall,
promptly and when and as required and regardless of the source of the
contamination, at their own expense, take all actions as shall be necessary or
advisable for the clean-up of any and all portions of the Property or other
affected property, including, without limitation, all investigative,
monitoring, removal, containment and remedial actions in accordance with all
applicable Environmental Laws (and in all events in a manner satisfactory to
Lender), and shall further pay or cause to be paid, at no expense to Lender,
all clean-up, administrative and enforcement costs of applicable governmental
agencies which may be asserted against the Property. In the event Indemnitors
fail to do so, Lender may (at its sole option, and with no obligation to do
so) cause the Property or other affected property to be freed from any
Hazardous Substances or otherwise brought into conformance with Environmental
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Laws and any cost incurred in connection therewith shall be included in Costs
and shall be paid by Indemnitors in accordance with the terms of Section 4(c)
hereof. In furtherance of the foregoing, Indemnitors hereby grant to Lender
access to the Property and an irrevocable license to remove any items deemed
by Lender to be Hazardous Substances and to do all things Lender shall deem
necessary to bring the Property into conformance with Environmental Laws.
(c) Upon the request of Lender, at any time and from time to time after
the occurrence of a default under this Agreement or the Loan Documents or at
such other time as Lender has reasonable grounds to believe that Hazardous
Substances are or have been released, stored or disposed of on or around the
Property or that the Property may be in violation of the Environmental Laws,
Indemnitors shall provide, at Indemnitors' sole expense, an inspection or
audit of the Property prepared by a hydrogeologist or environmental engineer
or other appropriate consultant approved by Lender indicating the presence or
absence of Hazardous Substances on the Property or an inspection or audit of
the improvements located on the Property prepared by an engineering or
consulting firm approved by Lender indicating the presence or absence of
friable asbestos or substances containing asbestos on the Property. If
Indemnitors fail to provide such inspection or audit within thirty (30) days
after such request, Lender may order the same, and Indemnitors hereby grant to
Lender access to the Property and an irrevocable license to undertake such
inspection or audit. The cost of such inspection or audit shall be included
in Costs and shall be paid by Indemnitors in accordance with the terms of
Section 4(c) hereof.
4. Indemnification Procedures.
(a) If any action shall be brought against Lender based upon any of the
matters for which Lender is indemnified hereunder, Lender shall notify
Indemnitors in writing thereof and Indemnitors shall promptly assume the
defense thereof, including, without limitation, the employment of counsel
acceptable to Lender and the negotiation of any settlement; provided, however,
that any failure of Lender to notify Indemnitors of such matter shall not
impair or reduce the obligations of Indemnitors hereunder. Lender shall have
the right, at the expense of Indemnitors (which expense shall be included in
Costs), to employ separate counsel in any such action and to participate in
the defense thereof. In the event Indemnitors shall fail to discharge or
undertake to defend Lender against any claim, loss or liability for which
Lender is indemnified hereunder, Lender may, at its sole option and election,
defend or settle such claim, loss or liability. The liability of Indemnitors
to Lender hereunder shall be conclusively established by such settlement,
provided such settlement is made in good faith, the amount of such liability
to include both the settlement consideration and the costs and expenses,
including, without limitation attorneys' fees and disbursements, incurred by
Lender in effecting such settlement. In such event, such settlement
consideration, costs and expenses shall be included in Costs and Indemnitors
shall pay the same as hereinafter provided. Lender's good faith in any such
settlement shall be conclusively established if the settlement is made on the
advice of independent legal counsel for Lender.
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(b) Indemnitors shall not, without the prior written consent of Lender:
(i) settle or compromise any action, suit, proceeding or claim or consent to
the entry of any judgment that does not include as an unconditional term
thereof the delivery by the claimant or plaintiff to Lender of a full and
complete written release of Lender (in form, scope and substance satisfactory
to Lender in its sole discretion) from all liability in respect of such
action, suit, proceeding or claim and a dismissal with prejudice of such
action, suit, proceeding or claim; or (ii) settle or compromise any action,
suit, proceeding or claim in any manner that may adversely affect Lender or
obligate Lender to pay any sum or perform any obligation as determined by
Lender in its sole discretion.
(c) All Costs shall be immediately reimbursable to Lender when and as
incurred and, in the event of any litigation, claim or other proceeding,
without any requirement of waiting for the ultimate outcome of such
litigation, claim or other proceeding, and Indemnitors shall pay to Lender any
and all Costs within ten (10) days after written notice from Lender itemizing
the amounts thereof incurred to the date of such notice. In addition to any
other remedy available for the failure of Indemnitors to periodically pay such
Costs, such Costs, if not paid within said ten-day period, shall bear interest
at the Default Interest Rate (as defined in the Note).
5. Reinstatement of Obligations. If at any time all or any part of any
payment made by Indemnitors or received by Lender from Indemnitors under or
with respect to this Agreement is or must be rescinded or returned for any
reason whatsoever (including, but not limited to, the insolvency, bankruptcy
or reorganization of Borrower or any Indemnitor), then the obligations of
Indemnitors hereunder shall, to the extent of the payment rescinded or
returned, be deemed to have continued in existence, notwithstanding such
previous payment made by Indemnitors, or receipt of payment by Lender, and the
obligations of Indemnitors hereunder shall continue to be effective or be
reinstated, as the case may be, as to such payment, all as though such
previous payment by Indemnitors had never been made.
6. Waivers by Indemnitors. To the extent permitted by law, Indemnitors
hereby waive and agree not to assert or take advantage of (as a defense or
otherwise):
(a) Any right to require Lender to proceed against any other person or
to proceed against or exhaust any security held by Lender at any time or to
pursue any other remedy in Lender's power or under any other agreement before
proceeding against Indemnitors hereunder;
(b) The defense of the statute of limitations with respect to
Borrower's obligations;
(c) Any defense that may arise by reason of the incapacity, lack of
authority, death or disability of any other person or persons or the failure
of Lender to file or enforce a claim against the estate (in administration,
bankruptcy or any other proceeding) of any other person or persons;
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(d) Any failure on the part of Lender to ascertain the extent or nature
of any property (whether real or personal), rights, estates and interests now
or at any time hereafter securing the payment of the Note and/or the other
obligations of Borrower under the Loan Documents whether held by Lender or by
any person or entity on Lender's behalf or for Lender's account (the
"Collateral") or any insurance or other rights with respect thereto, or the
liability of any party liable for the Loan Documents or the obligations
evidenced or secured thereby;
(e) Demand, presentment for payment, notice of nonpayment, protest,
notice of protest and all other notices of any kind, or the lack of any
thereof, including, without limiting the generality of the foregoing, 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 Lender, any
endorser or creditor of Borrower or of any Indemnitor or on the part of any
other person whomsoever under this or any other instrument in connection with
any obligation or evidence of indebtedness held by Lender;
(f) Any defense based upon an election of remedies by Lender;
(g) Any right or claim of right to cause a marshaling of the assets of
any Indemnitor;
(h) Any principle or provision of law, statutory or otherwise, which is
or might be in conflict with the terms and provisions of this Agreement;
(i) Any duty on the part of Lender to disclose to Indemnitors any facts
Lender may now or hereafter know about Borrower or the Property, regardless of
whether Lender has reason to believe that any such facts materially increase
the risk beyond that which Indemnitors intend to assume or has reason to
believe that such facts are unknown to Indemnitors or has a reasonable
opportunity to communicate such facts to Indemnitors, it being understood and
agreed that Indemnitors are fully responsible for being and keeping informed
of the financial condition of Borrower, of the condition of the Property and
of any and all circumstances bearing on the risk that liability may be
incurred by Indemnitors hereunder;
(j) Any lack of notice of disposition or of manner of disposition of
any Collateral;
(k) Failure to properly record any document or any other lack of due
diligence by Lender in creating or perfecting a security interest in or
collection, protection or realization upon any Collateral or in obtaining
reimbursement or performance from any person or entity now or hereafter liable
for the Loan Documents or any obligation secured thereby;
(l) The inaccuracy of any representation or other provision contained
in any Loan Document;
(m) Any sale or assignment of the Loan Documents or any interest
therein;
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(n) Any sale or assignment by Borrower of the Collateral, or any
portion thereof or interest therein, whether or not consented to by Lender;
(o) Any invalidity, irregularity or unenforceability, in whole or in
part, of any one or more of the Loan Documents;
(p) Any lack of commercial reasonableness in dealing with any of the
Collateral;
(q) Any deficiencies in the Collateral or any deficiency in the ability
of Lender to collect or to obtain performance from any persons or entities now
or hereafter liable for the payment and performance of any obligation hereby
guaranteed;
(r) An assertion or claim that the automatic stay provided by 11 U.S.C.
Section 362 (arising upon the voluntary or involuntary bankruptcy proceeding
of Borrower) or any other stay provided under any other debtor relief law
(whether statutory, common law, case law or otherwise) of any jurisdiction
whatsoever, now or hereafter in effect, which may be or become applicable,
shall operate or be interpreted to stay, interdict, condition, reduce or
inhibit the ability of Lender to enforce any of its rights, whether now or
hereafter acquired, which Lender may have against Indemnitors or the
Collateral;
(s) Any modifications of the Loan Documents or any obligation of
Borrower relating to the Loan by operation of law or by action of any court,
whether pursuant to the Bankruptcy Reform Act of 1978, as amended, or any
other debtor relief law (whether statutory, common law, case law or otherwise)
of any jurisdiction whatsoever, now or hereafter in effect, or otherwise;
(t) Any change in the composition of Borrower, including, without
limitation, the withdrawal or removal of any Indemnitor from any current or
future position of ownership, management or control of Borrower;
(u) The release of Borrower or of any other person or entity from
performance or observance of any of the agreements, covenants, terms or
conditions contained in any of the Loan Documents by operation of law,
Lender's voluntary act or otherwise; and
(v) Any action, occurrence, event or matter consented to by Indemnitors
under Section 7(h) hereof, under any other provision hereof, or otherwise.
7. General Provisions.
(a) Fully Recourse. All terms and provisions of this Agreement are
recourse obligations of Indemnitors and not restricted by any limitation on
personal liability.
(b) Unsecured Obligations. Indemnitors hereby acknowledge that
Lender's appraisal of the Property is such that Lender is not willing to
accept the consequences of the inclusion of Indemnitors' indemnity set forth
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herein among the obligations secured by the Security Instrument and the other
Loan Documents and that Lender would not make the Loan but for the unsecured
personal liability undertaken by Indemnitors herein. Indemnitors further
hereby acknowledge that even though the representations, warranties, covenants
or agreements of Indemnitors contained herein may be identical or
substantially similar to representations, warranties, covenants or agreements
of Borrower set forth in the Security Instrument and secured thereby, the
obligations of Indemnitors under this Agreement are not secured by the lien of
the Security Instrument or the security interests or other collateral
described in the Security Instrument or the other Loan Documents, it being the
intent of Lender to create separate obligations of Indemnitors hereunder which
can be enforced against Indemnitors without regard to the existence of the
Security Instrument or other Loan Documents or the liens or security interests
created therein.
(c) Survival. This Agreement shall be deemed to be continuing in
nature and shall remain in full force and effect and shall survive the payment
of the indebtedness evidenced and secured by the Loan Documents and the
exercise of any remedy by Lender under the Security Instrument or any of the
other Loan Documents, including, without limitation, any foreclosure or deed
in lieu thereof, even if, as a part of such remedy, the Loan is paid or
satisfied in full.
(d) No Subrogation; No Recourse Against Lender. Notwithstanding the
satisfaction by any Indemnitor of any liability hereunder, no other Indemnitor
shall have any right of subrogation, contribution, reimbursement or indemnity
whatsoever or any right of recourse to or with respect to the assets or
property of any other Indemnitor or to any Collateral, until the expiration of
ninety-one (91) days after payment in full of the Loan. In connection with
the foregoing, each Indemnitor expressly waives, until the expiration of
ninety-one (91) days after payment in full of the Loan, any and all rights of
subrogation to Lender against every other Indemnitor, each Indemnitor hereby
waives any rights to enforce any remedy which Lender may have against any
other Indemnitor and any right to participate in any Collateral. In addition
to and without in any way limiting the foregoing, each Indemnitor hereby
subordinates any and all indebtedness now or hereafter owed to it by any other
Indemnitor (other than any such indebtedness that has been assigned to Lender
or in which Lender has been granted a security interest or lien) to all
indebtedness of all other Indemnitors to Lender, if any, and agrees with
Lender that no Indemnitor shall demand or accept any payment of principal or
interest from any other Indemnitor, shall claim any offset or other reduction
of its obligations hereunder because of any such indebtedness, or take any
action to obtain any of the Collateral. Further, no Indemnitor shall have any
right of recourse against Lender by reason of any action Lender may take or
omit to take under the provisions of this Agreement or under the provisions of
any of the Loan Documents.
(e) Reservation of Rights. Nothing contained in this Agreement shall
prevent or in any way diminish or interfere with any rights or remedies,
including, without limitation, the right to contribution, which Lender may
have against any Indemnitor or any other party under the Comprehensive
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Environmental Response, Compensation and Liability Act of 1980 (codified at
Title 42 U.S.C. Section 9601 et seq.), as it may be amended from time to time,
or any other applicable federal, state or local laws, all such rights being
hereby expressly reserved.
(f) Financial Statements. Each Indemnitor hereby agrees, as a material
inducement to Lender to make the Loan to Borrower, to furnish to Lender
promptly upon demand by Lender current and dated financial statements
detailing the assets and liabilities of such Indemnitor as required by the
Security Instrument, certified by such Indemnitor, in form and substance
acceptable to Lender. Such financial statements may be consolidated, provided
that the notes to such financial statements indicate clearly that Borrower is
not bound in any way for the payment of any of the debts or obligations of any
other party covered by such consolidated financial statements and is not
liable to any of the creditors of any such other party. Indemnitors hereby
warrant and represent unto Lender that any and all balance sheets, net worth
statements and other financial data which have heretofore been given or may
hereafter be given to Lender with respect to such Indemnitor did or will at
the time of such delivery fairly and accurately present the financial
condition of such Indemnitor.
(g) Rights Cumulative; Payments. Lender's rights under this Agreement
shall be in addition to all rights of Lender under the Note, the Security
Instrument and the other Loan Documents. Further, payments made by
Indemnitors under this Agreement shall not reduce in any respect Borrower's
obligations and liabilities under the Note, the Security Instrument and the
other Loan Documents, except to the extent that such payments are required
under this Agreement or the other Loan Documents, or by law, to be applied by
Lender to the obligations and liabilities of Borrower under the Note, the
Security Instrument and the other Loan Documents.
(h) Consents. Indemnitors hereby consent and agree that Lender may at
any time, and from time to time, without further consent from Indemnitors do,
make, grant, consent or agree to any of the following, and the liability of
Indemnitors under this Agreement shall be unconditional and absolute and shall
in no way be impaired or limited by any of the following, whether with or
without notice to Indemnitors or with or without consideration: (i) release
and surrender the Collateral or any portion thereof; (ii) substitute for any
Collateral held by or on behalf of Lender other collateral of like kind, or of
any kind; (iii) make over-advances or increase the amount of the Loan; (iv)
extend the time for performance required by any of the Loan Documents or
extend or renew of the Note; (v) xxx upon or foreclose the Note, the Security
Instrument or any of the other Loan Documents; (vi) sell or transfer the
Property subsequent to foreclosure; (vii) release Borrower, any other
Indemnitor or any other person or entity from performance or observance of any
of the agreements, covenants, terms or conditions contained in any of the Loan
Documents by operation of law, Lender's voluntary act or otherwise; (viii)
agree to modify the terms of any one or more of the Loan Documents; (ix) sell,
assign or otherwise transfer the Note, the Security Instrument and/or any
other Loan Documents or any interest therein; or (x) take or fail to take any
action of any type whatsoever. No such action which Lender shall take or fail
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to take in connection with the Loan Documents or any Collateral, nor any
course of dealing with Borrower or any other person, shall limit, impair or
release any of Indemnitors' obligations hereunder, affect this Agreement in
any way or afford any Indemnitor any recourse against Lender. Nothing
contained in this section shall be construed to require Lender to take or
refrain from taking any action referred to herein.
(i) Entire Agreement; Amendment; Severability. This Agreement contains
the entire agreement between the parties respecting the matters herein set
forth (except for the Loan Documents) and supersedes all prior agreements,
whether written or oral, between the parties respecting such matters. Any
amendments or modifications hereto, in order to be effective, shall be in
writing and executed by the parties hereto. A determination that any
provision of this Agreement is unenforceable or invalid shall not affect the
enforceability or validity of any other provision, and any determination that
the application of any provision of this Agreement to any person or
circumstance is illegal or unenforceable shall not affect the enforceability
or validity of such provision as it may apply to any other persons or
circumstances.
(j) Governing Law; Binding Effect; Assignment; Waiver of Acceptance.
This Agreement shall be interpreted, construed and enforced according to the
substantive laws of the State of Mississippi without giving effect to its
principles of choice of law or conflicts of law, except for specific rights,
claims or causes of action which may be provided to Lender under any
Environmental Laws. Should any obligation or remedy under this Agreement be
invalid or unenforceable pursuant to the laws provided herein to govern, the
laws of the other state referred to hereinabove or of another state whose laws
can validate and apply thereto shall govern. The provisions of this Agreement
shall be binding upon Indemnitors and the heirs, executors, legal
representatives, successors and assigns of Indemnitors and shall inure to the
benefit of Lender and the officers, directors, shareholders, agents and
employees of Lender and their respective heirs, successors and assigns. This
Agreement shall in no event be impaired by any change which may arise by
reason of the death of Borrower or any Indemnitor, if individuals, or by
reason of the dissolution of Borrower or any Indemnitor, if Borrower or any
Indemnitor is a corporation, partnership, limited liability company or similar
entity. Each Indemnitor has executed this Agreement individually and not as a
partner of any other indemnitor. This Agreement is assignable by Lender, and
any full or partial assignment hereof by Lender shall operate to vest in the
assignee all rights and powers herein conferred upon and granted to Lender and
so assigned by Lender. Indemnitors expressly waive notice of transfer or
assignment of this Agreement and acknowledge that the failure by Lender to
give any such notice shall not affect the liabilities of Indemnitors
hereunder. Notwithstanding the foregoing, no Indemnitor shall assign its
rights or obligations under this Agreement. Indemnitors hereby waive any
acceptance of this Agreement by Lender, and this Agreement shall immediately
be binding upon Indemnitors.
(k) Notice. All notices, demands, requests or other communications to
be sent by one party to the other hereunder or required by law shall be in
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writing and shall be deemed to have been validly given or served by delivery
of the same in person to the intended addressee, or by depositing the same
with Federal Express or another reputable private courier service for next
business day delivery to the intended addressee at its address set forth on
the first page of this Agreement or at such other address as may be designated
by such party as herein provided, or by depositing the same in the United
States mail, postage prepaid, registered or certified mail, return receipt
requested, addressed to the intended addressee at its address set forth on the
first page of this Agreement or at such other address as may be designated by
such party as herein provided. All notices, demands and requests shall be
effective upon such personal delivery, or one (1) business day after being
deposited with the private courier service, or two (2) business days after
being deposited in the United States mail as required above. Rejection or
other refusal to accept or the inability to deliver because of changed address
of which no notice was given as herein required shall be deemed to be receipt
of the notice, demand or request sent. By giving to the other party hereto at
least fifteen (15) days' prior written notice thereof in accordance with the
provisions hereof, the parties hereto shall have the right from time to time
to change their respective addresses and each shall have the right to specify
as its address any other address within the United States of America.
(l) No Waiver; Time of Essence; Business Days. The failure of any
party hereto to enforce any right or remedy hereunder, or to promptly enforce
any such right or remedy, shall not constitute a waiver thereof nor give rise
to any estoppel against such party nor excuse any of the parties hereto from
their respective obligations hereunder. Any waiver of such right or remedy
must be in writing and signed by the party to be bound. This Agreement is
subject to enforcement at law or in equity, including actions for damages or
specific performance. Time is of the essence hereof. The term "business day"
as used herein shall mean a weekday, Monday through Friday, except a legal
holiday or a day on which banking institutions in New York, New York are
authorized by law to be closed.
(m) Captions for Convenience; Pronouns. The captions and headings of
the sections and paragraphs of this Agreement are for convenience of reference
only and shall not be construed in interpreting the provisions hereof. All
personal pronouns used herein, whether used in the masculine, feminine or
neuter gender, shall include all other genders; and the singular shall include
the plural and vice versa.
(n) Attorneys' Fees. In the event it is necessary for Lender to retain
the services of an attorney or any other consultants in order to enforce this
Agreement, or any portion thereof, Indemnitors agree to pay to Lender any and
all costs and expenses, including, without limitation, attorneys' fees,
incurred by Lender as a result thereof and such costs, fees and expenses shall
be included in Costs.
(o) Successive Actions. A separate right of action hereunder shall
arise each time Lender acquires knowledge of any matter indemnified by
Indemnitors under this Agreement. Separate and successive actions may be
brought hereunder to enforce any of the provisions hereof at any time and from
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time to time. No action hereunder shall preclude any subsequent action, and
Indemnitors hereby waive and covenant not to assert any defense in the nature
of splitting of causes of action or merger of judgments.
(p) Joint and Several Liability. Notwithstanding anything to the
contrary contained herein, the representations, warranties, covenants and
agreements made by Indemnitors herein, and the liability of Indemnitors
hereunder, are joint and several.
(q) Reliance. Lender would not make the Loan to Borrower without this
Agreement. Accordingly, Indemnitors intentionally and unconditionally enter
into the covenants and agreements as set forth above and understand that, in
reliance upon and in consideration of such covenants and agreements, the Loan
shall be made and, as part and parcel thereof, specific monetary and other
obligations have been, are being and shall be entered into which would not be
made or entered into but for such reliance.
(r) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be effective only upon delivery and
thereafter shall be deemed an original, and all of which shall be taken to be
one and the same instrument, for the same effect as if all parties hereto had
signed the same signature page. Any signature page of this Agreement may be
detached from any counterpart of this Agreement without impairing the legal
effect of any signatures thereon and may be attached to another counterpart of
this Agreement identical in form hereto but having attached to it one or more
additional signature pages.
(s) SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
(1) INDEMNITORS, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY
KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF
COMPETENT COUNSEL, (A) SUBMIT TO PERSONAL JURISDICTION IN THE STATES OF
MISSISSIPPI AND NEW YORK OVER ANY SUIT, ACTION OR PROCEEDING BY ANY PERSON
ARISING FROM OR RELATING TO THIS AGREEMENT, (B) AGREE THAT ANY SUCH ACTION,
SUIT OR PROCEEDING MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN XXXXXXXX COUNTY, MISSISSIPPI OR NEW YORK COUNTY, NEW YORK, (C)
SUBMIT TO THE JURISDICTION OF SUCH COURTS, AND, (D) TO THE FULLEST EXTENT
PERMITTED BY LAW, AGREE THAT NONE OF THEM WILL BRING ANY ACTION, SUIT OR
PROCEEDING IN ANY FORUM OTHER THAN SUCH COURTS IN NEW YORK COUNTY, NEW YORK
(BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF LENDER TO BRING ANY ACTION, SUIT
OR PROCEEDING IN ANY OTHER FORUM). INDEMNITORS FURTHER CONSENT AND AGREE TO
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT,
ACTION OR PROCEEDING BY REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO
THE BORROWER OR INDEMNITORS AT THE ADDRESS FOR NOTICES DESCRIBED IN SECTION
7(k) HEREOF, AND CONSENT AND AGREE THAT SUCH SERVICE SHALL CONSTITUTE IN EVERY
RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL AFFECT THE
VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY
LAW).
(2) INDEMNITORS, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY
KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF
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COMPETENT COUNSEL, WAIVE, RELINQUISH AND FOREVER FORGO THE RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY
RELATING TO THIS AGREEMENT OR ANY CONDUCT, ACT OR OMISSION OF LENDER OR
INDEMNITORS, OR ANY OF THEIR DIRECTORS, OFFICERS, PARTNERS, MEMBERS,
EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH LENDER OR
INDEMNITORS, IN EACH OR THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT,
TORT OR OTHERWISE.
(t) Waiver by Indemnitors. Indemnitors covenant and agree that upon
the commencement of a voluntary or involuntary bankruptcy proceeding by or
against any Indemnitor, no other Indemnitor shall seek a supplemental stay or
other relief, whether injunctive or otherwise, pursuant to 11 U.S.C. Section
105 or any other provision of the Bankruptcy Reform Act of 1978, as amended,
or any other debtor relief law (whether statutory, common law, case law, or
otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which
may be or become applicable, to stay, interdict, condition, reduce or inhibit
the ability of Lender to enforce any rights of Lender against any of
Indemnitors by virtue of this Agreement or otherwise.
IN WITNESS WHEREOF, Indemnitors have executed this Indemnity Agreement under
seal as of the day and year first above written.
PRESIDENT XXXXXXXXXX HOTEL, L.L.C.,
a Mississippi limited liability company
By: Xxxxxxxxxx Hotel, Inc., a
Mississippi corporation, as
manager
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxxx
---------------------------
PRESIDENT CASINOS, INC.
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxxx
--------------------------------
Its: Executive Vice President
--------------------------------
(CORPORATE SEAL)
THE PRESIDENT RIVERBOAT CASINO-
MISSISSIPPI, INC.
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxxx
--------------------------------
Its: Executive Vice President
--------------------------------
(CORPORATE SEAL)
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