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EXHIBIT 4.56
AMENDED AND RESTATED GUARANTEE AND SECURITY AGREEMENT
Dated as of November 12, 1997
From
XXXXXXXX PROPERTY GROUP LIMITED PARTNERSHIP,
A MISSISSIPPI LIMITED PARTNERSHIP
as Guarantor
in Favor of
CANADIAN IMPERIAL BANK OF COMMERCE,
as Agent
and
CERTAIN COMMERCIAL
LENDING INSTITUTIONS
as Lenders
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AMENDED AND RESTATED GUARANTEE AND SECURITY AGREEMENT
This AMENDED AND RESTATED GUARANTEE AND SECURITY AGREEMENT
dated as of November 12, 1997 (this "Guarantee" or this "Agreement"), is made by
Xxxxxxxx Property Group Limited Partnership, a Mississippi Limited Partnership
with an office located at 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxxxx, Xxxxxxxxxxx
00000 (the "Guarantor"), in favor of the Lenders (as herein defined) and
Canadian Imperial Bank of Commerce ("CIBC"), in its capacity as agent for the
Lenders (in such capacity, the "Agent").
R E C I T A L S:
WHEREAS, on October 10, 1995, Horseshoe Gaming, L.L.C., a Delaware
limited liability company (the "Company") authorized the issuance of up to
$150,000,000 of its Senior Secured Credit Facility Notes due September 30, 1999
(the "Senior Secured Credit Facility Notes") pursuant to a Senior Secured Credit
Facility Note Purchase Agreement dated as of October 10, 1995, between the
Company and the Purchasers named therein (the "Note Purchasers"), as amended
prior to the date hereof (as so amended, the "Senior Secured Credit Facility
Note Purchase Agreement");
WHEREAS, pursuant to a Guarantee and Security Agreement dated as of
October 10, 1995 (the "Original RPG Guarantee and Security Agreement"),
Guarantor unconditionally guaranteed the obligations of the Company in respect
of the Senior Secured Credit Facility Notes;
WHEREAS, the obligations of the Company and Guarantor under the Senior
Secured Credit Facility Note Purchase Agreement and the Original RPG Guarantee
and Security Agreement were secured by various mortgages, deeds of trust, first
preferred ship mortgages and other collateral more particularly described
therein (the "Security Documents");
WHEREAS, pursuant to that certain letter agreement dated as of the date
hereof among the Note Purchasers and CIBC, the Note Purchasers assigned to CIBC
all of the rights, duties and obligations of the Note Purchasers in connection
with the Senior Secured Credit Facility Note Purchase Agreement, the Security
Documents and the documents executed in connection therewith;
WHEREAS, pursuant to an Amended and Restated Credit Facility Agreement
of even date herewith, (the "Amended and Restated Credit Agreement"), the
Company, various financial institutions as are or may become parties thereto
(the "Lenders") and the Agent amended and restated the Senior Secured Credit
Facility Note Purchase Agreement in its entirety;
WHEREAS, the Company directly owns a 99% limited partnership interest
in the Guarantor and, indirectly through a wholly-owned subsidiary, owns a 1%
general partnership interest in the Guarantor;
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WHEREAS, the Guarantor will derive substantial economic benefit from
the availability of credit to the Company pursuant to the Amended and Restated
Credit Agreement; and
WHEREAS, it is a condition precedent to the execution, delivery and
performance of the Amended and Restated Credit Agreement by the Lenders and the
Agent, including the extension of availability of credit to the Company, that
the Guarantor amend and restate its obligations under the Original RPG Guarantee
and Security Agreement on the terms, and subject to the conditions set forth
herein, it being understood that in so doing the Guarantor expressly disclaims
any interest to effect a novation or extinguishment or discharge of the Original
RPG Guarantee and Security Agreement or discharge of any obligations under the
Security Documents as a result of entering into this Agreement and the other
documents contemplated herein;
NOW, THEREFORE, in consideration of, and in order to induce, the
execution, delivery and performance of the Amended and Restated Credit Agreement
by the Lenders and the Agent, including the extension of availability of credit
to the Company and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged by the Guarantor, the Guarantor hereby
amends and restates the Original RPG Guarantee and the Security Agreement in its
entirety as follows:
SECTION 1. TERMS AND DEFINITIONS.
Section 1.1 Definitions. Except as otherwise specified or as the
context may otherwise require, the following terms shall have the respective
meanings set forth below whenever used in this Agreement:
(a) "Proceeds" shall mean all "proceeds", as such term is defined in
the UCC and, in any event, shall mean and include, but not be limited to (i) any
and all proceeds of any insurance, indemnity, warranty or guarantee payable to
the Guarantor from time to time with respect to any of the Pledged Collateral
(as defined in Section 3), (ii) any and all payments (in any form whatsoever)
made or due and payable to the Guarantor from time to time in connection with
any requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Pledged Collateral by any governmental authority, bureau or agency
(or any Person acting under color of governmental authority) and (iii) any and
all other amounts from time to time paid or payable under or in connection with
any of the Pledged Collateral.
(b) "Senior Secured Credit Facility Notes" shall have the meaning
ascribed thereto in the Recitals of this Agreement.
(c) "UCC" shall mean the Uniform Commercial Code as in effect in the
State of New York.
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Section 1.2 Additional Terms. All other capitalized terms used herein
but not otherwise defined herein shall have the respective meanings ascribed
thereto Amended and Restated Credit Agreement.
Section 1.3 Action by the Agent or the Lenders. Whenever any action is
required or permitted to be taken by the Agent or the Lenders, except for such
action which is expressly provided herein to be taken by an individual Lender or
by all the Lenders, such action, including, without limitation, in connection
with the exercise of any remedy granted herein, shall be taken by the Agent,
acting at the direction of Majority Lenders or the Required Lenders, as provided
in the Amended and Restated Credit Agreement.
SECTION 2. GUARANTEE.
Section 2.1 Guaranteed Obligations. The Guarantor, jointly and
severally with any other guarantors, hereby absolutely, unconditionally and
irrevocably guarantees to the Agent and the Lenders on a continuing basis the
full, complete and punctual payment when due, whether at stated maturity, by
acceleration or otherwise, of any and all sums due from, and any and all
Obligations of the Company to the Agent and the Lenders now or hereafter
existing under the Notes, the Letters of Credit, the Secured Hedging Obligations
and the Amended and Restated Credit Agreement, without regard to the Company's
use of the proceeds of the Loans, the Letters of Credit or the Secured Hedging
Obligations, whether for principal, premium, interest, fees, costs, expenses or
otherwise, including, without prejudice to the generality of the foregoing, the
prompt payment of the Notes and payment of interest and premium thereon at the
times and in the manner specified in the Notes and the Amended and Restated
Credit Agreement, prompt payment of amounts owing pursuant to the issuance of
the Letters of Credit, prompt payment of the Secured Hedging Obligations at the
times and in the manner specified in the documentation therefor and the payment
of any and all expenses (including reasonable counsel fees and expenses)
incurred by the Agent and the Lenders in enforcing any rights under the Notes,
the Letters of Credit, the Secured Hedging Obligations, the Amended and Restated
Credit Agreement and this Agreement. Without limiting the generality of the
foregoing, the Guarantor's liability shall extend to all amounts that would be
owed by the Company to the Agent and the Lenders under the Amended and Restated
Credit Agreement but for the fact that they are unenforceable or not allowable
due to the existence of a bankruptcy, reorganization or similar proceeding
involving the Company. Each of the obligations guaranteed as set forth in this
Section 2.1 is hereinafter referred to severally as a "Guaranteed Obligation"
and collectively as the "Guaranteed Obligations".
Section 2.2 Guarantee Absolute. This Guarantee is a guarantee of
payment and not of collection, is in no way conditioned or contingent upon any
attempt to collect from or proceed against the Company, any other guarantors or
sureties, any other person or entity or any collateral security, or upon any
other event, contingency or circumstance whatsoever and shall be binding upon
and against the Guarantor without regard to the validity, regularity or
enforceability of the Amended and Restated Credit Agreement or any other
instrument or
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agreement. The Guarantor guarantees that the Guaranteed Obligations will be paid
strictly in accordance with the term of the Amended and Restated Credit
Agreement and the documentation evidencing the Secured Hedging Obligations,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Agent or the
Lenders with respect thereto. The obligations of the Guarantor hereunder are
independent of the Guaranteed Obligations, and a separate action or actions may
be brought and prosecuted against the Guarantor to enforce this Agreement,
irrespective of whether any action is brought against the Company or whether the
Company is joined in any such action or actions. If for any reason whatsoever
the Company shall fail or be unable duly, punctually and fully to pay the
Guaranteed Obligations or any part thereof as and when the same shall become
payable in accordance with the terms of the Amended and Restated Credit
Agreement, the Guarantor, immediately upon demand, will pay or cause to be paid
the Guaranteed Obligations or such part thereof.
Section 2.3 Subordination. Until payment in full of all sums due to the
Agent and the Lenders under, or in connection with such party's rights relating
to, the Amended and Restated Credit Agreement and the Secured Hedging
Obligations and all other instruments, documents and agreements contemplated
therein and performance of all other obligations thereunder, the Guarantor
hereby covenants and agrees with the Lenders that:
(a) the Guarantor shall and does hereby subordinate, to the obligations
of the Company to the Agent and the Lenders, all present and future indebtedness
due to the Guarantor from (and shall cause to be subordinated to the obligations
of the Guarantor to the Agent and the Lenders hereunder all present and future
indebtedness due from the Guarantor to) the Company; and
(b) the Guarantor shall deliver to the Agent and the Lenders, and shall
cause the Company to deliver to the Agent and the Lenders, such agreements and
other evidence of such subordination as the Agent or the Lenders reasonably may
request from time to time.
SECTION 3. GRANT OF SECURITY.
Section 3.1 Pledged Collateral.
(a) The Guarantor, to secure its punctual payment and performance
hereunder in respect of the Guaranteed Obligations hereby agrees to deliver to
and for the benefit of the Agent and the Lenders (i) a first mortgage
encumbering all of the land in Tunica County, Mississippi on which the Horseshoe
Tunica Casino is located and certain other land owned by the Guarantor pursuant
to the Deed of Trust in substantially the form attached to the Amended and
Restated Credit Agreement, (ii) a first mortgage on the Horseshoe Tunica Casino
(and all related fixtures and equipment) pursuant to the RPG First Preferred
Ship Mortgage in substantially the form attached to the Amended and Restated
Credit Agreement (collectively,
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the "Pledged Collateral") and (iii) all Proceeds of any and all of the foregoing
Pledged Collateral.
(b) The Pledged Collateral secures the payment of all obligations of
every kind and character now or hereafter existing (whether matured or
unmatured, contingent or liquidated) of the Guarantor under Section 2 with
respect to the Guaranteed Obligations and under each other provision of this
Agreement (in each case as this Agreement hereafter may be amended, supplemented
or otherwise modified from time to time), whether for principal, interest,
premium, fees, expenses, reimbursement, indemnification or otherwise.
SECTION 4. OBLIGATIONS UNCONDITIONAL.
The obligations of the Guarantor set forth in this Guarantee and all
rights of the Agent and the Lenders shall be absolute and unconditional, shall
not be subject to any counterclaim, set-off, deferment, reduction or diminution
of any obligation or defense of any kind or nature (other than full,
indefeasible and timely payment of the Guaranteed Obligations) based upon any
claim the Guarantor or any other party may have against the Agent, the Lenders,
the Company, any of their Affiliates, or any other party, shall remain in full
force and effect without regard to, and shall not be released, discharged or in
any way affected by, any circumstance or condition whatsoever (whether or not
the Agent, the Lenders, or the Guarantor shall have any knowledge or notice
thereof), including without limitation:
(a) any compromise, settlement, release, accord and satisfaction,
termination, modification, amendment, waiver, consent or other change, addition,
deletion or supplement of or to, or any forbearance or indulgence with respect
to, any or all of the obligations, duties, covenants or agreements under the
Amended and Restated Credit Agreement, or any other instrument or agreement
whatsoever (whether or not referred to in the Amended and Restated Credit
Agreement or applicable to any of the parties to the Amended and Restated Credit
Agreement), or any assignment or transfer of any interest in any of the
foregoing, or any furnishing, acceptance, substitution or exchange of, any
release of or failure to protect, perfect or to continue perfected, or any other
action or inaction in respect of, any direct or indirect security for or
guarantee with respect to the Guaranteed Obligations or any part thereof
(including, without limitation, the Pledged Collateral);
(b) any failure, omission or delay on the part of the Agent or the
Lenders or any party claiming by, through or under any of the foregoing to
conform or comply with any term of any instrument or agreement referred to in
subsection (a) above, or to exercise any right, remedy or power thereunder,
including, but not limited to, the failure to give notice to the Guarantor of
the occurrence of any Event of Default;
(c) any renewal, refinancing or refunding of the Guaranteed Obligations
in whole or in part or extension of the time for payment of any Guaranteed
Obligation or for the payment of any other amount payable under the Amended and
Restated Credit Agreement or any
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Secured Hedging Obligation or of the time for performance of any other
obligations, covenants or agreements under or arising out of the Amended and
Restated Credit Agreement, any Secured Hedging Obligation or any other
instrument or agreement or the extension or the renewal of any of the foregoing;
(d) any voluntary or involuntary liquidation, dissolution, winding-up,
sale or other disposition of all or substantially all the assets, marshaling of
assets and liabilities, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition with creditors or
readjustment of the debts of, or other similar events or proceedings affecting,
the Company or any of its assets or of any other party, or any action taken by
any trustee or receiver or by any court in any such proceeding, or any
allegation of invalidity of this Guarantee in any such proceeding;
(e) to the extent permitted by law, any release or discharge by
operation of law of the Company, or any other party from the performance or
observance of any obligation, covenant or agreement contained in the Amended and
Restated Credit Agreement, any documentation evidencing the Secured Hedging
Obligations or any other instrument or agreement;
(f) any merger or consolidation of the Company into or with any entity
or any sale, lease or transfer of any of the assets of the Company to any other
party, or any change in the name, objects or governing documents of the Company
or otherwise in the Guarantor's relationship to the Company;
(g) any impossibility or illegality of performance on the part of the
Company of its obligations under the Amended and Restated Credit Agreement or
the Secured Hedging Obligations;
(h) any lack of validity or enforceability of any provisions of the
Amended and Restated Credit Agreement, the documentation for the Secured Hedging
Obligations or any other Loan Document; or
(i) any other occurrence or circumstance whatsoever, whether similar or
dissimilar to the foregoing, and any other circumstance which might otherwise
constitute a legal or equitable defense or discharge of the liabilities of a
guarantor or surety or which might otherwise limit recourse against the Pledged
Collateral.
SECTION 5. APPOINTMENT AS ATTORNEY-IN-FACT.
(a) Effective upon the occurrence and during the continuance of an
Event of Default, the Guarantor hereby irrevocably constitutes and appoints the
Agent, its agents, representatives and designees, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of the Guarantor and in
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the name of the Guarantor or in its own name, from time to time in the Agent's
discretion, for the purpose of carrying out the terms of this Agreement, to take
any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the purposes of
this Agreement (except, without limiting the generality of the foregoing, that
the Agent shall not ratify any of its own actions pursuant to this power of
attorney), and, without limiting the generality of the foregoing, hereby gives
the Agent in its sole discretion the power and right, on behalf of the
Guarantor, without notice to or assent by the Guarantor, to do the following:
(i) to ask, demand, collect, receive and give acquittances and
receipts for any and all monies due and to become due under any Pledged
Collateral and, in the name of the Guarantor or its own name or
otherwise, to take possession of and endorse and collect any checks,
drafts, notes, acceptances or other instruments for the payment of
monies due under any Pledged Collateral and to file any claim or to
take any other action or proceeding in any court of law or equity or
otherwise deemed appropriate by the Agent for the purpose of collecting
any and all such monies due under any Pledged Collateral whenever
payable and to file any claim or to take any other action or proceeding
in any court of law or equity or otherwise deemed appropriate by the
Lenders for the purpose of collecting any and all such moneys due under
any Pledged Collateral whenever payable; and
(ii) to pay or discharge taxes, liens, security interests or
other encumbrances levied or placed on or threatened against the
Pledged Collateral.
The Guarantor hereby ratifies all that said attorney shall lawfully do
or cause to be done by virtue hereof and acknowledges that this power of
attorney is a power coupled with an interest and shall be irrevocable.
(b) The powers conferred on the Agent hereunder are solely to protect
the Agent's and the Lenders' interests in the Pledged Collateral and shall not
impose any duty upon the Agent to exercise any such powers. The Agent shall be
accountable only for amounts that it actually receives as a result of the
exercise of such powers and neither the Agent nor any of its agents,
representatives or designees shall be responsible to the Guarantor for any act
or failure to act, except for any act involving their gross negligence or
willful misconduct.
(c) Nothing in this Agreement shall authorize the Agent, prior to an
Event of Default (i) to participate in the management of or to operate any
facility owned or operated by the Guarantor or (ii) to control decisions
regarding the disposal or other management of hazardous substances generated,
used or handled by the Guarantor or any of its Affiliates.
SECTION 6. WAIVERS.
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(a) The Guarantor hereby irrevocably waives promptness, diligence,
notice of acceptance, nonpayment, nonperformance, dishonor or protest and any
other notice with respect to any of the Guaranteed Obligations and this
Agreement and any other circumstance which might otherwise constitute a legal or
equitable discharge, release or defense of a guarantor or surety or which might
otherwise limit the obligations of the Guarantor under this Guarantee. The
Guarantor hereby irrevocably waives any requirement that the Agent or the
Lenders protect, secure, perfect or insure any Lien on the Pledged Collateral or
exhaust any right or take any action against the Company, or any other Person or
mitigate the damages resulting from default by the Company under the Amended and
Restated Credit Agreement or any Secured Hedging Obligations, or by the
Guarantor under this Guarantee.
(b) The Guarantor hereby irrevocably waives all right to trial by jury
in any action, proceeding or counterclaim based upon, arising out of, or
relating to, this Guarantee, the transactions contemplated by the Amended and
Restated Credit Agreement or the Secured Hedging Obligations or the actions of
the Agent and the Lenders in the negotiation, administration, performance or
enforcement thereof. The scope of this waiver is intended to be all-encompassing
of any and all disputes that may be filed in any court and that relate to the
subject matter of this transaction, including, without limitation, contract
claims, tort claims, breach of duty claims and all other common law and
statutory claims. The Guarantor acknowledges that this waiver is a material
inducement to the Agent and the Lenders to enter into a business relationship
with the Guarantor and its Subsidiaries and Affiliates and that the Agent and
the Lenders have each already relied on this waiver in entering into this
Agreement and the Loan Documents and that each will continue to rely on this
waiver in their related future dealings. The Guarantor further warrants and
represents that it has reviewed this waiver with its legal counsel, and that it
knowingly and voluntarily waives its jury trial rights following consultation
with legal counsel. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY,
THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR
IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING HERETO. In the event of litigation, this Agreement may be
filed as a written consent to a trial by the court.
(c) The Guarantor hereby irrevocably waives, until the end of the term
of this Guarantee as set forth in Section 12.9, any claim or other rights that
it may now or hereafter acquire against the Company or any other guarantor of
the obligations of the Company that arise from the existence, payment,
performance or enforcement of the Guaranteed Obligations, including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution
or indemnification and any right to participate in any claim or remedy of the
Agent or the Lenders against the Company or any other guarantor or any
collateral, whether or not such claim, remedy or right arises in equity or under
contract, statute or common law, including, without limitation, the right to
take or receive from the Company or any other guarantor directly or indirectly,
in cash or other property or by set-off or in any other manner,
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payment or security on account of such claim, remedy or right. If any amount
shall be paid to the Guarantor in violation of the preceding sentence at any
time prior to the payment in full in cash of the Guaranteed Obligations, such
amount shall be held in trust for the benefit of the Agent and the Lenders and
shall forthwith be paid to the Agent to be credited and applied to the
Guaranteed Obligations, whether matured or unmatured, in accordance with the
terms of this Guarantee and, the Amended and Restated Credit Agreement or to be
held as Pledged Collateral for any Guaranteed Obligations thereafter arising.
The Guarantor acknowledges it will derive substantial economic benefits from the
financing arrangements contemplated by the Amended and Restated Credit Agreement
and the Secured Hedging Obligations and that the waiver set forth in this
subsection (c) is knowingly made in contemplation of such benefits.
SECTION 7. EFFECT OF BANKRUPTCY PROCEEDINGS, ETC.; REINSTATEMENT. The
obligations of the Guarantor under this Guarantee shall continue to be
effective, or be automatically reinstated, as the case may be, if at any time
payment, in whole or in part, of any of the Guaranteed Obligations is rescinded
or must otherwise be restored or returned by the Agent or the Lenders (as a
preference, fraudulent conveyance or otherwise) upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Company or any other person or
entity or upon or as a result of the appointment of a custodian, receiver,
trustee or other officer with similar powers with respect to the Company, or any
other party, or any substantial part of its property, or otherwise, all as
though such payments had not been made. If an Event of Default shall at any time
have occurred and be continuing or shall exist and declaration of default or
acceleration under or with respect to the Amended and Restated Credit Agreement
or the Secured Hedging Obligations, or any Guaranteed Obligation shall at such
time be prevented by reason of the pendency against the Company or any other
Person or entity of a case or proceeding under a bankruptcy or insolvency law,
the Guarantor agrees that, for purposes of this Guarantee and its obligations
hereunder, the Amended and Restated Credit Agreement, the Secured Hedging
Obligations and such Guaranteed Obligation shall be deemed to have been declared
in default or accelerated with the same effect as if the Amended and Restated
Credit Agreement, the Secured Hedging Obligations and such Guaranteed Obligation
had been declared in default and accelerated in accordance with their respective
terms and the Guarantor shall forthwith pay the amounts specified to be paid
thereunder in accordance with their respective terms and all other Guaranteed
Obligations without further notice or demand.
SECTION 8. REPRESENTATIONS OF THE GUARANTOR. The Guarantor hereby
represents and warrants to the Agent and the Lenders as follows:
Section 8.1 Location. The chief place of business and chief executive
office of the Guarantor is located at the address first specified above for the
Guarantor.
Section 8.2 Security Interest. This Agreement and the pledge and
delivery of the Pledged Collateral pursuant hereto and the Deed of Trust and the
RPG First Preferred Ship Mortgage constitute a valid and continuing Lien on the
Pledged Collateral and create a valid
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and perfected first priority security interest in the Pledged Collateral in
favor of the Agent securing the payment of the Guaranteed Obligations, and all
filings and other actions necessary or desirable to perfect and protect such
security interest have been duly taken.
SECTION 9. COVENANTS. The Guarantor hereby covenants and agrees that on
and after the date hereof, so long as this Agreement shall remain in effect, it
shall comply with the following provisions:
Section 9.1 Continuous Perfection. The Guarantor shall not change its
name, identity or structure in any manner which might make any financing or
continuation statement filed hereunder misleading within the meaning of Section
9-402(7) of the UCC (or any other then applicable provision of the UCC) unless
the Guarantor shall have given the Agent and the Lenders at least 90 days' prior
written notice thereof of its intention to so change and shall have taken all
action (or made arrangements to take such action substantially simultaneously
with such change if it is impossible to take such action in advance) necessary,
or reasonably requested by the Agent and the Lenders, to amend such financing or
continuation statement so that it is not misleading.
Section 9.2 Amendment of Organization Documents. The Guarantor shall
not amend its Limited Partnership Agreement in a manner that affects adversely
the Agent or the Lenders.
Section 9.3 Further Assurances.
(a) From time to time, at the expense of the Guarantor, the Guarantor
will promptly execute and deliver all further instruments and documents and take
all further action, that may be necessary or desirable, or that the Agent or the
Lenders reasonably may request, in order to perfect and protect any pledge,
assignment or security interest granted or purported to be granted hereby or to
enable the Agent or the Lenders to exercise and enforce their rights and
remedies hereunder with respect to any Pledged Collateral. Without limiting the
generality of the foregoing, the Guarantor will execute and file such financing
or continuation statements, or amendments thereto, and such other instruments or
notices, as may be necessary or desirable, or as the Agent or the Lenders may
request, in order to perfect and preserve the pledge, assignment and security
interest granted or purported to be granted hereby.
(b) The Guarantor hereby authorizes the Agent or the Lenders to file
one or more financing or continuation statements, and assignments thereof and
amendments thereto, relating to all or any part of the Pledged Collateral
without the signature of the Guarantor where permitted by law. A photocopy or
other reproduction of this Agreement or any financing statement covering the
Pledged Collateral or any part thereof shall be sufficient as a financing
statement where permitted by law.
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(c) The Guarantor will furnish to the Agent and the Lenders from time
to time statements and schedules further identifying and describing the Pledged
Collateral and such other reports in connection with the Pledged Collateral as
the Agent, the Lenders or the Company reasonably may request, all in reasonable
detail.
SECTION 10. EVENTS OF DEFAULT; REMEDIES.
Section 10.1 Events of Default Defined. If any Event 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), then (i) all
payments received by the Guarantor under or in connection with any of the
Pledged Collateral shall be held by the Guarantor in trust for the Agent and the
Lenders, shall be segregated from other funds of the Guarantor and shall
forthwith upon receipt by the Guarantor be turned over to the Agent for the
ratable benefit of the Lenders in the same form as received by the Guarantor
(duly endorsed by the Guarantor to the Agent, if required); (ii) any and all
such payments so received by the Lenders (whether from the Guarantor or
otherwise) will be applied by the Lenders against their Guaranteed Obligations;
and (iii) any amount remaining after payment in full of all of the Guaranteed
Obligations shall be paid over to the Guarantor.
Section 10.2 Remedies.
(a) If any Event of Default shall occur and be continuing, the Agent
and the Lenders may exercise in addition to all other rights and remedies
granted to the Agent and the Lenders in this Agreement, under the Deed of Trust
and the RPG First Preferred Ship Mortgage and under any other instrument or
agreement securing, evidencing or relating to the Guaranteed Obligations, all
rights and remedies of a secured party under the UCC as applicable to the
Pledged Collateral and all the rights granted to the Agent and the Lenders.
Without limiting the generality of the foregoing and to the extent not
inconsistent with the remedies granted to the Agent and the Lenders in the Deed
of Trust and the RPG Preferred Ship Mortgage, the Guarantor expressly agrees
that in any such event the Agent and the Lenders, without demand of performance
or other demand, advertisement or notice of any kind (except the notice,
specified below of time and place of public or private sale) to or upon the
Guarantor or any other Person (all and each of which demands, advertisements
and/or notices are hereby expressly waived), may forthwith assume, collect,
receive, appropriate and realize upon the Pledged Collateral, or any part
thereof, and/or may forthwith sell, lease, assign, give an option or options to
purchase, or sell or otherwise dispose of and deliver said Pledged Collateral
(or contract to do so), or any part thereof, in one or more parcels at a public
or private sale or sales, at any exchange broker's board or at its offices or
elsewhere at such prices as the Agent may deem best, for cash or on credit or
for future delivery without assumption of any credit risk. The Agent and the
Lenders shall have the right upon any such public sale or sales, and, to the
extent permitted by law, upon any such private sale or sales, to purchase the
whole or any part of said Pledged Collateral so sold, free of any right or
equity of redemption, which equity of redemption the Guarantor hereby releases,
and in lieu of payment
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of such actual purchase price may set-off the amount of such purchase price
against the Guaranteed Obligations then owing to such purchaser. The Guarantor
further agrees, at the Agent's request, to assemble the Pledged Collateral and
make it available to the Agent at places which the Agent shall reasonably
select, whether at the Guarantor's premises or elsewhere. The Agent and the
Lenders shall retain the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, after deducting all reasonable costs and
expenses of every kind incurred therein or incidental to the care, safe keeping
or otherwise of any or all of the Pledged Collateral or in any way relating to
the rights of the Agent and the Lenders hereunder, including reasonable
attorneys' fees and legal expenses, for application to the payment in whole or
in part of the Guaranteed Obligations, and only after so retaining such net
proceeds and after the payment by the Agent and the Lenders of any other amount
required by any provision of law, including Section 9-504 (1)(c) of the UCC,
need the Agent and the Lenders account for the surplus, if any, to the
Guarantor. To the extent permitted by applicable law, the Guarantor waives all
claims, damages and demands against the Agent and the Lenders arising out of the
repossession, retention or sale of the Pledged Collateral, except to the extent
that such claims, damages and demands arise out of the willful misconduct or
gross negligence of the Agent or the Lenders.
(b) The Guarantor also agrees to pay all costs of the Agent and the
Lenders, including reasonable attorneys' fees, incurred with respect to the
collection of any of the Guaranteed Obligations and the enforcement and
protection of any of the rights of the Agent and the Lenders hereunder. All
costs and expenses incurred by each of the Agent and the Lenders with respect to
the enforcement, collection and protection of the Agent's and the Lenders'
interest in the Pledged Collateral shall be additional Guaranteed Obligations of
the Guarantor to the Agent and the Lenders payable on demand, and secured by the
Pledged Collateral.
(c) Any notice required to be given by the Agent of a sale, lease or
other disposition or other intended action by it with respect to any of the
Pledged Collateral which is deposited in the United States mails, postage
prepaid and duly addressed to the Guarantor, at least 10 days prior to such
proposed action, shall constitute fair and reasonable notice to the Guarantor of
any such action. The net proceeds realized by the Agent and the Lenders upon any
such sale or other disposition, after deduction for the expense of retaking,
holding, preparing for sale, selling or the like and the reasonable attorneys'
fees and legal expenses incurred by the Agent and the Lenders in connection
therewith, shall be applied as provided herein toward satisfaction of the
Guaranteed Obligations. The Agent and the Lenders shall account to the Guarantor
for any surplus realized upon such sale or other disposition. The commencement
of any action, legal or equitable, or the rendering of any judgment or decree
for any deficiency shall not affect the Agent's and the Lenders' security
interest in the Pledged Collateral until the Guaranteed Obligations are fully
paid. The Guarantor agrees that the Agent and the Lenders have no obligation to
preserve their rights to the Pledged Collateral against any other parties. The
Agent and the Lenders shall not be obligated to make any sale of Pledged
Collateral regardless of notice of sale having been given. The Agent may adjourn
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any public or private sale from time to time by announcement at the time and
place fixed therefor, and such sale may, without further notice, be made at the
time and place to which it was so adjourned.
Section 10.3 Limitation on the Agent's and the Lenders' Duty in Respect
of Pledged Collateral. Except as otherwise provided herein, under no
circumstances whatsoever shall the Agent or the Lenders be deemed to assume any
responsibility for, or obligation or duty with respect to, any part or all of
the Pledged Collateral, of any nature or kind whatsoever, or any matter or
proceedings arising out of or relating thereto. The Agent and the Lenders shall
not be required to take any action of any kind to collect or protect any
interest in the Pledged Collateral, including, but not limited to, any action
necessary to preserve the rights of the Agent and the Lenders, and the Guarantor
against prior parties to any of the Pledged Collateral. The Agent and the
Lenders shall not be liable or responsible in any way for the safe keeping, care
or custody of any of the Pledged Collateral if the Pledged Collateral is
accorded the same treatment and level of care as their own property, for any
loss or damages thereto, for any diminution in the value thereof, for any act or
default of any agent or bailee of the Agent, the Lenders, the Guarantor or of
any carrier, forwarding agency or other person whomsoever or for the collection
of any proceeds, except to the extent that the selection of such agent, bailee,
carrier or other person involved gross negligence or willful misconduct. The
Guarantor hereby releases the Agent and the Lenders from any claims, causes of
action and demands at any time arising out of or with respect to this Agreement
or the Guaranteed Obligations and any actions taken or omitted to be taken by
the Agent and the Lenders with respect thereto, and the Guarantor hereby agrees
to hold the Agent and the Lenders harmless from and with respect to any and all
such claims, causes of action and demands. The Guarantor hereby releases the
Agent and the Lenders from any claims, causes of action and demands arising
under 42 U.S.C. Section 9607 or 9613 or similar provisions of state or local
law.
Section 10.4 Remedies Cumulative. No remedy conferred upon the Agent
and the Lenders 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.
Section 10.5 Remedies Not Waived. No course of dealing between the
Guarantor and the Agent and the Lenders and no delay or failure in exercising
any rights hereunder in respect thereof shall operate as a waiver of any of the
rights of the Agent and the Lenders.
SECTION 11. AMENDMENT AND WAIVER. No amendment or waiver of any
provision of this Agreement and no consent to any departure by the Guarantor
therefrom shall in any event be effective unless the same shall be in writing
and signed by the Agent, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given and shall
not be deemed to waive any other breach hereunder; provided, however, that no
amendment, waiver or consent, unless in writing and signed by all the Lenders,
shall (a) limit the liability of the Guarantor hereunder, (b) postpone any date
fixed
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for payment hereunder or (c) change the number of Lenders required to take any
action hereunder.
No failure on the part of the Agent or the Lenders to exercise, and no
delay in exercising any right hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right preclude any other, or
further exercise thereof or the exercise of any other right.
SECTION 12. MISCELLANEOUS.
Section 12.1 Expenses. The Guarantor will pay the Agent and the Lenders
for any and all sums, costs and expenses which the Agent or the Lenders may pay
or incur by reason of defending, protecting or enforcing the security interest
herein granted or the priority hereof, enforcing payment of the Guaranteed
Obligations, discharging any Lien or claim against the Pledged Collateral or any
part thereof or, if the Guarantor fails to perform or comply with any of its
agreements herein, performing or complying with such terms. Such sums, costs and
expenses shall include, without limitation, all court costs, collection charges,
travel and reasonable attorneys' fees (including fees and expenses incident to
the enforcement of payment of any obligations of the Guarantor by any action or
participation in, or connection with, a case or proceeding under Chapters 7, 11
or 13 of the Bankruptcy Code). All sums, costs and expenses of the Agent and the
Lenders payable by the Guarantor pursuant to this Agreement shall be payable by
the Guarantor to the Agent and the Lenders on demand and shall constitute
Guaranteed Obligations secured by the Pledged Collateral.
Section 12.2 Reliance on and Survival of Representations. All
agreements, representations and warranties of the Guarantor herein and in any
certificates or other instruments delivered pursuant to this Agreement shall (a)
be deemed to be material and to have been relied upon by the Agent and the
Lenders, notwithstanding any investigation heretofore or hereafter made by the
Agent and the Lenders or on their behalf and (b) survive the execution and
delivery of this Agreement and of the Notes, and shall continue in effect so
long as any Note or Obligation is outstanding and thereafter as provided in
Sections 10 and 12.1.
Section 12.3 Successors and Assigns; Transfers of the Notes. This
Agreement shall bind and inure to the benefit of, and be enforceable by, the
Guarantor, the Agent, the Lenders, and their respective permitted successors and
assigns, and, in addition, shall inure to the benefit of, and be enforceable by,
each Person who shall from time to time be a holder of any of the Notes. The
Guarantor may not assign its rights and obligations under this Agreement, except
pursuant to a reorganization permitted under the Amended and Restated Credit
Agreement. The Lenders may transfer the Notes (and any portion thereof) at any
time without the consent of the Guarantor, subject to compliance with all
applicable Gaming Laws and state and federal securities laws and the
requirements of Section 9 of the Amended and Restated Credit Agreement.
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Section 12.4 Notices. All notices and other communications provided for
in this Agreement shall be in writing and delivered, telecopied or mailed, first
class postage prepaid, and addressed to:
(a) if to the Guarantor:
XXXXXXXX PROPERTY GROUP LIMITED PARTNERSHIP,
A MISSISSIPPI LIMITED PARTNERSHIP
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
XXXXXXX & XXXXXXXX
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(b) if to the Agent or the Lenders, at their respective addresses as
set forth in the Amended and Restated Credit Agreement or at such other address
as shall be provided to the Company in accordance to the terms of the Amended
and Restated Credit Agreement.
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 as aforesaid.
Section 12.5 Severability. If any term or provision hereof or the
application thereof to any circumstance, in any jurisdiction and to any extent,
shall be invalid or unenforceable, such term or such provision shall be
ineffective as to such jurisdiction to the extent of such invalidity or
unenforceability without invalidating or rendering unenforceable any remaining
terms and provisions hereof or the application of such term or provision to
circumstances other than those as to which it is held invalid or unenforceable.
To the fullest extent permitted by applicable law, the parties hereto hereby
waive any provision of law which renders any term or provision hereof invalid or
unenforceable in any respect.
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Section 12.6 Governing Law. This Agreement and the Notes, the Letters
of Credit, the Secured Hedging Obligations and (unless otherwise provided) all
amendments, supplements, waivers and consents relating hereto or thereto shall
be governed by, and construed in accordance with, the internal laws of the State
of New York.
Section 12.7 Forum and Jurisdiction. The Guarantor represents and
warrants that it is not entitled to immunity from judicial proceedings and, for
purposes of any action, suit or other proceeding in respect of, or arising out
of or in connection with, this Guarantee or any course of conduct, course of
dealing, statements or actions of the Guarantor, the Agent or the Lenders
related thereto, the Guarantor hereby submits and consents to the jurisdiction
of the courts of the State of New York and of the United States District Court
for the Southern District of New York, and the Guarantor agrees that any such
action, suit or proceeding may be brought by the Agent or the Lenders in the
Supreme Court of the State of New York, New York County, or in the United States
District Court for the Southern District of New York, and the service of process
may be made upon the Guarantor by mailing a copy of the summons and any
complaint to the Guarantor by registered mail, at the address specified in
Section 12.4. The Guarantor hereby waives and agrees not to assert, by way of
motion or otherwise, in any action, suit or proceeding, any claim that it is not
personally subject to the jurisdiction of the above-named courts, that the
action is brought in an inconvenient forum or that the venue of the action is
improper. The Agent and the Lenders, nevertheless, may serve, process or
commence any such action, suit or proceeding in such other jurisdiction(s), and
in such other manner as may be permitted by applicable law. The methods of
service of process specified in this paragraph may be used in the alternative or
together as the Agent and the Lenders may see fit.
Section 12.8 Headings. The headings in this Guarantee are for
convenience only and shall not be construed as a part of this Guarantee.
Section 12.9 Term of Agreement. This Guarantee and all agreements of
the Guarantor contained herein shall continue in full force and effect and shall
not be discharged until such time as the Guaranteed Obligations shall be
indefeasibly paid or performed in full and all of the agreements of (a) the
Company under the Amended and Restated Credit Agreement and the Secured Hedging
Obligations and (b) the Guarantor hereunder shall be fully paid or performed;
provided, certain provisions of this Guarantee shall survive such termination as
expressly set forth herein.
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IN WITNESS WHEREOF, the Guarantor has caused this Agreement to be duly
executed delivered as of the date first above written.
XXXXXXXX PROPERTY GROUP LIMITED
PARTNERSHIP,
A MISSISSIPPI LIMITED PARTNERSHIP
By: Horseshoe GP, Inc.,
its general partner
By: _____________________________
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
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TABLE OF CONTENTS
Page
SECTION 1. TERMS AND DEFINITIONS...............................................................................2
Section 1.1 Definitions...............................................................................2
Section 1.2 Additional Terms..........................................................................3
Section 1.3 Action by the Agent or the Lenders........................................................3
SECTION 2. GUARANTEE...........................................................................................3
Section 2.1 Guaranteed Obligations....................................................................3
Section 2.2 Guarantee Absolute........................................................................3
Section 2.3 Subordination.............................................................................4
SECTION 3. GRANT OF SECURITY...................................................................................4
Section 3.1 Pledged Collateral........................................................................4
SECTION 4. OBLIGATIONS UNCONDITIONAL...........................................................................5
SECTION 5. APPOINTMENT AS ATTORNEY-IN-FACT.....................................................................6
SECTION 6. WAIVERS.............................................................................................7
SECTION 7. EFFECT OF BANKRUPTCY PROCEEDINGS, ETC.;
REINSTATEMENT.......................................................................................9
SECTION 8. REPRESENTATIONS OF THE GUARANTOR....................................................................9
Section 8.1 Location..................................................................................9
Section 8.2 Security Interest.........................................................................9
SECTION 9. COVENANTS..........................................................................................10
Section 9.1 Continuous Perfection....................................................................10
Section 9.2 Amendment of Organization Documents......................................................10
Section 9.3 Further Assurances.......................................................................10
SECTION 10. EVENTS OF DEFAULT; REMEDIES........................................................................11
Section 10.1 Events of Default Defined................................................................11
Section 10.2 Remedies.................................................................................11
Section 10.3 Limitation on the Agent's and the Lenders' Duty in Respect of
Pledged Collateral.......................................................................12
Section 10.4 Remedies Cumulative......................................................................13
Section 10.5 Remedies Not Waived......................................................................13
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SECTION 11. AMENDMENT AND WAIVER.................................................................................13
SECTION 12. MISCELLANEOUS........................................................................................14
Section 12.1 Expenses...................................................................................14
Section 12.2 Reliance on and Survival of Representations................................................14
Section 12.3 Successors and Assigns; Transfers of the Notes.............................................14
Section 12.4 Notices....................................................................................14
Section 12.5 Severability...............................................................................15
Section 12.6 Governing Law..............................................................................15
Section 12.7 Forum and Jurisdiction.....................................................................16
Section 12.8 Headings...................................................................................16
Section 12.9 Term of Agreement..........................................................................16
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