EXHIBIT 4.4
FIRST SUPPLEMENTAL INDENTURE
Dated as of February 5, 1999
TO
INDENTURE,
Dated as of August 1, 1997
HOLLYWOOD PARK, INC.
HOLLYWOOD PARK OPERATING COMPANY
Issuers,
BAYVIEW YACHT CLUB, INC.
BOOMTOWN HOTEL & CASINO, INC.
BOOMTOWN, INC.
CRYSTAL PARK HOTEL & CASINO DEVELOPMENT COMPANY, LLC
HOLLYWOOD PARK FALL OPERATING COMPANY
HOLLYWOOD PARK FOOD SERVICES, INC.
HP/COMPTON, INC.
HP YAKAMA, INC.
LOUISIANA GAMING ENTERPRISES, INC.
LOUISIANA-I GAMING, A LOUISIANA PARTNERSHIP IN COMMENDAM
MISSISSIPPI-I GAMING, L.P.
TURF PARADISE, INC.
Guarantors,
and
THE BANK OF NEW YORK
Trustee
This First Supplemental Indenture (the "Supplemental Indenture"), dated as
of February 5, 1999, by and among Hollywood Park, Inc., a Delaware corporation
("HPI"), Hollywood Park Operating Company, a Delaware corporation ("HPOC" and
collectively, together with HPI, the "Companies"), all of the existing and
future Material Restricted Subsidiaries of the Companies (other than HPOC)
(collectively, the "Guarantors" and collectively, together with the Companies,
the "Obligors") and The Bank Of New York, a New York banking corporation, as
Trustee (the "Trustee"), to that certain Indenture, dated as of August 1, 1997,
by and between the Companies, the Guarantors and the Trustee (the "Indenture").
W I T N E S S E T H:
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WHEREAS, the Companies. as co-issuers have issued and outstanding, pursuant
to the Indenture, $125 million aggregate principal amount of 9 1/2% Senior
Subordinated Notes due 2007 (the "Notes");
WHEREAS, the Obligors desire to amend certain covenants contained in the
Indenture;
WHEREAS, Section 9.02 of the Indenture provides that a supplemental
indenture may be entered into by the Obligors and the Trustee to amend or
supplement certain provisions of the Indenture with the consent of Holders of at
least a majority in aggregate principal amount of the then outstanding Notes;
WHEREAS, pursuant to a consent solicitation by the Companies, consents of
Holders of at least a majority in aggregate principal amount of the then
outstanding Notes have been received consenting to the amendments to the
Indenture pursuant to this Supplemental Indenture which require such consent;
WHEREAS, Section 9.01 of the Indenture provides that the Indenture may be
amended or supplemented without notice to or the consent of any Holder to make
any change that would provide additional benefit or rights to the Holders or to
make any change that does not adversely affect the rights of any Holder under
the Indenture; and the remaining amendments pursuant to this Supplemental
Indenture are of such a nature; and
WHEREAS, all things necessary to make this Supplemental Indenture a valid
agreement of the Obligors and the Trustee and a valid amendment to the Indenture
have been done.
NOW, THEREFORE, the parties hereto hereby amend the Indenture as follows:
Section 1. Definitions, Etc. Terms defined (whether directly or indirectly
by reference) in the Indenture and used without other definition herein shall
have the respective meanings assigned to such terms in the Indenture. The rules
of construction set forth in the Indenture shall likewise govern this
Supplemental Indenture.
Section 2. Amendments to Section 1.01 of the Indenture. Section 1.01 of the
Indenture is hereby amended as follows:
Section 2.1 The definition of "Asset Sale" set forth in Section 1.01 of the
Indenture is amended by deleting subsection (9) therefrom in its entirety,
inserting the word "or" at the end of clause (7), deleting the word "or" at the
of clause (8) and inserting a period after the words "Permitted Investment" in
clause (8).
Section 2.2 The definition of "Consolidated EBITDA" set forth in Section
1.01 of the Indenture is amended by (I) deleting the word "and" before clause
(ii)(D) and inserting a comma instead and (II) deleting clause (ii)(D) in its
entirety and substituting in its place the following new clause (D) and clause
(E):
(D) other non-cash items (other than non-cash interest) of such Person
or any of its Restricted Subsidiaries (including any non-cash compensation
expense attributable to stock option or other equity compensation
arrangements), other than (except as otherwise provided in clause (E)
below) any non-cash item for such period that requires the accrual of or a
reserve for cash charges for any future period and other than any non-cash
charge for such period constituting an extraordinary item of loss, and (E)
any non-recurring costs or expenses of an acquired company or business
incurred in connection with the purchase or acquisition of such acquired
company or business by such Person and any non-recurring adjustments
necessary to conform the accounting policies of the acquired company or
business to those of such Person, less
Section 2.3 The definition of "Non-Recourse Indebtedness" set forth in
Section 1.01 of the Indenture is amended by inserting, at the end of the
definition, the following sentence:
The foregoing notwithstanding, if an Obligor or a Restricted
Subsidiary makes a loan to an Unrestricted Subsidiary that is permitted
under Section 4.07 herein and is otherwise permitted to be incurred under
the Indenture, such loan shall constitute Non-Recourse Indebtedness.
Section 2.4 The definition of "Permitted Indebtedness" set forth in Section
1.01 of the Indenture is amended by (I) deleting the words "$100 million" in
clause (iii) thereof and substituting in place thereof the words "$350 million",
(II) deleting the words "any Obligor" in clause (iii) thereof and substituting
in place thereof the words "the Company or any Restricted Subsidiary" and (III)
deleting the words "$100 million" in clause (viii)(B) thereof and substituting
in place thereof the words "$60 million."
Section 3. Amendment to Section 4.07 of the Indenture. Section 4.07(b) of
the Indenture is hereby amended by (I) deleting the text in clause (7) in its
entirety and substituting in its place the following new clause (7) and (II)
deleting from the first sentence of clause (12) the phrase "as in effect on the
Issue Date."
(7) Restricted Payments, not to exceed $20 million in the aggregate at
any one time outstanding, in connection with the development, operation,
financing, ownership or acquisition of a Core Business; provided, however,
that up to $10
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million of such $20 million may be used by HPI under this
clause (7) to make repurchases of its common stock on a cumulative basis
from January 1, 1999;
Section 4. Amendment to Section 4.08 of the Indenture. The text of Section
4.08 of the Indenture is hereby amended by deleting the second paragraph and the
accompanying table of required Companies' Consolidated Coverage Ratios in its
entirety, and substituting the following in its place:
Notwithstanding the foregoing limitations, either Company may issue
Disqualified Capital Stock and any Obligor may Incur Indebtedness
(including, without limitation, Acquired Debt) or issue preferred stock, if
(i) no Default or Event of Default shall have occurred and be continuing on
the date of the proposed Incurrence or issuance or would result as a
consequence of such proposed Incurrence or issuance and (ii) immediately
after giving pro forma effect to such proposed Incurrence or issuance and
the receipt and application of the net proceeds therefrom, the Companies'
Consolidated Coverage Ratio would not be less than 2.00:1.00.
Section 5. Amendment to Section 5.01 of the Indenture. Section 5.01 of the
Indenture is hereby amended by deleting the last sentence of the first paragraph
following Section 5.01(iv), which sentence begins with the words
"Notwithstanding any other provision of this Section 5.01, the Companies may
effect the REIT Restructuring ...."
Section 6. Amendment to Section 9.01. The text of Section 9.01 of the
Indenture is hereby deleted in its entirety and the following text is
substituted in its place thereof:
Notwithstanding Section 9.02 of this Indenture, the Obligors, when
authorized by a resolution of the Board, and the Trustee, together, may
amend or supplement this Indenture, a Guaranty or the Notes without notice
to or consent of any Holder: (i) to cure any ambiguity, defect or
inconsistency; provided, however, that such amendment or supplement does
not adversely affect the rights of any Holder, (ii) to effect the
assumption by a successor Person of all obligations of the Obligors under
the Notes, the Guaranties, this Indenture and the Registrations Rights
Agreement in connection with any transaction complying with Article 5
hereof, (iii) to provide for uncertificated Notes in addition to or in
place of Certificated Notes; (iv) to comply with any requirements of the
SEC in order to effect or maintain the qualification of this Indenture
under the TIA, or to comply with any other requirement of applicable law;
(v) to make any change that would provide any additional benefit or rights
to the Holders; (vi) to provide for issuance of Series B Senior
Subordinated Notes pursuant to the Registration Rights Agreement (which
will have terms substantially identical in all material respects to the
Notes except that the transfer restrictions contained in the Notes will be
modified or eliminated, as appropriate), and which will be treated together
with any outstanding Notes as a single issue of securities; or (vii) to
make any other change that does not adversely affect the rights of any
Holder under this Indenture; provided, however, that the Obligors shall, in
any of the foregoing cases, have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel stating that such amendment or
supplement is authorized by the provisions of this Indenture.
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Upon the request of the Companies accompanied by resolutions of their
Boards of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the documents
described in Section 9.06 hereof, the Trustee shall join with the Obligors
in the execution of any amended or supplemental Indenture authorized or
permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but
the Trustee shall not be obligated to enter into any such amended or
supplemental Indenture that affects its own rights, duties or immunities
under this Indenture or otherwise.
Section 7. Amendment to Section 12.03(a). Section 12.03(a) is hereby
amended by deleting in its entirety the second parenthetical reference that
begins with the words "including without limitation, one or more supplemental
indentures ...."
Section 8. Ratification, Etc. Except as expressly modified or waived
hereby, each term and provision of the Indenture is hereby ratified and
confirmed and shall continue in full force and effect. No waiver of any
condition set forth herein shall extend beyond the immediate circumstances on
which this Supplemental Indenture is predicated or support any inference that
similar waivers would be granted in the future. From and after the date of this
Supplemental Indenture, all references to the Indenture shall be deemed to be
references to the Indenture as amended by this Supplemental Indenture.
Section 9. Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE AND THE NOTES,
SUBJECT TO APPLICABLE GAMING LAWS.
Section 10. No Representations by Trustee. The recitals contained
herein shall be construed as statements of the Companies, and the Trustee
assumes no responsibility for the correctness of the same.
Section 11. Counterparts. This Supplemental Indenture may be executed
in any number of counterparts, which shall together constitute but one and the
same instrument. To make proof of this Supplemental Indenture, it shall only be
necessary to produce one such counterpart.
Section 12. Successors and Assigns. This Supplemental Indenture shall
be binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns.
Section 13. Severability Clause. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed all as of the day and year first above written.
HOLLYWOOD PARK, INC.
By: /s/ G. Michael Finnigan
-----------------------------
Name: G. Michael Finnigan
Title: Chief Financial Officer
HOLLYWOOD PARK OPERATING
COMPANY
By: /s/ G. Michael Finnigan
-----------------------------
Name: G. Michael Finnigan
Title: Executive Vice President, Treasurer and
Chief Financial Officer
BAYVIEW YACHT CLUB, INC.
By: /s/ G. Michael Finnigan
-----------------------------
Name: G. Michael Finnigan
Title: Vice President, Chief Financial Officer
and Assistant Secretary
BOOMTOWN HOTEL & CASINO, INC.
By: /s/ G. Michael Finnigan
-----------------------------
Name: G. Michael Finnigan
Title: Vice President, Chief Financial Officer
and Assistant Secretary
BOOMTOWN, INC.
By: /s/ G. Michael Finnigan
-----------------------------
Name: G. Michael Finnigan
Title: Vice President, Chief Financial Officer
and Assistant Secretary
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CRYSTAL PARK HOTEL & CASINO
DEVELOPMENT COMPANY, LLC
By: HP/Compton, Inc., a California
corporation
By: /s/ G. Michael Finnigan
-----------------------------
Name: G. Michael Finnigan
Title: Vice President, Chief Financial Officer
and Assistant Secretary
HOLLYWOOD PARK FALL OPERATING
COMPANY
By: /s/ G. Michael Finnigan
-----------------------------
Name: G. Michael Finnigan
Title: Executive Vice President, Treasurer and
Assistant Secretary
HOLLYWOOD PARK FOOD SERVICES, INC.
By: /s/ G. Michael Finnigan
----------------------------
Name: G. Michael Finnigan
Title: Executive Vice President, Treasurer and
Assistant Secretary
HP/COMPTON, INC.
By: /s/ G. Michael Finnigan
-----------------------------
Name: G. Michael Finnigan
Title: Vice President, Chief Financial Officer
and Assistant Secretary
HP YAKAMA, INC.
By: /s/ G. Michael Finnigan
-----------------------------
Name: G. Michael Finnigan
Title: Vice President, Treasurer and Assistant
Secretary
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LOUISIANA GAMING ENTERPRISES, INC.
By: /s/ G. Michael Finnigan
--------------------------------
Name: G. Michael Finnigan
Title: Vice President, Chief Financial Officer
and Assistant Secretary
LOUISIANA-1 GAMING, A LOUISIANA
PARTNERSHIP IN COMMENDAM
By: Louisiana Gaming Enterprises, Inc., a
Louisiana corporation
By: /s/ G. Michael Finnigan
-----------------------------
Name: G. Michael Finnigan
Title: Vice President, Chief Financial Officer
and Assistant Secretary
MISSISSIPPI-I GAMING, L.P.
By: Bayview Yacht Club, Inc., a Mississippi
Corporation
By: /s/ G. Michael Finnigan
-----------------------------
Name: G. Michael Finnigan
Title: Vice President, Chief Financial Officer
and Assistant Secretary
TURF PARADISE, INC.
By: /s/ G. Michael Finnigan
-----------------------------
Name: G. Michael Finnigan
Title: Vice President, Treasurer and Assistant
Secretary
THE BANK OF NEW YORK, as Trustee
By: /s/ Thomas C. Knight
-------------------------
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Name: Thomas C. Knight
Title: Assistant Vice President
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