EXHIBIT 10.4
AMENDED AND RESTATED SECURITY AGREEMENT AND ASSIGNMENT
OF CONTRACTUAL AGREEMENTS AFFECTING REAL ESTATE
THIS AMENDED AND RESTATED SECURITY AGREEMENT AND ASSIGNMENT OF
CONTRACTUAL AGREEMENTS AFFECTING REAL ESTATE (this "Restated Security
Agreement"), is made as of the 28th day of May, 2003, by PRESIDENT
XXXXXXXXXX HOTEL, L.L.C., a Mississippi limited liability company
("Assignor") in favor of XXXXXX BROTHERS HOLDINGS INC., a Delaware
corporation ("Assignee").
STATEMENT OF BACKGROUND
A. As of July 22, 1997, Assignee made a loan to Assignor in the
original principal amount of $30,000,000.00 (the "Existing Loan") for the
purpose of financing the acquisition of a beach hotel, golf course, and
marina complex known as Xxxxxxxxxx Beach Resort located in Biloxi, Xxxxxxxx
County, Mississippi (i.e., the Property as more particularly described
hereinbelow). The Existing Loan is evidenced by that certain Promissory
Note, dated as of July 22, 1997, executed by Assignor payable to the order
of Assignee in the original principal amount of Thirty Million and No/100
Dollars ($30,000,000.00) (the "Existing Note"). The Existing Loan is secured
by, among other things: (i) that certain Deed of Trust, Security Agreement,
and Fixture Filing, dated as of July 22, 1997, executed by Assignor in favor
of Xxxxxx X. Xxxxxxx, Esq., as Trustee, for the benefit of Assignee, and
recorded on July 24, 1997, as Document No. 97-3567 in the Office of the
Chancery Clerk, Second Judicial District, Xxxxxxxx County, Mississippi,
encumbering, inter alia, the Property (the "Existing Deed of Trust"); (ii)
that certain Assignment of Leases and Rents, dated as of July 22, 1997,
executed by Assignor, as assignor, in favor of Lender, as assignee, and
recorded on July 24, 1997, as Document No. 97-3568 in the aforesaid records
(the "Existing Lease Assignment"); and (iii) that certain Security Agreement
and Assignment of Contractual Agreements Affecting Real Estate, dated as
July 22, 1997, executed by Assignor, as assignor, and Assignee, as assignee
(the "Existing Security Agreement"). As additional security for the Existing
Loan, (i) Assignor and Assignee executed that certain Security Agreement and
Lockbox Agreement, dated as of July 22, 1997 (the "Existing Lockbox
Agreement"), and (ii) President Casinos, Inc., a Delaware corporation
("PCI"), and The President Riverboat Casino-Mississippi, Inc., a Mississippi
corporation ("PRCM"; PCI and PRCM are referred to herein collectively as the
"Indemnitors"), executed (a) that certain Indemnity and Guaranty Agreement,
dated as of July 22, 1997, in favor of Assignee (the "Guaranty Agreement"),
and (b) together with Assignor, that certain Indemnity Agreement, dated as
of July 22, 1997, in favor of Assignee with respect to any hazardous
materials on, in, under, or otherwise affecting the Property (the "Hazardous
Materials Indemnity"). In connection with the Existing Loan, PCI also
executed that certain Unconditional Guaranty of Lease Obligations, dated as
of July 22, 1997, in favor of Assignee (the "Sublease Guaranty"). The
Guaranty Agreement, the Hazardous Materials Indemnity, and the Sublease
Guaranty are herein referred to collectively as the "Indemnities". The
Existing Note, the Existing Deed of Trust, the Existing Lease Assignment,
the Existing Security Agreement, the Existing Lockbox Agreement, the
Indemnities, and any and all other documents evidencing, securing,
guarantying, or otherwise relating to the Existing Loan are hereinafter
referred to collectively as the "Existing Loan Documents."
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B. The Existing Loan matured on July 22, 2000, without payment in full
by Assignor. On April 19, 2001, Assignor filed a voluntary petition for
protection under Chapter 11 of the United States Bankruptcy Code in the
United States Bankruptcy Court for the Southern District of Mississippi
(Southern Division) (the "Bankruptcy Court"), commencing that case styled In
re President Xxxxxxxxxx Hotel, L.L.C., Case No. 01-52168-SEG (the
"Bankruptcy Case"). On October 16, 2002, Assignor filed a Debtor's Plan of
Reorganization in the Bankruptcy Case and subsequently on February 28, 2003,
filed certain modifications as to Debtor's Plan of Reorganization (such plan
as modified being herein referred to as the "Plan"). On May 14, 2003, the
Bankruptcy Court entered its Confirmation Order (the "Confirmation Order")
in the Bankruptcy Case confirming the Plan and pursuant to which, among
other terms and provisions of the such Confirmation Order, the Existing Loan
will be amended and restated (as amended and restated, the "Restated Loan")
by the execution and delivery of this Restated Security Agreement, and the
execution and delivery of (i) certain other documents and instruments
amending and restating certain of the other Existing Loan Documents,
including, without limitation, that certain Amended and Restated Promissory
Note, of even date herewith, in the original principal amount of FORTY-FIVE
MILLION FOUR HUNDRED TWENTY-NINE THOUSAND FOUR HUNDRED SEVENTY-NINE & 12/100
DOLLARS ($45,429,479.12), as agreed to and approved by Assignee (together
with all renewals, amendments, supplements, restatements, extensions, and
modifications thereof and thereto, the "Restated Note"), and that certain
Amended and Restated Deed of Trust, Security Agreement and Fixture Filing,
of even date herewith, executed and delivered by Assignor in favor of
Xxxxxxx X. Xxxxxxxxxx, Esq., as Trustee, for the benefit of Assignee, and
agreed to and approved by Assignee pursuant to the Confirmation Order (the
"Restated Deed of Trust"), conveying Assignor's interest in certain real
property located in Xxxxxxxx County, Mississippi, which real property is
more particularly described on Exhibit "A" attached hereto and made a part
hereof (the "Land") and the improvements located or to be constructed
thereon (the "Improvements"; the Land and the Improvements are hereinafter
collectively referred to as the "Property"), and (ii) certain other
documents, all in accordance with and pursuant to the Plan and the
Confirmation Order (this Restated Security Agreement, together with any and
all other instruments and agreements now or hereafter evidencing, securing,
guarantying, or otherwise relating to the Restated Loan, and all renewals,
extensions, consolidations, restatements, and other modifications of the
foregoing are herein collectively referred to as the "Restated Loan
Documents").
C. Accordingly, this Restated Security Agreement is and shall
constitute the amendment and restatement of the Existing Security Agreement
required by, and to be executed and delivered in accordance with, the
Confirmation Order and the Plan.
NOW, THEREFORE, in consideration of the making of the Restated Loan by
Assignee and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged:
ASSIGNOR DOES HEREBY GRANT A SECURITY INTEREST IN AND SELLS, ASSIGNS,
TRANSFERS, SETS-OVER AND PLEDGES TO ASSIGNEE, ALL OF ASSIGNOR'S RIGHT, TITLE
AND INTEREST (INDIVIDUALLY OR COLLECTIVELY) DIRECT OR INDIRECT, IF ANY, IN
AND TO:
a. All contracts and agreements now or hereafter entered into
relating to any part of the Land or the Improvements or any other portion of
the Property including, without limitation, to the extent assignable, that
certain Redemption Agreement between Assignor, as purchaser, and J. Xxxxxx
Xxxxxxxx Associates, Inc., a Pennsylvania corporation, as seller
(collectively, the "Contracts") and all revenue, income and other benefits
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thereof, including, without limitation, assignable management agreements,
franchise agreements, service contracts, maintenance contracts, equipment
leases, personal property leases, agreements relating to collection of
receivables or the use of customer lists or other information, and any
contracts or documents relating to construction on any part of the Land or
the Improvements or other portions of the Property (including plans,
drawings, surveys, tests, reports, bonds and governmental approvals) or to
the management or operation of any part of the Land or the Improvements;
b. Copyrights, trademarks, trade names, servicemarks and symbols
now or hereafter used in connection with any part of the Land or the
Improvements, all names by which the Land or the Improvements may be
operated or known, including the names Xxxxxxxxxx Beach Hotel and Resort,
Xxxxxxxxxx Tower, Xxxxxxxxxx Beach Hotel and Resort Marina and Sun Golf
Course, all rights to carry on business under such names, and all rights,
interest and privileges which Assignor has or may have as developer or
declarant under any covenants, restrictions or declarations now or hereafter
relating to the Land or the Improvements), and all customer lists, other
lists and business information relating in any way to the Land, the
Improvements, other portions of the Property or the use thereof;
c. All assignable water taps, sewer taps, certificates of
occupancy, permits, licenses, franchises, certificates, consents, approvals
and other rights and privileges now or hereafter obtained in connection with
the Land or the Improvements and all present and future warranties and
guaranties relating to the Improvements or to any equipment, fixtures,
furniture, furnishings, personal property or components of any of the
foregoing now or hereafter located or installed on the Land or the
Improvements (the personal property described in the preceding clauses a.,
b., and c. are collectively referred to herein as the "Collateral").
PROVIDED, HOWEVER, that Assignor agrees that Assignee, by its
acceptance hereof, shall not be required to assume any obligation or duty to
perform any of the terms, covenants, conditions and agreements of Assignor
pursuant to the Collateral.
1. Assignor hereby authorizes Assignee to exercise any and all rights
and remedies of Assignee provided to Assignee under the Restated Security
Instrument, and to demand, receive and enforce Assignor's rights with
respect to the Collateral, to give appropriate receipts, releases and
satisfactions for and on behalf of Assignee and to do any and all acts in
the names of Assignor or Assignee, with the same force and effect as
Assignor could do if this Restated Security Agreement had not been made;
such rights to be exercisable only after the occurrence of a default under
any of the Restated Loan Documents and the expiration of any applicable
grace or cure period.
2. Assignor agrees to execute such other and further documents which
may be reasonably necessary and required to satisfy and fulfill the intent
and purposes set forth herein and to cause any third party contractors who
may be engaged in connection with the construction of the Improvements,
including, without limitation, architects, engineers and contractors, to
execute consents and acknowledgments to this Restated Security Agreement in
form reasonably satisfactory to Lender.
3. Assignee, by its acceptance hereof, agrees that it will not
exercise any of its rights hereunder until the occurrence of a default under
any of the Restated Loan Documents and the expiration of any applicable
grace or cure period, and Assignor agrees that any other party to Collateral
may conclusively rely on written advice from Assignee with respect to the
exercise of its rights hereunder. Until such time as any such default exists
or
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occurs, Assignor shall have and may exercise any and all rights and
interests of Assignor in respect of the Collateral to the full extent
permitted hereby, notwithstanding the security interest in the Collateral
granted to Assignee pursuant hereto.
4. Assignor agrees that no action by Assignee, or the legal owner and
holder of the Restated Note, pursuant to this Restated Security Agreement,
is intended to affect or limit, nor shall the same be construed as affecting
or limiting, in any way, the rights of Assignee or the legal owner and
holder of the Restated Note to exercise the remedies available to it
pursuant to the Restated Loan Documents, including foreclosure proceedings,
and in the event of any conflict between the terms and conditions of the
other Restated Loan Documents and the terms and conditions of this Restated
Security Agreement, the terms and conditions of the other Restated Loan
Documents shall control and prevail.
5. Nothing contained herein or in the Restated Note or the other
Restated Loan Documents shall be deemed to release, affect or impair the
obligation of Borrower under the Restated Loan Documents or the rights of
Assignee to enforce its remedies pursuant hereto and to the Restated Note
and the other Restated Loan Documents, including, without limitation, the
right to pursue any remedy for injunctive or other equitable relief.
6. Notwithstanding anything to the contrary contained in this Restated
Security Agreement, the liability of Assignor and its general partners for
the performance of the agreements, covenants and other obligations contained
herein and in the Restated Loan Documents shall be limited as set forth in
Section 2.07 of the Restated Note.
7. This Restated Security Agreement shall be governed by, and
construed, interpreted and enforced in accordance with, the substantive laws
of the State of Mississippi without giving effect to its principles of
choice of law or conflicts of law.
8. Bankruptcy Covenants, Agreements, Representations, Waivers, and
Stipulations. Section 4.35 of the Restated Security Instrument, wherein
Assignor, inter alia, waives future rights under the United States
Bankruptcy Code, is incorporated herein by this reference in its entirety
with the same force and effect as if said Section were set forth herein
verbatim.
9. Amendment and Restatement; Incorporation of Confirmation Order.
This Restated Security Agreement amends and restates the Existing Security
Agreement in its entirety. This Restated Security Agreement is executed
pursuant to the Plan and the Confirmation Order, and the Confirmation Order
is incorporated into this Restated Security Agreement by this reference with
the same force and effect as if the provisions of the Confirmation Order
were set forth verbatim herein.
[BALANCE OF PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, Assignor has caused this Restated Security
Agreement to be executed under seal on the day and year first above written.
ASSIGNOR:
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
Title: President & COO
(CORPORATE SEAL)
AGREED TO AND APPROVED pursuant to the Confirmation Order as of the
day and year first hereinabove written.
XXXXXX BROTHERS HOLDINGS INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Authorized Signatory
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STATE OF MISSOURI
COUNTY OF ST. LOUIS
Personally appeared before me, the undersigned authority, in and for
the said county and state on this 28 day of May, 2003, within my
jurisdiction, the within named Xxxx X. Xxxxxxxxx who acknowledged that he is
the President and C.O.O. of Xxxxxxxxxx Hotel, Inc., a Mississippi
corporation, manager of PRESIDENT XXXXXXXXXX HOTEL, L.L.C., a Mississippi
limited liability company, and that for and on behalf of in said corporation
and its act and deed and as the act and deed of said limited liability
company, he executed the above and foregoing instrument, after having first
been duly authorized by said corporation so to do.
/s/ Xxxxxxx X. Xxxxxx
NOTARY PUBLIC
My Commission Expires:
Jan. 1, 2004
(NOTARY SEAL)
STATE OF NEW YORK
COUNTY OF NEW YORK
Personally appeared before me, the undersigned authority, in and for
the said county and state on this 27 day of May, 2003, within my
jurisdiction, the within named Xxxxx X. Xxxxxxxxx who acknowledged that he
is the Authorized Signatory for Xxxxxx Brothers Holdings Inc., a Delaware
corporation, and that for and on behalf of in said corporation and its act
and deed and as the act and deed of said corporation, he executed the above
and foregoing instrument, after having first been duly authorized by said
corporation so to do.
/s/ Xxxxxxxx Xxxxxxxx
NOTARY PUBLIC
My Commission Expires:
Sept. 18, 2006
(NOTARY SEAL)
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