EXHIBIT 4.3
COLLATERAL ASSIGNMENT OF CONTRACTS AND DOCUMENTS
THIS COLLATERAL ASSIGNMENT OF CONTRACTS AND DOCUMENTS (the "Assignment")
is made as of August __, 1999, by HOLLYWOOD CASINO SHREVEPORT, a Louisiana
partnership (the "Company"), in favor of STATE STREET BANK AND TRUST COMPANY, a
Massachusetts chartered trust company, acting on behalf of the Holders of the
Notes under (and as defined in) the Indenture described below ("Trustee").
Recitals
A. The Company, Shreveport Capital Corp., a Louisiana corporation
("Shreveport Capital", and together with the Company, the "Issuers"), HCS I,
Inc., a Louisiana corporation, and HCS II, Inc., a Louisiana corporation, and
HWCC-Louisiana, Inc., a Louisiana corporation, each as a Guarantor, have entered
into an Indenture dated as of August __, 1999 (as the same may be amended,
supplemented, restated or otherwise modified from time to time, the "Indenture")
with the Trustee, pursuant to which the Issuers will issue up to $150,000,000 of
their __% First Mortgage Notes due 2006 With Contingent Interest (as the same
may be amended, supplemented, restated, exchanged, replaced or otherwise
modified from time to time, collectively, the "Notes").
B. The parties have entered into this Assignment to evidence the
Company's collateral assignment for security of certain contracts and documents
related to the construction and operation of the Shreveport Resort. Capitalized
terms used herein without definition shall have the meanings assigned to such
terms in the Indenture.
Agreement
NOW, THEREFORE, in consideration of the foregoing premises and in order
to induce the Holders of the Notes to purchase the Notes, the Company agrees as
follows:
1 Assignment. As security for the due and punctual payment and
performance of all indebtedness and obligations of the Issuers, now or hereafter
due under the Indenture, the Notes or any Collateral Documents, whether or not
arising after the commencement of a proceeding under Bankruptcy Law (including
post-petition interest) and whether or not recovery of any such obligation or
liability may be barred by a statute of limitations or prescriptive period or
such obligation or liability may otherwise be unenforceable (collectively, the
"Obligations"), the Company hereby assigns and transfers to the Trustee and
hereby grants to the Trustee a security interest in all of the Company's right,
title and interest, whether now existing or hereafter arising and whether now
owned or hereafter acquired, in and to (a) all contracts, including without
limitation, construction contracts and architectural design, engineering and
development contracts and agreements, subcontracts, service agreements, supply
agreements and other such contracts and agreements between the Company and other
persons, and all amendments, modifications, additions and changes thereto,
related to the Shreveport Resort, (b) all plans, specifications, working
drawings, shop drawings, surveys and other such documents, and all amendments,
modifications, additions and changes thereto, related to the Shreveport Resort,
(c) the Management Agreement, (d) the License Agreement, (e) the Completion
Capital Agreement, (f) all other contracts, agreements, documents and
instruments now existing or hereafter arising
related to the Shreveport Resort, including without limitation, any and all
construction, architectural and engineering contracts, plans and specifications,
drawings, and surveys, bonds, permits, licenses and other governmental approvals
and (g) all proceeds of the foregoing (all items described in subsections (a)
thorough (g), collectively, the "Contracts and Documents"). Notwithstanding the
foregoing, the Contracts and Documents shall not include any license, permit or
other approval of or by any Governmental Authority to the extent that, under the
terms and conditions of such approval or under applicable law, it cannot be
subjected to a Lien in favor of the Trustee without the approval of the relevant
Governmental Authority, to the extent that such approval has not been obtained
(collectively, the "Excluded Assets"); provided further, that (i) any such
Excluded Asset now or hereafter acquired by the Company shall automatically
become part of the Contracts and Documents when and to the extent it may
subsequently be made subject to such a Lien and/or such approval has been
obtained and (ii) proceeds of any Excluded Assets, such as Gaming Licenses,
shall nevertheless be subject to the assignment hereunder. The Contracts and
Documents include, without limitation, those certain contracts and agreements
described in Exhibit A attached hereto.
2 Rights of the Company. This Assignment is an absolute assignment for
security purposes only. Accordingly, notwithstanding anything to the contrary
set forth herein, the Company is hereby granted a license and shall retain all
rights with respect to the Contracts and Documents, including without
limitation, the right to enforce all rights of the Company thereunder, except
during a period when a "Default" or an "Event of Default" (as such terms are
defined in the Indenture) has occurred and is continuing.
3 Representations and Warranties of the Company. The Company represents
and warrants to the Trustee (a) that it has not assigned or granted a security
interest in any of the Contracts and Documents or the proceeds thereof to anyone
other than the Trustee, and has not executed any instrument which might prevent
or limit Trustee from operating under the terms and conditions of the assignment
contemplated hereby, and (b) that it is not in default and that no event has
occurred that with notice or lapse of time or both would constitute a default by
the Company, or to its knowledge any other party, under any of the Contracts and
Documents.
4 Covenants of the Company. The Company covenants and agrees in favor of
the Trustee (a) that it will not further assign, encumber or suffer the
assignment or encumbrance of any of the Contracts and Documents or the proceeds
thereof without the prior written consent of the Trustee pursuant to or as
expressly permitted under the Indenture, (b) that it will faithfully abide by,
perform and discharge each and every obligation, covenant and agreement of the
Company under the Contracts and Documents, (c) that it will not modify, amend,
supplement or in any way join in the release or discharge of any obligations or
rights of the Company under any of the Contracts and Documents in any material
way (except with respect to any such Contracts or Documents relating to the
construction of the Shreveport Resort, which such Contracts and Documents may be
modified, amended or supplemented in a manner consistent with the terms and
provisions of the Cash Collateral and Disbursement Agreement), (d) that it will
not perform any work pursuant to any change order or directive unless the same
is issued and executed in accordance with the terms and conditions of the
applicable Contract or Document, and (e) that it will send to Trustee any notice
of default or breach of or under any Contract or Document that the Company
either sends to (such notice to Trustee to be sent simultaneously therewith), or
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receives from (such notice to Trustee to be sent immediately upon receipt by the
Company thereof), any other party to any such Contract or Document.
5 Limitation of Trustee's Obligations. Nothing in this Assignment shall
constitute an assumption of any obligation by the Trustee under the Contracts
and Documents. The Company shall continue to be liable for all obligations
thereunder and hereby agrees to perform all such obligations, to comply with all
terms and conditions of the Contracts and Documents, and to take such steps as
may be necessary or appropriate to secure performance by all other parties
thereto. The Company shall defend, indemnify and hold the Trustee harmless from
and against all losses, costs, liabilities and expenses, including attorneys'
fees, arising from or related to any failure by the Company to perform any
obligation of the Company under any of the Contracts and Documents, such
indemnity and hold harmless agreement to survive the payment and performance of
the Obligations.
6 Cure by Trustee. At any time upon and during the continuation of a
Default or an Event of Default, the Trustee shall have the right, but shall have
no obligation, to take all actions that the Trustee may determine to be
necessary or appropriate to cure any default under any of the Contracts and
Documents and to protect the rights of the Company or the Trustee thereunder,
and may do so in the Trustee's name, in the name of the Company or otherwise. If
any such action taken by the Trustee shall prove to be inadequate or invalid in
whole or in part, the Trustee shall not incur any liability on account thereof,
and the Company hereby agrees to defend, indemnify and hold the Trustee harmless
from and against all losses, costs, liabilities and expenses, including
reasonable attorneys' fees, which the Trustee may incur or to which it may
become subject in exercising any of its rights under this Assignment, except for
those arising from the gross negligence or willful misconduct of the Trustee,
such indemnity and hold harmless agreement to survive the payment and
performance of the Obligations.
7 Rights and Remedies
(a) Upon the occurrence of a Default or an Event of Default under the
Indenture irrespective of whether a notice of default has been given with
respect to such Default or Event of Default (unless required by the
Indenture or any other Collateral Document), and with or without bringing
any action or proceeding, the Trustee may, at its option, succeed to and
proceed to enforce all of the rights, interests and remedies of the Company
under the Contracts and Documents, amend, modify, cancel, terminate or
replace the same, reassign the Company's right, title and interest therein
to any other person, and exercise any and all other rights of the Company
under the Contracts and Documents, either in person or through an agent,
receiver or keeper, without further notice to or consent by the Company,
and without regard to the adequacy of security for the Obligations or the
availability of any other remedies. The exercise of any of the foregoing
rights or remedies shall not cure or waive any Default under the Indenture,
or waive, modify or affect any notice of default thereunder, or invalidate
any act done pursuant to any such notice. In addition to the rights and
remedies of the Trustee as set forth in this Assignment, the Trustee shall
be entitled to the benefit of all other rights and remedies set forth in
the Indenture, at law or in equity.
(b) [This subsection to be reviewed by Louisiana local counsel] [The
provisions of this Subparagraph 7(b) shall, without limiting the generality
of any other provision
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of this Assignment, be applicable in the event any foreclosure shall take
place in Louisiana on any right, title or interest of the Company in and to
the Contracts and Documents or any proceeds thereof or, in connection with
any foreclosure hereunder, Louisiana law shall otherwise be applicable.
Trustee, instead of exercising the power of sale herein conferred upon it,
may proceed by a suit or suits at law or in equity to foreclose this
Assignment and sell its right, title and interest to the Contracts and
Documents and the proceeds, or any portion thereof, under a judgment or
decree of a court or courts of competent jurisdiction. For the purposes of
Louisiana executory process procedures, the Company does hereby acknowledge
the Obligations and confess judgment in favor of Trustee for the full
amount of such Obligations. The Company does by these presents consent and
agree that upon the occurrence of a Default or Event of Default under the
Indenture it shall be lawful for Trustee to cause all of its right, title
and interest to the Contract and Documents and the proceeds, or any portion
thereof, to be seized and sold under executory or ordinary process, at
Trustee's sole option, without appraisement, appraisement being hereby
expressly waived, to the highest bidder, and otherwise exercise the rights,
powers and remedies afforded herein and under applicable Louisiana law. Any
and all declarations of fact made by authentic act before a Notary Public
in the presence of two (2) witnesses by a person declaring that such facts
lie within his knowledge shall constitute authentic evidence of such facts
for the purpose of executory process. The Company hereby waives in favor of
Trustee: (a) the benefit of appraisement as provided in Louisiana Code of
Civil Procedure Articles 2332, 2336, 2723 and 2724, and all other laws
conferring the same; (b) the demand and three (3) days delay accorded by
Louisiana Code of Civil Procedure Articles 2639 and 2721; (c) the notice of
seizure required by Louisiana Code of Civil Procedure Articles 2293 and
2721; (d) the three (3) days delay provided by Louisiana Code of Civil
Procedure Articles 2331, 2722; and (e) benefit of the other provisions of
Louisiana Code of Civil Procedure Articles 2331, 2722 and 2723 not
specifically mentioned above. In the event the Company's right, title or
interest in and to the Contracts and Documents or any proceeds thereof, or
any part thereof, is seized as an incident to an action for the recognition
or enforcement of this assignment by executory process, ordinary process,
sequestration, writ of fieri facias, or otherwise, the Company and Trustee
agree that the court issuing any such order shall, if petitioned for by
Trustee, direct the applicable sheriff or marshal to appoint as a keeper of
the Company's right, title or interest in and to the Contracts and
Documents and the proceeds, if applicable, Trustee or any agent designated
by Trustee or any Person named by Trustee at the time such seizure is
effected. This designation is pursuant to Louisiana Revised Statutes
9:5136-9:5140.2 and Trustee shall be entitled to all the rights and
benefits afforded thereunder as the same may be amended. It is hereby
agreed that the keeper shall be entitled to receive as compensation, in
excess of its reasonable costs and expenses incurred in the administration
or preservation of the Company's right, title or interest in and to the
Contracts and Documents and the proceeds, an amount equal to $250.00 per
day payable on a monthly basis. The designation of keeper made herein shall
not be deemed to require Trustee to provoke the appointment of such a
keeper.]
8 Additional Instruments. With respect to both existing and future
Contracts and Documents, the Company hereby agrees to execute and deliver such
additional assignments and other documents as the Trustee may reasonably request
in order to implement the purpose and intent of this Assignment.
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9 Miscellaneous. This Assignment shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, legal
representatives, successors and assigns. In any action or proceeding arising
from or related to this Assignment, the prevailing party shall be entitled to
recover its reasonable costs and attorneys' fees. The reference to "attorneys'
fees" in this Paragraph and in all other places in this Assignment shall include
without limitation such reasonable amounts as may then be charged by the Trustee
for legal services furnished by attorneys in the employ of the Trustee, at rates
not exceeding those that would be charged by outside attorneys for comparable
services. This Assignment shall be governed by the laws of the State of New
York.
10 [THIS SECTION TO BE REVIEWED BY LOCAL LOUISIANA/GAMING COUNSEL]
[Gaming Laws and Regulations. The Company acknowledges that, to the extent
required under applicable law, the consummation of the transactions contemplated
hereby and the exercise of remedies hereunder may be subject to the Louisiana
Riverboat Economic Development and Gaming Control Act, La. R.S. 4:501, et seq.,
and the Louisiana Gaming Control Law, La. R.S. 27:1-3, 11-26, 31 and 32, and the
regulations promulgated pursuant to each such law, all as amended from time to
time. The parties hereto further acknowledge that the Gaming License held by the
Company is not part of the collateral of this Assignment and that, under the
above described legislation and rules promulgated thereunder, the Trustee may be
precluded from or otherwise limited in taking possession of or in selling the
collateral of this Assignment under the defaults and remedies provisions of this
Assignment. The parties hereto also acknowledge that due to various legal
restrictions, including, without limitation, licensing of operators of gaming
facilities and prior approval of the sale or disposition of assets of a licensed
gaming operation, the sale of collateral may be denied by Gaming Authorities or
delayed pending Gaming Authority approval.]
11 Conflicts with Indenture. Notwithstanding any other provision of this
Assignment, the terms and provisions of this Assignment shall be subject and
subordinate to the terms of the Indenture. To the extent that the Indenture
provides the Company with a particular cure or notice period, or establishes any
limitations or conditions on Trustee's actions with regard to a particular set
of facts, the Company shall be entitled to the same cure periods and notice
periods, and Trustee shall be subject to the same limitations and conditions in
place of the cure periods, notice periods, limitations and conditions provided
for under the Indenture; provided, however, such cure periods, notice periods,
limitations and conditions shall not be cumulative as between the Indenture and
this Assignment. In the event of any conflict or provisions of this Assignment
and those of the Indenture, including without limitation, any conflicts or
inconsistencies in any definitions herein or therein, the provisions or
definitions of the Indenture shall govern.
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IN WITNESS WHEREOF, the Company has executed this Assignment as of the date
first above written.
HOLLYWOOD CASINO SHREVEPORT, a Louisiana
corporation
By: HCS I, Inc., a Louisiana corporation,
its managing general partner
By: /s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
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Title: Executive Vice President and Chief
------------------------------------
Financial Officer
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S-1
EXHIBIT A
CONTRACTS AND DOCUMENTS
1. License Agreement dated as of August 10, 1999 by and between Company and
Hollywood Casino Corporation, a Delaware corporation.
2. Management Agreement dated as of August 10, 1999 by and between Company and
HWCC-Shreveport, Inc., a Louisiana corporation.
3. Completion Capital Agreement dated as of August 10, 1999 by and among
Company, Hollywood Casino Corporation, a Delaware corporation, HWCC-
Louisiana, Inc., a Louisiana corporation, and HCS-I, Inc., a Louisiana
corporation.
4. Standard Form of Agreement Between Owner and Architect with Descriptions of
Designated Services and Terms and Conditions dated as of October 19, 1998
by and between QNOV, a Louisiana partnership and Broadmoor Design Group.
5. Abbreviated Standard Form of Agreement Between Owner and Architect dated as
of October 19, 1998 by and between QNOV, a Louisiana partnership and
International Parking Design, Inc.
6. Standard Form of Agreement Between Owner and Architect with Descriptions of
Designated Services and Terms and Conditions dated as of October 19, 1998
by and between QNOV, a Louisiana partnership and XXXXXX & XXXXX ARCHITECTS,
LTD.
7. Standard Form of Agreement Between Owner and Architect dated as of October
19, 1998 by and between QNOV, a Louisiana partnership and Xxxxx Xxxxxxxxxx
Gannuch.
8. [Xxxxxx Cell Agreement dated as of May 20, 1999 by and between QNOV, a
Louisiana partnership and Red River Entertainment of Shreveport Partnership
in Commendam, a Louisiana partnership.]
9. Consulting Services Agreement dated as of January 18, 1999 by and between
U.S. Foodservice Contract Design and QNOV, a Louisiana partnership.
10. Operations Agreement dated as of May 20, 1999 by and between QNOV, a
Louisiana partnership and Red River Entertainment of Shreveport Partnership
in Commendam, a Louisiana partnership.
11. Retail Space Lease dated as of June 3, 1999 by and between QNOV, a
Louisiana general partnership and Red River Entertainment Company, L.L.C.,
a Tennessee limited liability company.
12. Design Agreement dated as of October 19, 1998 by and between QNOV, a
Louisiana partnership and Xxxxxx & Associates, Inc., a Texas Corporation.
A-1
