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EXHIBIT 4.40
XXXXXXXX PROPERTY GROUP LIMITED PARTNERSHIP,
A MISSISSIPPI LIMITED PARTNERSHIP
INTERCOMPANY SENIOR SECURED NOTE DUE SEPTEMBER 30, 2000
$50,500,000 New York, New York
April 1, 1997
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FOR VALUE RECEIVED, Xxxxxxxx Property Group Limited Partnership (the
"Company"), a Mississippi limited partnership with its principal place of
business located at 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxxxx, Xxxxxxxxxxx 00000,
hereby promises to pay, jointly, severally and solidarily, to the order of
Horseshoe Gaming, L.L.C. (the "Payee"), a Delaware limited liability company
with its principal place of business located at 000 Xxxxx Xxxxxx Xxxxxx, Xxx
Xxxxx, Xxxxxx 00000, or its registered assigns, the principal amount of FIFTY
MILLION FIVE HUNDRED THOUSAND DOLLARS ($50,500,000), or such lesser amount as
shall equal the aggregate unpaid principal amount of this Note, and to pay
interest thereon, as provided herein. This Note is referred to herein
individually as this "Note" and, collectively, together with any other Notes
which may be issued pursuant to Section 5 hereof, as the "Notes." Certain
capitalized terms used in this Note are defined in Section 11 below.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR REGISTERED OR QUALIFIED UNDER ANY STATE SECURITIES LAWS. THIS
SECURITY MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS THE
PROPOSED TRANSACTION DOES NOT REQUIRE REGISTRATION OR QUALIFICATION UNDER
FEDERAL OR STATE SECURITIES LAWS OR UNLESS THE PROPOSED TRANSACTION IS
REGISTERED OR QUALIFIED AS REQUIRED.
THIS SECURITY IS SUBJECT TO REPURCHASE IF THE OWNERSHIP OF THIS SECURITY BY
ANY PERSON OR ENTITY WILL PRECLUDE, INTERFERE WITH, THREATEN OR DELAY THE
ISSUANCE, MAINTENANCE, EXISTENCE OR REINSTATEMENT OF ANY GAMING OR LIQUOR
LICENSE, OR PERMIT OR APPROVAL OF ANY GAMING AUTHORITY OR RESULT IN THE
IMPOSITION OF BURDENSOME TERMS ON SUCH LICENSE, PERMIT OR APPROVAL.
THIS SECURITY IS SUBJECT TO REPURCHASE BY THE COMPANY, IN THE EVENT THE
MISSISSIPPI GAMING COMMISSION (OR ITS SUCCESSOR) FINDS THAT THE BENEFICIAL OWNER
OF SUCH SECURITY IS UNSUITABLE TO BE CONNECTED WITH A LICENSED GAMING
ENTERPRISE. REFERENCE IS MADE TO SECTION 00-00-000 OF THE MISSISSIPPI GAMING
CONTROL ACT AND REGULATION II(F)(2) OF THE REGULATIONS OF THE MISSISSIPPI GAMING
COMMISSION FOR A COMPLETE DESCRIPTION OF THE FOREGOING RESTRICTIONS.
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1. Payments of Interest. Interest (computed on the basis of a 360-day year
of twelve 30 day months) on the unpaid principal amount shall be payable at the
rate of 13.31% per annum from the date hereof, payable quarterly in arrears on
each March 31, June 30, September 30 and December 31 of each year, commencing on
June 30, 1997, until said principal amount shall have become due and payable.
2. Payments of Principal.
2.1 Optional Redemption. The Notes may be redeemed, in whole or in part, on
a pro rata basis, at any time or from time to time, at the option of the Company
at 100% of the outstanding principal amount hereof, together with interest
accrued thereon to the date fixed for such optional redemption, without premium
or penalty. Upon receipt of any redemption payment, the holder of this Note (the
"Holder"; together with the holders of other Notes, the "Holders") shall make a
notation on this Note of such payment received and shall provide the Company
with evidence acceptable to the Company that the payment has been received by
the Holder and so noted.
2.2 Mandatory Redemptions.
a. The Company shall be required to apply 100% of Cash Flow Available for
Redemption to redeem the Notes, in inverse order of maturity, on a pro rata
basis; in each case at 100% of the principal amount of Notes so to be redeemed,
together with accrued interest thereon to the date of such redemption, within 45
days of the end of each of the Company's first three fiscal quarters and within
75 days after the end of each of the Company's fiscal years. The end of year
redemption payment shall take account of all payments made in the preceding
three quarters and appropriate adjustments shall be taken.
b. The remaining outstanding principal balance of the Notes plus all
interest accrued thereon is due in full on September 30, 2000.
c. The Company will give written notice of any redemption of the Notes
pursuant to paragraph (a) of this Section 2.2 to the Holders of Notes not less
than 30 days, nor more than 60 days, prior to the date fixed for such redemption
in such notice, which notice shall specify the principal amount of the Notes so
to be redeemed, together with the amount of interest accrued thereon, and the
date fixed for such redemption.
2.3 Redemption Pursuant to Gaming Laws.
a. Subject to the provisions of subsection (b) below with regard to the
Mississippi Gaming Commission and notwithstanding any other provision of this
Agreement, if the ownership of this Note by any person or entity will preclude,
interfere with, threaten or delay the issuance, maintenance, existence or
reinstatement of any gaming or liquor license, or permit or approval of any
Gaming Authority, or result in the imposition of burdensome terms or conditions
on such license, permit or approval, as determined by any Governmental
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Authority or the general partner of the Company (including, without limitation,
such Holder failing to qualify or to be found suitable under applicable Gaming
Laws), such Holder shall be obligated, at the request of the Company, to dispose
of this Note (subject to any restrictions on the transfer of this Note set forth
herein or otherwise provided by applicable law and subject to any approvals by
any Gaming Authority that may be required) within thirty (30) days (or such
other time period required by any Gaming Authority) after receipt of notice of
such determination by any Governmental Authority or the general partner (in
which event the Company shall have no obligation to pay any interest to such
Holder), and if this Note is not so disposed of within the required period, the
Company shall have the right to redeem such Holder's Note at a redemption price
equal to the principal amount of this Note, without accrued interest, if any.
Any Holder or beneficial owner of this Note that is required to qualify or be
found suitable under applicable Gaming Laws must pay all investigative fees and
costs of the Gaming Authorities in connection with such application therefor.
b. Each Holder, by accepting this Note, shall be deemed to have agreed (to
the extent permitted by applicable law) that if the Mississippi Gaming
Commission requires that a person who is a Holder or beneficial owner of this
Note must be licensed or found suitable under applicable gaming laws, such
Holder or beneficial owner shall apply for a license or a finding of suitability
within the required time period. If such Holder fails to apply or become
licensed or is not found suitable, the Company may elect, at its option (i) to
require such Holder to dispose of this Note or beneficial interest therein
within 10 days of receipt of notice of the Company's election or such time as
may be ordered by the Mississippi Gaming Commission, or (ii) to redeem this Note
at a price equal to the principal amount of this Note, excluding accrued and
unpaid interest from the date the Mississippi Gaming Commission serves notice to
the Company of a determination of unsuitability to the redemption date, in
accordance with applicable law.
c. Any redemption notice given by the Company under this Section 2.3 shall
state (i) that this Note is being called for redemption as a result of the
Holder's or beneficial owner's status under the relevant Gaming Laws, (ii) the
redemption date, (iii) the redemption price and (iv) the place or places where
this Note is to be surrendered for payment of the redemption price.
3. Repurchase of Notes at the Option of the Holder Upon a Change of
Control.
a. In the event that a Change of Control has occurred, each Holder of Notes
will have the right to require the Company to repurchase all or any part of such
Holder's Notes on the date that is no later than thirty (30) Business Days after
the occurrence of such Change of Control (the "Change of Control Payment Date"),
at a cash price equal to one hundred one percent (101%) of the principal amount
thereof (the "Change of Control Offer Price"), plus accrued and unpaid interest,
if any, to and including the Change of Control Payment Date.
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b. In the event that, pursuant to this Section 3, the Company shall be
required to commence a Change of Control Offer, the Company shall deliver a
notice to each of the Holders, which shall govern the terms of any Change of
Control Offer and shall state:
(i) that the Change of Control Offer is being made pursuant to this
Section 3 and that all Notes or portions thereof tendered on or prior to the
Change of Control Payment Date will be accepted for payment;
(ii) the Change of Control Offer Price (including the amount of accrued
and unpaid interest) and the Change of Control Payment Date;
(iii) that any Note, or portion thereof, not tendered or accepted for
payment will continue to accrue interest;
(iv) that the tender of any Note, or portion thereof, shall be
irrevocable; and
(v) a brief description of the events resulting in such Change of
Control.
c. On the Change of Control Payment Date, the Company shall redeem all
Notes, or parts thereof, tendered in response to the Change of Control Offer.
4. Security Interest. The obligations of the Company under the Notes to the
Payee, as Payee of the Notes, and to the holders of the Senior Secured Credit
Facility Notes and the Senior Notes, as assignees of the Notes are secured,
inter alia, by (a) the Tunica County Deed of Trust granting a first mortgage in
all of the land in Tunica County, Mississippi on which the Horseshoe Tunica
Casino is located, all such other land owned by the Company which is included on
an exhibit to the Tunica County Deed of Trust and all personal property used in
connection with such real property, (b) the Tunica County Second Deed of Trust,
(c) the Tunica County Preferred Ship Mortgage, (d) the Tunica County Second Ship
Mortgage, (e) the Tunica County Security Agreement and (f) the Tunica County
Second Security Agreement.
5. Registration, Transfer and Exchange of Notes. The Company will keep at
its principal executive office a note register in which, subject to such
reasonable regulations as it may prescribe, but at its expense (other than
transfer taxes, if any), it will provide for the registration and transfer of
this Note.
This Note may not be sold, transferred, pledged or hypothecated unless the
proposed transaction does not require registration or qualification under the
Securities Act or an applicable state securities or blue sky law or unless an
exemption from such registration is available. The transferor of this Note shall
be required to deliver an opinion as to the applicable exception in connection
with any such transfer. The transferee of this Note shall be
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required to deliver an acknowledgement of Section 2.3.
The Company shall not be required to register any transfer of this Note if
the Company reasonably believes such transferee would not be approved as a
transferee by the relevant Gaming Authority.
The Holder of this Note, at such Holder's option, may surrender the same
for transfer or exchange either at the principal executive office of the Company
or at the place of payment named herein, accompanied in the case of a transfer
or assignment by a written instrument of transfer or assignment in form
satisfactory to the Company duly executed by the registered Holder thereof or by
such Holder's attorney duly authorized in writing. In case any Holder shall so
request the transfer, assignment or exchange of this Note, the Company, at its
expense, will execute and deliver (in each case insured to your reasonable
satisfaction) in exchange therefor one or more new Notes, as may be requested by
such Holder, in the same aggregate unpaid principal amount as the aggregate
unpaid principal amount of the Note or Notes so surrendered. Any Note issued in
exchange for any other Note or upon transfer thereof shall carry the rights to
unpaid interest and interest to accrue which were carried by the Note so
exchanged or transferred, and neither gain nor loss of interest shall result
from any such transfer or exchange. Notwithstanding the foregoing, Notes may not
be issued in denominations of less than $50,000 (except if the entire
outstanding principal balance of the Notes of such Holder is less than $50,000,
in which case one Note for the entire outstanding principal amount of the Notes
of such Holder may be issued).
The Company and any agent of the Company may treat the Holder in whose name
any Note is registered as the owner of such Note for the purpose of receiving
payment of the principal of and premium (if any) and interest on such Note and
for all other purposes whatsoever, whether or not such Note be overdue.
Notwithstanding anything contained herein to the contrary, the provisions
of this Section 5 shall not apply in connection with any of the transactions
contemplated by the HG Note Assignment.
6. Reserve Accounts. The Company may retain in a separate account (the
"Construction Reserve Account") an amount not in excess of $15 million, to be
utilized by the Company for the construction of additional hotel rooms and an
entertainment facility at the Horseshoe Tunica Casino (the "Construction
Project"). The amount which may be held in the Construction Reserve Account will
be reduced as the Company utilizes funds for the Construction Project. In
addition, the Company may retain in a separate account (the "Operating Reserve
Account") as an operating reserve, an amount not in excess of $5 million. If the
balance of the Operating Reserve Account shall at any time be reduced below $5
million, additional Available Cash Flow may be credited to the Operating Reserve
Account until the total in the Operating Reserve Account is equal to $5 million.
Amounts in the Operating Reserve Account may be used only for operating expenses
of the Horseshoe Tunica Casino or to redeem Notes. Without limiting the
generality of the foregoing, no amounts in
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the Operating Reserve Account may be used for capital expenditures or to make
Investments except as permitted in the Senior Secured Credit Facility Note
Purchase Agreement.
7. Events of Default; Remedies.
7.1 Events of Default Defined; Acceleration of Maturity. If any of the
following events ("Events of Default") shall occur and be continuing (for any
reason whatsoever and whether it shall be voluntary or involuntary or by
operation of law or otherwise):
a. default shall be made in the payment of the principal of this Note when
and as the same shall become due and payable, whether at stated maturity, by
acceleration, by mandatory redemption or otherwise;
b. default shall be made in the payment of any interest on this Note when
and as such interest shall become due and payable, and such default shall have
continued for a period of thirty (30) days; or
c. An "Event of Default," as defined in either the Senior Secured Credit
Facility Note Purchase Agreement or the Indenture, shall have occurred and be
continuing;
then upon the occurrence of any Event of Default, the Majority Noteholders by
written notice to the Company, may declare the unpaid principal amount of all
Notes to be, and the same shall forthwith become, due and payable, together with
the interest accrued thereon and all other amounts payable by the Company
hereunder, provided, during the existence of an Event of Default under clause
(a) or (b) of this Section 7.1 with respect to any Note, the Holder of such
Note, by written notice to the Company, may declare such Note to be, and the
same shall forthwith become, due and payable, together with the interest accrued
thereon and all other amounts payable by the Company hereunder. If any Holder of
any Note shall exercise the option specified in the proviso to the preceding
sentence, the Company will forthwith give written notice thereof to the Holders
of all other outstanding Notes and each such Holder (whether or not such notice
is given or received), by written notice to the Company, may declare the
principal of all Notes held by it to be, and the same shall forthwith become,
due and payable, together with the interest accrued thereon and all other
amounts payable by the Company hereunder.
The provisions of this Section are subject, however, to the condition that
if, at any time after any Note shall have so become due and payable, the Company
shall pay all arrears of interest on such Note and all payments on account of
the principal on such Note and any other amounts owing which shall have become
due otherwise than by acceleration (with interest on such principal, and, to the
extent permitted by law, on overdue payments of interest, at the rate specified
in the Notes) and all Events of Default (other than nonpayment of principal of
and accrued interest on Notes, due and payable solely by virtue of acceleration)
shall be remedied or waived pursuant to Section 8, then, and in every such case,
the Majority
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Noteholders, by written notice to the Company, may rescind and annul any such
acceleration and its consequences; but no such action shall affect any
subsequent Event of Default or impair any right consequent thereon.
8. Amendment and Waiver. a. Any term, covenant, agreement or condition of
the Notes, with the consent of the Company may be amended, or compliance
therewith may be waived (either generally or in a particular instance and either
retroactively or prospectively), by one or more substantially concurrent written
instruments signed by the Majority Noteholders; provided, however, that
(i) no such amendment or waiver shall
(x) reduce the principal of, or reduce the rate of or change the time
for payment of interest on or any premium payable with respect to, any
Note, or extend the maturity of any Note, without the consent of the Holder
of each Note so affected, or
(y) modify any of the provisions of the Notes with respect to the
payment or prepayment thereof, or reduce the percentage of Holders of Notes
required to approve any such amendment or effectuate any such waiver, or
amend this Section 8 without the consent of the Holders of all of the Notes
at the time outstanding; and
(ii) no such waiver shall extend to or affect any obligation not expressly
waived or impair any right consequent thereon; and
provided, further, until the pledge of the Notes under the HG Note Assignment
has been released, no action may be taken by the Majority Noteholders or at
their direction or pursuant to their consent by the Company or the Majority
Noteholders under the Notes without the consent of the pledgees under the HG
Pledge Agreement.
b. Any amendment or waiver pursuant to subsection (a) of this Section 8
shall apply equally to all the Holders of the Notes and shall be binding upon
them, upon each future holder of any Note and upon the Company, in each case
whether or not a notation thereof shall have been placed on any Note.
c. So long as any outstanding Notes are owned by the Payee or any other
Holder, the Company will not solicit, request or negotiate for or with respect
to any proposed waiver or amendment of any of the provisions of the Notes unless
each Holder of any Note (irrespective of the amount of Notes then owned by it)
shall be informed thereof by the Company and shall be afforded the opportunity
of considering the same and shall be supplied by the Company with sufficient
information to enable it to make an informed decision with respect thereto.
Executed or true and correct copies of any amendment or waiver effected pursuant
to the provisions of this Section 8 shall be delivered by the Company to each
Holder
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of outstanding Notes forthwith following the date on which the same shall
have been executed and delivered as set forth herein.
9. Notices. All notices and other communications provided for in this Note
shall be in writing and delivered, telecopied or mailed, first class postage
prepaid, addressed:
(i) if to the Company:
XXXXXXXX PROPERTY GROUP LIMITED PARTNERSHIP,
A MISSISSIPPI LIMITED PARTNERSHIP
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Chief Financial Officer
(ii) if to the Payee, at the address set forth on the first page of
this Note or at such other address as the Payee may hereafter designate by
notice to the Company, and
(iii) if to any other Holder of the Notes, at the address of such
Holder as it appears on the note register.
Any such notice or communication shall be deemed to have been duly given
when delivered or telecopied and, if mailed, two days after deposit in the U.S.
mail.
10. Remedies Cumulative. No remedy herein conferred upon the Holder of this
Note is intended to be exclusive of any other remedy and each and every such
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or
otherwise.
11. Definitions. Except as otherwise specified or as the context may
otherwise require, the following terms shall have the respective meanings set
forth below when used in this Note:
"Affiliate" means (i) any person directly or indirectly controlling or
controlled by or under direct or indirect common control with HG or any of its
Subsidiaries (other than Horseshoe Club Operating Company, a Nevada
corporation), including, without limitation, Xxxx Xxxxxx and Xxxxxxx Xxxx, (ii)
any spouse, immediate family member or other relative as any person described in
clause (i) above, (iii) any trust in which any person described in clause (i) or
(ii) above has a beneficial interest, and (iv) any trust established by any
person described in clause (i) or (ii) above, whether or not such person has a
beneficial interest in such trust. For purposes of this definition, the term
"control" means (a) the power to direct the management and policies of a person,
directly or through one or more intermediaries, whether through the ownership of
voting securities, by contract or otherwise, or (b) the beneficial
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ownership of 10% or more of any class of voting Capital of an entity, unless
some other person beneficially owns a greater percentage of any class of voting
Capital of such entity.
"Available Cash Flow" shall mean for any fiscal year the sum of pre-tax net
income of the Company and the aggregate of depreciation, amortization and
depletion of the Horseshoe Tunica Casino for such fiscal year, less the
aggregate Permitted Tax Distributions of the Company for such fiscal year.
"beneficial owner" for purposes of the definition of Change of Control has
the meaning attributed to it in Rules 13d-3 and 13d-5 under the Exchange Act,
whether or not applicable, except that a "person" shall be deemed to have
"beneficial ownership" of all shares that any such person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time.
"Board of Managers" means, with respect to any person that is a limited
liability company, the Board of Managers of such person, acting as a group, or
any committee of the Board of Managers of such person authorized, with respect
to any particular matter, to exercise the power of the Board of Managers.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in New York, New York are
authorized or obligated by law or executive order to close.
"Capital" means (i) with respect to any corporation, any and all shares of
stock issued by that corporation and (ii) with respect to any other person, any
partnership interest, joint venture interest, limited liability company member
interest or other form of equity sharing or participation interest, as
applicable.
"Cash Flow Available for Redemption" shall mean for any fiscal year the
remainder of Available Cash Flow for such fiscal year, less amounts credited to
the Operating Reserve Account for such fiscal year.
"Change of Control" means (i) prior to the completion of a bona fide
underwritten initial public offering by HG, the failure at any time of Excluded
Persons as a group to own and control at least 40% of the issued and outstanding
Capital of HG; (ii) after the completion of a bona fide underwritten initial
public offering by HG, the acquisition, in one or more transactions, of
beneficial ownership by (A) any person or entity (other than an Excluded Person)
or (B) any group of persons or entities (excluding any group in which Excluded
Persons beneficially own in the aggregate at least 75% of the equity and voting
interests beneficially owned by the group) who constitute a group (within the
meaning of Section 13(d)(3) of the Exchange Act), in either case, of Capital of
HG such that, as a result of such acquisition, such person, entity or group
beneficially owns (within the meaning of Rule 13d-3 under the Exchange Act),
directly or indirectly, 30% or more of the Capital of HG then outstanding;
provided, however, that no Change of Control shall be deemed to have occurred
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if (A) Excluded Persons beneficially own, in the aggregate, at such time, a
greater percentage of Capital of HG than such other person, entity or group or
(B) at the time of such acquisition, Excluded Persons (or any of them) possess
the ability (by contract or otherwise) to elect, or cause the election, of a
majority of the members of HG's Board of Managers; (iii) any merger or
consolidation of HG with or into any person or any sale, transfer or other
conveyance, whether direct or indirect, of all or substantially all of the
assets of HG, on a consolidated basis, in one transaction or a series of related
transactions, if immediately after giving effect to such transaction or
transactions, any person or group (other than Excluded Persons or groups
including Excluded Persons to the extent contemplated by clause (i) or (ii)
above, whichever is then applicable) is or becomes the beneficial owner,
directly or indirectly, of more than the percentage of the Capital of HG
contemplated by clause (i) or (ii) above, whichever is then applicable; or (iv)
during any period of 12 consecutive months after October 10, 1995, individuals
who at the beginning of any such 12-month period constituted the Board of
Managers of HG (together with any new managers whose election by such Board or
whose nomination for election by the members of HG was approved by a vote of a
majority of the managers then still in office who were either managers at the
beginning of such period or whose election or nomination for election was
previously so approved), cease for any reason to constitute a majority of the
managers of HG then in office.
"Collateral Agent" means United States Trust Company of New York, as
collateral agent for the holders of the Senior Notes.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the Securities and Exchange Commission
thereunder.
"Excluded Person" means (a) HG or any Subsidiary of HG, (b) any employee
benefit plan of HG or any trustee or similar fiduciary holding Capital of HG for
or pursuant to the terms of any such plan, (c) Xxxx Xxxxxx, (d) Xxxxxxx Xxxx and
(e) members of the families and Affiliates (where the determination of whether a
person is an Affiliate is made without reference to clause (b) of the definition
of such term) of the foregoing persons.
"Gaming Authority" means any Governmental Authority with the power to
regulate gaming in any Gaming Jurisdiction, and the corresponding Governmental
Authorities with the responsibility to interpret and enforce the laws and
regulations applicable to gaming in any Gaming Jurisdiction.
"Gaming Jurisdiction" means any Federal, state or local jurisdiction in
which the Company or any entity in which the Company has a direct or indirect
beneficial, legal or voting interest conducts casino gaming, now or in the
future.
"Gaming Law" means any law, rule, regulation or ordinance governing gaming
activities (including, without limitation, the Mississippi Gaming Control Act,
in each case including all amendments or modifications thereof), any
administrative rules or regulations promulgated thereunder, and any of the
corresponding statutes, rules and regulations in each
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Gaming Jurisdiction.
"Governmental Authority" means any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature whatsoever of
the United States or a foreign government, any state, any province or any city
or other political subdivision or otherwise and whether now or hereafter in
existence, or any officer or official thereof, and any maritime authority.
"HG" means Horseshoe Gaming, L.L.C., a Delaware limited liability company.
"HG Note Assignment" means the Note Assignment, executed as of October 10,
1995, by HG in favor of the holders of the Senior Secured Credit Facility Notes
and the Collateral Agent, for the benefit of the holders of the Senior Notes.
"Indenture" means the Indenture, dated as of October 10, 1995, among HG,
the Company, as guarantor, and U.S. Trust Company of California, N.A., as
trustee.
"Investments" shall have the meaning set forth in the Senior Secured Credit
Facility Note Purchase Agreement.
"Majority Noteholders" means, at any time, the holders of a majority of the
aggregate principal amount of Notes then outstanding.
"Permitted Tax Distributions" shall have the meaning set forth in the
Senior Secured Credit Facility Note Purchase Agreement.
"Senior Notes" means the 12.75% Senior Notes due September 30, 2000, issued
by HG, pursuant to Indenture.
"Senior Secured Credit Facility Note Purchase Agreement" means the Senior
Secured Credit Facility Note Purchase Agreement, dated as of October 10, 1995,
among HG, the Company, as guarantor, and the purchasers named therein.
"Senior Secured Credit Facility Notes" means the notes issued by HG
pursuant to the Senior Secured Credit Facility Note Purchase Agreement.
"Subsidiary" with respect to any person, means (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of Capital entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees thereof is at the
time owned or controlled, directly or indirectly, by such person or one or more
of the other Subsidiaries of that person (or a combination thereof) and (ii) any
partnership (a) the sole general partner or the managing general partner of
which is such person or a Subsidiary of such person or (b) the only general
partners of which are such person or one or more Subsidiaries of such person (or
any combination thereof). When used
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with respect to HG, "Subsidiary" shall be deemed to include any direct
Subsidiary of HG and each indirect Subsidiary that is a direct Subsidiary of HG
or one or more of its direct or indirect Subsidiaries. Notwithstanding the
foregoing, no Unrestricted Subsidiary (as defined in the Senior Secured Credit
Facility Note Purchase Agreement) shall be a Subsidiary of HG or any of its
Subsidiaries.
"Tunica County Deed of Trust" means the Deed of Trust, Security Agreement
and Assignment of Leases and Rents, dated as of October 10, 1995, executed by
the Company in favor of HG and the holders of the Senior Secured Credit Facility
Notes, as the same may be amended from time to time in accordance with its
terms.
"Tunica County Preferred Ship Mortgage" means the preferred ship mortgage,
executed by the Company in favor of HG and the holders of the Senior Secured
Credit Facility Notes, as the same may be amended from time to time in
accordance with its terms.
"Tunica County Second Deed of Trust" means the Second Deed of Trust,
Security Agreement and Assignment of Leases and Rents, dated as of October 10,
1995, executed by the Company in favor of HG and the Collateral Agent, for the
benefit of the holders of the Senior Notes as the same may be amended from time
to time in accordance with its terms.
"Tunica County Second Security Agreement" means the financing statement and
second security agreement, dated as of October 10, 1995, executed by the Company
in favor of HG and the Collateral Agent, for the benefit of the holders of the
Senior Notes, as the same may be amended from time to time in accordance with
its terms.
"Tunica County Second Ship Mortgage" means the Second Ship Mortgage,
executed by the Company in favor of HG and the Collateral Agent, for the benefit
of the holders of the Senior Notes, as the same may be amended from time to time
in accordance with its terms.
"Tunica County Security Agreement" means the financing statement and
security agreement, dated as of October 10, 1995, executed by the Company in
favor of HG and the holders of the Senior Secured Credit Facility Notes, as the
same may be amended from time to time in accordance with its terms.
"Vessel Trustee" means Chemical Trust Company of California, as vessel
trustee for the holders of the Senior Secured Credit Facility Notes with respect
to the Tunica County Preferred Ship Mortgage.
12. Governing Law. This Note shall be governed by and construed in
accordance with the internal laws of the State of New York.
13. Severability. If any provision of this Note shall be held to be
invalid,
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illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any of the provisions hereof and this Note
shall be construed as if such invalid, illegal or unenforceable provisions had
never been contained herein.
14. Miscellaneous.
a. Payments of all amounts owing under this Note are to be made at the
address of the Payee stated on the first page of this Note or at such other
address as the Holder of this Note may designate from time to time in writing.
Any payment date occurring on any day other than a Business Day shall be deemed
to be the next succeeding Business Day.
b. The Company promises to pay all costs and expenses, including reasonable
attorneys' fees, incurred in the collection and enforcement of this Note. The
Company hereby consents to renewals and extensions of time at or after the
maturity hereof, without notice, and hereby waives diligence, presentment,
protest, demand and notice of every kind and, to the full extent permitted by
law, the right to plead any statute of limitations as a defense to any demand
hereunder.
XXXXXXXX PROPERTY GROUP LIMITED
PARTNERSHIP, A MISSISSIPPI LIMITED
PARTNERSHIP
By: Horseshoe GP, Inc., its General Partner
By: /S/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
