EXHIBIT 10.21
SECURITY AGREEMENT
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THIS SECURITY AGREEMENT (this "Agreement") is entered into on the 10th
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day of August, 1999 by Shreveport Paddlewheels, L.L.C. (herein called "Debtor"),
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in favor of HWCC-LOUISIANA, INC. (herein called "Secured Party").
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W I T N E S S E T H:
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WHEREAS, Debtor and Secured Party are parties to a Loan Agreement
dated of even date herewith (herein called the "Loan Agreement"); and
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WHEREAS, pursuant to the Loan Agreement, Secured Party has agreed to
extend credit to Debtor; and
WHEREAS, it is a condition precedent to such extension of credit by
Secured Party pursuant to the Loan Agreement that, among other things, Debtor
shall have executed and delivered to Secured Party a security agreement granting
to Secured Party a security interest in the Collateral as defined herein;
NOW, THEREFORE, in consideration of the premises and in order to
induce Secured Party to extend such credit under the Loan Agreement, Debtor
hereby agrees with Secured Party as follows:
ARTICLE I
DEFINITIONS AND REFERENCES
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Section 1.1 General Definitions. As used herein, the terms
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"Agreement", "Debtor", "Secured Party", and "Loan Agreement" shall have the
meanings indicated above, and the following terms shall have the following
meanings:
"Amended JVA" means that certain Third Amended and Restated Joint
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Venture Agreement of Hollywood Casino Shreveport (formerly known as the "Queen
of New Orleans at the Hilton Joint Venture" and "QNOV") dated as of July 21,
1999 by and among HCS I, Inc., HCS II, Inc. and Debtor.
"Assignment of Joint Venture Interest" shall mean that certain Amended
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and Restated Assignment of Joint Venture Interest by and among Secured Party,
Sodak Louisiana, L.L.C., Paddlewheels and Debtor dated September 21, 1998.
"Code" means Chapter 9 of the Louisiana Commercial Laws, La. R.S. (S)
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10:9-101 et seq.
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"Collateral" means all property of whatever type, in which Secured
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Party at any time has a security interest pursuant to Section 2.1.
"Event of Default" shall mean a "Default" or "Event of Default" under
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the Loan Agreement.
"Indebtedness" means all present and future indebtedness, obligations
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and liabilities of whatever type which are or shall be secured pursuant to
Section 2.2.
"Other Liable Party" means any Person, other than Debtor, who may now
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or may at any time hereafter be primarily or secondarily liable for any of the
Indebtedness or who may now or may at any
time hereafter have granted to Secured Party a security interest or lien upon
any property as security for the Indebtedness, including, without limitation,
Paddlewheels.
"Paddlewheels" means New Orleans Paddlewheels, Inc., a Louisiana
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corporation.
"Person" means an individual, corporation, limited liability company,
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partnership, limited liability partnership limited partnership, partnership in
commendam, association, joint stock company, trust, unincorporated organization
or joint venture, or a court or governmental unit or any agency or subdivision
thereof, or any other legally recognizable entity.
"Related Person" means Debtor, each subsidiary and affiliate of Debtor
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and each Other Liable Party.
"Venture" means Hollywood Casino Shreveport, formerly known as Queen
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of New Orleans at the Hilton Joint Venture and QNOV, a Louisiana general
partnership.
Section 1. (a) References. Reference is hereby made to the Loan
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Agreement for a statement of the terms thereof. All capitalized terms used in
this Agreement which are defined herein shall have the meanings as set forth
herein and all capitalized terms used in this Agreement which are defined in the
Loan Agreement and not otherwise defined herein shall have the same meanings
herein as set forth therein. All uncapitalized terms used in this Agreement
which are defined in Chapter 9 of the Code and not otherwise defined herein or
in the Loan Agreement shall have the same meanings herein as set forth therein,
except where the context otherwise requires.
Section 1.2 Exhibits and Schedules. All exhibits and schedules
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attached to this Agreement are a part hereof for all purposes.
Section 1.3 Amendment of Defined Instruments. Unless the context
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otherwise requires or unless otherwise provided herein, references in this
Agreement to a particular agreement, instrument or document (including, but not
limited to, references in Section 1.1 or 2.1) also refer to and include all
renewals, extensions, amendments, modifications, supplements or restatements of
any such agreement, instrument or document, provided that nothing contained in
this Section shall be construed to authorize any Person to execute or enter into
any such renewal, extension, amendment, modification, supplement or restatement.
Section 1.4 References and Titles. All references in this Agreement
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to Exhibits, Articles, Sections, subsections, and other subdivisions refer to
the Exhibits, Articles, Sections, subsections and other subdivisions of this
Agreement unless expressly provided otherwise. Titles appearing at the
beginning of any subdivision are for convenience only and do not constitute any
part of any such subdivision and shall be disregarded in construing the language
contained in this Agreement. The words "this Agreement", "herein", "hereof",
"hereby", "hereunder" and words of similar import refer to this Agreement as a
whole and not to any particular subdivision unless expressly so limited. The
phrases "this Section" and "this subsection" and similar phrases refer only to
the Sections or subsections hereof in which the phrase occurs. The word "or" is
not exclusive. Pronouns in masculine, feminine and neuter gender shall be
construed to include any other gender, and words in the singular form shall be
construed to include the plural and vice versa unless the context otherwise
requires.
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ARTICLE II
SECURITY INTEREST
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Section 2.1 Grant of Security Interest. As collateral security for
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all of the Indebtedness, Debtor hereby pledges and assigns to Secured Party and
grants to Secured Party a continuing security interest in all of the following:
(a) Interest in Venture, Amended JVA and Assignment of Joint Venture
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Interest. All of the Debtor's present and future right, title and interest (i)
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in and to the Venture and under the Amended JVA, including, without limitation,
the right of Debtor to receive 10% of Net Realized Value (as defined in Section
10.5 of the Amended JVA) pursuant to Section 10.5 of the Amended JVA, and (ii)
under the Assignment of Joint Venture Interest, including, without limitation,
the right of Debtor to receive 1% of Complex Net Revenues (as defined in Section
1.1 of the Assignment of Joint Venture Interest) from the Venture pursuant to
Section 1.1 of the Assignment of Joint Venture Interest.
(b) Related Collateral and Proceeds. All accessions to, all payments
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of any type in lieu of or in respect of, and all documents and general
intangibles covering or relating to, any or all of the foregoing; all proceeds
of any and all of the foregoing Collateral and, to the extent not otherwise
included, all payments under any indemnity, warranty or guaranty by reason of
loss to or otherwise with respect to any of the foregoing Collateral.
In each case, the foregoing shall be covered by this Agreement,
whether Debtor's ownership or other rights therein are presently held or
hereafter acquired and howsoever Debtor's interests therein may arise or appear
(whether by ownership, security interest, claim or otherwise).
Debtor acknowledges and agrees that to the extent that Secured Party
makes advances to Debtor to enable Debtor to acquire rights in or use of any of
the Collateral described in this Section 2.1, the security interest herein
granted in such Collateral by Debtor in favor of Secured Party shall constitute
a purchase money security interest within the meaning of the Code.
Section 2.2 Indebtedness Secured. The security interest created
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hereby in the Collateral constitutes continuing collateral security for all of
the following obligations, indebtedness and liabilities, whether now existing or
hereafter incurred:
(a) Indebtedness. The Indebtedness, including, without limitation,
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the payment by Debtor, as and when due and payable, of all amounts from time to
time owing by Debtor under or in respect of the Loan Agreement, the Note, or any
of the other Loan Documents.
(b) Amounts Due Under This Agreement. The payment by Debtor, as and
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when due and payable, of all amounts from time to time owing by Debtor under or
with respect to this Agreement.
(c) Performance. The due performance and observance by Debtor of all
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of its other obligations and liabilities from time to time existing under or in
respect of, this Agreement, the Loan Agreement, the Note or any of the other
Loan Documents or any other agreement or document evidencing any Indebtedness of
Debtor to Secured Party which relates to, or was executed in connection with,
the funding of the Venture.
(d) Renewals. All renewals, extensions, amendments, modifications,
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supplements, or restatements of or substitutions for any of the foregoing.
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ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
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Section 3.1 Representations and Warranties. Debtor represents and
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warrants as follows:
(a) Ownership and Liens. Debtor has good and marketable title to the
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Collateral free and clear of all liens, security interests, encumbrances or
adverse claims, except for the security interest created by this Agreement. No
dispute, right of setoff, counterclaim or defense exists with respect to all or
any part of the Collateral. No effective financing statement or other
instrument similar in effect covering all or any part of the Collateral is on
file in any recording office except such as may have been filed in favor of
Secured Party relating to this Agreement and there are no effective pledges or
collateral assignments affecting all or any part of the Collateral except in
favor of Secured Party.
(b) No Conflicts or Consents. Neither the ownership nor the intended
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use of the Collateral by Debtor, nor the grant of the security interest by
Debtor to Secured Party herein, nor the exercise by Secured Party of its rights
or remedies hereunder, will (i) conflict with any provision of (a) any domestic
or foreign law, statute, rule or regulation, (b) the articles of organization or
operating agreement of Debtor, or (c) any agreement, judgment, license, order or
permit applicable to or binding upon Debtor, or (ii) result in or require the
creation of any lien, charge or encumbrance upon any assets or properties of
Debtor except as expressly contemplated in the Loan Agreement or the other Loan
Documents. Except as expressly contemplated in the Loan Agreement or the other
Loan Documents, no consent, approval, authorization or order of, and no notice
to or filing with any court, governmental authority or third party is required
in connection with the grant by Debtor of the security interest herein, or the
exercise by Secured Party of its rights and remedies hereunder.
(c) Security Interest. Debtor has and will have at all times full
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right, power and authority to grant a security interest in the Collateral to
Secured Party in the manner provided herein, free and clear of any lien,
security interest or other charge or encumbrance. This Agreement creates a
valid and binding security interest in favor of Secured Party in the Collateral
securing the Indebtedness. The taking possession by Secured Party of all
instruments and cash constituting Collateral from time to time and the filing of
the financing statements delivered concurrently herewith by Debtor to Secured
Party will perfect, and establish the first priority of Secured Party's security
interest hereunder in the Collateral securing the Indebtedness. No further or
subsequent filing, recording, registration, other public notice or other action
is necessary or desirable to perfect or otherwise continue, preserve or protect
such security interest except for continuation statements or filings as
contemplated in Section 3.3(c).
(d) Location of Debtor and Records. Debtor's chief executive office
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and principal place of business and the office where the records concerning the
Collateral are kept is located at its address set forth in Section 5.1.
(e) Tax Identification Number. Debtor's federal tax identification
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number is 00-0000000.
Section 3.2 Affirmative Covenants. Unless Secured Party shall
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otherwise consent in writing, Debtor will at all times comply with the covenants
contained in this Section 3.2 from the date hereof and so long as any part of
the Indebtedness is outstanding or Secured Party otherwise is obligated to loan
funds to Debtor:
(a) Ownership and Liens. Debtor will maintain good and marketable
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title to all Collateral free and clear of all liens, security interests,
encumbrances or adverse claims, except for the security interest created by this
Agreement. Debtor will not permit any dispute, right of setoff, counterclaim or
defense to exist with respect to all or any part of the Collateral. Debtor will
cause to be
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terminated any financing statement or other security instrument with respect to
the Collateral, except such as may exist or as may have been filed in favor of
Secured Party. Debtor will defend Secured Party's right, title and special
property and security interest in and to the Collateral against the claims of
any Person.
(b) Further Assurances. Debtor will, at its expense and at any time
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and from time to time, promptly execute and deliver all further instruments and
documents and take all further action that may be necessary or desirable or that
Secured Party may request in order (i) to perfect and protect the security
interest created or purported to be created hereby and the first priority of
such security interest; (ii) to enable Secured Party to exercise and enforce its
rights and remedies hereunder in respect of the Collateral; or (iii) to
otherwise effect the purposes of this Agreement, including, without limitation:
(A) executing and filing such financing or continuation statements, other
instruments, or amendments thereto, as may be necessary or desirable or that
Secured Party may request in order to perfect and preserve the security interest
created or purported to be created hereby; and (B) furnishing to Secured Party
from time to time statements and schedules further identifying and describing
the Collateral and such other reports in connection with the Collateral as
Secured Party may reasonably request, all in reasonable detail.
(c) Inspection of Records Relating to Collateral. Debtor will keep
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adequate records concerning the Collateral and will permit Secured Party and all
representatives appointed by Secured Party, including independent accountants,
agents, attorneys, appraisers and any other persons, to inspect the books and
records of or relating to the Collateral at any time during normal business
hours, and to make photocopies and photographs thereof, and to write down and
record any information as such representatives shall obtain.
(d) Information. Debtor will furnish to Secured Party any information
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which Secured Party may from time to time request concerning any covenant,
provision or representation contained herein or any other matter in connection
with the Collateral or Debtor's business, properties, or financial condition.
(e) Payment of Taxes, etc. Debtor (i) will timely pay all property
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and other taxes, assessments and governmental charges or levies imposed upon the
Collateral or any part thereof; (ii) will timely pay all lawful claims which, if
unpaid, might become a lien or charge upon the Collateral or any part thereof;
and (iii) will maintain appropriate accruals and reserves for all such
liabilities in a timely fashion in accordance with generally accepted accounting
principles. Debtor may, however, delay paying or discharging any such taxes,
assessments, charges, claims or liabilities so long as the validity thereof is
contested in good faith by proper proceedings and it has set aside on its books
adequate reserves therefor.
(f) Performance of Contracts. Debtor will duly perform or cause to be
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performed all of its obligations, if any, to be performed under or with respect
to the Amended JVA.
Section 3.3 Negative Covenants. Unless Secured Party shall otherwise
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consent in writing, Debtor will at all times comply with the covenants contained
in this Section 3.3 from the date hereof and so long as any part of the
Indebtedness is outstanding or Secured Party is obligated to advance funds to
Debtor in accordance with the Loan Agreement:
(a) Transfer or Encumbrance. Debtor will not sell, assign (by
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operation of law or otherwise), transfer, exchange, or otherwise dispose of any
of the Collateral, nor will Debtor xxxxx x xxxx or security interest in or
execute, file or record any financing statement or other security instrument
with respect to the Collateral, nor will Debtor deliver actual or constructive
possession of the Collateral to any other Person, other than liens, security
interests or financing statements in favor of Secured Party; provided, however,
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Debtor shall have the right, without the consent of Secured Party, to transfer
all of the Collateral to an affiliate of Debtor so long as (i) Debtor also
assigns to such transferee all of Debtor's rights and obligations under the Loan
Agreement, (ii) the Amended JVA is amended to admit the transferee into the
Venture, (iii) the interest acquired by Debtor pursuant to the Assignment of
Joint Venture Interest is assigned by Debtor to the transferee, and (iv) the
transferee executes and delivers a new loan agreement, note, security agreement
and financing statement in substantially the forms of the Loan Documents to
which Debtor is a party, with such changes thereto as may be necessary to
reflect that the transferee is the
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borrower and debtor thereunder and otherwise in form and substance reasonably
satisfactory to Secured Party.
(b) Impairment of Security Interest. Debtor will not take or fail to
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take any action which would in any manner impair the value or enforceability of
Secured Party's security interest in any Collateral.
(c) Financing Statement Filings. Debtor recognizes that financing
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statements pertaining to the Collateral have been or may be filed where Debtor
maintains any Collateral, has its records concerning any Collateral or has its
chief executive office or principal place of business. Without limitation of
any other covenant herein, Debtor will not cause or permit any change to be made
in its name, identity, corporate structure or federal tax identification number,
or any change to be made to a jurisdiction other than as represented in Section
3.1(d) hereof in (i) the location of any records concerning any Collateral or
(ii) the location of its chief executive office or principal place of business.
ARTICLE IV
REMEDIES, POWERS AND AUTHORIZATIONS
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Section 4.1 Provisions Concerning the Collateral.
(a) Additional Financing Statement Filings. Debtor hereby authorizes
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Secured Party to file, without the signature of Debtor where permitted by law,
one or more financing or continuation statements, and amendments thereto,
relating to the Collateral. Debtor further agrees that a carbon, photographic
or other reproduction of this Security Agreement or any financing statement
describing any Collateral is sufficient as a financing statement and may be
filed in any jurisdiction Secured Party may deem appropriate.
(b) Power of Attorney. Debtor hereby irrevocably appoints Secured
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Party as Debtor's attorney-in-fact and proxy, coupled with an interest, with
full authority in the place and stead of Debtor and in the name of Debtor or
otherwise, from time to time in Secured Party's discretion, to take any action
and to execute any instrument which Secured Party may deem necessary or
advisable to accomplish the purposes of this Agreement including, without
limitation: (i) to ask, demand, collect, xxx for, recover, compound, receive
and give acquittance and receipts for moneys due and to become due under or in
respect of any of the Collateral; (ii) to receive, indorse and collect any
drafts or other instruments, documents and chattel paper in connection with
clause (i) above; and (iii) to file any claims or take any action or institute
any proceedings which Secured Party may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce the rights of
Secured Party with respect to any of the Collateral.
(c) Performance by Secured Party. If Debtor fails to perform any
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agreement or obligation contained herein, Secured Party may itself perform, or
cause performance of, such agreement or obligation, and the expenses of Secured
Party incurred in connection therewith shall be payable by Debtor under Section
4.6; provided Secured Party shall have no obligation to do any of the foregoing.
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(d) Collection Rights. Secured Party shall have the right at any
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time, upon the occurrence and during the continuance of an Event of Default, to
notify any or all account debtors and obligors under the Collateral, including,
without limitations the Venture and its present and future partners, of the
security interest thereon in favor of Secured Party and to direct such account
debtors and obligors to make payment of all amounts due or to become due to
Debtor thereunder directly to Secured Party and, upon such notification and at
the expense of Debtor and to the extent permitted by law, to enforce collection
of any such Collateral and to adjust, settle or compromise the amount or payment
thereof, in the same manner and to the same extent as Debtor may have done.
After Debtor receives notice that Secured Party has given any notice referred to
above in this subsection, (i) all amounts and proceeds (including
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instruments and writings) received by Debtor in respect of such Collateral shall
be received in trust for the benefit of Secured Party hereunder, shall be
segregated from other funds of Debtor and shall be forthwith paid over to
Secured Party in the same form as so received (with any necessary endorsement)
to be held as cash collateral and (A) applied as a payment on the Indebtedness
so long as no Event of Default shall have occurred and be continuing or (B) if
any Event of Default shall have occurred and be continuing, applied as specified
in Section 4.4, and (ii) Debtor will not adjust, settle or compromise the amount
or payment of any such Collateral or release wholly or partly any account debtor
or obligor thereof or allow any credit or discount thereon.
Section 4.2 Event of Default Remedies. If an Event of Default shall
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have occurred and be continuing, Secured Party may from time to time in its
discretion, without limitation and without notice except as expressly provided
below or by non-waivable, applicable law:
(a) Exercise in respect of the Collateral, in addition to other rights
and remedies provided for herein, under the other Loan Documents or the Loan
Agreement or otherwise available to it, all the rights and remedies of a secured
party on default under the Code (whether or not the Code applies to the affected
Collateral) and other applicable law;
(b) Reduce its claim to judgment, execution, foreclose or otherwise
enforce, in whole or in part, the security interest created hereby by any
available judicial procedure;
(c) Dispose of, at its office, on the premises of Debtor or elsewhere,
all or any part of the Collateral, as a unit or in parcels, by public or private
proceedings, and by way of one or more contracts (it being agreed that the sale
of any part of the Collateral shall not exhaust Secured Party's power of sale,
but sales may be made from time to time, and at any time, until all of the
Collateral has been sold or until the Indebtedness have been paid and performed
in full), and at any such sale it shall not be necessary to exhibit any of the
Collateral;
(d) Buy the Collateral, or any part thereof, at any public sale;
(e) Buy the Collateral, or any part thereof, at any private sale 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;
(f) Apply by appropriate judicial proceedings for appointment of a
receiver or keeper for the Collateral, or any part thereof, and Debtor hereby
consents to any such appointment; and
(g) At its discretion, retain the Collateral in satisfaction of the
Indebtedness whenever the circumstances are such that Secured Party is entitled
to do so under the Code or otherwise.
Debtor agrees that, to the extent notice of sale shall be required by law, at
least ten (10) days' notice to Debtor of the time and place of any public sale
or the time after which any private sale is to be made shall constitute
reasonable notification. Secured Party shall not be obligated to make any sale
of Collateral regardless of notice of sale having been given. Secured Party may
adjourn any public or private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further notice, be made at
the time and place to which it was so adjourned.
Section 4.3 Executory Process. For purposes of executory process
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under applicable Louisiana law, Debtor hereby acknowledges the Indebtedness,
CONFESSES JUDGMENT thereon and consents that judgment be rendered and signed,
whether during the court's term or during vacation, in favor of the Secured
Party, for the full amount of the Indebtedness, including but not limited to,
the Note, and the other Indebtedness in principal, interest, and attorney's
fees, together with all charges and expenses whatsoever pursuant to this
instrument, the Loan Agreement and the other Loan Documents. Upon the
occurrence of an Event of Default, and in addition to all of its rights, powers
and remedies under this instrument and applicable law, Secured Party may, at its
option, cause all or any part of the Collateral
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to be seized and sold under executory process or under writ of fieri facias
issued in execution of an ordinary judgment obtained upon the Indebtedness,
without appraisement to the highest bidder, for cash or under such terms as
Secured Party deems acceptable. Debtor hereby waives all and every appraisement
of the Collateral and waives and renounces the benefit of appraisement and the
benefit of all laws relative to the appraisement of the Collateral seized and
sold under executory or other legal process. Debtor agrees to waive, and does
hereby specifically waive:
(a) the benefit of appraisement provided for in Articles 2332, 2336,
2723 and 2724, Louisiana Code of Civil Procedure, and all other laws conferring
such benefits;
(b) the demand and three (3) days delay accorded by Articles 2639 and
2721, Louisiana Code of Civil Procedure;
(c) the notice of seizure required by Articles 2293 and 2721,
Louisiana Code of Civil Procedure;
(d) the three (3) days delay provided by Articles 2331 and 2722,
Louisiana Code of Civil Procedure;
(e) the benefit of the other provisions of Articles 2331, 2722 and
2723, Louisiana Code of Civil Procedure;
(f) the benefit of the provisions of any other articles of the
Louisiana Code of Civil Procedure not specifically mentioned above; and
(g) all pleas of division and discussion with respect to the
Indebtedness.
In the event Secured Party elects, at its option, to enter suite via ordinaria
on the Indebtedness, in addition to the foregoing confession of judgment, Debtor
hereby waives citation, other legal process and legal delays and hereby consents
that judgment for the unpaid principal due on the Indebtedness, together with
interest, attorneys' fees, costs and other charges that may be due on the
Indebtedness, be rendered and signed immediately.
Pursuant to the authority contained in La. R.S. 9:5136 through
9:5140.1, as the same may be amended or supplemented, Debtor and Secured Party
do hereby expressly designate Secured Party or its designee to be keeper or
receiver ("Keeper") for the benefit of Secured Party or any assignee of Secured
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Party, such designation to take effect immediately upon any seizure of any of
the Collateral under writ of executory process or under writ of sequestration or
fieri facias as an incident to an action brought by Secured Party.
Section 4.4 Application of Proceeds. If any Event of Default shall
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have occurred and be continuing, Secured Party may in its discretion apply any
cash held by Secured Party as Collateral, and any cash proceeds received by
Secured Party in respect of any sale of, collection from, or other realization
upon all or any part of the Collateral, to payment of the Indebtedness or
otherwise, in the manner provided by the Code.
Section 4.5 Deficiency. In the event that the proceeds of any sale,
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collection or realization of or upon Collateral by Secured Party are
insufficient to pay all Indebtedness and any other amounts to which Secured
Party is legally entitled, Debtor shall be liable for the deficiency, together
with interest thereon as provided in the Loan Agreement or the governing Loan
Documents, or if no interest is so provided, at such other rate as shall be
fixed by applicable law, together with the costs of collection and the
reasonable fees of any attorneys employed by Secured Party to collect such
deficiency.
Section 4.6 Indemnity and Expenses. In addition to, and not in
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qualification of, any similar obligations under other Loan Documents or the Loan
Agreement. Debtor will upon demand
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pay to Secured Party the amount of any and all costs and expenses, including the
fees and disbursements of Secured Party's counsel and of any experts and agents,
which Secured Party may incur in connection with (i) the custody, preservation,
use or operation of, or the sale or lease of, collection from, or other
realization upon, any Collateral; (ii) the exercise or enforcement of any of the
rights of Secured Party hereunder; or (iii) the failure by Debtor to perform or
observe any of the provisions hereof, except expenses resulting from Secured
Party's negligence or willful misconduct.
Section 4.7 Non-Judicial Remedies. In granting to Secured Party the
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power to enforce its rights hereunder without prior judicial process or judicial
hearing, Debtor, to the extent permitted by the laws of the jurisdiction in
which the Collateral or any part thereof is located, including without
limitation the State of Louisiana, expressly waives, renounces and knowingly
relinquishes any legal right which might otherwise require Secured Party to
enforce its rights by judicial process and authorizes Secured Party to exercise
self help remedies to obtain possession of any or all of the Collateral. In so
providing for non-judicial remedies, Debtor recognizes and agrees that such
remedies are consistent with the usage of trade, are responsive to commercial
necessity, and are the result of a bargain at arm's length. Nothing herein is
intended to prevent Secured Party or Debtor from resorting to judicial process
at either party's option.
Section 4.8 Other Recourse. Debtor waives any right to require
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Secured Party to proceed against any other Person, exhaust any Collateral or
other security for the Indebtedness, or to have any Other Liable Party joined
with Debtor in any suit arising out of the Indebtedness or this Agreement, or
pursue any other remedy in Secured Party's power. Debtor further waives any and
all notice of acceptance of this Agreement and of the creation, modification,
rearrangement, renewal or extension for any period of any of the Indebtedness
from time to time. Debtor further waives any defense arising by reason of any
disability or other defense of any Other Liable Party or by reason of the
cessation from any cause whatsoever of the liability of any Other Liable Party.
Until all of the Indebtedness shall have been paid and performed in full, Debtor
shall have no right to subrogation and Debtor waives the right to enforce any
remedy which Secured Party has or may hereafter have against any Other Liable
Party, and waives any benefit of and any right to participate in any other
security whatsoever now or hereafter held by Secured Party. Debtor authorizes
Secured Party, without notice or demand and without any reservation of rights
against Debtor without affecting Debtor's liability hereunder or on the
Indebtedness, from time to time to (a) take or hold any other property of any
type from any other Person as security for the Indebtedness, and exchange,
enforce, waive and release any or all of such other property, (b) subject to the
requirements of applicable law, apply the Collateral or such other property and
direct the order or manner of sale thereof as Secured Party may in its
discretion determine, (c) renew, extend for any period, accelerate, modify,
compromise, settle or release any of the obligations of any Other Liable Party
in respect to any or all of the Indebtedness or other security for the
Indebtedness, (d) waive, enforce, modify, amend or supplement any of the
provisions of the Loan Agreement or any Loan Document with any Person other than
Debtor, and (e) release or substitute any Other Liable Party.
ARTICLE V
MISCELLANEOUS
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Section 5.1 Notices. Any notice or communication required or
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permitted hereunder shall be given in writing, sent by (a) personal delivery,
(b) expedited delivery service with proof of delivery, (c) registered or
certified United States mail, postage prepaid, or (d) telegram or telex,
addressed to the appropriate party as follows:
To Debtor: Shreveport Paddlewheels
000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Telecopier No. (000) 000-0000
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To Secured Party: HWCC-Louisiana, Inc.
Two Galleria Tower, Suite 2200
00000 Xxxx Xxxx, XX 00
Xxxxxx, Xxxxx 00000
Telecopier No. (000) 000-0000
or to such other address or to the attention of such other individual as
hereafter shall be designated in writing by the applicable party sent in
accordance herewith. Any such notice or communication shall be deemed to have
been given either at the time of personal delivery or, in the case of delivery
service or mail, as of the date of first attempted delivery at the address and
in the manner provided herein, or in the case of telegram or telex, upon
receipt.
Section 5.2 Amendments. No amendment of any provision of this
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Agreement shall be effective unless it is in writing and signed by Debtor and
Secured Party, and no waiver of any provision of this Agreement, and no consent
to any departure by Debtor therefrom, shall be effective unless it is in writing
and signed by Secured Party, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given and
to the extent specified in such writing.
Section 5.3 Preservation of Rights. No failure on the part of
----------------------
Secured Party to exercise, and no delay in exercising, any right hereunder or
under any other Loan Document or the Loan Agreement shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. Neither
the execution nor the delivery of this Agreement shall in any manner impair or
affect any other security for the Indebtedness. The rights and remedies of
Secured Party provided herein, in the other Loan Documents and in the Loan
Agreement and in any other agreement or document evidencing Indebtedness are
cumulative and are in addition to, and not exclusive of, any rights or remedies
provided by contract, law or equity. The rights of Secured Party under the Loan
Agreement, any Loan Document or any other agreement or document evidencing
Indebtedness against any party thereto are not conditional or contingent on any
attempt by Secured Party to exercise any of its other rights under the Loan
Agreement or any Loan Document or under any other agreement or document
evidencing Indebtedness against such party or against any other Person.
Section 5.4 Unenforceability. Any provision of this Agreement which
----------------
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or invalidity
without invalidating the remaining portions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
Section 5.5 Survival of Agreements. All representations and
----------------------
warranties of Debtor herein, and all covenants and agreements herein shall
survive the execution and delivery of this Agreement, the execution and delivery
of the Loan Agreement, any other Loan Documents and any other agreement or
document evidencing Indebtedness and the creation of the Indebtedness.
Section 5.6 Other Liable Party. Neither this Agreement nor the
------------------
exercise by Secured Party or the failure of Secured Party to exercise any right,
power or remedy conferred herein or by law shall be construed as relieving any
Other Liable Party from liability on the Indebtedness or any deficiency thereon.
This Agreement shall continue irrespective of the fact that the liability of any
Other Liable Party may have ceased or irrespective of the validity or
enforceability of the Loan Agreement, any other Loan Document or any other
agreement or document evidencing Indebtedness to which Debtor or any Other
Liable Party may be a party, and notwithstanding the reorganization, death,
incapacity or bankruptcy of any Other Liable Party, and notwithstanding the
reorganization or bankruptcy or other event or proceeding affecting any Other
Liable Party.
Section 5.7 Binding Effect and Assignment. This Agreement creates a
-----------------------------
continuing security interest in the Collateral and (a) shall be binding on
Debtor and its successors and permitted assigns and (b) shall inure, together
with all rights and remedies of Secured Party hereunder, to the benefit of
Secured Party and its successors, transferees and assigns. Without limiting the
generality of the foregoing, Secured Party may pledge, assign or otherwise
transfer any or all of its rights under any or all of
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the Loan Agreement or the Loan Documents or any other agreement or document
evidencing Indebtedness to any other Person, and such other Person shall
thereupon become vested with all of the benefits in respect thereof granted
herein or otherwise. None of the rights or duties of Debtor hereunder may be
assigned or otherwise transferred without the prior written consent of Secured
Party.
Section 5.8 Termination. Upon (i) the satisfaction in full of the
-----------
Indebtedness, (ii) the termination or expiration of the Loan Agreement and any
other commitment of Secured Party to extend credit to Debtor, and (iii) upon
written request for the termination hereof delivered by Debtor to Secured Party,
this Agreement and the security interest created hereby shall terminate and all
rights to the Collateral shall revert to Debtor. Thereafter, Secured Party
will, upon Debtor's request and at Debtor's expense, execute and deliver to
Debtor such documents as Debtor shall reasonably request to evidence such
termination.
Section 5.9 Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of Louisiana applicable to
contracts made and to be performed entirely within such state, except as
required by mandatory provisions of law and except to the extent that the
perfection and the effect of perfection or non-perfection of the security
interest created hereby hereunder, in respect of any particular Collateral, are
governed by the laws of a jurisdiction other than the State of Louisiana.
Section 5.10 Counterparts. This Agreement may be separately executed
------------
in any number of counterparts, all of which when so executed shall be deemed to
constitute one and the same Agreement.
Section 5.11 Loan Document. This Agreement is a "Loan Document", as
-------------
defined in the Loan Agreement, and, except as expressly provided herein to the
contrary, this Agreement is subject to all provisions of the Loan Agreement
governing such Loan Documents.
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IN WITNESS WHEREOF, Debtor has caused this Agreement to be executed
and delivered by its officer thereunto duly authorized, as of the date first
above written.
DEBTOR:
SHREVEPORT PADDLEWHEELS, L.L.C.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
SECURED PARTY:
HWCC-LOUISIANA, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
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ACKNOWLEDGMENT
--------------
STATE OF LOUISIANA
PARISH OF ORLEANS
BEFORE ME, the undersigned Notary Public, duly commissioned, qualified
and empowered to act in and for the Parish and State aforesaid, personally came
and appeared _________________ to me known, who declared and acknowledged before
me, Notary, and the undersigned competent witnesses, that he is the
_________________ of Shreveport Paddlewheels, L.L.C., that as such duly
authorized agent, by and with the authority of the members of Shreveport
Paddlewheels, L.L.C.., he signed and executed the foregoing instrument, as the
free and voluntary act and deed of Shreveport Paddlewheels, L.L.C.., for and on
behalf of Shreveport Paddlewheels, L.L.C.., and for the objects and purposes
therein set forth.
THUS DONE AND PASSED in the State and Parish aforesaid, on this ____
day of August, 1999, after due reading of the whole.
WITNESSES:
-------------------------------------
-------------------------------------
-------------------------------------
----------------------------------------
Notary Public
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ACKNOWLEDGMENT
--------------
STATE OF LOUISIANA
PARISH OF ORLEANS
BEFORE ME, the undersigned Notary Public, duly commissioned, qualified
and empowered to act in and for the Parish and State aforesaid, personally came
and appeared _________________ to me known, who declared and acknowledged before
me, Notary, and the undersigned competent witnesses, that he is the
_________________ of HWCC-Louisiana, Inc., that as such duly authorized agent,
by and with the authority of the Board of Directors of HWCC-Louisiana, Inc., he
signed and executed the foregoing instrument, as the free and voluntary act and
deed of HWCC-Louisiana, Inc., for and on behalf of HWCC-Louisiana, Inc., and for
the objects and purposes therein set forth.
THUS DONE AND PASSED in the State and Parish aforesaid, on this ____
day of August, 1999, after due reading of the whole.
WITNESSES:
------------------------------------
------------------------------------
------------------------------------
----------------------------------
Notary Public
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