EXHIBIT 10.3
SECURITY AGREEMENT
THIS SECURITY AGREEMENT ("Agreement"), dated as of the 10th day of August,
1999, is made between The President Riverboat Casino-Mississippi, Inc., a
Mississippi corporation ("Debtor"), and American Gaming & Entertainment, Ltd.,
a Delaware corporation ("Secured Party"), who agree as follows:
RECITALS
A. The Debtor is or will be indebted unto the Secured Party for a loan made
or to be made pursuant to the terms of that certain promissory note dated of
even date herewith in the aggregate principal amount of Five Million Eight
Hundred, Twenty-Seven Thousand Five Hundred and NO/100 ($5,827,500.00) made by
the Debtor payable to the order of the Secured Party (as it may from time to
time be amended, modified, supplemented, replaced, restated, renewed or
extended, the "Note").
B. In order to secure the full and punctual payment and performance of the
Indebtedness (as hereinafter defined), the Debtor has agreed to execute and
deliver this Agreement and to grant a continuing security interest in and to
the Collateral (as hereinafter defined).
AGREEMENT
ARTICLE 1
GENERAL TERMS
Section 1.1 Terms Defined Above or Elsewhere. As used in this Agreement,
the terms "Agreement", "Debtor", "Secured Party" and "Note" and shall have the
meanings indicated above.
Section 1.2 Certain Definitions. As used in this Agreement, the following
additional terms shall have the meanings indicated:
"Barge" means the GOLD COAST CASINO (U.S. Coast Guard Official Number
995650), and all improvements and structures from time to time thereon, and
all equipment and appurtenances from time to time thereon or thereof,
including without limitation all engines, machinery, masts, spars, boats,
cables, motors, tools, anchors, chains, booms, cranes, rigs, pumps, pipes,
tanks, tackle, rigging, supplies, fittings and all other property located
thereon, derived therefrom or used in connection therewith.
"Collateral" has the meaning set forth in Section 2.1 of this Agreement.
"Equipment" means (a) all "equipment" (as defined in the UCC) located on the
Barge, whether now owned or hereafter acquired by the Debtor, together with
all additions, accessories, parts, attachments, special tools and accessions
now and hereafter affixed thereto or used in connection therewith, and all
replacements thereof and substitutions therefor and (b) the Barge and all slot
machines and other gaming devices, machinery, tools, fire sprinklers, alarm,
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air conditioning, heating, refrigerating and electronic monitoring systems and
equipment, window or structural cleaning rigs, maintenance equipment,
equipment for the exclusion of vermin or insects or the removal of dust,
refuse or garbage, lobby and all other indoor and outdoor furniture (including
tables, chairs, planters, desks, sofas, shelves, lockers and cabinets), wall
beds, wall safes, furnishings, appliances (including ice boxes, refrigerators,
fans, heaters, stoves, water heaters and incinerators), rugs, carpets and
other floor coverings, draperies and drapery rods and brackets, awnings,
window shades, venetian blinds, curtains, wall hangings, lamps, chandeliers
and other lighting fixtures and office maintenance and other supplies located
thereon.
"Event of Default" means the occurrence of any one or more of the following
events:
(1) Default in the payment of principal of the Note as and when the same
shall become due and payable and such default continues unremedied for twenty
(20) days; or
(2) Default in the due and punctual observance and performance of any
provisions of Sections 4.1 or 4.4 hereof; or
(3) Default in the due observance or performance of any of the other
covenants and conditions herein, in the Sale Agreement, in the exhibits
thereto, as executed and/or in the Note required to be kept and performed, and
continuance of such default for fifteen (15) days after written notice by the
Secured Party; provided, however, that the Debtor shall not be deemed to be in
default for failure to keep the Collateral in good condition, working order
and repair pursuant to Section 4.03 if the Debtor shall be diligently taking
steps to comply with the requirements of said Section; or
(4) Any representations and warranties made in this Agreement are untrue
in any material respect; or
(5) The Debtor shall apply for or consent to the appointment of a
receiver or trustee of the Debtor or for the Collateral or the commencement of
a bankruptcy case; or
(6) An order, judgment or decree shall be entered, without the
application, approval or consent of the Debtor, by any court of competent
jurisdiction, approving a petition appointing a receiver or trustee of the
Debtor or for the Collateral or for the commencement of a bankruptcy case, and
such order, judgment or decree shall continue unstayed and in effect for a
period of thirty (30) days;
(7) The Collateral is posted for foreclosure or notice of a sale to
satisfy a Lien on the Collateral is given as required by applicable law;
(8)Secured Party receives notice of cancellation of insurance in
accordance with the required time restriction agreed to by the insurance
company, and such insurance is not replaced at least ten days prior to the
effective date of the cancellation; or
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(9) Any "Event of Default" occurs under the Mortgage.
"Indebtedness" means all present and future amounts, liabilities and
obligations of the Debtor to the Secured Party or to any successor or
transferee thereof under or pursuant to the Note or this Agreement, whether
said amounts, liabilities or obligations are liquidated or unliquidated, now
existing or hereafter arising, in principal, interest, deferral and
delinquency charges, prepayment premiums, costs and attorneys' fees, as
therein stipulated, and under and pursuant to all amendments, supplements,
restatements, renewals and extensions to or of any of said documents.
"Lien" means any interest in property securing an obligation owed to, or a
claim by, a Person other than the owner of the property, whether such interest
is based on jurisprudence, statute or contract, and including but not limited
to the lien or security interest arising from a mortgage, deed of trust,
encumbrance, pledge, security agreement, conditional sale or trust receipt or
a lease, consignment or bailment for security purposes. The term "Lien" shall
include reservations, exceptions, encroachments, easements, estates for years,
servitudes, usufructs, rights-of-way, covenants, conditions, restrictions,
leases and other title exceptions and encumbrances affecting property.
"Mortgage" means the Preferred Ship Mortgage on the Whole of the Gold Coast
Casino Barge dated of even date herewith by the Debtor in favor of the Secured
Party, as it may from time to time be amended, modified or supplemented.
"Permitted Liens" means (i) the Security Interests and any other Liens in
favor of the Secured Party, (ii) Liens for taxes, assessments, or other
governmental charges not yet due or which are being contested in good faith by
appropriate action promptly initiated and diligently conducted, if such
reserve as shall be required by generally accepted accounting principles shall
have been made therefor, and provided that no notice of tax sale shall have
been provoked or advertised; (iii) Liens of lessors (subordinated), carriers,
warehousemen, mechanics, laborers and materialmen arising by law in the
ordinary course of business for sums either not yet due or being contested in
good faith by appropriate action promptly initiated and diligently conducted,
if such reserve as shall be required by generally accepted accounting
principles shall have been made therefor, and provided that no foreclosure or
sale has been initiated or advertised; (iv) Liens constituting purchase money
security interests, (v) any other Liens permitted by the Secured Party in
writing to be created or assumed or to otherwise exist on the Collateral, and
(vi) with respect to gaming devices that are subject to lease arrangements
where the Debtor is the lessee thereof (except for where the lessor is
controlled by, controls or is affiliated with the Debtor), precautionary Liens
in favor of the lessor thereof to the extent the Debtor would be deemed to be
the owner thereof, which liens shall be senior to any Lien thereon under this
Agreement.
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, association, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof, or any other form of entity.
"Proceeds" means all cash and non-cash proceeds of, and all other profits,
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income, rentals or receipts, in whatever form, arising from the collection,
sale, lease, exchange, assignment, licensing or other disposition of, or
realization upon, Collateral, and all additions to, substitutions for or
accessions of any Collateral, including without limitation all claims of the
Debtor against third parties for loss of, damage to or destruction of, or for
proceeds payable under, or unearned premiums with respect to, policies of
insurance in respect of, any Collateral, and any condemnation or requisition
payments with respect to any Collateral, and including proceeds of all such
proceeds, in each case whether now existing or hereafter arising.
"Security Interests" means the security interests in the Collateral granted
hereunder securing the Indebtedness.
"UCC" means Miss. Code Xxx. Section 75-9-101 et seq. (1972), as amended from
time to time; provided, that if by reason of mandatory provisions of law, the
perfection or the effect of perfection or non-perfection of the Security
Interests in any Collateral is governed by the Uniform Commercial Code as in
effect in a jurisdiction other than Mississippi, "UCC" means the Uniform
Commercial Code as in effect in such other jurisdiction for purposes of the
provisions hereof relating to such perfection or effect of perfection or non-
perfection.
ARTICLE 2
SECURITY INTEREST
Section 2.1 The Security Interests. In order to secure the full and
punctual payment and performance of all present and future Indebtedness, the
Debtor hereby grants to the Secured Party a continuing security interest in
and to, and collaterally assigns and pledges to the Secured Party, all right,
title and interest of the Debtor in, to or under the following property,
whether now owned or existing or hereafter acquired or arising and regardless
of where located:
(l) the Equipment;
(2) All books and records of the Debtor pertaining to any of the
Collateral; and
(3) All Proceeds and products of all or any of the Collateral described in
clauses l through 2 hereof; provided, that the inclusion of such
proceeds does not constitute the Secured Party's consent to the
disposition of the Collateral except as provided in this Agreement.
The term "Collateral" means each and all of the items and property rights
described in clauses 1-3 above. It is understood and agreed that gaming
devices (including without limitation slot machines) and other items of
Collateral from time to time leased by the Debtor from other parties (other
than parties who control, are controlled by or are affiliated with the Debtor)
and the rights of the Debtor thereto are not, and shall not be or be deemed to
be, Equipment or Collateral.
Section 2.2 No Liability. The Security Interests are granted as security
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only and shall not subject the Secured Party to, or transfer or in any way
affect or modify, any obligation or liability of the Debtor with respect to
any of the Collateral or any transaction in connection therewith.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
The Debtor represents and warrants to the Secured Party that:
Section 3.1 Name. The name of the Debtor as it appears in its articles or
certificate of incorporation, as amended, is as it appears on page 1 of this
Agreement. Such name is the only name that the Debtor has had since its
organization.
Section 3.2 Taxpayer Identification Number. The federal taxpayer
identification number of the Debtor is 00-0000000.
Section 3.3 Records Location. The Debtor maintains books or records
relating to the Collateral on the Barge or at 000 Xxxxx Xxxxx Xxxxxx, Xx.
Xxxxx, Xxxxxxxx 00000.
Section 3.4 Filing Location. When Uniform Commercial Code financing
statements have been filed in the State of Mississippi (with the Mississippi
Secretary of State and the Uniform Commercial Code records of the Second
Judicial District of Xxxxxxxx County, Mississippi), the Security Interests
shall constitute perfected security interests in the Collateral to the extent
that a security interest therein may be perfected by filing pursuant to the
UCC, prior to all other Liens and rights of others therein except for the
Permitted Liens to the extent that such priority is afforded by the UCC.
Section 3.5 No Inconsistent Agreements. The Debtor has not performed any
acts or signed any agreements which might prevent the Secured Party from
enforcing any of the terms of this Agreement or which would limit the Secured
Party in any such enforcement.
Section 3.6 Title. The Debtor has good and merchantable title to the
Collateral (except that, with respect to Collateral received from the Secured
Party, the Debtor represents and warrants only such title as it received from
the Secured Party), free of Liens, except Permitted Liens. Furthermore, the
Debtor has not heretofore conveyed or agreed to convey or encumber or grant an
interest in any Collateral in any way, except in favor of the Secured Party.
Section 3.7 Priority. The Debtor has not granted to any party other than
the Secured Party any security interest in the Collateral, and the Debtor has
not taken any actions or inaction that have caused any party other than the
Secured Party to have any security interest in the Collateral.
ARTICLE 4
COVENANTS
Section 4.1 Notice of Changes. The Debtor will not change its name,
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identity, federal tax identification number or corporate structure in any
manner unless it shall have given the Secured Party at least 30 days' prior
written notice thereof. Debtor will not change its name or taxpayer
identification number without the prior written consent of the Secured Party,
which may be conditioned on Debtor's execution of additional documentation to
preserve the priority of Secured Party's Lien.
Section 4.2 Filing. The Debtor agrees that a carbon, photographic,
facsimile, photostatic or other reproduction of this Agreement or of a
financing statement is sufficient as a financing statement. The Debtor shall
pay all costs of, or incidental to, the recording or filing of any financing,
amendment, continuation, termination or other statements concerning the
Collateral.
Section 4.3 Condition of Equipment. The Debtor will maintain, preserve and
keep the Equipment at all times in thorough repair and good working order and
condition, and from time to time make all needful repairs, renewals and
additions so that its value and the Security Interests shall at no time become
impaired. The Debtor will not do or permit anything to be done to the
Equipment that may violate the terms of any insurance covering the Equipment
or any part thereof.
Section 4.4 Insurance. (a) The Debtor will cause to be carried and
maintained on the Collateral, without expense to the Secured Party, insurance
in such amounts, against such risks (including, without limitation, pollution,
fire, public liability, excess liability and umbrella coverages, property
damage, and workmen's compensation), in such form, including without
limitation the form of the loss payable clause (naming the Secured Party and
the Debtor as loss payee), cancellation clause, navigation limits, and the
designation of named assured, and with such insurance companies, insurers,
underwriters or funds, and on such policy forms, as the Secured Party shall
from time to time approve. In no event shall the Hull value on the Barge be
less than the outstanding amount of Indebtedness. In no event shall the
protection and indemnity insurance, including umbrella coverage, on the Barge
be less than $7,000,000. Such insurance coverage policies shall contain an
agreement by the insurer not to cancel or amend the policies without giving
the Secured Party at least 30 days' prior written notice of its intention to
do so.
(b) Payments in respect of any loss under insurance carried pursuant to
this Section 4.4 shall be made to the Debtor and the Secured Party, as their
respective interests may appear.
(c) If any claim or lien is asserted against the Barge for loss, damage or
expense which is covered by insurance required hereunder and it is necessary
for the Debtor to obtain a bond or supply other security to prevent arrest of
the Barge or to release the Barge from arrest on account of such claim or
lien, the Secured Party, on request of the Debtor, may, in the sole discretion
of the Secured Party, assign to any person, firm or corporation executing a
surety or guarantee bond or other agreement to save or release the Barge from
such arrest, all right, title and interest of the Secured Party in and to said
insurance covering said loss, damage or expense, as collateral security to
indemnify against liability under said bond or other agreement.
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(d) The Debtor will deliver to the Secured Party whenever so requested by
the Secured Party certified copies of all cover notes, binders and policies
for the purpose of inspection.
(e) The Debtor agrees that it will not execute or permit or willingly allow
to be done any act by which any insurance may be suspended, impaired or
canceled, and that he will not permit or allow the Barge to undertake any
voyage, engage in any venture or run any risk or transport any cargo which may
not be permitted by the policies in force, without having previously insured
such Barge by additional coverage to extend to such voyages, ventures, risks
or cargoes.
Section 4.5 Transfer and Other Liens. The Debtor will not sell, lease,
transfer, exchange or otherwise dispose of the Collateral, or any part
thereof, without the prior written consent of the Secured Party and will not
permit any Lien to attach to the Collateral, or any part thereof, other than
Permitted Liens, except that the Debtor may, in the ordinary course of its
business and in the absence of an Event of Default, (i) dispose of obsolete or
unusable items of Equipment (other than the Barge), provided that the
aggregate value of all Equipment that is disposed of under this clause prior
to the repayment of the Indebtedness does not exceed $100,000, free of the
Lien of this Agreement without any action required of the Secured Party, (ii)
sell Equipment (other than the Barge), free of the Lien of this Agreement
without any action required of the Secured Party, in order to replace gaming
devices if the replacement gaming devices are of equal or greater value and
comparable quality and are purchased by the Debtor, not financed through any
purchase money security interest or otherwise encumbered by any other liens
and (iii) sell or otherwise dispose of other Equipment (other than the Barge),
free of the Lien of this Agreement without any action required of the Secured
Party, in order to replace gaming devices if the replacement gaming devices
are leased by the Debtor or purchased by the Debtor subject to a purchase
money security interest, provided that the aggregate value of all Equipment
that is sold or disposed of under this clause prior to repayment of the
Indebtedness does not exceed $250,000.
Section 4.6 Right of Inspection and Information. The Debtor will allow the
Secured Party to inspect the Equipment from time to time during normal
business hours so long as such inspections do not interrupt the Debtor's
business. Debtor will furnish to the Secured Party promptly upon request and
in the form and content specified by the Secured Party such data and
information concerning the Collateral as the Secured Party may from time to
time specify.
Section 4.7 Taxes. The Debtor will pay as and when due and payable all
taxes, levies, license fees, assessments, and other impositions levied on the
Collateral or any part thereof before its use and operation or which
otherwise, if unpaid, might become a Lien upon any Collateral; provided, that
the Debtor shall not be required to pay any such tax, levee, fee, assessment
or imposition if the amount, applicability or validity thereof shall currently
be contested in good faith by appropriate proceedings diligently conducted and
if the Debtor shall have set up reserves therefor adequate under generally
accepted accounting principles (provided that such reserves may be set up
under generally accepted accounting principles); provided, further, that any
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such contest shall prevent the posting for sale or the sale of the Collateral
under special execution or otherwise for the payment of any such tax, levee,
fee, assessment or imposition, or other forfeiture or loss of title to the
Collateral.
Section 4.8 Further Assurances. On request of the Secured Party, the
Debtor will promptly (i) correct any defect, error or omission which may be
discovered in the contents of this Agreement or any financing statement
relating thereto or in the execution or acknowledgment of this Agreement or
any financing statement; (ii) execute, acknowledge, deliver and record such
further instruments (including, without limitation, further security
agreements, financing statements, continuation statements and assignments of
accounts, contract rights, general intangibles and proceeds) and do such
further acts as may be necessary, desirable or proper to carry out more
effectively the purposes of this Agreement and to more fully identify and
subject to the Security Interests hereof any property intended to be covered
hereby, including without limitation any renewals, additions, substitutions,
replacements or accessions to the Collateral; and (iii) execute, acknowledge,
deliver and record any document or instrument (including specifically any
financing statement) necessary, desirable or proper to protect the Liens and
Security Interests hereunder against the rights or interests of third persons.
The Debtor shall pay all filing costs connected with any of the foregoing.
Section 4.9 Collateral Indemnity. If the validity or priority of this
Agreement or any rights, security interests or other interests created or
evidenced hereby shall be attacked, endangered or questioned or if any legal
proceedings are instituted with respect thereto, the Debtor will give prompt
written notice thereof to the Secured Party and at the Debtor's own cost and
expense will diligently endeavor to cure any defect that may be developed or
claimed, and will take all necessary and proper steps for the defense of such
legal proceedings, and the Secured Party (whether or not named as a party to
legal proceedings with respect thereto) is hereby authorized and empowered to
take such additional steps as in its judgment and discretion may be necessary
or proper for the defense of any such legal proceedings or the protection of
the validity or priority of this Agreement and the rights, security interests
and other interests created or evidenced hereby, and all reasonable expenses
so incurred of every kind and character shall be a demand obligation owing by
the Debtor to the Secured Party and shall be a part of the Indebtedness.
Section 4.10 Compliance with Laws. The Debtor will observe and comply (to
the extent necessary so that any failure will not materially and adversely
affect the business of the Debtor) with all laws, statutes, ordinances, rules,
regulations, judgments, decrees, franchises, permits, licenses, certificates
and requirements of all federal, state, county, municipal and other
governmental agencies, departments, commissions, boards, courts and
authorities applicable to the Debtor or to the Collateral. The Debtor shall
give prompt notice to the Secured Party of any notice to the Debtor by any
governmental agency of any alleged violation of law by the Debtor that would,
if determined adversely to the Debtor, have a material adverse effect on the
business of the Debtor.
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ARTICLE 5
DEFAULT
Section 5.1 Sale. Upon the occurrence and continuance of an Event of
Default, the Secured Party may exercise all rights of a secured party under
the UCC and other applicable law (including without limitation such rights
under the UCC or other applicable law authorizing the taking of self-help
remedies by a secured party in protecting its rights in, to and under
collateral) and, in addition, the Secured Party may, without being required to
give any notice, except as herein provided or as may be required by mandatory
provisions of law, sell the Collateral or any part thereof at public or
private sale, for cash, upon credit or for future delivery, and at such price
or prices as the Secured Party may deem satisfactory. The Secured Party may
be the purchaser of any or all of the Collateral so sold at any public sale
(or, if the Collateral is of a type customarily sold in a recognized market or
is of a type which is the subject of widely distributed standard price
quotations, at any private sale). The Debtor will execute and deliver such
documents and take such other action as the Secured Party deems necessary or
advisable in order that any such sale may be made in compliance with law.
Upon any such sale the Secured Party shall have the right to deliver, assign
and transfer to the purchaser thereof the Collateral so sold. Each purchaser
at any such sale shall hold the Collateral so sold to it absolutely and free
from any claim or right of whatsoever kind, including any equity or right of
redemption of the Debtor which may be waived, and the Debtor, to the extent
permitted by law, hereby specifically waives all rights of redemption, stay or
appraisal which it has or may have under any law now existing or hereafter
adopted. The Debtor agrees that ten (10) days prior written notice of the
time and place of any sale or other intended disposition of any of the
Collateral constitutes "reasonable notification" within the meaning of Section
9-504(3) of the UCC (or, if applicable, the comparable section of the UCC
under the laws of another jurisdiction), except that shorter or no notice
shall be reasonable as to any Collateral which is perishable or threatens to
decline speedily in value or is of a type customarily sold on a recognized
market. The notice (if any) of such sale shall (l) in case of a public sale,
state the time and place fixed for such sale, and (2) in the case of a private
sale, state the day after which such sale may be consummated. Any such public
sale shall be held at such time or times within ordinary business hours and at
such place or places as the Secured Party may fix in the notice of such sale.
At any such sale the Collateral may be sold in one lot as an entirety or in
separate parcels or portions, as the Secured Party may determine. The Secured
Party shall not be obligated to make any such sale pursuant to any such
notice. The Secured Party may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for the sale, and such sale may be
made at any time or place to which the same may be so adjourned. In case of
any sale of all or any part of the Collateral on credit or for future
delivery, the Collateral so sold may be retained by the Secured Party until
the selling price is paid by the purchaser thereof, but the Secured Party
shall not incur any liability in case of the failure of such purchaser to take
up and pay for the Collateral so sold and, in case of any such failure, such
Collateral may again be sold upon like notice. Debtor hereby grants unto
Secured Party, and will cause its affiliates to grant, as necessary, the right
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to use the existing premises and docking facilities of Debtor, for a period of
four (4) months from any foreclosure within which to remove the Collateral
from Debtor's premises, free of any rent or charge.
Section 5.2 Assemble Collateral. For the purpose of enforcing any and all
rights and remedies under this Agreement the Secured Party may (i) require the
Debtor to, and the Debtor agrees that it will, at its expense and upon the
request of the Secured Party, forthwith assemble all or any part of the
Collateral as directed by the Secured Party and make it available at a place
designated by the Secured Party which is, in its opinion, reasonably
convenient to the Secured Party and the Debtor, whether at the premises of the
Debtor or otherwise, and the Secured Party shall be entitled to specific
performance of this obligation, (ii) to the extent permitted by applicable law
of this or any other state, enter, with or without process of law and without
breach of the peace, any premise where any of the Collateral is or may be
located, and without charge or liability to it seize and remove such
Collateral from such premises, (iii) have access to and use the Debtor's books
and records relating to the Collateral and (iv) prior to the disposition of
the Collateral, store or transfer it without charge in or by means of any
storage or transportation facility owned or leased by the Debtor, process,
repair or recondition it or otherwise prepare it for disposition in any manner
and to the extent the Secured Party deems appropriate and, in connection with
such preparation and disposition, use without charge any trademark, trade
name, copyright, patent or technical process used by the Debtor.
Section 5.3 Limitation on Duty of Secured Party. Beyond the exercise of
reasonable care in the custody thereof, the Secured Party shall have no duty
as to any Collateral in its possession or control or in the possession or
control of any agent or bailee or any income thereon. The Secured Party shall
be deemed to have exercised reasonable care in the custody of the Collateral
in its possession if the Collateral is accorded treatment substantially equal
to that which it accords its own property, and shall not be liable or
responsible for any loss or damage to any of the Collateral, or for any
diminution in the value thereof, by reason of the act or omission of any
warehouseman, carrier, forwarding agency, consignee or other agent or bailee
selected by the Secured Party in good faith.
Section 5.4 Appointment of Agent. At any time or times, in order to comply
with any legal requirement in any jurisdiction, the Secured Party may appoint
a bank or trust company or one or more other Persons with such power and
authority as may be necessary for the effectual operation of the provisions
hereof and may be specified in the instrument of appointment.
Section 5.5 Expenses. At any time during which Indebtedness remains
outstanding, the Secured Party may, but shall not be required to, upon five
days' notice to the Debtor, pay the costs of all insurance and all expenses of
protecting storing, warehousing, handling and maintaining the Collateral, any
and all excise, property, sales, use, gaming and other taxes imposed by any
federal, state or local authority on any of the Collateral, or any costs
associated with maintaining the rank of any Security Interest. The Debtor
will promptly reimburse the Secured Party for any such payment unless (a) the
Debtor notifies the Secured Party within five days of receiving notice that
the Secured Party intends to pay any such expenses that such expenses have
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been paid or are not due and (b) such expenses have, in fact, been paid or are
not legally due. All sums so paid or incurred by the Secured Party for any of
the foregoing and any and all other sums for which the Debtor may become
liable hereunder and all costs and expenses (including reasonable attorneys'
fees, legal expenses and court costs) incurred by the Secured Party in
enforcing or protecting the Security Interests or any of its rights or
remedies under this Agreement, shall, together with interest thereon until
paid at the rate of twelve percent (12.0%) per annum, be additional
Indebtedness hereunder and Debtor agrees to pay all of the foregoing sums
promptly.
ARTICLE 6
MISCELLANEOUS
Section 6.1 Notices. Any notice or demand which, by provision of this
Agreement, is required or permitted to be given or served to the Debtor and
the Secured Party shall be deemed to have been sufficiently given and served
for all purposes if made in accordance with the Mortgage to the following
addresses (or such other addresses as the parties may notify each other, in
writing):
If to the Debtor: The President Riverboat Casino-Mississippi, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
with copies to:
Xxxxx X. O'Xxxx
Xxxxxx Xxxxxx, L.L.P.
Xxxxx 000, XxxXxx Xxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
Xxxxxxxx Xxxxxx
Xxxxxx Xxxxxx, L.L.P.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to the Secured Party: American Gaming & Entertainment, Ltd.
Xxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: J. Xxxxxxx Xxxxxxxxxx
with copies to:
Xxxxxx X. Xxxx, Esq.
Xxxx & Xxxxx
X.X. Xxx 0000
Xxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxx X. Xxxxx, Esq.
Xxxxx & Xxxxx, L.L.P.
0000 Xxxx Xxx., Xxx. 000
Xxxxxx, XX 00000
Telephone: (000) 000-00000
Facsimile: (000) 000-0000
Shamrock Holdings Group, Inc.
Xxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
X. Xxxxxx Xxxxxxx, Esq.
Xxxxxxxxx, Xxxxx & Xxx, P.C.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile:(000) 000-0000
Xxxxxxx X. Xxxx, Esq.
X.X. Xxx 0000
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxx Xxxxxxx, Esq.
Rimmer, Rawlings, XxxXxxxx
& Xxxxxxx
0000 Xxxxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
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Xxxxxxx X. Xxxxxx, Esq.
Heller, Draper, Hayden, Horn, L.L.C.
000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xx. 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Section 6.2 Amendment. Neither this Agreement nor any provisions thereof
may be changed, waived, discharged or terminated orally or in any manner other
than by an instrument in writing signed by the party against whom enforcement
of the change, waiver, discharge or termination is sought.
Section 6.3 Waivers. No course of dealing on the part of the Secured
Party, its officers, employees, consultants or agents, nor any failure or
delay by the Secured Party with respect to exercising any of its rights,
powers or privileges under this Agreement shall operate as a waiver thereof.
Section 6.4 Cumulative Rights. The rights and remedies of the Secured
Party under this Agreement and any other agreements, documents and instruments
securing any of the Indebtedness shall be cumulative, and the exercise or
partial exercise of any such right or remedy shall not preclude the exercise
of any other right or remedy.
Section 6.5 Titles of Articles, Sections and Subsections. All titles or
headings to articles, sections, subsections or other divisions of this
Agreement or the exhibits hereto are only for the convenience of the parties
and shall not be construed to have any effect or meaning with respect to the
other content of such articles, sections, subsections or other divisions, such
other content being controlling as to the agreement between the parties
hereto.
Section 6.6 Singular and Plural. Words used herein in the singular, where
the context so permits, shall be deemed to include the plural and vice versa.
The definitions of words in the singular herein shall apply to such words when
used in the plural where the context so permits and vice versa.
Section 6.7 Governing Law. This Agreement is a contract made under and
shall be construed in accordance with and governed by the laws of the State of
Mississippi.
Section 6.8 Termination. Upon full and final payment and performance of
the Indebtedness, this Agreement shall terminate, and the Secured Party shall
pay to the Debtor all amounts then remaining in the possession of the Secured
Party from collections on or proceeds of the Collateral. Upon request of the
Debtor, the Secured Party shall execute and deliver to the Debtor at the
Debtor's expense such termination statements as the Debtor may reasonably
request to evidence such termination.
Section 6.9 Successors and Assigns. (a) All covenants and agreements
contained by or on behalf of the Debtor in this Agreement shall bind its
successors and assigns and shall inure to the benefit of the Secured Party and
its successors and assigns.
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(b) This Agreement is for the benefit of the Secured Party and for such
other Person or Persons as may from time to time become or be the holders of
any of the Indebtedness, and this Agreement shall be transferrable and
negotiable, with the same force and effect and to the same extent as the
Indebtedness may be transferrable, it being understood that, upon the transfer
or assignment by the Secured Party of any of the Indebtedness, the legal
holder of such Indebtedness shall have all of the rights granted to the
Secured Party under this Agreement.
Section 6.10 Counterparts. This Agreement may be executed in two or more
counterparts, and it shall not be necessary that the signatures of all parties
hereto be contained on any one counterpart hereof; each counterpart shall be
deemed an original, but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
DEBTOR:
THE PRESIDENT RIVERBOAT CASINO-
MISSISSIPPI, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
SECURED PARTY:
AMERICAN GAMING & ENTERTAINMENT, LTD.
By: /s/ J. Xxxxxxx Xxxxxxxxxx
---------------------------------------
Name: J. Xxxxxxx Xxxxxxxxxx
Title: President & CEO
