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EXHIBIT 4.46
XXXXXXXX PROPERTY GROUP LIMITED PARTNERSHIP,
A MISSISSIPPI LIMITED PARTNERSHIP
INTERCOMPANY SENIOR SECURED NOTE DUE JUNE 15, 2007
$25,000,000
New York, New York
June 25, 1997
________________________________________________________________________________
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 solidarity,
to the order of Horseshoe Gaming, L.L.C. (the "Payee"), a Delaware limited
liability company with its principal place of business located at 0000
Xxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxx 00000, or its registered assigns, the
principal amount of TWENTY-FIVE MILLION DOLLARS ($25,000,000), 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 10 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 75- 76-233 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 9.39% per annum from the date hereof, payable
semi-annually in arrears on each June 15 and December 15 of each year,
commencing on December 15, 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 June 15, 2007.
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
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Governmental 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 Xxxxxx'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 Xxxxxx'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
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applicable exception in connection with any such transfer. The transferee of
this Note shall be 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 Xxxxxx'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 Xxxxxx'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 Xxxxxx, 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. Events of Default; Remedies.
6.1 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;
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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, the Senior Indenture 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 6.1 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 7, then, and in every such case, the Majority 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.
7. 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
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(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 7 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 7 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 7 shall
be delivered by the Company to each Holder of outstanding Notes forthwith
following the date on which the same shall have been executed and delivered as
set forth herein.
8. 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:
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(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.
9. 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.
10. 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 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
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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 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,
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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 June 15, 1997, 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 Gaming
Jurisdiction.
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"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 June 15, 1997,
among HG, the Company, as guarantor, and U.S. Trust Company of Texas, 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.
11. "Senior 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.
"Senior Notes" means the 12.75% Senior Notes due September 30,
2000, issued by HG, pursuant to Senior 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
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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 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.
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13. Severability. If any provision of this Note shall be
held to be invalid, 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
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