REAL ESTATE TAX
ESCROW AND SECURITY AGREEMENT
(Sam Houston Race Park, Ltd.)
TABLE OF CONTENTS
TO
REAL ESTATE TAX ESCROW
AND SECURITY AGREEMENT
1. Parties In Interest1
2. Recitals1
3. Escrow Holder2
4. Deposits into Escrow2
5. Withdrawal Terms3
a. Payment of Taxes3
b. Right of Contest4
c. No Other Disbursements4
6. Interest4
7. Default Provisions4
8. Security Interest4
a. Grant of Security Interest4
b. UCC Rights5
c. Acknowledgment of Security Interest5
9. Warranties5
10. Termination of Escrow5
11. Investment of Funds in Tax Escrow Account5
a. The Partnership's Right to Request Investments6
b. Permitted Investments6
c. Risk of Loss7
12. Responsibilities of Escrow Holder7
a. Books, Records, and Statements7
b. Escrow Holder's Right to Resign7
c. Standard of Care of Escrow Holder8
d. Reliance on Instructions8
13. Fees and Expenses8
14. Liability of Parties9
15. Hold Harmless9
16. Waiver of Offset9
17. Collateral Document; Curative Rights9
18. Notices9
19. Applicable Law10
20. Headings10
22. Attorneys' Fees and Expenses11
23. Assignment11
24. Agency11
REAL ESTATE TAX
ESCROW AND SECURITY AGREEMENT
Sam Houston Race Park, Ltd.
Parties In Interest:
THIS REAL ESTATE TAX ESCROW AND SECURITY AGREEMENT (this
"Agreement") is entered into as of July 1, 1997 (the "Effective Date") by
and among SAM HOUSTON RACE PARK, LTD. (the "Partnership"),a Texas
limited partnership, whose managing general partner is SHRP GENERAL
PARTNER, INC. ("General Partner"), a Texas corporation, FIRST BANK
NATIONAL ASSOCIATION ("Trustee"), a national banking association,
as Trustee under the New Indenture (as hereinafter defined) and SOUTHWEST
BANK OF TEXAS, N.A. ("Escrow Holder"), a national banking association
domiciled in Texas. Capitalized terms used but not defined herein shall have
the meanings given such terms in the New Indenture.
Recitals:
The Partnership is the owner of those certain tracts of land (the
"Site") upon which is located a Class 1 horse racing facility (the "Racing
Facility") operated by the Partnership pursuant to a Class 1 racetrack
license (the "License") issued to the Partnership by the Texas Racing
Commission pursuant to the Texas Racing Act.
To finance the construction of the Racing Facility, the Partnership
and SHRP Capital Corp., a New York corporation, issued 11-3/4% Senior Secured
Notes Due 1999 (the "Original Notes") pursuant to that certain Indenture,
dated as of July 7, 1993, by and among the Partnership, SHRP Capital Corp.,
SHRP, Inc. and Chemical Bank, as Trustee (the "Indenture").
The Partnership defaulted on an interest payment with respect to
the Original Notes and the Partnership, SHRP Capital Corp. and other
entities subsequently filed for protection under Chapter 11 of the United
States Bankruptcy Court.
The Plan of Reorganization confirmed pursuant to such Chapter 11
proceedings provided for a variety of modifications with respect to the
Indenture for the Original Notes, said modifications being reflected in
an Amended and Restated Indenture (the "New Indenture") by and among the
Partnership, New SHRP Capital Corp., SHRP General Partner, Inc. and First
Bank National Association, as Trustee.
To secure the payment and performance of all of the agreements,
covenants and provisions under the New Indenture and the indebtedness
represented by the 11% Senior Secured Extendible Notes Due 2001 issued
pursuant to the New Indenture (the "Notes"), and the related documents
(which indebtedness and payment and performance obligations are collectively
referred to herein as the "Obligations"), the Partnership has duly
authorized the execution and delivery of that certain Amended and Restated
Deed of Trust, Assignment, Security Agreement and Financing Statement (the
"Original Deed of Trust") and a Deed of Trust, Assignment, Security Agreement
and Financing Statement (the "New Deed" and, together with the Original
Deed of Trust, the "Deeds of Trust"), both dated as of October 5, 1997. The
Deeds of Trust cover the Racing Facility and certain adjoining property and
all other real and personal property interests of the Partnership.
Under the provisions of the Deeds of Trust, the Partnership must
make monthly deposits into an escrow account, such deposits to be of
sufficient funds to permit the payment in full of the next maturing real
estate taxes and assessments and all municipal utility district assessments
and any other ad valorem impositions levied by any other taxing or assessing
districts or bodies (hereinafter collectively referred to as "Taxes") before
any penalty or interest for the nonpayment thereof attaches or accrues.
The parties hereto are entering into this Agreement to provide for
said deposits for Taxes, and Escrow Holder is willing to act as holder of the
deposits so made by the Partnership on the terms and conditions hereinafter
et forth.
The foregoing recitals are incorporated herein by reference.
AGREEMENT Escrow Holder: Escrow Holder has been appointed as the agent
and bailee of Trustee to hold, invest, reinvest, administer and disburse the
Tax Account Pledged Assets (as hereinafter defined). Escrow Holder hereby
accepts such appointment and agency subject to the terms of this Agreement,
and acknowledges that it shall hold the Tax Escrow Account (as hereinafter
defined) and the Tax Account Pledged Assets subject to the terms of this
Agreement.
Deposits into Escrow:
Tax Deposit Account. All sums deposited by or on behalf of the
Partnership with Escrow Holder under this Agreement will be deposited by
Escrow Holder in a separate interest-bearing escrow account with Escrow
Holder in the name of First Bank National Association Tax Escrow Account,
in trust for the benefit of the Holders (the "Tax Escrow Account"), which
escrow account is pledged to Trustee. The Tax Escrow Account number is
escrow account number 9055134.
Initial and Subsequent Deposits. As of the Effective Date, at least
$600,000 is on deposit in the Tax Escrow Account, representing 7/12ths of the
Taxes which the Partnership estimates will be due for calendar 1997 as
evidenced by a certificate from the Partnership to Escrow Holder dated as of
the Effective Date. Beginning July 1, 1997 and continuing on the first day
of each ensuing calendar month thereafter, the Partnership shall make monthly
deposits to Escrow Holder for deposit into the Tax Escrow Account (with a copy
of the Partnership's transmittal letter evidencing the amount deposited being
delivered to Trustee) equal to 1/12th of the Taxes estimated by the
Partnership to be due for the then current calendar year, which deposits
shall be adjusted in accordance with the following provisions of this
paragraph 4. The Partnership's calculation of monthly tax deposits shall not
be reduced to take into account interest projected to be earned on invested
funds, but may take into account interest earned on funds in the Tax Escrow
Account in prior years which the Partnership elects in writing to retain in
the Tax Escrow Account. The Partnership shall provide with its deposit due
on or before January 1 of each year a certificate from an authorized officer
of the Partnership stating that its monthly deposits to be made beginning
with the deposit due January 1 through and including the deposit due December
1 will be sufficient to fully discharge the Taxes for such year based on
information then known to the Partnership. The Partnership shall
concurrently provide a calculation of estimated Taxes due for such calendar
year, indicating such deposits are sufficient.
Adjustments. The Partnership shall be responsible for determining the
sufficiency of its monthly deposits to ensure sufficient funds are deposited
into the Tax Escrow Account by December 31 of each calendar year to pay the
Taxes due for that calendar year in full. Notwithstanding the foregoing, if
the Partnership receives tax statements from any taxing authority after
December 31 of any year, the Partnership shall have fifteen (15) Business
Days (as defined in the New Indenture) after receipt of such statements to
deposit with Escrow Holder any additional sum required to pay such Taxes in
full. If the Partnership at any time determines its monthly deposits are
insufficient, or if it receives written notice from the Trustee that its
deposits are insufficient, the Partnership shall with its next payment due
(i) deposit an amount equal to the difference between the deposits
previously made for such calendar year and the amount such deposits would
have been had the actual amount of such Taxes, or the Partnership's revised
estimate, been used as the basis for such deposits, and (ii) adjust its
deposit for that month accordingly. Subsequent monthly deposits for that
calendar year will also be adjusted by the Partnership. The Partnership shall
provide at the time of such adjustment a new certificate as to the sufficiency
of its deposits as so revised and a new calculation indicating such
sufficiency. Trustee for the sole benefit of the Trustee and the Holders,
will use good faith efforts to instruct the Partnership to adjust its
deposits in accordance with the foregoing provisions of this paragraph 4c.
Trustee's failure to do so, or any underestimate of Taxes payable made by
Trustee, shall not limit or affect the Partnership's obligations hereunder
and under the Deeds of Trust to deposit sufficient funds to pay Taxes and
to pay, or cause to be paid, all Taxes due not later than 20 days prior to
delinquency.
Change in Payment. If for any reason the Taxes or any component
thereof become payable at any time other than annually in arrears, the
Partnership shall adjust its escrow payments accordingly to ensure that
sufficient amounts are deposited at least 60 days prior to the time
penalties and interest can be assessed for late payment for each Tax payment
due.
Withdrawal Terms:
Payment of Taxes: Escrow Holder shall after receipt of the appropriate
Tax bills from the Partnership issue and deliver checks within three (3)
business days against the funds in the Tax Escrow
Account for the amount of
said installment, to the extent there exists such funds in the Tax Escrow
Account, and made payable to the appropriate taxing authorities, providing
a copy of its transmittals and the enclosed checks to Trustee and the
Partnership. If there are insufficient funds in the Tax Escrow Account,
Escrow Holder shall notify the Partnership of such deficiency and the
Partnership shall within five (5) Business Days deposit funds with Escrow
Holder in the amount of such deficiency. Nothing herein shall (i) relieve
the Partnership of its obligation to timely pay Taxes in full or (ii)
require Escrow Holder to pay Taxes from its own funds.
Right of Contest: The Partnership may in good faith elect to contest
any Tax assessment in accordance with applicable Requirements. The
Partnership shall notify Escrow Holder and Trustee of such election and
provide them with such information regarding such contest as either may
request. The Partnership shall deposit with Escrow Holder such additional sums
as Trustee may require to cover penalties and/or interest which would become
payable in connection with such contest if the Partnership did not prevail.
Trustee's determination as to such additional deposit shall be final as to
all parties hereto, but shall not relieve the Partnership from its
obligation to timely pay Taxes in full if such amount is insufficient. In
all events such Taxes shall be paid by the Partnership, and if unpaid, upon
written notification from the Trustee to the Escrow Holder, shall be
immediately paid by Escrow Holder, to the extent there are funds in the
Tax Escrow Account.
No Other Disbursements: Except for the payment of interest as
provided in paragraph 6 below, and except upon termination of this Agreement
as contemplated by paragraph 10 below, Escrow Holder shall not disburse or
otherwise pay any funds from the Tax Escrow Account other than in accordance
with this paragraph 5.
Interest: So long as (i) payments of Taxes are paid in full prior
to the date when any penalty or interest attaches or accrues (subject to the
Partnership's right of contest under paragraph 5b), and (ii) Escrow Holder
has not received a Default Notice (as defined in paragraph 7 below), Escrow
Holder shall pay directly to the Partnership within five (5) Business Days
of Escrow Holder's receipt of a written request from the Partnership and
written authorization and consent from the Trustee made not earlier than
the date of payment of Taxes to the taxing authorities or later than 30
days after such payment is made, all interest earned on the funds in the
Tax Escrow Account, less Expenses (as defined in paragraph 13 below) on each
date when Tax payments are made in full from the Tax Escrow Account (provided
account funds are otherwise sufficient to pay the Taxes due and Expenses
incurred), and upon termination of this Agreement pursuant to paragraph 10
below.
Default Provisions: Upon receipt by Escrow Holder of written notice
from Trustee that an Event of Default (as defined in the New Indenture) has
occurred under the New Indenture (a "Default Notice"), Escrow Holder shall
not permit any withdrawal from the Tax Escrow Account until it is instructed
in writing to do so by Trustee. At the written request of Trustee and
following receipt of a Default Notice from the Trustee stating that an Event
of Default has occurred, Escrow Holder shall within three (3) Business Days
pay over to Trustee after payment to the Escrow Holder of any and all fees,
expenses and amounts due the Escrow Holder, all of the Tax Account Pledged
Assets (as hereinafter defined), including principal and interest and all
investments. The Partnership agrees that Trustee shall be entitled to apply
the proceeds of the Tax Account Pledged Assets to the Indebtedness (as
defined in the Deeds of Trust) in any manner which Trustee deems appropriate.
Upon such payment by Escrow Holder to Trustee, this Agreement shall terminate.
Escrow Holder shall have no responsibility with respect to the application of
any Tax Account Pledged Assets paid by Escrow Holder to Trustee.
Security Interest:
Grant of Security Interest: This Agreement is intended to provide
additional security for the payment of all amounts now and in the future
payable under the Notes, the New Indenture, the Deeds of Trust and the
Transaction Documents. To that end, the Partnership hereby grants, pledges,
transfers and assigns to Trustee a continuing security interest in the
following, whether now existing or hereafter acquired or arising: all of
(i) the Tax Escrow Account, and all instruments, securities, documents,
accounts, general intangibles, money and other property and contents
herein and thereof, and all rights relating thereto and proceeds therefrom
and thereof, including, without limitation, the deposits made into the Tax
Escrow Account from time to time and all earnings thereon at any time or
from time to time in the possession or control of Escrow Holder, (ii) all
books and records relating to the types and items of property described in
the foregoing clause (i) and (iii) all proceeds (whether cash or non-cash,
and including, without limitation,
insurance proceeds) and products of the
property described in the foregoing clause (i), and all replacements and
substitutions therefor and all additions and accessions thereto (collectively
called the "Tax Account Pledged Assets").
UCC Rights: In addition to all rights and remedies given to Trustee
by this Agreement, Trustee shall have the rights and remedies of a secured
party under the Uniform Commercial Code and any other applicable law. The
Partnership shall be responsible for timely executing all financing
statements, continuation statements and other documents as may be necessary
to perfect, continue or otherwise evidence said security interest, and, upon
notice from Trustee, the Partnership will promptly execute such financing
statements, continuation statements and other documents as may be requested
(but which do not materially increase the Partnership's obligations under
this Agreement) to perfect, continue or otherwise evidence said security
interest. The Partnership shall pay all expenses and fees for the
preparation and filing thereof.
Acknowledgment of Security Interest: Escrow Holder acknowledges
receipt of notice of Trustee's security interest in the Tax Account Pledged
Assets.
Warranties: The Partnership does hereby warrant and represent to
Trustee and Escrow Holder that the Partnership is the owner of all of the
Tax Account Pledged Assets, and (i) the Partnership has not heretofore
made any assignment or pledge of, granted a security interest in, or
otherwise transferred or encumbered all or any part of its interest in all
or any part of the Tax Account Pledged Assets, and (ii) the Tax Account
Pledged Assets are free and clear of any security interest, pledge,
assignment or other encumbrance other than the security interest created
hereby. Escrow Holder does hereby warrant and represent to Trustee that
Escrow Holder has not received notice from any individual or entity, except
Trustee, claiming an interest in the Tax Account Pledged Assets.
Termination of Escrow: Provided this Agreement has not been
terminated pursuant to paragraph 7 hereof, this Agreement, and the escrow
provided for herein, shall automatically terminate when Escrow Holder
receives written notification from Trustee that all amounts due from the
Partnership to Trustee and the Holders have been paid in full, the Notes
have been fully paid and cancelled, and the Deeds of Trust discharged. Upon
termination of this Agreement as provided in this paragraph, Escrow Holder
shall deliver the remaining Tax Account Pledged Assets to the Partnership
after payment of any and all outstanding fees, expenses and amounts due the
Escrow Holder.
Investment of Funds in Tax Escrow Account: Until Escrow Holder
shall have received a Default Notice, any monies held as a part of the Tax
Escrow Account shall be invested or reinvested by Escrow Holder in the
One Group U.S. Treasury Money Market Fund or other Permitted Investments as
directed in writing by the Partnership (as hereinafter defined) in the name
of the Tax Escrow Account in trust for the Trustee and Holders.
The Partnership's Right to Request Investments: All investments shall
be held in the name of Tax Escrow Account in trust for the benefit of the
Trustee and Holders, free and clear of all Liens. Escrow Holder shall make
each requested Permitted Investment within one (1) Business Day after Escrow
Holder's receipt of the written request from the Partnership, unless the
nature of the Permitted Investment reasonably requires a longer period to
complete the investment. Except as provided in the next sentence, the
Partnership may not make more than five (5) requests for investments per
calendar month. There shall be no limit to the number of requests for
investments under paragraph 11b(3) hereof.
Permitted Investments: the term "Permitted Investments" as used
herein shall mean:
U.S. Government Obligations (as such term is defined in the New
Indenture);
any certificate of deposit or bankers' acceptance, in each case,
maturing not more than 180 days after the date of acquisition, issued by,
or, in the case of bankers' acceptances, accepted by, or time deposit of,
any bank or trust company organized under the laws of the United States of
America or any state thereof or the District of Columbia or any United
States branch office or agency of any foreign depository institution, in
each case that has combined capital and surplus and undivided profits of
not less than $200 million or whose unsecured, unguaranteed long-term debt
obligations are rated "A" (or higher) by S&P and "Aa2" (or higher) by Moody's
, or whose unsecured, unguaranteed commercial paper obligations are rated
"A-2" (or higher) by S&P and "P-2" (or higher) by Moody's;
Repurchase agreements entered into with entities whose unsecured,
unguaranteed long-term debt obligations are rated "A" (or higher) by S&P and
"A2" (or higher) by Moody's, or whose unsecured, unguaranteed commercial
paper obligations are rated "A-2" (or higher) by S&P and "P-2" (or higher)
by Moody's, pursuant to a written agreement with respect to any obligation
described in clauses (1), (2) or (4) of this subparagraph 11b;
Commercial paper (including both noninterest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than 180 days after the date of acquisition),
issued by a corporation (other than an Affiliate or Subsidiary of the
Partnership) organized and existing under the laws of the United States of
America with a rating, at the time as of which any investment thereof
is made, of "P-2" (or higher) according to Moody's or "A-2" (or higher)
according to S&P;
Adjustable rate preferred stock that is rated "A" (or higher) by
Moody's or S&P;
Taxable or non-taxable auction rate securities which have interest
rates reset on periodic short-term intervals (typically each 7, 14, 21, 28
or 49 days via a Dutch auction process) and which at the time of purchase
have been rated and the ratings for which (A) for direct issues, must not
be less than "P2" if rated by Moody's and not less than "A2" if rated by S&P,
or (B) for collateralized issues which follow the asset coverage tests set
forth in the Investment Company Act of 1940, as amended, must have long-term
ratings of at least "AAA" if rated by S&P and "Aaa" if rated by Moody's;
Money market deposit accounts issued or offered by any bank or trust
company organized under the laws of the United States of America or any state
thereof or the District of Columbia, in each case having capital and surplus
in excess of $500 million;
Non-taxable securities, maturing not later than one year after the date
of acquisition, issued by any state or municipality and having ratings of at
least "A" if rated by S&P and "A-2" if rated by Moody's; and
The One Group U.S. Treasury Money Market Fund or equivalent
investment.
Risk of Loss. The Partnership shall be solely responsible for any
loss of investments or breakage costs with respect to invested funds.
Escrow Holder does not guaranty or have responsibility or liability for any
minimum return on investment of invested funds. The Partnership shall be
solely responsible for matching maturity of investments with disbursements.
Within two (2) Business Days after Trustee becomes aware of any loss of
principal on invested funds, Trustee shall notify the Partnership in writing
and the Partnership shall restore such loss within five (5) Business Days of
receipt of such notice by payment to Escrow Holder for deposit into the Tax
Escrow Account.
Responsibilities of Escrow Holder.
Books, Records, and Statements: Escrow Holder shall at all times
during the term of this Agreement keep and maintain accurate, complete and
up to date books and records with respect to the Tax Escrow Account,
investments thereof, earnings thereon and disbursements therefrom. Escrow
Holder shall provide monthly statements to Trustee and the Partnership
showing the balance of the Tax Escrow Account, the earnings thereof
and the disposition of said earnings.
Escrow Holder's Right to Resign: Escrow Holder reserves the right
to resign hereunder by 60 days' prior written notice to Trustee and the
Partnership and at such time as a replacement escrow holder has been
identified which will enter into an agreement substantially similar to this
agreement and provide substantially the same services. Escrow Holder shall
pay over to the replacement escrow holder (or, if Trustee so directs, to
Trustee) all funds in the Tax Escrow Account. If such funds are paid to
Trustee, such funds shall be held by the Trustee pursuant to the terms of
the Deeds of Trust. Upon the delivery of such funds, this Agreement shall
terminate and Escrow Holder shall not have any further liability or rights
under this Agreement, except any claims against Escrow Holder for its
willful misconduct or negligence relating to events occurring prior to such
termination. In the event Escrow Holder does resign pursuant to this
provision, the indemnity provided in paragraph 15 shall survive such
termination. Escrow Holder shall have the right to cause a new Escrow Holder
to be appointed if (i) such appointment is directed by a Federal
District or state court judge with competent jurisdiction or (ii) Escrow
Holder obtains a replacement Escrow Holder that is a national bank with a
lending office in Houston, Texas that has capital and surplus equal or
greater than that of Escrow Holder as of the time the replacement is to be
effective, as evidenced by the
most recent audited financial statements
available for the then current and proposed Escrow Holder, and in
the case of either (i) or (ii), the replacement Escrow Holder joins Trustee
and the Partnership in executing a new agreement on substantially the same
terms as this Agreement, with the Partnership solely responsible
for any increase in the fee of such replacement Escrow Holder.
Standard of Care of Escrow Holder. Escrow Holder undertakes to
perform such duties and only such duties as are specifically set forth in
this Agreement, and no implied covenants or obligations shall be read
into this Agreement against Escrow Holder. No provision of this Agreement
shall be construed to relieve Escrow Holder from liability for its own
negligent act, its own negligent failure to act or its own misconduct,
except that (i) this sentence shall not be construed to limit the effect of
the preceding sentence, (ii) Escrow Holder shall have no liability under
this Agreement for actions taken in its reasonable judgment (unless Escrow
Holder was negligent in ascertaining the pertinent facts), and (iii) no
provision of this Agreement shall require Escrow Holder to expend or risk
its funds or otherwise incur any financial liability in the performance of
any of its duties hereunder or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that the repayment
of such funds or adequate indemnity against the risk or liability is not
reasonably assured to it. Escrow Holder shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement at the
request of the Trustee, unless the Trustee shall have offered Escrow Holder
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred by it in connection with such request or direction.
Escrow Holder may rely without further investigation on the Partnership's
calculations of estimated Taxes payable for the then current year, the
Partnership's corresponding calculation of the monthly deposits due
under this Agreement, and any statements of valuations or tax bills it
receives.
Reliance on Instructions: If any disagreement arises under this
Agreement, Escrow Holder shall rely solely on written instructions from
Trustee.
Fees and Expenses: In consideration for its duties under this
Agreement, the Partnership shall pay Escrow Holder a fee of $2,500.00 per
year in advance upon the opening of the account and upon the anniversary
date of the opening of the account in each calendar year during the term of
this Agreement. If this Agreement commences during a calendar year, the fee
for such partial year shall be paid promptly on a pro rata basis. The
Partnership shall also be responsible for all out-of-pocket costs and
expenses of Escrow Holder as may be incurred by Escrow Holder in connection
with the administration of this Agreement, including reasonable attorneys'
fees, including a reasonable fee paid to Escrow Holder for the services of
attorneys employed by Escrow Holder. Said fee, attorneys' fees, out-of-
pocket expenses and other costs are collectively referred to hereinafter as
the "Expenses." Any Expenses may be offset against interest earned, and
only against such interest, on the Tax Escrow Account. The Partnership is
absolutely responsible for the prompt payment of Expenses whether or not
the interest earned on invested funds is sufficient to pay same and
will pay all invoices received by it when due.
Liability of Parties: The Partnership shall have sole liability
for the Taxes and shall be responsible for seeing that sufficient funds are
made available to Escrow Holder in adequate time for payment of the Taxes
before same become delinquent.
15. HOLD HARMLESS: THE PARTNERSHIP HEREBY AGREES TO INDEMNIFY, PROTECT,
SAVE AND HOLD HARMLESS ESCROW HOLDER AND TRUSTEE, AND THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS AND AGENTS PURSUANT TO THIS AGREEMENT, FROM
ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, CLAIMS, ACTIONS,
SUITS, COSTS OR EXPENSES, INCLUDING, WITHOUT LIMITATION, REASONABLE
ATTORNEYS' FEES, EXPENSES, CHARGES, DISBURSEMENTS AND ADVANCES, OF WHATSOEVER
KIND OR NATURE (COLLECTIVELY, "LOSSES"), IMPOSED ON, INCURRED BY OR ASSERTED
AGAINST ESCROW HOLDER AND/OR TRUSTEE WHICH IN ANY WAY RELATE TO OR ARISE OUT
OF THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND ANY ACTION TAKEN OR
OMITTED TO BE TAKEN HEREUNDER; PROVIDED, HOWEVER, THAT THE PARTNERSHIP SHALL
HAVE NO SUCH OBLIGATION TO INDEMNIFY, SAVE AND HOLD HARMLESS ESCROW HOLDER
OR TRUSTEE, AS THE CASE MAY BE, FOR ANY LIABILITY INCURRED BY, IMPOSED UPON
OR ESTABLISHED AGAINST ESCROW HOLDER OR TRUSTEE, AS THE CASE MAY BE, FOR
ITS WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. HOWEVER, ESCROW HOLDER AND
TRUSTEE SHALL BE SPECIFICALLY INDEMNIFIED BY THE PARTNERSHIP FROM AND HELD
HARMLESS AGAINST LOSSES WHICH ARE CAUSED IN WHOLE OR IN PART BY ITS OWN
NEGLIGENCE, REGARDLESS OF WHETHER THE SAME SHALL BE SOLE, JOINT CONCURRENT
OR CONTRIBUTORY.
16. Waiver of Offset: Except for the Expenses due Escrow
Holder as provided in paragraph 13 above, Escrow Holder specifically and
irrevocably waives any and all rights Escrow Holder now has or may in the
future have to offset any amounts due from the Partnership to Escrow Holder
against the funds in the Tax Escrow Account. Except to the extent of
interest earned on invested funds expressly provided for in
paragraph 13
above, Escrow Holder further agrees not to pay or attempt to pay to itself
any funds in the Tax Escrow Account to satisfy any claims Escrow Holder may
have against the Partnership or Trustee.
17. Collateral Document; Curative Rights: This Agreement is a
"Collateral Document" for purposes of the New Indenture. The notice and
curative provisions contained in the Deeds of Trust and the New Indenture
shall be applicable to any default or failure of performance by the
Partnership under this Agreement; however, Escrow Holder shall not be
deemed to have knowledge of a default unless it receives notice of such
default from the Trustee as provided in Section 7.
18. Notices: Any notice, demand, request, statement or consent
made hereunder shall be in writing, signed by the party giving such notice,
request, demand, statement or consent, and shall be effective upon receipt
or refusal of service and may be delivered personally, by overnight or
messenger delivery or by deposit in the United States mail, postage prepaid
and registered or certified return receipt requested, or by facsimile (with
a copy sent by one of the aforementioned methods). Unless changed by
written notice to the other parties in accordance with this Agreement,
notice shall be given to the following addresses:
If to the
Partnership: Sam Houston Race Park, Ltd.
5847 San Felipe, Suite 2600
Houston, Texas 77057
Attention: Corporate Secretary
Phone No.: (713) 267-3670
Fax No.: (713) 267-3703
With a copy to: Sam Houston Race Park, Ltd.
P.O. Box 2323
Houston, Texas 77252-2323
Attention: Michael J. Vitek
Vice President of Accounting
Phone No.: (281) 807-8809
Fax No.: (281) 807-8703
If to
Trustee: First Bank National Association
First Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
Attention: Corporate Trust Department
Phone No.: (612) 244-0721
Fax No.: (612) 244-0711
If to Escrow
Holder: Southwest Bank of Texas
P.O. Box 27459
Houston, Texas 77227-7459
Attention: Dave Farres
Executive Vice President/
Chief Financial Officer
Phone No.: (713) 235-8800
Fax No.: (713) 439-5994
19. APPLICABLE LAW: THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED
TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICT OF LAWS, EXCEPT THE PROVISIONS OF THIS AGREEMENT
RELATING TO THE CREATION, PERFECTION, PRIORITY AND ENFORCEMENT OR FORECLOSURE
OF THE LIENS, ASSIGNMENTS AND SECURITY INTERESTS GRANTED HEREUNDER IN THE TAX
ACCOUNT PLEDGED ASSETS TO TRUSTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
20. Headings: The paragraph headings used herein are for convenience
only and are not to be used in interpreting this Agreement.
21. Amendments: This Agreement is irrevocable and may only be
amended by a written amendment executed by all the parties hereto.
22. Attorneys' Fees and Expenses: Any reference to "attorney
fees", "attorneys' fees" or "attorney's fees" in this Agreement includes all
reasonable fees, charges, disbursements, advancements and costs incurred by
Escrow Holder for both outside and in-house counsel in connection with the
administration of this Agreement and the collection or enforcement of any
obligations, or the defense of any actions, arising under this Agreement or
otherwise with respect to any of the Tax Account Pledged Assets, including,
without limitation, in connection with any proceeding under Title 11, United
States Code.
23. Assignment: This Agreement may not be assigned by the
Partnership or Escrow Holder without the prior written consent of Trustee.
Should an assignment be permitted hereunder, this Agreement shall inure to
the benefit of and bind the successors and assigns of the parties hereto.
24. Agency: Escrow Holder may not appoint an agent to perform
its obligations under this Agreement without the prior written consent of
the Partnership.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective as of the day and year first above written.
SAM HOUSTON RACE PARK, LTD.
By:/s/ Michael J. Vitek
Name: Michael J. Vitek
Title: Vice President of Accounting
The "Partnership"
FIRST BANK NATIONAL ASSOCIATION
By:/s/Richard H. Prokosch
Name: Richard H. Prokosch
Title: Trust Officer
"Trustee"
SOUTHWEST BANK OF TEXAS, N.A.
By:/s/Dave Farries
Name: Dave Farries
Title: Executive Vice President/Chief Financial Officer
"Escrow Holder"
[Signature Page to Real Estate Tax Escrow and Security Agreement]