EXHIBIT 4.4A
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DIAMOND JO, LLC
AND
THE OLD EVANGELINE DOWNS CAPITAL CORP.
(as Issuers)
$233,000,000
8 3/4% Senior Secured Notes due 2012
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INDENTURE
Dated as of April 16, 2004
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U.S. BANK NATIONAL ASSOCIATION
(as Trustee)
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE...........................1
SECTION 1.1 DEFINITIONS..................................................1
SECTION 1.2 OTHER DEFINITIONS...........................................33
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT...........34
SECTION 1.4 RULES OF CONSTRUCTION.......................................35
ARTICLE II THE NOTES..........................................................35
SECTION 2.1 FORM AND DATING.............................................35
SECTION 2.2 EXECUTION AND AUTHENTICATION................................36
SECTION 2.3 REGISTRAR, PAYING AGENT AND DEPOSITARY......................36
SECTION 2.4 PAYING AGENT TO HOLD MONEY IN TRUST.........................37
SECTION 2.5 HOLDER LISTS................................................37
SECTION 2.6 TRANSFER AND EXCHANGE.......................................37
SECTION 2.7 REPLACEMENT NOTES...........................................52
SECTION 2.8 OUTSTANDING NOTES...........................................52
SECTION 2.9 TREASURY NOTES..............................................53
SECTION 2.10 TEMPORARY NOTES.............................................53
SECTION 2.11 CANCELLATION................................................53
SECTION 2.12 DEFAULTED INTEREST..........................................53
SECTION 2.13 CUSIP NUMBERS...............................................54
SECTION 2.14 ISSUANCE OF ADDITIONAL NOTES................................55
ARTICLE III REDEMPTION........................................................55
SECTION 3.1 NOTICES TO TRUSTEE..........................................55
SECTION 3.2 SELECTION OF NOTES TO BE REDEEMED...........................55
SECTION 3.3 NOTICE OF REDEMPTION........................................55
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION..............................56
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE.................................57
SECTION 3.6 NOTES REDEEMED IN PART......................................57
SECTION 3.7 OPTIONAL REDEMPTION.........................................57
SECTION 3.8 REGULATORY REDEMPTION.......................................58
SECTION 3.9 NO MANDATORY REDEMPTION.....................................58
ARTICLE IV COVENANTS..........................................................59
SECTION 4.1 PAYMENT OF NOTES............................................59
SECTION 4.2 MAINTENANCE OF OFFICE OR AGENCY.............................59
SECTION 4.3 SEC REPORTS AND REPORTS TO HOLDERS..........................60
SECTION 4.4 COMPLIANCE CERTIFICATE......................................60
SECTION 4.5 TAXES.......................................................60
SECTION 4.6 STAY, EXTENSION AND USURY LAWS..............................61
SECTION 4.7 LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS
AND DISQUALIFIED EQUITY INTERESTS...........................61
SECTION 4.8 LIMITATION ON LIENS.........................................64
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SECTION 4.9 LIMITATION ON RESTRICTED PAYMENTS...........................64
SECTION 4.10 LIMITATION ON RESTRICTIONS ON SUBSIDIARY DIVIDENDS..........67
SECTION 4.11 ADDITIONAL COLLATERAL.......................................69
SECTION 4.12 LIMITATION ON TRANSACTIONS WITH AFFILIATES..................69
SECTION 4.13 LIMITATION ON ASSET SALES...................................70
SECTION 4.14 RESTRICTION ON SALE AND ISSUANCE OF SUBSIDIARY STOCK........72
SECTION 4.15 REPURCHASE UPON A CHANGE OF CONTROL.........................73
SECTION 4.16 SUBSIDIARY GUARANTORS.......................................74
SECTION 4.17 LIMITATION ON STATUS AS INVESTMENT COMPANY..................74
SECTION 4.18 MAINTENANCE OF PROPERTIES AND INSURANCE.....................74
SECTION 4.19 CORPORATE EXISTENCE.........................................75
SECTION 4.20 RESTRICTIONS ON ACTIVITIES OF CAPITAL.......................75
SECTION 4.21 ENTITY CLASSIFICATION.......................................75
SECTION 4.22 RULE 144A INFORMATION.......................................75
SECTION 4.23 REORGANIZATION TRANSACTIONS.................................76
ARTICLE V SUCCESSORS..........................................................76
SECTION 5.1 MERGER, CONSOLIDATION OR SALE OF ASSETS.....................76
SECTION 5.2 SUCCESSOR CORPORATION SUBSTITUTED...........................77
ARTICLE VI DEFAULTS AND REMEDIES..............................................77
SECTION 6.1 EVENTS OF DEFAULT...........................................77
SECTION 6.2 ACCELERATION................................................80
SECTION 6.3 OTHER REMEDIES..............................................80
SECTION 6.4 WAIVER OF DEFAULTS..........................................81
SECTION 6.5 CONTROL BY MAJORITY.........................................81
SECTION 6.6 LIMITATION ON SUITS.........................................81
SECTION 6.7 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT...............82
SECTION 6.8 COLLECTION SUIT BY TRUSTEE..................................82
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM............................82
SECTION 6.10 PRIORITIES..................................................83
SECTION 6.11 UNDERTAKING FOR COSTS.......................................83
ARTICLE VII TRUSTEE...........................................................84
SECTION 7.1 DUTIES OF TRUSTEE...........................................84
SECTION 7.2 RIGHTS OF TRUSTEE...........................................85
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE................................86
SECTION 7.4 TRUSTEE'S DISCLAIMER........................................86
SECTION 7.5 NOTICE OF DEFAULTS..........................................86
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES..................87
SECTION 7.7 COMPENSATION AND INDEMNITY..................................88
SECTION 7.8 REPLACEMENT OF TRUSTEE......................................89
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC............................90
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION...............................90
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUERS...........90
ii
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ARTICLE VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE.........................90
SECTION 8.1 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE....90
SECTION 8.2 LEGAL DEFEASANCE AND DISCHARGE..............................90
SECTION 8.3 COVENANT DEFEASANCE.........................................91
SECTION 8.4 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE..................92
SECTION 8.5 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.......................93
SECTION 8.6 REPAYMENT TO ISSUERS........................................93
SECTION 8.7 REINSTATEMENT...............................................94
SECTION 8.8 SATISFACTION AND DISCHARGE..................................94
ARTICLE IX AMENDMENT, SUPPLEMENT AND WAIVER...................................95
SECTION 9.1 WITHOUT CONSENT OF HOLDERS OF NOTES.........................95
SECTION 9.2 WITH CONSENT OF HOLDERS OF NOTES............................96
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT.........................98
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS...........................98
SECTION 9.5 NOTATION ON OR EXCHANGE OF NOTES............................99
SECTION 9.6 TRUSTEE TO SIGN AMENDMENTS, ETC.............................99
ARTICLE X COLLATERAL AND SECURITY............................................100
SECTION 10.1 SECURITY DOCUMENTS; SECURITY INTERESTS.....................100
SECTION 10.2 FURTHER ASSURANCES AND SECURITY............................102
SECTION 10.3 OPINIONS...................................................102
SECTION 10.4 RELEASE OF COLLATERAL......................................103
SECTION 10.5 CERTIFICATES OF THE ISSUERS................................104
SECTION 10.6 AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE UNDER
THE SECURITY DOCUMENTS AND THE INTERCREDITOR AGREEMENT.....104
SECTION 10.7 AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER
THE SECURITY DOCUMENTS AND THE INTERCREDITOR AGREEMENT.....104
SECTION 10.8 INTERCREDITOR AGREEMENT....................................105
ARTICLE XI SUBSIDIARY GUARANTIES.............................................105
SECTION 11.1 SUBSIDIARY GUARANTIES......................................105
SECTION 11.2 EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTIES............107
SECTION 11.3 SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN
TERMS......................................................107
SECTION 11.4 SUBSIDIARY GUARANTY BY FUTURE RESTRICTED SUBSIDIARIES......108
SECTION 11.5 RELEASE OF SUBSIDIARY GUARANTORS...........................109
SECTION 11.6 LIMITATION OF SUBSIDIARY GUARANTOR'S LIABILITY; CERTAIN
BANKRUPTCY EVENTS..........................................109
SECTION 11.7 APPLICATION OF CERTAIN TERMS AND PROVISIONS TO THE
SUBSIDIARY GUARANTORS......................................110
iii
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ARTICLE XII MISCELLANEOUS....................................................111
SECTION 12.1 TRUST INDENTURE ACT CONTROLS...............................111
SECTION 12.2 NOTICES....................................................111
SECTION 12.3 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF
NOTES......................................................112
SECTION 12.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.........112
SECTION 12.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION..............113
SECTION 12.6 RULES BY TRUSTEE AND AGENTS................................113
SECTION 12.7 LEGAL HOLIDAYS.............................................113
SECTION 12.8 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES
AND STOCKHOLDERS...........................................113
SECTION 12.9 GOVERNING LAW AND SUBMISSION TO JURISDICTION...............114
SECTION 12.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS..............114
SECTION 12.11 SUCCESSORS.................................................115
SECTION 12.12 SEVERABILITY...............................................115
SECTION 12.13 COUNTERPART ORIGINALS......................................115
SECTION 12.14 TABLE OF CONTENTS, HEADINGS, ETC...........................115
iv
CROSS-REFERENCE TABLE*
TIA SECTION INDENTURE SECTION
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310(a)(1)........................................................7.10
(a)(2)...........................................................7.10
(a)(3)...........................................................N.A.
(a)(4)...........................................................N.A.
(a)(5)...........................................................7.8; 7.10
(b)..............................................................7.8; 7.10; 12.2
(c)..............................................................N.A.
311(a)...........................................................7.11
(b)..............................................................7.11
(c)..............................................................N.A.
312(a)...........................................................2.5
(b)..............................................................12.3
(c)..............................................................12.3
313(a)...........................................................7.6
(b)(1)...........................................................N.A.
(b)(2)...........................................................7.6, 7.7
(c)..............................................................7.5, 7.6; 12.2
(d)..............................................................7.6
314(a)...........................................................4.3; 4.4; 12.2
(b)..............................................................N.A.
(c)(1)...........................................................12.4
(c)(2)...........................................................12.4
(c)(3)...........................................................N.A.
(d)..............................................................10.5
(e)..............................................................12.5
(f)..............................................................N.A.
315(a)...........................................................7.1(b)
(b)..............................................................7.5; 12.2
(c)..............................................................7.1(a)
(d)..............................................................7.1(c)
(e)..............................................................6.11
316(a)(last sentence)............................................2.9
(a)(1)(A)........................................................6.5
(a)(1)(B)........................................................6.4
(a)(2)...........................................................N.A.
(b)..............................................................6.7
(c)..............................................................6.3
317(a)(1)........................................................6.8
(a)(2)...........................................................6.9
(b)..............................................................2.4
318(a)...........................................................12.1
(c)..............................................................12.1
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N.A. means not applicable
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* This Cross-Reference table shall not, for any purpose, be deemed to be
part of this Indenture.
v
INDENTURE, dated as of April 16, 2004, by and among Diamond Jo, LLC, a
Delaware limited liability company, The Old Evangeline Downs Capital Corp., a
Delaware corporation, the Subsidiary Guarantors (as defined herein), and U.S.
Bank National Association, as trustee.
Each party agrees as follows for the benefit of each other and for the
equal and ratable benefit of the Holders of the 8 3/4% Series A Senior Secured
Notes due 2012 (the "Series A Notes") and the 8 3/4% Series B Senior Secured
Notes due 2012 (the "Series B Notes" and, together with the Series A Notes, the
"Notes"):
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.1 DEFINITIONS
"2010 Referendum" means a gaming reauthorization referendum to be
submitted to the Dubuque County, Iowa electorate in the general election to be
held in 2010.
"144A Global Note" means one or more Global Notes bearing the Private
Placement Legend, that shall be issued in an aggregate amount of denominations
equal in total to the outstanding principal amount of the Notes sold in reliance
on Rule 144A.
"501 Global Note" means one or more Global Notes bearing the Private
Placement Legend that shall be issued in an aggregate amount of denominations
equal in total to the outstanding principal amount of the Notes sold to
institutional "accredited investors" within the meaning of Rule 501(a)(1), (2),
(3), or (7) of the Securities Act.
"Accrued Bankruptcy Interest" means, with respect to any Indebtedness, all
interest accruing thereon after the filing of a petition by or against the
Issuers or any of the Restricted Subsidiaries or any parent under any Bankruptcy
Law, in accordance with and at the rate (including any rate applicable upon any
default or event of default, to the extent lawful) specified in the documents
evidencing or governing such Indebtedness, whether or not the claim for such
interest is allowed as a claim after such filing in any proceeding under such
Bankruptcy Law.
"Acquired Debt" means Indebtedness of a Person or any of its subsidiaries
existing at the time such Person is merged with or into the Company or a
Restricted Subsidiary, becomes a Restricted Subsidiary or Indebtedness assumed
in connection with the acquisition of assets from such Person other than
Indebtedness incurred in connection with, or in contemplation of, such Person
merging with or into the Company or a Restricted Subsidiary or becoming a
Restricted Subsidiary or such acquisition of assets.
"Additional Notes" means additional Notes which may be issued after the
Issue Date pursuant to this Indenture (other than pursuant to an Exchange Offer
or otherwise in exchange for or in replacement of outstanding Notes). All
references herein to "Notes" shall be deemed to include Additional Notes.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
(a) the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise or (b) beneficial
ownership of 10% or more of the voting securities of such Person.
Notwithstanding the foregoing, the Initial Purchaser shall be deemed not to be
an Affiliate of PGP, the Company or any Restricted Subsidiary.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any transfer or exchange of
or for beneficial interests in any Global Note, the rules and procedures of the
Depositary, Euroclear and Clearstream that apply to such transfer or exchange at
the relevant time.
"Applicable Capital Gain Tax Rate" means a rate equal to the sum of:
(a) the highest marginal Federal income tax rate applicable to net capital
gain of an individual who is a citizen of the United States, plus
(b) (x) the greatest of (i) an amount equal to the sum of the highest
marginal state and local income tax rates applicable to net capital gain of an
individual who is a resident of the State of California, (ii) an amount equal to
the sum of the highest marginal state and local income tax rates applicable to
net capital gain of an individual who is a resident of the State of Louisiana,
and (iii) an amount equal to the sum of the highest marginal state and local
income tax rates applicable to net capital gain of an individual who is a
resident of the State of Iowa, multiplied by (y) a factor equal to 1 minus the
highest marginal Federal income tax rate described in clause (a) above.
"Applicable Income Tax Rate" means a rate equal to the sum of:
(a) the highest marginal Federal ordinary income tax rate applicable to an
individual who is a citizen of the United States, plus
(b) (x) the greatest of (i) an amount equal to the sum of the highest
marginal state and local ordinary income tax rates applicable to an individual
who is a resident of the State of California, (ii) an amount equal to the sum of
the highest marginal state and local ordinary income tax rates applicable to an
individual who is a resident of the State of Louisiana, and (iii) an amount
equal to the sum of the highest marginal state and local income tax rates
applicable to net capital gain of an individual who is a resident of the State
of Iowa, multiplied by (y) a factor equal to 1 minus the highest marginal
Federal income tax rate described in clause (a) above.
2
"Asset Sale" means:
(i) any direct or indirect sale, assignment, transfer, lease, conveyance,
or other disposition (including, without limitation, by way of merger or
consolidation) (collectively, a "transfer"), other than in the ordinary course
of business, of any assets of the Company or any Restricted Subsidiary; or
(ii) direct or indirect issuance or sale of any Equity Interests of any
Restricted Subsidiary (other than directors' qualifying shares), in each case to
any Person (other than the Company or a Restricted Subsidiary).
For purposes of this definition, (a) any series of transactions that are
part of a common plan shall be deemed a single Asset Sale and (b) the term
"Asset Sale" shall not include:
(1) any exchange of gaming equipment or furniture, fixtures or other
equipment for replacement items in the ordinary course of business,
(2) any transaction or series of transactions that have a fair market
value (or result in gross proceeds) of less than $1,000,000,
(3) any disposition of all or substantially all of the assets of the
Company that is governed under and complies with the terms of Section 4.15 and
Article V,
(4) any Investments that are not prohibited by Section 4.9,
(5) (A) any transfer of inventory, equipment, receivables or other assets
acquired and held for resale in the ordinary course of business or (B) any
transfer or liquidation of Cash Equivalents,
(6) any transfer of damaged, worn out or other obsolete personal property
so long as such property is no longer necessary for the proper conduct of the
business of the Company or such Restricted Subsidiary, as applicable,
(7) any grant of any Liens not otherwise prohibited by this Indenture, or
(8) any transfer of properties or assets by the Company or a Restricted
Subsidiary to the Company or any other Restricted Subsidiary.
"Bankruptcy Code" means the United States Bankruptcy Code, codified at 11
U.S.C. Sections 101-1330, as amended.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar Federal, state
or foreign law for the relief of debtors.
3
"beneficial owner" has the meaning attributed to it in Rules 13d-3 and
13d-5 under the Exchange Act (as in effect on the Issue Date), whether or not
otherwise 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.
"Broker-Dealer" means any broker-dealer that receives Exchange Notes for
its own account in the Exchange Offer in exchange for Notes that were acquired
by such broker-dealer as a result of market-making or other trading activities.
"Business Day" means any day other than a Legal Holiday.
"Capital Corp." means The Old Evangeline Downs Capital Corp., a Delaware
corporation, and its successors in accordance with the terms of this Indenture,
and not any of its subsidiaries.
"Capital Lease Obligation" means, as to any Person, the obligations of
such Person under a lease that are required to be classified and accounted for
as capital lease obligations under GAAP and the amount of such obligations at
any date shall be the capitalized amount of such obligations at such date,
determined in accordance with GAAP.
"Capital Stock" means, (i) with respect to any Person that is a
corporation, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock, (ii) with respect to a
limited liability company, any and all membership interests, (iii) with respect
to any other Person, any and all partnership or other equity interests of such
Person.
"Cash Equivalent" means (i) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof); (ii) time deposits and
certificates of deposit and commercial paper issued by the parent corporation of
any domestic commercial bank of recognized standing having capital and surplus
in excess of $250,000,000 and commercial paper issued by others rated at least
A-2 or the equivalent thereof by Standard & Poor's Corporation or at least P-2
or the equivalent thereof by Moody's Investors Service, Inc. and in each case
maturing within one year after the date of acquisition; (iii) investments in
money market funds substantially all of whose assets comprise securities of the
type described in clauses (i) and (ii) above and (iv) repurchase obligations for
underlying securities of the types and with the maturities described above.
"Change of Control" means the occurrence of any of the following events:
(i) any merger or consolidation of the Company or PGP with or into any
Person or any sale, transfer or other conveyance, whether direct or indirect, of
all or substantially all of the assets of the Company or PGP, on a consolidated
basis, in one transaction or a series of related transactions, if, immediately
after giving effect to such
4
transaction(s), any "person" or "group" (as such terms are used for purposes of
Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable) (other
than an Excluded Person) is or becomes the "beneficial owner," directly or
indirectly, of more than 50% of the total voting power in the aggregate of the
Voting Stock of the transferee(s) or surviving entity or entities;
(ii) any "person" or "group" (as such terms are used for purposes of
Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable) (other
than an Excluded Person) is or becomes the "beneficial owner," directly or
indirectly, of more than 50% of the total voting power in the aggregate of the
Voting Stock of the Company or PGP;
(iii) after any bona fide underwritten registered public offering of
Capital Stock of the Company, during any period of 24 consecutive months after
the Issue Date, individuals who at the beginning of any such 24-month period
constituted the Managers of the Company (together with any new Managers whose
election by such Managers or whose nomination for election by the Members 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, including new Managers designated in or
provided for in an agreement regarding the merger, consolidation or sale,
transfer or other conveyance, of all or substantially all of the assets of the
Company, if such agreement was approved by a vote of such majority of Managers)
cease for any reason to constitute a majority of the Managers of the Company
then in office, provided, however, that there shall be no Change of Control
pursuant to this clause (iii) if during such 24-month period any of the Excluded
Persons continues to control or manage, directly or indirectly, the day-to-day
operations of the Company;
(iv) the Company adopts a plan of liquidation or dissolution; or
(v) the first day on which the Company fails to own 99% of the issued and
outstanding Equity Interests of Capital Corp.;
provided, that a "Change of Control" shall not occur solely by reason of a
Permitted C-Corp Conversion.
"Clearstream" means Clearstream Banking Luxembourg, Societe Anonyme, or
any successors securities clearing agency.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means all "collateral" referred to in the Security Documents,
which for the avoidance of doubt, shall not include any Excluded Assets.
"Company" means (i) if the Reorganization Transactions have been
consummated, Peninsula Gaming, and its successors in accordance with the terms
of this Indenture, and not any of its subsidiaries, and (ii) if the
Reorganization Transactions have
5
not been consummated, DJL and its successors in accordance with the terms of
this Indenture, and not any of its subsidiaries.
"consolidated" means, with respect to the Company, the consolidation of
the accounts of the Restricted Subsidiaries with those of the Company, all in
accordance with GAAP; provided, that "consolidated" shall not include
consolidation of the accounts of any Unrestricted Subsidiary with the accounts
of the Company.
"Consolidated EBITDA" means, with respect to any Person (the referent
Person) for any period, the sum of Consolidated Net Income of such Person and
the Restricted Subsidiaries for such period, without duplication;
plus (i) consolidated income tax expense of such Person and the Restricted
Subsidiaries paid or accrued in accordance with GAAP for such period and the
amount of Permitted Tax Distributions subtracted from Net Income in the
determination of the Consolidated Net Income of such Person for such period;
plus (ii) Consolidated Interest Expense, to the extent that such
Consolidated Interest Expense was deducted in computing such Consolidated Net
Income;
plus (iii) Consolidated Non-Cash Charges, to the extent deducted in
computing such Consolidated Net Income;
plus (iv) pre-opening costs and expenses, to the extent deducted in
computing such Consolidated Net Income, with respect to any Gaming Property that
was, or is under, construction;
minus (v) (x) extraordinary non-cash charges increasing such Consolidated
Net Income and (y) the amount of all cash payments made by such Person or any of
the Restricted Subsidiaries during such period to the extent such payments
relate to non-cash charges that were added back in determining Consolidated
EBITDA for such period or any prior period;
provided, however, that in determining Consolidated EBITDA with respect to OED
for any period ending on or about: (A) March 31, 2004, Consolidated EBITDA of
OED for such period shall be deemed to be equal to the product of (x)
Consolidated EBITDA of OED for the period from January 1, 2004 to the last day
of such period and (y) 4, (B) June 30, 2004, Consolidated EBITDA of OED for such
period shall be deemed to be equal to the product of (x) Consolidated EBITDA of
OED for the period from January 1, 2004 to the last day of such period and (y)
2, and (C) September 30, 2004, Consolidated EBITDA of OED for such period shall
be deemed to be equal to the product of (x) Consolidated EBITDA of OED for the
period from January 1, 2004 to the last day of such period and (y) 1.333.
"Consolidated Interest Expense" means, with respect to any Person for any
period, (a) the consolidated interest expense of such Person and the Restricted
6
Subsidiaries for such period, net of interest income, whether capitalized, paid,
accrued or scheduled to be paid or accrued (including amortization of original
issue discount, noncash interest payment, the interest component of Capital
Lease Obligations and all commissions, discounts and other fees and charges owed
with respect to bankers' acceptances and letters of credit financings), to the
extent such expense was deducted in computing Consolidated Net Income of such
Person for such period less (b) amortization expense, write-off of deferred
financing costs and any charge related to any premium or penalty paid, in each
case accrued during such period in connection with redeeming or retiring any
Indebtedness before its stated maturity, as determined in accordance with GAAP,
to the extent such expense, cost or charge was included in the calculation made
pursuant to clause (a) above, provided, that any premiums, fees and expenses
(including the amortization thereof) payable in connection with the offering of
the Notes and the application of the net proceeds therefrom or any other
refinancing of Indebtedness shall be excluded.
"Consolidated Net Income" means, with respect to any Person (the referent
Person) for any period, the sum of (a) the aggregate of the Net Income of such
Person and the Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP; provided, that (i) the Net Income of
any other Person (other than a Restricted Subsidiary of the referent Person)
shall be included only to the extent of the amount of dividends or distributions
paid to the referent Person or a Wholly Owned Subsidiary of the referent Person,
and (ii) the Net Income of any Restricted Subsidiary shall not be included to
the extent that declarations of dividends or similar distributions by that
Restricted Subsidiary are not at the time permitted, directly or indirectly, by
operation of the terms of its organizational documents or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Restricted Subsidiary or its owners, and (b) Consolidated
Non-Cash Charges described in clauses (ii) and (iv) of the definition of
"Consolidated Non-Cash Charges," of such Person and the Restricted Subsidiaries
to the extent deducted in computing such Net Income.
"Consolidated Net Worth" means, with respect to any Person, the total
stockholders' (or members') equity of such Person determined on a consolidated
basis in accordance with GAAP, adjusted to exclude (to the extent included in
calculating such stockholders' (or members') equity), (i) the amount of any such
stockholders' (or members') equity attributable to Disqualified Capital Stock or
treasury stock of such Person and its consolidated subsidiaries, and (ii) all
upward revaluations and other write-ups in the book value of any asset of such
Person or a consolidated subsidiary of such Person subsequent to the Issue Date,
and (iii) all Investments in subsidiaries of such Person that are not
consolidated subsidiaries and in Persons that are not subsidiaries of such
Person.
"Consolidated Non-Cash Charges" means, with respect to any Person for any
period, (a) the aggregate depreciation and amortization expense for such Person
and the Restricted Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP and (b) all other non-cash charges of such Person
and the Restricted Subsidiaries for such period, in each case, determined on a
consolidated basis
7
in accordance with GAAP, including, without limitation, non-cash charges related
to (i) Management Arrangements or the pricing or repricing or issuances of
Equity Interests of the Company or PGP to employees of the Company (whether
accruing at or subsequent to the time of such repricing or issuance), (ii)
impairment of goodwill, intangibles or fixed assets, (iii) purchase accounting
adjustments, and (iv) restructuring charges, non-capitalized transaction costs
and other non-cash charges incurred in connection with actual or proposed
financings, acquisitions or divestitures (including, without limitation, the
issuance of the Notes, borrowings under the Senior Credit Facility, refinancing
of the Company's 12 1/4% Senior Secured Notes due 2006 and the OED 13% Senior
Secured Notes due 2010 with Contingent Interest or otherwise) of such Person and
the Restricted Subsidiaries for such period; but, in each case, excluding (x)
any such charges constituting an extraordinary item or loss, and (y) any such
charge which requires an accrual of or a reserve for cash charges for any future
period.
"contractually subordinate" means subordinated in right of payment by its
terms or the terms of any document or instrument or instrument relating thereto.
"Default" means any event that is, or after notice or the passage of time
or both would be, an Event of Default.
"Definitive Note" means one or more certificated Notes registered in the
name of the Holder thereof and issued in accordance with Section 2.6 hereof,
substantially, in the form of Exhibit A hereto except that such Note shall not
include the information called for by footnotes 3 and 4 thereof.
"Depositary" means, with respect to the Notes issuable or issued in whole
or in part in global form, the Person specified in Section 2.3 hereof as the
Depositary with respect to the Notes, until a successor shall have been
appointed and become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" shall mean or include such successor.
"Disqualified Capital Stock" means any Equity Interest that (i) either by
its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable) is or upon the happening of an event would be required
to be redeemed or repurchased prior to the final stated maturity of the Notes or
is redeemable at the option of the holder thereof at any time prior to such
final stated maturity, or (ii) is convertible into or exchangeable at the option
of the issuer thereof or any other Person for debt securities that are pari
passu or senior in respect of payment to the Notes. Notwithstanding the
foregoing, any Equity Interests that would constitute Disqualified Capital Stock
solely because such Equity Interests mature or become mandatorily redeemable, or
give the holders thereof the right to require the Company to repurchase such
Equity Interests, in each case, upon the occurrence of a change of control or an
asset sale shall not constitute Disqualified Capital Stock if the terms of such
Equity Interests provide that the Company may not repurchase or redeem any such
Equity Interests pursuant to such provisions prior to the Company's purchase of
the Notes as are required to be purchased pursuant to the provisions of Section
4.15 and Section 4.13.
8
"Distribution Compliance Period" means the 40-day restricted period as
defined in Regulation S.
"DJL" means Diamond Jo, LLC (formerly named Peninsula Gaming Company,
LLC), a Delaware limited liability company.
"DJL Notes" means the $71,000,000 aggregate principal amount of 12 1/4%
Senior Secured Notes due 2006 issued by DJL and PGC Corp.
"Domestic Restricted Subsidiary" means any Restricted Subsidiary other
than a Foreign Subsidiary.
"Equity Holder" means (a) with respect to a corporation, each holder of
stock of such corporation, (b) with respect to a limited liability company or
similar entity, each member of such limited liability company or similar entity,
(c) with respect to a partnership, each partner of such partnership, (d) with
respect to any entity described in clause (a)(iv) of the definition of "Flow
Through Entity," the owner of such entity, and (e) with respect to a trust
described in clause (a)(v) of the definition of "Flow Through Entity," an owner
thereof.
"Equity Interests" means Capital Stock or warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means (i) an underwritten offering of Qualified Capital
Stock of the Company pursuant to a registration statement filed with and
declared effective by the Commission in accordance with the Securities Act or
(ii) an offering of Qualified Capital Stock of the Company pursuant to an
exemption from the registration requirements of the Securities Act.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the Euroclear
system, or any successor securities clearing agency.
"Event of Loss" means, with respect to any property or asset, any (i)
loss, destruction or damage of such property or asset or (ii) any condemnation,
seizure or taking, by exercise of the power of eminent domain or otherwise, of
such property or asset, or confiscation or requisition of the use of such
property or asset.
"Excess Cash Distribution Amount for Taxes" means the excess of (x) the
aggregate actual cash distributions received by the Company or a Restricted
Subsidiary from all Flow Through Entities that are not Restricted Subsidiaries
of the Company during the period commencing with the Issue Date and continuing
to and including the date on which a proposed Permitted Tax Distribution is to
be made under clause (iii) Section 4.9(b) over (y) the aggregate amount of such
cash distributions described in the immediately preceding clause (x) that have
already been taken into account for purposes of making (I) Permitted Tax
Distributions previously made and which was attributable to a Flow Through
Entity that was not a Restricted Subsidiary at the time such Permitted
9
Tax Distribution was made plus (II) Restricted Payments permitted by clause (1)
or (4) of (iii) (treating such cash distributions described in this clause
(y)(II) as used to make a Restricted Payment in during such period only to the
extent that in such period, the total amount of Restricted Payments actually
made during such period exceeded the excess of (m) the total amount of
Restricted Payments permitted to be made in such period over (n) the amount of
such cash distributions described in the immediately preceding clause (x) that
were actually received by the Company or a Restricted Subsidiary during such
period and that were not previously used to make a Permitted Tax Distribution.
"Exchange Act" means the Securities Exchange Act of 1934, as amended and
the rules and regulations of the SEC promulgated thereunder.
"Exchange Notes" means the Series B Notes, identical in all respects to
the Series A Notes (including with respect to the Subsidiary Guaranties endorsed
thereon, except for references to series and restrictive legends, issued
pursuant to an Exchange Offer.
"Exchange Offer" means an offer that may be made by the Issuers pursuant
to the Registration Rights Agreement to exchange Exchange Notes for Series A
Notes.
"Exchange Offer Registration Statement " shall have the meaning set forth
in the Registration Rights Agreement.
"Excluded Assets" means (i) cash, other than cash deposited in deposit
accounts; (ii)assets securing FF&E Financing, Purchase Money Obligations or
Capital Lease Obligations permitted to be incurred under this Indenture to the
extent acquired or refinanced with the proceeds of such FF&E Financing, Purchase
Money Obligations and Capital Lease Obligations; (iii) all Gaming Licenses; (iv)
any of the parcels of the Warner Land that are subject to the mortgage granted
by OED to the seller of such land, unless OED or the Company has obtained the
consent of such seller to subject such parcels to a Lien under the Security
Documents; (v) any motor vehicles; (vi) any agreements, permits, licenses or the
like that cannot be subject to a Lien under the Security Documents without the
consent of third parties (including any Governmental Authority), which consent
is not obtained by the Issuers; (vii) Equity Interests of each Foreign
Restricted Subsidiary directly owned by the Company or any of the Domestic
Restricted Subsidiaries to the extent that such Equity Interests held by the
Company or such Domestic Restricted Subsidiary, as the case may be, exceed 65%
of the total combined voting power of all classes of voting Equity Interests of
such Foreign Restricted Subsidiary, provided, however, such excess of any class
of Capital Stock of such Foreign Subsidiary shall not be an Excluded Asset to
the extent the Company is able to receive an opinion of counsel nationally
recognized in tax matters to the effect that the pledge of such excess will not
result in an income inclusion under section 951 et. seq. of the Code; and (viii)
OEDA's rights under or in respect of the Management Services Agreement and
proceeds thereof (including fees paid to OEDA pursuant thereto); provided, that
Excluded Assets does not include the proceeds of assets under clause (ii),
(iii), (iv), (v), (vi), (vii) or (viii) or of any other Collateral to the extent
such proceeds do not constitute Excluded Assets.
10
"Excluded Person" means (i) PGP, (ii) PGP Investors, LLC, (iii) M. Brent
Stevens, (iv) Michael S. Luzich, (v) OEDA, (vi) any Affiliate or Manager of PGP,
PGP Investors, LLC, OEDA, M. Brent Stevens or Michael S. Luzich (collectively,
the "Existing Holders"), (vii) any trust, corporation, partnership or other
entity (a) controlled by the Existing Holders and members of the immediate
family of the Existing Holders or (b) 80% of the beneficiaries, stockholders,
partners or owners of which consist solely of the Existing Holders and members
of the immediate family of the Existing Holders or (viii) any partnership the
sole general partners of which consist solely of the Existing Holders and
members of the immediate family of the Existing Holders.
"fair market value" means the price that would be paid in an arm's-length
transaction between an informed and willing seller under no compulsion to sell
and an informed and willing buyer under no compulsion to buy, as determined in
good faith by the Issuers.
"FF&E" means furniture, fixtures and equipment (including Gaming
Equipment) acquired by the Issuers and the Restricted Subsidiaries in the
ordinary course of business for use in the construction and business operations
of the Company or the Restricted Subsidiaries.
"FF&E Financing" means Indebtedness, the proceeds of which are used solely
by the Issuers and the Restricted Subsidiaries (and concurrently with the
incurrence of such Indebtedness) to acquire or lease or improve or refinance,
respectively, FF&E; provided, that (x) the principal amount of such FF&E
Financing does not exceed the cost (including sales and excise taxes,
installation and delivery charges, capitalized interest and other direct fees,
costs and expenses) of the FF&E purchased or leased with the proceeds thereof or
the cost of such improvements, as the case may be, and (y) such FF&E Financing
is secured only by the assets so financed and assets which, immediately prior to
the incurrence of such FF&E Financing, secured other Indebtedness of the Issuers
and the Restricted Subsidiaries (to the extent such other Indebtedness and the
Liens securing such other Indebtedness are permitted under this Indenture) to
the lender of such FF&E Financing.
"Flow Through Entity" means an entity that (a) for Federal income tax
purposes constitutes (i) an "S corporation" (as defined in Section 1361(a) of
the Code), (ii) a "qualified subchapter S subsidiary" (as defined in Section
1361(b)(3)(B) of the Code), (iii) a "partnership" (within the meaning of Section
7701(a)(2) of the Code) other than a "publicly traded partnership" (as defined
in Section 7704 of the Code), (iv) an entity that is disregarded as an entity
separate from its owner under the Code, the Treasury regulations or any
published administrative guidance of the Internal Revenue Service, or (v) a
trust, the income of which is includible in the taxable income of the grantor or
another person under sections 671 through 679 of the Code (the entities
described in the immediately preceding clauses (i), (ii), (iii), (iv) and (v), a
"Federal Flow Through Entity") and (b) for state and local jurisdictions in
respect of which Permitted Tax Distributions are being made, is subject to
treatment on a basis under applicable state or local income tax law
substantially similar to a Federal Flow Through Entity.
11
"Foreign Restricted Subsidiary" means any Restricted Subsidiary that is
also a Foreign Subsidiary.
"Foreign Subsidiary" means any Subsidiary which (i) is not organized under
the laws of the United States, any state thereof or the District of Columbia and
(ii) conducts substantially all of its business operations outside of the United
States of America.
"GAAP" means generally accepted accounting principles, as in effect from
time to time, set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as approved by a significant segment
of the accounting profession, and in the rules and regulations of the
Commission.
"Gaming Authorities" means any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature whatsoever of
the United States Federal government, any foreign government, any state,
province or city or other political subdivision or otherwise, whether now or
hereafter existing, or any officer or official thereof, including, without
limitation, the Iowa Gaming Commission, the Louisiana Gaming Control Board, the
Louisiana State Racing Commission and any other agency, in each case, with
authority to regulate any gaming or racing operation (or proposed gaming or
racing operation) owned, managed or operated by the Company or any of the
Subsidiaries.
"Gaming Equipment" means slot machines, video poker machines, and all
other gaming equipment and related, signage, accessories and peripheral
equipment.
"Gaming FF&E Financing" means FF&E Financing, the proceeds of which are
used solely by the Issuers and the Restricted Subsidiaries to acquire or lease
FF&E that constitutes Gaming Equipment.
"Gaming Licenses" means every material license, material franchise,
material registration, material qualification, findings of suitability or other
material approval or authorization required to own, lease, operate or otherwise
conduct or manage riverboat, dockside or land-based gaming or racing activities
in any state or jurisdiction in which the Company or any of the Restricted
Subsidiaries conducts business (including, without limitation, all such licenses
granted by the Gaming Authorities), and all applicable liquor and tobacco
licenses.
"Gaming Property" means: (i) the Diamond Jo and the Evangeline Downs horse
racetrack and casino, in each case, so long as it is owned by the Company or a
Restricted Subsidiary and (ii) any other gaming facility or gaming operation
owned and controlled or to be owned and controlled after the Issue Date by the
Company or a Restricted Subsidiary and that contains, or that based upon a plan
approved by the Company's Managers shall contain upon the completion of the
construction or development thereof, an aggregate of at least 500 slot machines
or other gaming devices;
12
provided, in each case, that the property and assets (other than Excluded
Assets) of such Gaming Property constitute Collateral.
"Gaming Property Financing" means a financing, in whole or in part, of (x)
the acquisition of any Gaming Property, (y) the construction of any Gaming
Property (but only to the extent that the proceeds of such Indebtedness are used
to acquire land, furniture, fixtures and equipment, prepare the site or
construct improvements thereon) or (z) an investment in any Gaming Property.
"Gaming Vessel" means a riverboat casino (i) which is substantially
similar in size and space to the Diamond Jo, (ii) with at least the same overall
qualities and amenities as the Diamond Jo, and (iii) that is developed,
constructed and equipped to be in compliance with all federal, state and local
laws, including, without limitation, the cruising requirements of Chapter 99F of
the Iowa Code. In the event the laws of the State of Iowa change to permit the
development and operation of additional land-based casinos, the term "Gaming
Vessel" shall be deemed to include a land-based casino meeting the requirements
of clauses (i), (ii) and (iii) above.
"Global Notes" means one or more Notes in the form of Exhibit A hereto
that includes the information referred to in footnotes 3 and 4 to the form of
Note, attached hereto as Exhibit A, issued under this Indenture, that is
deposited with or on behalf of and registered in the name of the Depositary or
its nominee.
"Global Note Legend" means the legend set forth in Section 2.6(g)(ii)
hereof, which is required to be placed on all Global Notes issued under this
Indenture.
"Government Securities" means (i) direct obligations of the United States
of America for the timely payment of which its full faith and credit is pledged
or (ii) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the timely payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case, are not callable or redeemable
at the option of the issuer thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as
custodian with respect to any such Government Security or a specific payment of
principal of or interest on any such Government Security held by such custodian
for the account of the holder of such depository receipt; provided, that (except
as required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the Government Security or the specific
payment of principal of or interest on the Government Security evidenced by such
depository receipt.
"Governmental Authority" means any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature whatsoever of
the United States or foreign government, any state, 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.
13
"guaranty" or "guaranty," used as a noun, means any guaranty (other than
by endorsement of negotiable instruments for collection in the ordinary course
of business), direct or indirect, in any manner (including, without limitation,
letters of credit and reimbursement agreements in respect thereof), of all or
any part of any Indebtedness or other Obligation. "guaranty" or "guaranty" used
as a verb, has a correlative meaning.
"Hedging Obligations" means, with respect to any Person, the Obligations
of such Person under (i) interest rate swap agreements, interest rate cap
agreements, interest rate exchange agreements and interest rate collar
agreements and (ii) other agreements or arrangements designed to protect such
Person against fluctuations in interest rates, including any arrangement
whereby, directly or indirectly, such Person is entitled to receive from time to
time periodic payments calculated by applying either a fixed or floating rate of
interest on a stated notional amount in exchange for periodic payments made by
such Person calculated by applying a fixed or floating rate of interest on the
same notional amount.
"Holder" means the Person in whose name a Note is registered in the
register of the Notes.
"Indebtedness" of any Person means (without duplication) (i) all
liabilities and obligations, contingent or otherwise, of such Person (a) in
respect of borrowed money (regardless of whether the recourse of the lender is
to the whole of the assets of such Person or only to a portion thereof), (b)
evidenced by bonds, debentures, notes or other similar instruments, (c)
representing the deferred purchase price of property or services (other than
trade payables on customary terms incurred in the ordinary course of business),
(d) created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) representing
Capital Lease Obligations, (f) under bankers' acceptance and letter of credit
facilities, (g) to purchase, redeem, retire, defease or otherwise acquire for
value any Disqualified Capital Stock, or (h) in respect of Hedging Obligations;
(ii) all Indebtedness of others that is guaranteed by such Person; and (iii) all
Indebtedness of others that is secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness; provided, that the amount of such
Indebtedness shall (to the extent such Person has not assumed or become liable
for the payment of such Indebtedness) be the lesser of (1) the fair market value
of such property at the time of determination and (2) the amount of such
Indebtedness. The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and the maximum liability, upon the occurrence of the contingency giving
rise to the obligation, of any contingent obligations at such date. The
principal amount outstanding of any Indebtedness issued with original issue
discount is the accreted value of such Indebtedness.
14
"Indenture" means this Indenture, as amended or supplemented from time to
time in accordance with the terms hereof.
"Indirect Participant" means an entity that, with respect to DTC, clears
through or maintains a direct or indirect, custodial relationship with a
Participant.
"Initial Purchaser" mean the initial purchaser of the Series A Notes under
the Purchase Agreement, dated March 25, 2004, with respect to the Series A
Notes.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who is not also a QIB.
"Intercreditor Agreement" means that Intercreditor Agreement among the
Trustee, Wells Fargo Foothill, Inc. and acknowledgd by one or more of the
Issuers and the Subsidiary Guarantors, including any amended or supplemented
agreement or any replacement or substitute agreement in accordance with this
Indenture, in each case substantially in the form of Exhibit F attached hereto.
"Interest" means the interest payable on the Notes.
"Interest Coverage Ratio" means, for any period, the ratio of (i)
Consolidated EBITDA of the Company for such period, to (ii) Consolidated
Interest Expense of the Company for such period. In calculating Interest
Coverage Ratio for any period, (a) pro forma effect shall be given to the
incurrence, repayment or retirement by the Company or any of the Restricted
Subsidiaries of any Indebtedness (other than Indebtedness incurred in the
ordinary course of business for general corporate purposes pursuant to working
capital facilities) subsequent to the commencement of the period for which the
Interest Coverage Ratio is being calculated, as if the same had occurred at the
beginning of the applicable period; (b) acquisitions that have been made by the
Company or any of the Restricted Subsidiaries, including all mergers and
consolidations, subsequent to the commencement of such period shall be
calculated on a pro forma basis, assuming that all such acquisitions, mergers
and consolidations had occurred on the first day of such period, including
giving effect to reductions in costs for such period that are directly
attributable to the elimination of duplicative functions and expenses
(regardless of whether such cost savings could then be reflected in pro forma
financial statements under GAAP, Regulation S X promulgated by the SEC or any
other regulation or policy of the SEC) as a result of such acquisition, merger
or consolidation, provided that (x) such cost savings were identified and
quantified in an Officers' Certificate delivered to the Trustee at the time of
the consummation of such acquisition, merger or consolidation and such Officers'
Certificate states that such officers believe in good faith that actions shall
be commenced or initiated within 90 days of the consummation of such
acquisition, merger or consolidation to effect such cost savings and sets forth
the specific steps to be taken within the 90 days after such acquisition, merger
or consolidation to accomplish such cost savings, and (y) with respect to each
acquisition, merger or consolidation completed prior to the 90th day preceding
such date of determination, actions were commenced or initiated by the Company
or any of its Restricted Subsidiaries within 90
15
days of such acquisition, merger or consolidation to effect the cost savings
identified in such Officers' Certificate (regardless, however, of whether the
corresponding cost savings have been achieved). Without limiting the foregoing,
the financial information of the Company with respect to any portion of such
period that falls before the Issue Date shall be adjusted to give pro forma
effect to the issuance of the Notes and the application of the proceeds
therefrom as if they had occurred at the beginning of such period.
"Interest Payment Date" means the stated due date of an installment of
Interest on the Notes.
"Interest Record Date" means a Interest Record Date specified in the
Notes, whether or not such date is a Business Day.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of loans,
guarantees, advances or capital contributions (excluding (i), payroll
commission, travel and similar advances to officers and employees of such Person
made in the ordinary course of business and (ii) bona fide accounts receivable
arising from the sale of goods or services in the ordinary course of business
consistent with past practice), purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities, and any
other items that are or would be classified as investments on a balance sheet
prepared in accordance with GAAP.
"Iowa Code" means the Code of Iowa (2003), as amended from time to time.
"Iowa Gaming Commission" means the Iowa Racing and Gaming Commission, or
any successor Gaming Authority.
"Issue Date" means the date of first issuance of the Notes under this
Indenture.
"Issuers" means (i) if the Reorganization Transactions have been
consummated, Peninsula Gaming, DJL and Capital Corp. and their respective
successors in accordance with the terms of this Indenture, and not any of their
respective subsidiaries and (ii) if the Reorganization Transactions have not
been consummated, DJL and Capital Corp. and their respective successors in
accordance with the terms of this Indenture, and not any of their respective
subsidiaries.
"Legal Holiday" means a Saturday, Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed.
"Letter of Transmittal" means the letter of transmittal to be prepared by
the Issuers and sent to all Holders of the Notes for use by such Holders in
connection with the Exchange Offer.
16
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, regardless of whether
filed, recorded or otherwise perfected under applicable law (including any
conditional sale or other title retention agreement, any lease in the nature
thereof, any option or other agreement to sell or give a security interest in
and any filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction).
"Liquidated Damages" means all liquidated damages then owing pursuant to
the Registration Rights Agreement.
"Management Arrangements" means profits interests grants or similar equity
interest arrangements, employment agreements, consulting agreements, management
agreements and other similar arrangements between the Company or any of its
Affiliates and any manager, officer, member or employee thereof or consultant
thereto and such or similar agreements as may be modified, supplemented,
amended, entered into or restated from time to time consistent with industry
practice and approved by the Managers of PGP or the Company, provided that the
aggregate amount of payments made to an Excluded Person (other than the Company
or any of the Restricted Subsidiaries) pursuant to any such equity interest,
employment, consulting, management or similar agreements or arrangements for any
fiscal year shall not exceed 4.0% of the Consolidated EBITDA of the Company for
the immediately preceding fiscal year.
"Management Services Agreement" means the Amended and Restated Management
Services Agreement, dated as of February 25, 2003, by and among DJL, OEDA and
OED, as in effect on the Issue Date, without giving effect to any amendment or
supplement thereto or modification thereof, except to the extent that such
amendment, supplement or modification would otherwise have been permitted under
Section 4.12 if OEDA were not a Restricted Subsidiary.
"Managers" means, with respect to any Person (i) if such Person is a
limited liability company, the board member, board members, manager or managers
appointed pursuant to the operating agreement of such Person as then in effect
or (ii) otherwise, the members of the board of directors or other governing body
of such Person.
"Members" means the holders of all of the Voting Stock of the Company.
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Mortgages" means those mortgages dated the dated hereof granting the
Trustee an interest in all of the Issuers' real property Collateral.
"Net Income" means, with respect to any Person for any period, (a) the net
income (or loss) of such Person for such period, determined in accordance with
GAAP, excluding (to the extent included in calculating such net income) (i) any
gain or loss, together with any related taxes paid or accrued on such gain or
loss, realized in
17
connection with any Asset Sales and dispositions pursuant to sale-leaseback
transactions and (ii) any extraordinary gain or loss, together with any taxes
paid or accrued on such gain or loss, reduced by (b) the maximum amount of
Permitted Tax Distributions attributable to such net income for such period.
"Net Proceeds" means the aggregate proceeds received in the form of cash
or Cash Equivalents in respect of any Asset Sale (including issuance or other
payments in an Event of Loss and payments in respect of deferred payment
obligations and any cash or Cash Equivalents received upon the sale or
disposition of any non-cash consideration received in any Asset Sale, in each
case when received), net of:
(i) the reasonable and customary direct out-of-pocket costs relating to
such Asset Sale (including, without limitation, legal, accounting and investment
banking fees and sales commissions), other than any such costs payable to an
Affiliate of the Company,
(ii) taxes required to be paid by the Company, any of the Subsidiaries, or
any Equity Holder of the Company (or, in the case of any Company Equity Holder
that is a Flow Through Entity, the Upper Tier Equity Holder of such Flow Through
Entity) in connection with such Asset Sale in the taxable year that such sale is
consummated or in the immediately succeeding taxable year, the computation of
which shall take into account the reduction in tax liability resulting from any
available operating losses and net operating loss carryovers, tax credits and
tax credit carryforwards, and similar tax attributes,
(iii) amounts required to be applied to the permanent repayment of
Indebtedness in connection with such Asset Sale, and
(iv) appropriate amounts provided as a reserve by the Company or any
Restricted Subsidiary, in accordance with GAAP, against any liabilities
associated with such Asset Sale and retained by the Company or such Restricted
Subsidiary, as the case may be, after such Asset Sale (including, without
limitation, as applicable, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under
any indemnification obligations arising from such Asset Sale).
"Non-U.S. Person" means any Person other than a U.S. Person.
"Notes Custodian" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"Obligation" means any principal, premium, interest, penalty, fee,
indemnification, reimbursement, damage (including, without limitation,
liquidated damages) and other obligation and liability payable under the
documentation governing any liability.
"OED" means The Old Evangeline Downs, L.L.C., a Louisiana limited
liability company.
18
"OED 13% Senior Secured Notes due 2010" means the 13% Senior Secured Notes
due 2010 with Contingent Interest issued under the OED Indenture.
"OED Indenture" means that certain Indenture, dated as of February 25,
2003, among OED, Capital Corp., the Guarantors (as defined therein) and U.S.
Bank National Association, as trustee.
"OEDA" means OED Acquisition, LLC, a Delaware limited liability company.
"Offering" means the offering of the Notes by the Issuers.
"Offering Circular" means that offering circular of the Issuers, dated
March 31, 2004, without giving effect to any amendment or supplement thereto or
modification thereof.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary, any Assistant Secretary or any Vice President of such Person or
any other Person designated by the Managers of such Person and serving in a
similar capacity.
"Officers' Certificate" means a certificate signed on behalf of the
Company and Capital by two Officers of each of the Company and Capital, in each
case, one of whom must be the Manager, Chairman of the Board, President, Chief
Executive Officer, Chief Financial Officer, Treasurer, Controller or a Senior or
Executive Vice President of the Company and Capital, respectively.
"Opinion of Counsel" means an opinion from legal counsel who is reasonably
acceptable to the Trustee. Such counsel may be an employee of or counsel to any
of the Issuers, any Subsidiary of any of the Issuers or the Trustee.
"OTB Operations" means all of the assets and properties of the Company and
its subsidiaries (including, but not limited to, all Gaming Licenses) related to
the business operation of any off-track betting parlor or similar facility
operated or owned by the Company or such subsidiary.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
"Peninsula Gaming" means Peninsula Gaming, LLC, a Delaware limited
liability company.
"Permitted C-Corp Conversion" means a transaction resulting in the Company
becoming subject to tax under the Code as a corporation (a "C Corporation");
provided, that:
19
(1) the C Corporation resulting from such transaction, if a successor to
Peninsula Gaming, LLC, (a) is a corporation, limited liability company or other
entity organized and existing under the laws of any state of the United States
or the District of Columbia, (b) assumes all of the obligations of the Company
under the Notes, the Security Documents and this Indenture pursuant to a
supplemental indenture in form reasonably satisfactory to the Trustee and (c)
shall have Consolidated Net Worth immediately after the transaction equal to or
greater than the Consolidated Net Worth of the Company immediately preceding the
transaction;
(2) after giving effect to such transaction no Default or Event of Default
exists;
(3) prior to the consummation of such transaction, the Company shall have
delivered to the Trustee (a) an Opinion of Counsel to the effect that the
Holders shall not recognize income gain or loss for Federal income tax purposes
as a result of such Permitted C-Corp Conversion and shall be subject to Federal
income tax on the same amounts, in the same manner, and at the same times as
would have been the case if such Permitted C-Corp Conversion had not occurred
and (b) an Officers' Certificate as to compliance with all of the conditions set
forth in clauses (1), (2) and (3)(a) above; and
(4) such transaction would not (a) result in the loss or suspension or
material impairment of any Gaming License unless a comparable replacement Gaming
License is effective prior to or simultaneously with such loss, suspension or
material impairment or (b) require any Holder or beneficial owner of Notes to
obtain a Gaming License or be qualified or found suitable under any applicable
gaming or racing laws.
"Permitted Investments" means:
(i) Investments in the Company or in any Wholly Owned Subsidiary;
(ii) Investments in Cash Equivalents;
(iii) Investments in a Person, if, as a result of such Investment, such
Person (a) becomes a Wholly Owned Subsidiary, or (b) is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Wholly Owned Subsidiary;
(iv) Hedging Obligations;
(v) Investments as a result of consideration received in connection with
an Asset Sale made in compliance with Section 4.13;
(vi) Investments existing on the Issue Date;
(vii) Investments paid for solely with Capital Stock (other than
Disqualified Capital Stock) of the Company;
20
(viii) credit extensions to gaming customers in the ordinary course of
business, consistent with industry practice;
(ix) stock, obligations or securities received in settlement of debts
created in the ordinary course of business and owing to the Company (a) in
satisfaction of judgments or (b) pursuant to any plan of reorganization or
similar arrangement upon the bankruptcy or insolvency of trade creditors or
customers; and
(x) loans or other advances to employees of the Company and the
Subsidiaries made in the ordinary course of business in an aggregate amount not
to exceed $500,000 at any one time outstanding;
(xi) intercompany Indebtedness incurred pursuant to clause (v) of Section
4.7(b);
(xii) Investments in the Notes or any Additional Notes;
(xiii) Investments not otherwise permitted by clauses (i) through (xii)
above, not to exceed $10,000,000.
"Permitted Liens" means:
(i) Liens securing Indebtedness of the Company or any of the Restricted
Subsidiaries incurred pursuant to clause (i) of Section 4.7(b);
(ii) Liens arising by reason of any judgment, decree or order of any court
for an amount and for a period not resulting in an event of default with respect
thereto, so long as such Lien is being contested in good faith and is adequately
bonded, and any appropriate legal proceedings that may have been duly initiated
for the review of such judgment, decree or order shall not have been finally
adversely terminated or the period within which such proceedings may be
initiated shall not have expired;
(iii) security for the performance of bids, tenders, trade, contracts
(other than contracts for the payment of borrowed money) or leases, surety and
appeal bonds, performance and return-of-money bonds and other obligations of a
like nature incurred in the ordinary course of business, consistent with
industry practice;
(iv) Liens for taxes, assessments or other governmental charges either (a)
not yet delinquent or (b) that are being contested in good faith and by
appropriate proceedings if adequate reserves with respect thereto are maintained
on the books of the Company or the Restricted Subsidiaries in accordance with
GAAP;
(v) Liens of carriers, warehousemen, mechanics, landlords, materialmen,
suppliers, repairmen or other like Liens arising by operation of law in the
ordinary course of business consistent with industry practices and Liens on
deposits made to obtain the release of such Liens if (a) the underlying
obligations are not overdue for a period of more than 30 days or (b) such Liens
are being contested in good faith and by
21
appropriate proceedings and adequate reserves with respect thereto are
maintained on the books of the Company or the Restricted Subsidiaries in
accordance with GAAP;
(vi) easements, rights of way, zoning and similar restrictions and other
similar encumbrances or title defects incurred in the ordinary course of
business, and that do not materially detract from the value of the property
subject thereto (as such property is used by the Company or a Restricted
Subsidiary) or materially interfere with the ordinary conduct of the business of
the Company or any of the Restricted Subsidiaries;
(vii) Liens incurred or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other types
of social security legislation or otherwise arising from statutory or regulatory
requirements of the Company or any of the Restricted Subsidiaries;
(viii) Liens securing Refinancing Indebtedness incurred in compliance with
this Indenture to refinance Indebtedness secured by Liens; provided, (a) such
Liens do not extend to any additional property or assets; (b) if the Liens
securing the Indebtedness being refinanced were subordinated to or pari passu
with the Liens securing the Notes, the Subsidiary Guaranties or any intercompany
loan, as applicable, such new Liens are subordinated to or pari passu with such
Liens to the same extent, and any related subordination or intercreditor
agreement is confirmed; and (c) such Liens are no more adverse to the interests
of Holders than the Liens replaced or extended thereby;
(ix) Liens that secure Acquired Debt or Liens on property of a Person
existing at the time such Person is merged into or consolidated with, or such
property was acquired by, the Company or any Restricted Subsidiary; provided,
that such Liens do not extend to or cover any other property or assets and were
not put in place in anticipation of such acquisition, merger or consolidation;
(x) any interest or title of a lessor under any Capital Lease Obligation
or operating lease; provided that such Liens do not extend to any property or
assets which are not leased property subject to such Capital Lease Obligation or
operating lease;
(xi) Liens that secure Purchase Money Obligations, Capital Lease
Obligations or FF&E Financing permitted to be incurred under this Indenture;
provided that such Liens do not extend to or cover any property or assets other
than those being acquired, leased or developed and property and assets which,
immediately prior to the incurrence of such Purchase Money Obligations, Capital
Lease Obligations or FF&E Financing, secured other Indebtedness of the Issuers
and the Restricted Subsidiaries (to the extent such other Indebtedness and the
Liens securing such other Indebtedness are permitted under this Indenture) to
the lender of such Purchase Money Obligations, Capital Lease Obligations or FF&E
Financing;
(xii) whether or not existing on the Issue Date, Liens securing
Obligations under this Indenture, the Notes, the Subsidiary Guaranties or the
Security Documents;
22
(xiii) with respect to any vessel included in the Collateral, certain
maritime liens, including liens for crew's wages and salvage;
(xiv) Liens in favor of the Company or any Subsidiary Guarantor, in which
a security interest has been granted to the Trustee to secure the payment of the
Notes or a Subsidiary Guaranty, respectively;
(xv) Liens arising from precautionary Uniform Commercial Code financing
statement filings regarding operating leases entered into by the Company or any
of the Subsidiaries in the ordinary course of business;
(xvi) Liens incurred in the ordinary course of business securing Hedging
Obligations, which Hedging Obligations relate to Indebtedness that is otherwise
permitted under this Indenture;
(xvii) Liens existing on the Issue Date to the extent and in the manner
such Liens are in effect on the Issue Date;
(xviii) Liens on a pledge of the Capital Stock of any Unrestricted
Subsidiary securing any Indebtedness of such Unrestricted Subsidiary;
(xix) leases or subleases granted to others not interfering in any
material respect with the business of the Company or any of the Restricted
Subsidiaries or materially detracting from the value of the relative assets of
the Company or any Restricted Subsidiary;
(xx) Liens securing reimbursement obligations with respect to commercial
letters of credit that encumber documents and other property relating to such
letters of credit and the products and proceeds thereof;
(xxi) Liens securing intercompany Indebtedness incurred pursuant to clause
(v) of Section 4.7(b);
(xxii) Liens securing guarantees by Subsidiary Guarantors of Indebtedness
issued by the Company if such guarantees are permitted by Section 4.7;
(xxiii) Liens upon specific items of inventory or other goods and proceeds
of any Person securing such Person's obligations in respect of bankers'
acceptances issued or created for the account of such Person to facilitate the
purchase, shipment or storage of such inventory or other goods; and
(xxiv) Liens securing Indebtedness of the Company or any of the Restricted
Subsidiaries incurred pursuant to clause (xiii) of Section 4.7(b); provided that
(a) such Liens do not extend to or cover any property or assets other than those
of the Gaming Property being acquired and (b) such Liens are contractually
subordinated to the Liens securing the Senior Credit Facility, the Notes and the
Subsidiary Guaranties.
23
"Permitted Tax Distributions" in respect of the Company means, with
respect to any taxable year or portion thereof in which the Company is a Flow
Through Entity, the sum of: (i) the product of (a) the excess of (1) all items
of taxable income or gain (other than capital gain) of the Company for such year
or portion thereof over (2) all items of taxable deduction or loss (other than
capital loss) of the Company for such year or portion thereof and (b) the
Applicable Income Tax Rate, plus (ii) the product of (a) the net capital gain
(i.e., net long-term capital gain over net short-term capital loss), if any, of
the Company for such year or portion thereof and (b) the Applicable Capital Gain
Tax Rate, plus (iii) the product of (a) the net short-term capital gain (i.e.,
net short-term capital gain in excess of net long-term capital loss), if any, of
the Company for such year or portion thereof and (b) the Applicable Income Tax
Rate, minus (iv) the aggregate Tax Loss Benefit Amount for the Company for such
year or portion thereof; provided, that in no event shall the Applicable Income
Tax Rate or the Applicable Capital Gain Tax Rate exceed the greater of (i) the
greater of (a) the highest aggregate applicable effective marginal rate of
Federal, state, and local income tax to which a corporation doing business in
the state of California and (b) the highest aggregate applicable effective
marginal rate of Federal, state, and local income tax to which a corporation
doing business in the state of Louisiana, would be subject to in the relevant
year of determination (as certified to the Trustee by a nationally recognized
tax accounting firm) plus 5% and (ii) 60%. For purposes of calculating the
amount of the Permitted Tax Distributions the items of taxable income, gain,
deduction or loss (including capital gain or loss) of any Flow Through Entity of
which the Company is treated for Federal income tax purposes as a member (but
only for periods for which such Flow Through Entity is treated as a Flow Through
Entity), which items of income, gain, deduction or loss are allocated to or
otherwise treated as items of income, gain, deduction or loss of the Company for
Federal income tax purposes, shall be included in determining the taxable
income, gain, deduction or loss (including capital gain or loss) of the Company.
Estimated tax distributions may be made within thirty days following March
15, May 15, August 15, and December 15 based upon an estimate of the excess of
(x) the tax distributions that would be payable for the period beginning on
January 1 of such year and ending on March 31, May 31, August 31, and December
31 if such period were a taxable year (computed as provided above) over (y)
distributions attributable to all prior periods during such taxable year.
The amount of the Permitted Tax Distribution for a taxable year shall be
re-computed promptly after (i) the filing by the Company and each subsidiary of
the Company that is treated as a Flow Through Entity of their respective annual
income tax returns and (ii) an appropriate Federal or state taxing authority
finally determines that the amount of the items of taxable income, gain,
deduction, or loss of the Company or any such subsidiary that is treated as a
Flow Through Entity for such taxable year or the aggregate Tax Loss Benefit
Amount carried forward to such taxable year should be adjusted (each of clauses
(i) and (ii) a "Tax Calculation Event"). To the extent that the Permitted Tax
Distributions previously distributed in respect of any taxable year are either
greater than (a "Tax Distribution Overage") or less than (a "Tax Distribution
Shortfall") the Permitted Tax Distributions with respect to such taxable year,
as
24
determined by reference to the computation of the amount of the items of income,
gain, deduction, or loss of the Company and each such subsidiary in connection
with a Tax Calculation Event, the amount of the estimated Permitted Tax
Distributions that may be made on the estimated tax distribution date
immediately following such Tax Calculation Event shall be reduced or increased
as appropriate to the extent of the Tax Distribution Overage or the Tax
Distribution Shortfall. To the extent that a Tax Distribution Overage remains
after the estimated tax distribution date immediately following such Tax
Calculation Event, the amount of the estimated Permitted Tax Distribution that
may be made on the subsequent estimated tax distribution date shall be reduced
to the extent of such Tax Distribution Overage.
Prior to making any Permitted Tax Distributions, the Company shall require
each Equity Holder to agree that promptly after the second estimated tax
distribution date following a Tax Calculation Event, such Equity Holder shall
reimburse the Company to the extent of its pro rata share (based on the portion
of Permitted Tax Distributions distributed to such Equity Holder for the taxable
year) of any remaining Tax Distribution Overage.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof, or any other entity.
"PGC Corp." means Peninsula Gaming Corporation, a Delaware corporation and
a co-obligor of the DJL Notes.
"PGP" means Peninsula Gaming Partners, LLC, a Delaware limited liability
company, the direct parent and sole manager of the Company, and the indirect
parent of Capital Corp.
"Private Placement Legend" means the legend set forth in Section
2.6(g)(i)(A) hereof to be placed on all Notes issued under this Indenture except
where specifically stated otherwise by the provisions of this Indenture.
"Pro Forma" or "pro forma" shall have the meaning set forth in Regulation
S-X of the Securities Act, unless otherwise specifically stated herein.
"Purchase Money Obligations" means Indebtedness representing, or incurred
to finance (or to Refinance Indebtedness incurred to finance), the cost (i) of
acquiring any assets (including FF&E) and (ii) of construction or build-out of
facilities (including Purchase Money Obligations of any other Person at the time
such other Person is merged with or into or is otherwise acquired by the
Issuers); provided, that (a) the principal amount of such Indebtedness does not
exceed 75% of such cost, including construction charges, (b) any Lien securing
such Indebtedness does not extend to or cover any other asset or property other
than the asset or property being so acquired, constructed or built and assets
which, immediately prior to the incurrence of such Purchase Money Obligations,
secured other Indebtedness of the Issuers and the Restricted Subsidiaries (to
the extent such other Indebtedness and the Liens securing such other
Indebtedness are
25
permitted under this Indenture) to the lender of such Purchase Money
Obligations, and (c) such Indebtedness is (or the Indebtedness being Refinanced
was) incurred, and any Liens with respect thereto are granted, within 180 days
of the acquisition or commencement of construction or build-out of such property
or asset.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Qualified Capital Stock" means, with respect to any Person, Capital Stock
of such Person other than Disqualified Capital Stock.
"Reg S Permanent Global Note" means one or more permanent Global Notes
bearing the Private Placement Legend, that shall be issued in an aggregate
amount of denominations equal in total to the outstanding principal amount of
the Reg S Temporary Global Note upon expiration of the Distribution Compliance
Period.
"Reg S Temporary Global Note" means one or more temporary Global Notes
bearing the Private Placement Legend and the Reg S Temporary Global Note Legend,
issued in an aggregate amount of denominations equal in total to the outstanding
principal amount of the Notes initially sold in reliance on Rule 903 of
Regulation S.
"Reg S Temporary Global Note Legend" means the legend set forth in Section
2.6(g)(iii) hereof, which is required to be placed on all Reg S Temporary Global
Notes issued under this Indenture.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of the Issue Date, by and among the Issuers and the other parties named
on the signature pages thereof, as such agreement may be amended, modified or
supplemented from time to time.
"Regulation S" means Regulation S promulgated under the Securities Act, as
it may be amended from time to time, and any successor provision thereto.
"Regulation S Global Note" means a Reg S Temporary Global Note or a Reg S
Permanent Global Note, as the case may be.
"Related Business" means any business in which PGP, the Company or any
Subsidiary of the Company was engaged on the Issue Date and any and all other
businesses that in the good faith judgment of the Managers of the Company are
similar, related, ancillary or complementary to such business, including, but
not limited to, the entertainment and hotel businesses and food and beverage
distribution operations.
"Related Person" means any Person who controls, is controlled by or is
under common control with an Excluded Person; provided, that for purposes of
this definition "control" means the beneficial ownership of more than 50% of the
total voting power of the Voting Stock of a Person.
"Reorganization Transactions" means the following transactions, satisfying
all of the following requirements:
26
(a) the transfer or contribution by PGP of all of the Equity Interests of
DJL to Peninsula Gaming, provided that:
(1) immediately prior to such transfer or contribution, Peninsula
Gaming is a wholly owned subsidiary of PGP and does not hold any assets, is not
liable for any obligations and has not previously engaged in any business
activities;
(2) concurrently with such transfer or contribution, Peninsula
Gaming executes (w) a supplemental indenture, in substantially the form attached
as Exhibit G to this Indenture, pursuant to which Peninsula Gaming becomes a
party to this Indenture and an "Issuer" for all purposes under the Notes, this
Indenture, the Security Documents, the Intercreditor Agreement and the
Registration Rights Agreement and liable for all Obligations of an "Issuer"
thereunder, (x) a joinder to each of the Purchase Agreement, the Registration
Rights Agreement and the Intercreditor Agreement, in substantially the form
attached as an exhibit thereto, (y) a supplement to the applicable Security
Documents, in substantially the form attached as an exhibit thereto, and (z)
such other documents as may be necessary to reflect the Peninsula Gaming
becoming an "Issuer" of the Notes; and
(3) immediately after giving effect to such transfer or
contribution, DJL is a direct, Wholly Owned Subsidiary of Peninsula Gaming, a
Restricted Subsidiary and a co-Issuer of the Notes;
(b) following the transfer or contribution described in paragraph (a)
above, Peninsula Gaming causing each of its Wholly Owned Subsidiaries to
transfer or distribute all of the Equity Interests of OED Corp. to Peninsula
Gaming, with the result that immediately after giving effect to such transfer or
distribution, OED Corp. is a direct, wholly owned subsidiary of Peninsula Gaming
and remains a co-Issuer of the Notes;
(c) following the transfer or distribution described in paragraph (b)
above, Peninsula Gaming causing each of its Wholly Owned Subsidiaries to
transfer or distribute all of the Equity Interests of OED to Peninsula Gaming,
with the result that:
(1) OED shall remain a Subsidiary Guarantor, notwithstanding the
provisions of this Indenture governing the release of Subsidiary Guarantors upon
their sale or disposition; and
(2) immediately after giving effect to such transfer or
distribution, OED is a direct, wholly owned subsidiary of Peninsula Gaming, a
Subsidiary Guarantor and a Restricted Subsidiary;
(d) following the transfer or distribution described in paragraph (c)
above, the designation of OEDA as an Unrestricted Subsidiary, and Peninsula
Gaming causing its Wholly Owned Subsidiary DJL, to transfer or distribute all of
the Equity Interests of OEDA to PGP with the result that OEDA becomes a sister
entity to Peninsula Gaming; provided, however, that the transactions described
in this paragraph (d) shall be excluded from the definition of an Asset Sale, an
Affiliate Transaction or a Restricted
27
Payment and shall not be subject to any covenant in this Indenture to the
extent, and only to the extent, that such transactions could have been
consummated on the Issue Date prior to issuance of the Notes, assuming that the
requisite regulatory approvals had been obtained prior to the Issue Date, and
assuming that the transfer or distribution described in paragraph (c) above had
occurred prior to the transactions described in this paragraph (d) (it being
understood and agreed, for the avoidance of doubt, that no such transaction that
could have been consummated on the Issue Date could have included any assets
acquired by OEDA subsequent to the Issue Date (other than as a result of the
Management Services Agreement)); and
(e) the liquidation or dissolution of PGC Corp.; provided, that (i) none
of the DJL Notes are outstanding and (ii) PGC Corp. does not hold any assets, is
not liable for any obligations and has not engaged in any business activities
other than being a co-obligor of the DJL Notes;
provided further that (i) immediately prior to the foregoing transactions, no
Event of Default exists, and (ii) the foregoing transactions would not result in
the loss or suspension or material impairment of any Gaming License unless a
comparable replacement Gaming License is effective prior to or simultaneously
with such loss, suspension or material impairment.
For the avoidance of doubt, an agreement or arrangement shall not cease to
constitute an agreement or arrangement "as in effect on the Issue Date" solely
because Peninsula Gaming has been substituted for DJL or OED as a party thereto,
or has otherwise become a party thereto, in each case solely as a result of or
in connection with the Reorganization Transactions.
"Requisite Regulatory Approvals" means the approvals by the Louisiana
Gaming Control Board, the Louisiana Racing Commission and the Iowa Gaming
Control Board.
"Required Regulatory Redemption" means a redemption by the Issuers of any
Holder's Notes pursuant to, and in accordance with, any order of any
Governmental Authority with appropriate jurisdiction and authority relating to a
Gaming License, or to the extent necessary in the reasonable, good faith
judgment of the Managers of the Company to prevent the loss, failure to obtain
or material impairment or to secure the reinstatement of, any Gaming License,
where such redemption or acquisition is required because the Holder or
beneficial owner of Notes is required to be found suitable or to otherwise
qualify under any gaming or similar laws and is not found suitable or so
qualified within 30 days after being requested to do so (or such lesser period
that may be required by any Governmental Authority).
"Responsible Officer" shall mean, when used with respect to the Trustee,
any officer within the corporate trust department of the Trustee, including any
vice president, assistant vice president, assistant treasurer, trust officer or
any other officer of the Trustee who customarily performs functions similar to
those performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate
28
trust matter is referred because of such person's knowledge of and familiarity
with the particular subject.
"Restricted Definitive Note" means one or more Definitive Notes bearing
the Private Placement Legend, issued under this Indenture.
"Restricted Global Note" means one or more Global Notes bearing the
Private Placement Legend, issued under this Indenture; provided, that in no case
shall an Exchange Note issued in accordance with this Indenture and the terms of
the Registration Rights Agreement be a Restricted Global Note.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Payments" means:
(i) any dividend or other distribution declared or paid on account of any
Equity Interests of the Company or any of the Restricted Subsidiaries or any
other payment to any Excluded Person of Affiliate thereof (other than, in each
case, (a) dividends or distributions payable in Equity Interests (other than
Disqualified Capital Stock) of the Company or (b) amounts payable to the Company
or any Restricted Subsidiary);
(ii) any payment to purchase, redeem or otherwise acquire or retire for
value any Equity Interest of the Company, any Restricted Subsidiary or any other
Affiliate of the Company (other than any such Equity Interest owned by the
Company or any Restricted Subsidiary);
(iii) any principal payment on, or purchase, redemption, defeasance or
other acquisition or retirement for value of, any Indebtedness of the Company or
any Subsidiary Guarantor that is contractually subordinated in right of payment
to the Notes or such Subsidiary Guarantor's Subsidiary Guaranty thereof, as the
case may be, prior to any scheduled principal payment, sinking fund payment or
other payment at the stated maturity thereof; or
(iv) any Restricted Investment.
"Restricted Subsidiary" means any Subsidiary which at the time of
determination is not an Unrestricted Subsidiary.
"Return from Unrestricted Subsidiaries" means (a) 50% of any dividends or
distributions received by the Company or a Restricted Subsidiary from an
Unrestricted Subsidiary, to the extent that such dividends or distributions were
not otherwise included in Consolidated Net Income of the Company, plus (b) to
the extent not otherwise included in Consolidated Net Income of the Company, an
amount equal to the net reduction in Investments in Unrestricted Subsidiaries
resulting from (i) repayments of the principal of loans or advances or other
transfers of assets to the Company or any Restricted Subsidiary from
Unrestricted Subsidiaries or (ii) the sale or liquidation of any
29
Unrestricted Subsidiaries, plus (c) to the extent that any Unrestricted
Subsidiary of the Company is designated to be a Restricted Subsidiary, the fair
market value of the Company's Investment in such Subsidiary on the date of such
designation.
"Rule 144" means Rule 144 promulgated under the Securities Act, as it may
be amended from time to time, and any successor provision thereto.
"Rule 144A" means Rule 144A promulgated under the Securities Act, as it
may be amended from time to time, and any successor provision thereto.
"SEC" means the United States Securities and Exchange Commission, or any
successor agency.
"Secured Party" means the Trustee, acting as collateral agent under the
Security Documents.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Security Agreement" means that agreement dated the date hereof granting a
security interest in the Collateral from the Issuers (and any future Subsidiary
Guarantors) in favor of the Trustee.
"Security Documents" means, collectively, the Security Agreement, the
Mortgages and all mortgages, deeds of trust, security agreements, pledge
agreements, control agreements, collateral assignment agreements and other
agreements, instruments, financing statements and other documents evidencing,
creating, setting forth or limiting any Lien on Collateral in favor of the
Trustee (or, in the case of mortgages, deeds of trust or similar agreements, in
favor of the Trustee or another trustee thereunder), for the benefit of the
Holders.
"Seller Preferred" means $4,000,000 face amount of DJL's redeemable
preferred membership interests held by Greater Dubuque Riverboat Entertainment
Company, L.C. on the Issue Date (without giving effect to any amendment or
supplement thereto or modification thereof, except for any such amendment,
supplement or modification that is not more disadvantageous to the Holders in
any material respect than the original terms thereof as in effect on the Issue
Date).
"Senior Credit Facility" means any one or more revolving credit agreements
or similar instruments, including, without limitation, working capital,
construction financing or equipment purchase lines of credit, entered into by
the Company or any of the Restricted Subsidiaries governing the terms of a bona
fide borrowing from (i) a third party financial institution that is primarily
engaged in the business of commercial lending or (ii) a vendor or other provider
of financial accommodations in connection with the purchase of equipment, in
either case for valid business purposes, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith and, in each case, as
30
amended, renewed, refunded, replaced or refinanced from time to time, whether in
whole or in part; provided, that such agreements or instruments do not permit
the Company and the Restricted Subsidiaries, taken as a whole, to incur
Indebtedness under all such agreements or instruments in an aggregate principal
amount at any time outstanding in excess of the maximum aggregate principal
amount of Indebtedness permitted to be incurred pursuant to clause (i) of
Section 4.7(b).
"Shelf Registration Statement" shall have the meaning set forth in the
Registration Rights Agreement.
"Significant Subsidiary" shall have the meaning provided under Regulation
S-X of the Securities Act, as in effect on the Issue Date.
"Special Record Date" means, for payment of any Defaulted Interest, a date
fixed by the Paying Agent pursuant to Section 2.12 hereof.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, and its successors.
"Stated Maturity," when used with respect to any Note, means April 15,
2012.
"subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity (including a limited liability company) of
which more than 50% of the total voting power of shares of Voting Stock 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 in which such Person or any of its subsidiaries is a
general partner.
"Subsidiary" means any subsidiary of the Company.
"Subsidiary Guaranty" means an unconditional and irrevocable guaranty by a
Subsidiary Guarantor of the Obligations of the Issuers under the Notes and this
Indenture, on a senior unsecured basis, as set forth in this Indenture, as
amended from time to time in accordance with the terms thereof.
"Subsidiary Guarantor" means each of the Issuers' present and future
Restricted Subsidiaries other than Foreign Subsidiaries and other than any
Restricted Subsidiary that is a co-Issuer of the Notes.
"Tax Loss Benefit Amount" means with respect to any taxable year, the
amount by which the Permitted Tax Distributions would be reduced were a net
operating loss or net capital loss from a prior taxable year of the Company
ending subsequent to the Issue Date carried forward to the applicable taxable
year; provided, that for such purpose the amount of any such net operating loss
or net capital loss shall be used only once and in each case shall be carried
forward to the next succeeding taxable year until so used. For purposes of
calculating the Tax Loss Benefit Amount, the proportionate part of the items of
taxable income, gain, deduction, or loss (including capital gain or loss) of any
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Subsidiary that is a Flow Through Entity for a taxable year of such Subsidiary
ending subsequent to the Issue Date shall be included in determining the amount
of net operating loss or net capital loss of the Company.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"Transactions" means the transactions described in the Offering Circular
under the section "Transactions."
"Transfer Restricted Notes" means Global Notes and Definitive Notes that
bear or are required to bear the Private Placement Legend, issued under this
Indenture.
"Trustee" means U.S. Bank National Association, as trustee under this
Indenture, until a successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means such successor serving
hereunder.
"Unrestricted Definitive Note" means one or more Definitive Notes that do
not bear and are not required to bear the Private Placement Legend, issued under
this Indenture.
"Unrestricted Global Note" means one or more permanent Global Notes
representing a series of Notes that does not bear and is not required to bear
the Private Placement Legend, issued under this Indenture.
"Unrestricted Subsidiary" means any Subsidiary that, at or prior to the
time of determination, shall have been designated by the Managers of the Company
as an Unrestricted Subsidiary and each subsidiary of such Subsidiary; provided,
that such Subsidiary or any of its subsidiaries does not hold any Indebtedness
or Capital Stock of, or any Lien on any assets of, the Company or any Restricted
Subsidiary. If, at any time, any Unrestricted Subsidiary would fail to meet the
foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease
to be an Unrestricted Subsidiary for purposes of this Indenture and any
Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted
Subsidiary as of such date. The Managers of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided,
that such designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if (i) such Indebtedness
is permitted under the Interest Coverage Ratio test set forth in Section 4.7(a)
calculated on a pro forma basis as if such designation had occurred at the
beginning of the four-quarter reference period, and (ii) no Default or Event of
Default would be in existence following such designation. The Company shall be
deemed to make an Investment in each Subsidiary designated as an Unrestricted
Subsidiary immediately following such designation in an amount equal to the
Investment in such Subsidiary and its subsidiaries immediately prior to such
designation. Any such designation by the Managers of the Company shall be
evidenced to the Trustee by filing with the Trustee a certified copy of the
resolution of the Managers
32
giving effect to such designation and an Officers' Certificate certifying that
such designation complies with the foregoing conditions and is permitted by
Section 4.7(a).
"Upper Tier Equity Holder" means, in the case of any Flow Through Entity
the Equity Holder of which is, in turn, a Flow Through Entity, the person that
is ultimately subject to tax on a net income basis on the items of taxable
income, gain, deduction, and loss of the Company and the Subsidiaries that are
Flow Through Entities.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
"Voting Stock" means, with respect to any Person, (i) one or more classes
of the Capital Stock of such Person having general voting power to elect at
least a majority of the Board of Directors, managers or trustees of such Person
(regardless of whether at the time Capital Stock of any other class or classes
have or might have voting power by reason of the happening of any contingency)
and (ii) any Capital Stock of such Person convertible or exchangeable without
restriction at the option of the holder thereof into Capital Stock of such
Person described in clause (i) above.
"Warner Land" means the 93-acres of land adjacent to the racino acquired
by OED from Bart C. Warner pursuant to the Sale with Mortgage, dated October 24,
2003.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years (rounded to the nearest
one-twelfth) obtained by dividing (i) the then outstanding principal amount of
such Indebtedness into (ii) the total of the product obtained by multiplying (a)
the amount of each then remaining installment, sinking fund, serial maturity or
other required payments of principal, including payment at final maturity, in
respect thereof, by (b) the number of years (calculated to the nearest
one-twelfth) that shall elapse between such date and the making of such payment.
"Wholly Owned Subsidiary" of any Person means a subsidiary of such Person
all the Capital Stock of which (other than directors' qualifying shares and, in
the case of DJL, other than the Seller Preferred) is owned directly or
indirectly by such Person; provided, that with respect to the Company, the term
Wholly Owned Subsidiary shall exclude Unrestricted Subsidiaries.
SECTION 1.2 OTHER DEFINITIONS
Term Defined in Section
---- ------------------
"Affiliate Transaction" 4.12
"Authentication Order" 2.2
"Benefited Party" 11.1
"C Corporation" Definition of Permitted C-Corp Conversion
"Change of Control Offer" 4.15
"Change of Control Payment" 4.15
33
"Change of Control Payment Date" 4.15
"Covenant Defeasance" 8.3
"Defaulted Interest" 2.12
"DTC" 2.3
"Event of Default" 6.1
"Excess Proceeds" 4.13
"Excess Proceeds Offer" 4.13
"Excess Proceeds Offer Period" 4.13
"Existing Holders" Definition of Excluded Person
"Federal Flow Through Entity" Definition of Flow Through Entity
"Four Quarter Reference Period" 4.7
"incur" 4.7
"Investment Company Act" 4.17
"Legal Defeasance" 8.2
"Notes" Preamble
"Paying Agent" 2.3
"Purchase Amount" 4.13
"Refinance" 4.7
"Refinancing Indebtedness" 4.7
"Registrar" 2.3
"Replacement Vessel" 4.13
"Series A Notes" Preamble
"Series B Notes" Preamble
"Subsidiary Guaranty Obligations" 11.1
"Tax Calculation Event" Definition of Permitted Tax
Distributions
"Tax Distribution Overage" Definition of Permitted Tax
Distributions
"Tax Distribution Shortfall" Definition of Permitted Tax
Distributions
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT
Whenever this Indenture refers to a provision of the TIA, such provision
is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"Commission" means the SEC; and
"obligor" on the Notes means each of the Issuers, each Subsidiary
Guarantor and any successor obligor upon the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
34
SECTION 1.4 RULES OF CONSTRUCTION
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision;
(7) references to sections of or rules under the Securities Act and
the Exchange Act shall be deemed to include substitute, replacement of successor
sections or rules adopted by the SEC from time to time; and
(8) references to the "Intercreditor Agreement" shall mean if the
Intercreditor Agreement is then in effect.
ARTICLE II
THE NOTES
SECTION 2.1 FORM AND DATING
(a) General. The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto; provided, that the form
of the Exchange Notes shall include such variations as are permitted or required
by the Registration Rights Agreement.
The Notes may have notations, legends or endorsements required by law,
stock exchange rule, depository rule or usage. Each Note shall be dated the date
of its issuance and shall show the date of its authentication. The Notes shall
be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Indenture and each of the Issuers, the
Subsidiary Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Note conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and
be controlling.
35
(b) Global Notes. Notes issued in global form shall be substantially in
the form of Exhibit A attached hereto (including the Global Note Legend thereon
and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Notes issued in definitive form shall be substantially in the form of
Exhibit A attached hereto (but without the Global Note Legend thereon and
without the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee or the Notes
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.6 hereof.
(c) Euroclear and Clearstream Procedures Applicable. The provisions of the
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Clearstream
Banking Luxembourg" and "Customer Handbook" of Clearstream Banking Luxembourg in
effect at the relevant time shall be applicable to transfers of beneficial
interests in the Regulation S Global Notes that are held by Participants through
Euroclear or Clearstream Banking Luxembourg.
SECTION 2.2 EXECUTION AND AUTHENTICATION
Two Officers shall sign the Notes for each of the Issuers by manual or
facsimile signature. In the case of Definitive Notes, such signatures may be
imprinted or otherwise reproduced on such Notes. If an Officer whose signature
is on a Note no longer holds that office at the time a Note is authenticated,
the Note shall nevertheless be valid. A Note shall not be valid until
authenticated by the manual signature of the Trustee. The signature shall be
conclusive evidence that the Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Issuers signed by an Officer (an
"Authentication Order"), authenticate Notes for issuance up to the aggregate
principal amount stated in such Authentication Order; provided that Notes
authenticated for issuance on the Issue Date shall not exceed $233,000,000 in
aggregate principal amount. The Trustee may appoint an authenticating agent
acceptable to the Issuers to authenticate Notes. An authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with
Holders or an Affiliate of the Issuers.
SECTION 2.3 REGISTRAR, PAYING AGENT AND DEPOSITARY
The Issuers shall maintain an office or agency in the Borough of
Manhattan, The City of New York, which shall initially be U.S. Bank National
Association, where (i) Notes may be presented for registration of transfer or
for exchange
36
("Registrar") and (ii) Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Issuers may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The Issuers may change any
Paying Agent or Registrar without notice to any Holder. The Issuers shall notify
the Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Issuers fail to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its subsidiaries may act as Paying Agent or Registrar. The Issuers initially
appoint The Depository Trust Company ("DTC") to act as Depositary with respect
to the Global Notes. The Issuers initially appoint the Trustee to act as the
Registrar and Paying Agent and to act as Notes Custodian with respect to the
Global Notes.
SECTION 2.4 PAYING AGENT TO HOLD MONEY IN TRUST
The Issuers shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Liquidated Damages, if any, or Interest on the Notes, and
shall notify the Trustee of any default by the Issuers in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Issuers at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or one of its
subsidiaries) shall have no further liability for the money. If the Company or
one of its subsidiaries acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the
Issuers, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.5 HOLDER LISTS
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Issuers shall furnish, or shall cause the Registrar
(if other than the Company or one of its subsidiaries) to furnish, to the
Trustee at least seven Business Days before each Interest Payment Date and at
such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses
of the Holders of Notes and the Issuers shall otherwise comply with TIA Section
312(a).
SECTION 2.6 TRANSFER AND EXCHANGE
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred except as a whole by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such
37
successor Depositary. All Global Notes shall be exchanged by the Issuers for
Definitive Notes if (i) the Issuers deliver to the Trustee notice from the
Depositary that (x) the Depositary is unwilling or unable to continue to act as
Depositary for the Global Notes or (y) the Depositary is no longer a clearing
agency registered under the Exchange Act, and in either case, the Issuers fail
to appoint a successor Depositary within 90 days of such notice from the
Depositary, (ii) the Issuers, in their sole discretion, determine that the
Global Notes (in whole but not in part) should be exchanged for Definitive Notes
and delivers a written notice to such effect to the Trustee or (iii) upon
request of the Trustee or Holders of a majority of the aggregate principal
amount of outstanding Notes if there shall have occurred and be continuing a
Default or Event of Default with respect to the Notes; provided, that in no
event shall the Reg S Temporary Global Note be exchanged by the Issuers for
Definitive Notes prior to (x) the expiration of the Distribution Compliance
Period and (y) the receipt by the Registrar of any certificate identified by the
Issuers and their counsel to be required pursuant to Rule 903 or Rule 904 under
the Securities Act. Upon the occurrence of any of the preceding events in (i),
(ii) or (iii) above, Definitive Notes shall be issued in such names as the
Depositary shall instruct the Trustee. Global Notes also may be exchanged or
replaced, in whole or in part, as provided in Sections 2.7 and 2.10 hereof.
Every Note authenticated and delivered in exchange for, or in lieu of, a Global
Note or any portion thereof, pursuant to this Section 2.6 or Section 2.7 or 2.10
hereof, shall be authenticated and delivered in the form of, and shall be, a
Global Note. A Global Note may not be exchanged for another Note other than as
provided in this Section 2.6(a), however, beneficial interests in a Global Note
may be transferred and exchanged as provided in Section 2.6(b), (c) or (f)
hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The
transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes shall be subject to restrictions on transfer comparable to those
set forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also shall require compliance with
either subparagraph (1) or (2) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in the same
Restricted Global Note in accordance with the transfer restrictions set forth in
the Private Placement Legend; provided, however, that prior to the expiration of
the Distribution Compliance Period, transfers of beneficial interests in the Reg
S Temporary Global Note may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Beneficial interests
in any Unrestricted Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note. No
written orders or instructions shall be required to be delivered to the
Registrar to effect the transfers described in this Section 2.6(b)(1), but the
Issuers or the Trustee may request an Opinion of Counsel.
38
(2) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes (including for Definitive Notes). In connection with all transfers
and exchanges of beneficial interests that are not subject to Section 2.6(b)(1)
above, the transferor of such beneficial interest must deliver to the Registrar
either (A) (1) an order from a Participant or an Indirect Participant given to
the Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in another
Global Note in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to be
credited with such increase or (B) (1) an order from a Participant or an
Indirect Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to cause to be issued a Definitive Note in
an amount equal to the beneficial interest to be transferred or exchanged and
(2) instructions given by the Depositary to the Registrar containing information
regarding the Person in whose name such Definitive Note shall be registered to
effect the transfer or exchange referred to in (B)(1) above; provided, that in
no event shall Definitive Notes be issued upon the transfer or exchange of
beneficial interests in the Reg S Temporary Global Note prior to (x) the
expiration of the Distribution Compliance Period and (y) the receipt by the
Registrar of any certificates identified by the Issuers or their counsel to be
required pursuant to Rule 903 and Rule 904 under the Securities Act. Upon
consummation of an Exchange Offer by the Issuers in accordance with Section
2.6(f) hereof, the requirements of this Section 2.6(b)(2) shall be deemed to
have been satisfied upon receipt by the Registrar of the instructions contained
in the Letter of Transmittal delivered by the Holder of such beneficial
interests in the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global Notes
contained in this Indenture and the Notes or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount of the relevant
Global Note(s) pursuant to Section 2.6(h) hereof.
(3) Transfer of Beneficial Interests to Another Restricted Global
Note. A beneficial interest in any Restricted Global Note may be transferred to
a Person who takes delivery thereof in the form of a beneficial interest in
another Restricted Global Note if the transfer complies with the requirements of
Section 2.6(b)(2) above and the Registrar receives the following:
(A) if the transferee shall take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications in
item (1) thereof;
(B) if the transferee shall take delivery in the form of a
beneficial interest in the 501 Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications in
item (3)(d) thereof; or
(C) if the transferee shall take delivery in the form of a
beneficial interest in the Reg S Temporary Global Note or the Reg S Permanent
Global Note, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof.
39
(4) Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in an Unrestricted Global Note. A
beneficial interest in any Restricted Global Note may be exchanged by any holder
thereof for a beneficial interest in an Unrestricted Global Note or transferred
to a Person who takes delivery thereof in the form of a beneficial interest in
an Unrestricted Global Note if the exchange or transfer complies with the
requirements of Section 2.6(b)(2) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and Section
2.6(f) hereof, and the holder of the beneficial interest to be transferred, in
the case of an exchange, or the transferee, in the case of a transfer, certifies
in the applicable Letter of Transmittal that it is not (1) a Broker-Dealer, (2)
a Person participating in the distribution of the Exchange Notes or (3) a Person
who is an affiliate (as defined in Rule 144) of the Issuers;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights Agreement and
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof, is delivered by the transferor;
(C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement and a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof, is delivered by the
transferor; or
(D) the Registrar receives the following: (1) if the holder of
such beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or (2) if the holder of such beneficial
interest in a Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note, a certificate from such holder in the
form of Exhibit B hereto, including the certifications in item (4) thereof; and,
in each such case set forth in this subparagraph (D), an Opinion of Counsel in
form, and from legal counsel, reasonably acceptable to the Registrar and the
Issuers to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to maintain compliance
with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D) above
at a time when an Unrestricted Global Note has not yet been issued, the Issuers
shall issue and, upon receipt of an Authentication Order in accordance with
Section 2.2 hereof, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to subparagraph (B) or (D)
above. Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
40
(c) Transfer and Exchange of Beneficial Interests for Definitive Notes.
Transfer and exchange of beneficial interests in the Global Notes for Definitive
Notes shall be made subject to compliance with this Section 2.6(c), and the
requesting Holder shall provide any certifications, documents and information,
as applicable, required pursuant to the following provisions of this Section
2.6(c). Upon receipt of such applicable documentation, the Trustee shall cause
the aggregate principal amount of the applicable Restricted Global Note or
Unrestricted Global Note, as applicable, to be reduced accordingly pursuant to
Section 2.6(h) hereof, and the Issuers shall execute and, upon receipt of an
Authentication Order pursuant to Section 2.2, the Trustee shall authenticate and
deliver to the Person designated in the instructions a Restricted Definitive
Note or an Unrestricted Definitive Note, as applicable, in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest in a Global Note pursuant to this Section 2.6(c) shall be registered in
such name or names and in such authorized denomination or denominations as the
Holder of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect Participant.
The Trustee shall deliver such Definitive Notes to the Persons in whose names
such Definitive Notes are so registered.
(1) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. If any holder of a beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a Restricted Definitive
Note or to transfer such beneficial interest to a Person who takes delivery
thereof in the form of a Restricted Definitive Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a Restricted
Definitive Note, a certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB
in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule
904 under the Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those listed in
subparagraphs (B) and (C) above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates and Opinion of
Counsel required by item (3)(d) thereof, if applicable; or
41
(E) if such beneficial interest is being transferred to the
Issuers or any of their respective subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(b) thereof.
Any Restricted Definitive Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 2.6(c)(1) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer contained
therein.
(2) Beneficial Interests in Restricted Global Notes to Unrestricted
Definitive Notes. A holder of a beneficial interest in a Restricted Global Note
may exchange such beneficial interest for an Unrestricted Definitive Note or may
transfer such beneficial interest to a Person who takes delivery thereof in the
form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and Section
2.6(f) hereof, and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a Broker-Dealer, (2) a
Person participating in the distribution of the Exchange Notes or (3) a Person
who is an affiliate (as defined in Rule 144) of the Issuers;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights Agreement and
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof, is delivered by the transferor;
(C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement and a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof, is delivered by the
transferor; or
(D) the Registrar receives the following: (1) if the holder of
such beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for an Unrestricted Definitive Note, a certificate from such
holder in the form of Exhibit C hereto, including the certifications in item
(1)(b) thereof; or (2) if the holder of such beneficial interest in a Restricted
Global Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of an Unrestricted Definitive Note, a
certificate from such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof; and, in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form, and from legal counsel,
reasonably acceptable to the Registrar and the Issuers to the effect that such
exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with the Securities Act.
42
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
Restricted Definitive Note.
(3) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial interest for an
Unrestricted Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of an Unrestricted Definitive Note, then
such holder shall satisfy the applicable conditions set forth in Section
2.6(b)(2) hereof. Any Unrestricted Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.6(c)(3) shall not bear the
Private Placement Legend.
(4) Transfer or Exchange of Reg S Temporary Global Notes.
Notwithstanding the other provisions of this Section 2.6, a beneficial interest
in the Reg S Temporary Global Note may not be (A) exchanged for a Definitive
Note prior to (x) the expiration of the Distribution Compliance Period (unless
such exchange is approved by the Issuers, does not require an investment
decision on the part of the Holder thereof and does not violate the provisions
of Regulation S) and (y) the receipt by the Registrar of any certificates
identified by the Issuers or their counsel to be required pursuant to Rule
903(b)(3)(ii)(B) under the Securities Act or (B) transferred to a Person who
takes delivery thereof in the form of a Definitive Note prior to the events set
forth in clause (A) above or unless the transfer is pursuant to an exemption
from the registration requirements of the Securities Act other than Rule 903 or
Rule 904.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
Transfer and exchange of Definitive Notes for beneficial interests in the Global
Notes shall be made subject to compliance with this Section 2.6(d), and the
requesting Holder shall provide any certifications, documents and information,
as applicable, required pursuant to the following provisions of this Section
2.6(d). Upon receipt from such Holder of such applicable documentation and the
surrender to the Registrar of the Definitive Notes duly endorsed or accompanied
by a written instruction of transfer in form satisfactory to the Registrar, duly
executed by such Holder or by its attorney, duly authorized in writing, the
Registrar shall register the transfer or exchange of the Definitive Notes. The
Trustee shall cancel such Definitive Notes so surrendered and cause the
aggregate principal amount of the applicable Restricted Global Note or
Unrestricted Global Note, as applicable, to be increased accordingly pursuant to
Section 2.6(h) hereof.
(1) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes
to exchange such Note for a beneficial interest in a Restricted Global Note or
to transfer such Restricted Definitive Notes to a Person who takes delivery
thereof in the form of a beneficial interest in a Restricted Global Note, then,
upon receipt by the Registrar of the following documentation:
43
(A) if the Holder of such Restricted Definitive Note proposes
to exchange such Note for a beneficial interest in a Restricted Global Note, a
certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred to
a QIB in accordance with Rule 144A under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the certifications in item
(1) thereof;
(C) if such Restricted Definitive Note is being transferred to
a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule
904 under the Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof; or
(D) if such Restricted Definitive Note is being transferred to
an Institutional Accredited Investor in accordance with Regulation D under the
Securities Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(d) thereof;
the Trustee shall cancel the Restricted Definitive Note and increase or cause to
be increased the aggregate principal amount of, in the case of clause (A) above,
the appropriate Restricted Global Note, in the case of clause (B) above, the
144A Global Note, in the case of clause (C) above, the Regulation S Global Note
and in the case of clause (D) above, the 501 Global Note.
(2) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange
such Note for a beneficial interest in an Unrestricted Global Note or transfer
such Restricted Definitive Note to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and Section
2.6(f) hereof, and the Holder, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of Transmittal that
it is not (1) a Broker-Dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144)
of the Issuers;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights Agreement and
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof, is delivered by the transferor;
(C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement and a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof, is delivered by the
transferor; or
44
(D) the Registrar receives the following: (1) if the Holder of
such Restricted Definitive Notes proposes to exchange such Notes for a
beneficial interest in the Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit C hereto, including the certifications in item
(1)(c) thereof; or (2) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall take delivery thereof in
the form of a beneficial interest in the Unrestricted Global Note, a certificate
from such Holder in the form of Exhibit B hereto, including the certifications
in item (4) thereof; and, in each such case set forth in this subparagraph (D),
an Opinion of Counsel in form, and from legal counsel, reasonably acceptable to
the Registrar and the Issuers to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.
(3) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note or
transfer such Definitive Notes to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note at any time.
If any such exchange or transfer from a Definitive Note to a beneficial
interest is effected pursuant to subparagraphs (2)(B), (2)(D) or (3) of this
Section 2.6(d) at a time when an Unrestricted Global Note has not yet been
issued, the Issuers shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.2 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon
request by a Holder of Definitive Notes and such Holder's compliance with the
provisions of this Section 2.6(e), the Registrar shall register the transfer or
exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. The Trustee shall cancel any such
Definitive Notes so surrendered, and the Issuers shall execute and, upon receipt
of an Authentication Order pursuant to Section 2.2, the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Restricted Definitive Note or an Unrestricted Definitive Note, as applicable, in
the appropriate principal amount. Any Definitive Note issued pursuant to this
Section 2.6(c) shall be registered in such name or names and in such authorized
denomination or denominations as the Holder of such beneficial interest shall
instruct the Registrar through instructions from the Depositary and the
Participant or Indirect Participant. The Trustee shall deliver such Definitive
Notes to the Persons in whose names such Definitive Notes are so registered. In
addition, the requesting Holder shall provide any additional certifications,
documents and information, as applicable, required pursuant to the following
provisions of this Section 2.6(e).
45
(1) Restricted Definitive Notes to Restricted Definitive Notes. Any
Restricted Definitive Note may be transferred to and registered in the name of
Persons who take delivery thereof in the form of a Restricted Definitive Note if
the Registrar receives the following:
(A) if the transfer shall be made to a QIB pursuant to Rule
144A, then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;
(B) if the transfer shall be made pursuant to Rule 903 or Rule
904, then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof;
(C) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those listed in
subparagraphs (A) and (B) above, then the transferor must deliver a certificate
to the effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)(d) thereof, if
applicable; or
(D) if such beneficial interest is being transferred to the
Issuers or any of their subsidiaries, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(b) thereof, must be
delivered by the transferor.
(2) Restricted Definitive Notes to Unrestricted Definitive Notes.
Any Restricted Definitive Note may be exchanged by the Holder thereof for an
Unrestricted Definitive Note or transferred to a Person or Persons who take
delivery thereof in the form of an Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and Section
2.6(f) hereof, and the Holder, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of Transmittal that
it is not (1) a Broker-Dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144)
of the Issuers;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights Agreement and
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof, is delivered by the transferor;
(C) any such transfer is effected by a Broker-Dealer pursuant
to the Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement and a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof, is delivered by the
transferor; or
46
(D) the Registrar receives the following: (1) if the Holder of
such Restricted Definitive Notes proposes to exchange such Notes for an
Unrestricted Definitive Note, a certificate from such Holder in the form of
Exhibit D hereto, including the certifications in item (1)(d) thereof; or (2) if
the Holder of such Restricted Definitive Notes proposes to transfer such Notes
to a Person who shall take delivery thereof in the form of an Unrestricted
Definitive Note, a certificate from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof; and, in each such case set
forth in this subparagraph (D), an Opinion of Counsel in form, and from legal
counsel, reasonably acceptable to the Registrar and the Issuers to the effect
that such exchange or transfer is in compliance with the Securities Act and that
the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act.
(3) Unrestricted Definitive Notes to Unrestricted Definitive Notes.
A Holder of Unrestricted Definitive Notes may transfer such Notes to a Person
who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon
receipt of a request to register such a transfer, the Registrar shall register
the Unrestricted Definitive Notes pursuant to the instructions from the Holder
thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Issuers shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.2 and an
Opinion of Counsel for the Issuers as to certain matters discussed in this
Section 2.6(f), the Trustee shall authenticate (i) one or more Unrestricted
Global Notes in an aggregate principal amount equal to the sum of (A) the
principal amount of the beneficial interests in the Restricted Global Notes
exchanged or transferred for beneficial interests in Unrestricted Global Notes
in connection with the Exchange Offer pursuant to Section 2.6(b)(4) and (B) the
principal amount of Restricted Definitive Notes exchanged or transferred for
beneficial interests in Unrestricted Global Notes in connection with the
Exchange Offer pursuant to Section 2.6(d)(2), in each case tendered for
acceptance by Persons that certify in the applicable Letters of Transmittal that
(x) they are not Broker-Dealers, (y) they are not participating in a
distribution of the Exchange Notes and (z) they are not affiliates (as defined
in Rule 144) of the Issuers, and accepted for exchange in the Exchange Offer,
and (ii) Unrestricted Definitive Notes in an aggregate principal amount equal to
the sum of (A) the principal amount of the Restricted Definitive Notes exchanged
or transferred for Unrestricted Definitive Notes in connection with the Exchange
Offer pursuant to Section 2.6(e)(2) and (B) Restricted Global Notes exchanged or
transferred for Unrestricted Definitive Notes in connection with the Exchange
Offer pursuant to Section 2.6(c)(2), in each case tendered for acceptance by
Persons that certify in the applicable Letters of Transmittal that (x) they are
not Broker-Dealers, (y) they are not participating in a distribution of the
Exchange Notes and (z) they are not affiliates (as defined in Rule 144) of the
Issuers, and accepted for exchange in the Exchange Offer. Concurrently with the
issuance of such Notes, the Trustee shall cancel any Definitive Notes so
surrendered and shall cause the aggregate principal amount of the applicable
Restricted Global Notes to be reduced accordingly, and the Issuers shall execute
and, upon receipt of an Authentication Order pursuant to Section 2.2, the
Trustee shall authenticate and deliver to
47
the Persons designated by the Holders of Definitive Notes so accepted Definitive
Notes in the appropriate principal amount.
The Opinion of Counsel for the Issuers referenced above shall state that:
(1) the issuance and sale of the Exchange Notes by the Issuers has
been duly authorized and, when executed by the Issuers and authenticated by the
Trustee in accordance with the provisions of this Indenture and delivered in
exchange for Series A Notes in accordance with this Indenture and the Exchange
Offer, the Exchange Notes shall be entitled to the benefits of this Indenture
and shall be valid and binding obligations of the Issuers, enforceable against
the Issuers in accordance with their terms, subject to customary qualifications
including exceptions for bankruptcy, fraudulent transfer and equitable
principles; and
(2) when the Exchange Notes are issued and executed by the Issuers
and authenticated by the Trustee in accordance with the provisions of this
Indenture and delivered in exchange for Series A Notes in accordance with this
Indenture and the Exchange Offer, the Subsidiary Guaranties by the Subsidiary
Guarantors endorsed thereon shall be entitled to the benefits of this Indenture
and shall be the valid and binding obligations of the Subsidiary Guarantors,
enforceable against the Subsidiary Guarantors in accordance with their terms,
subject to customary qualifications including exceptions for bankruptcy,
fraudulent transfer and equitable principles.
(g) Legends. The following legends shall appear on the face of all Global
Notes and Definitive Notes issued under this Indenture unless specifically
stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(1) Except as permitted by subparagraph (2) below, each Global Note
and each Definitive Note (and all Notes issued in exchange therefor or
substitution thereof) shall bear the legend in substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS (OR SUCH
OTHER PERIOD THAT MAY HEREAFTER BE PROVIDED UNDER RULE 144(k) UNDER THE
SECURITIES ACT AS PERMITTING RESALES OF RESTRICTED SECURITIES BY NON-AFFILIATES
WITHOUT RESTRICTION) AFTER THE LATER OF THE ORIGINAL
48
ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUERS OR ANY AFFILIATE OF THE
ISSUERS WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY)
(THE "RESALE RESTRICTION TERMINATION DATE") ONLY (A) TO THE ISSUERS, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (D) PURSUANT TO OFFERS AND SALES
TO NON-U.S. PURCHASERS THAT OCCUR OUTSIDE THE UNITED STATES IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE
501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE ISSUERS' AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN
THE FORM APPEARING ON THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR
TO THE TRUSTEE AND IN EACH CASE IN ACCORDANCE WITH APPLICABLE SECURITIES LAWS OF
ANY U.S. STATE OR ANY OTHER APPLICABLE JURISDICTION."
(2) Notwithstanding the foregoing, any Global Note or Definitive
Note issued pursuant to subparagraphs (b)(4), (c)(2), (c)(3), (d)(2), (d)(3),
(e)(2), (e)(3) or (f) to this Section 2.6 (and all Notes issued in exchange
therefor or substitution thereof) shall not bear the Private Placement Legend.
(ii) Global Note Legend. To the extent required by the Depositary,
each Global Note shall bear legends in substantially the following forms:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.6 OF THE INDENTURE, (II) THIS
49
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.6(a)
OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE ISSUERS."
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"), TO THE ISSUERS OR THEIR
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
(iii) Reg S Temporary Global Note Legend. To the extent required by
the Depositary, each Reg S Temporary Global Note shall bear a legend in
substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE CASH PAYMENTS OF INTEREST DURING THE PERIOD WHICH SUCH HOLDER HOLDS
THIS NOTE. NOTHING IN THIS LEGEND SHALL BE DEEMED TO PREVENT INTEREST FROM
ACCRUING ON THIS NOTE."
(h) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
cancelled in whole and not in part, each such Global Note shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who shall take delivery thereof
in the form of a beneficial interest in another
50
Global Note or for Definitive Notes, the principal amount of Notes represented
by such Global Note shall be reduced accordingly and an endorsement may be made
on such Global Note by the Trustee or by the Depositary at the direction of the
Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who shall take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement may be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Issuers
shall execute and the Trustee shall authenticate Global Notes and Definitive
Notes upon receipt of an Authentication Order.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Issuers may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to Section 2.10,
3.6, 4.13 or 4.15 hereof).
(iii) The Registrar shall not be required to register the transfer
of or exchange any Note selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes shall
be the valid obligations of the Issuers, evidencing the same Indebtedness, and
entitled to the same benefits under this Indenture, as the Global Notes or
Definitive Notes surrendered upon such registration of transfer or exchange.
(v) The Issuers shall not be required (A) to issue, to register the
transfer of or to exchange any Notes during a period beginning at the opening of
business 15 days before the day of any selection of Notes for redemption under
Section 3.2 hereof and ending at the close of business on the day of selection,
(B) to register the transfer of or to exchange any Note so selected for
redemption in whole or in part, except the unredeemed portion of any Note being
redeemed in part or (C) to register the transfer of or to exchange a Note
between an Interest Record Date and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Issuers may deem and treat the Person
in whose name any Note is registered as the absolute owner of such Note for the
purpose of receiving payment of principal of and interest on such Notes and for
all other purposes, and none of the Trustee, any Agent or the Issuers shall be
affected by notice to the contrary.
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(vii) The Trustee shall authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.2 hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.6 to effect
a registration of transfer or exchange may be submitted by facsimile.
Notwithstanding anything herein to the contrary, as to any certifications
and certificates delivered to the Registrar pursuant to this Section 2.6, the
Registrar's duties shall be limited to confirming that any such certifications
and certificates delivered to it are in the form of Exhibits A, B, C, D and E
attached hereto. The Registrar shall not be responsible for confirming the truth
or accuracy of representations made in any such certifications or certificates.
SECTION 2.7 REPLACEMENT NOTES
If any mutilated Note is surrendered to the Trustee or the Issuers, or if
the Trustee or the Issuers receive evidence (which evidence may be from the
Trustee) to their satisfaction of the destruction, loss or theft of any Note,
the Issuers shall issue and the Trustee, upon receipt of an Authentication
Order, shall authenticate a replacement Note if the Trustee's requirements are
met. If required by the Trustee or the Issuers, an affidavit of lost certificate
and/or an indemnity bond or other indemnity must be supplied by the requesting
Holder that is sufficient in the judgment of the Trustee and the Issuers to
protect the Issuers, the Trustee, any Agent and any authenticating agent from
any loss that any of them may suffer if a Note is replaced. The Issuers may
charge for its expenses in replacing a Note, including reasonable fees and
expenses of their counsel and of the Trustee and its counsel. Every replacement
Note is an additional obligation of the Issuers and shall be entitled to all of
the benefits of this Indenture equally and proportionately with all other Notes
duly issued hereunder.
SECTION 2.8 OUTSTANDING NOTES
The Notes outstanding at any time are all the Notes authenticated by the
Trustee (including any Note represented by a Global Note) except for those
cancelled by it or at its direction, those delivered to it for cancellation,
those reductions in the interest in a Global Note effected by the Trustee in
accordance with the provisions hereof, and those described in this Section 2.8
as not outstanding. Except as set forth in Section 2.9 hereof, a Note does not
cease to be outstanding because the Issuers or an Affiliate of either of the
Issuers holds the Note. If a Note is replaced pursuant to Section 2.7 hereof,
such Note, together with the Subsidiary Guaranty of that particular Note
endorsed thereon, ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Note is held by a bona fide purchaser. If
the principal amount of any Note is considered paid under Section 4.1 hereof, it
ceases to be outstanding and Interest on it ceases to accrue. If the Paying
Agent (other than the Company, a subsidiary or an Affiliate of any thereof)
holds, on a redemption date or the maturity date, money sufficient to pay Notes
payable on that date, then on and after that date such Notes shall be deemed to
be no longer outstanding and shall cease to accrue Interest.
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SECTION 2.9 TREASURY NOTES
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Issuers, or by any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuers, shall be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes that the Trustee knows are so owned shall be so disregarded.
SECTION 2.10 TEMPORARY NOTES
Until certificates representing Notes are ready for delivery, the Issuers
may prepare and the Trustee, upon receipt of an Authentication Order, shall
authenticate temporary Notes. Temporary Notes shall be substantially in the form
of Definitive Notes but may have variations that the Issuers considers
appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Issuers shall prepare and the Trustee
shall authenticate Definitive Notes in exchange for temporary Notes. Until such
exchange, holders of temporary Notes shall be entitled to all of the benefits of
this Indenture.
SECTION 2.11 CANCELLATION
The Issuers at any time may deliver Notes to the Trustee for cancellation.
The Registrar and Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent
(other than the Company or an Affiliate of the Company), and no one else shall
cancel all Notes surrendered for registration of transfer, exchange, payment,
replacement or cancellation and shall destroy cancelled Notes (subject to the
record retention requirement of the Exchange Act). Certification of the
destruction of all cancelled Notes shall be delivered to the Issuers. The
Issuers may not issue new Notes to replace Notes that it has paid or that have
been delivered to the Trustee for cancellation.
SECTION 2.12 DEFAULTED INTEREST
Any Interest on any Note which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date plus, to the extent lawful, any
interest payable on the defaulted Interest at the rate and in the manner
provided in Section 4.1 hereof and in the Note (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder on the
relevant Interest Record Date, and such Defaulted Interest may be paid by the
Issuers, at their election in each case, as provided in clause (1) or (2) below:
(1) The Issuers may elect to make payment of any Defaulted Interest
to the Persons in whose names the Notes are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in
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the following manner. The Issuers shall notify the Trustee and the Paying Agent
in writing of the amount of Defaulted Interest proposed to be paid on each Note
and the date of the proposed payment, and at the same time the Issuers shall
deposit with the Paying Agent an amount of cash equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements reasonably satisfactory to the Paying Agent for such deposit prior
to the date of the proposed payment, such cash when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest as
provided in this clause (1). Thereupon the Paying Agent shall fix a "Special
Record Date" for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Paying Agent of the notice of
the proposed payment. The Paying Agent shall promptly notify the Issuers and the
Trustee of such Special Record Date and, in the name and at the expense of the
Issuers, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder at its address as it appears in the Note register maintained by
the Registrar not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest shall be paid
to the persons in whose names the Notes (or their respective predecessor Notes)
are registered on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Issuers may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Issuers to the Trustee
and the Paying Agent of the proposed payment pursuant to this clause, such
manner shall be deemed practicable by the Trustee and the Paying Agent.
Subject to the foregoing provisions of this Section 2.12, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to Interest accrued and
unpaid, and to accrue, which were carried by such other Note.
SECTION 2.13 CUSIP NUMBERS
The Issuers in issuing the Notes may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Issuers shall promptly notify the Trustee of any
change in the "CUSIP" numbers.
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SECTION 2.14 ISSUANCE OF ADDITIONAL NOTES
The Issuers may, subject to Section 4.7 hereof and applicable law, issue
Additional Notes in an unlimited amount under this Indenture. The Notes issued
on the Issue Date and any Additional Notes subsequently issued shall be treated
as a single class for all purposes under this Indenture.
ARTICLE III
REDEMPTION
SECTION 3.1 NOTICES TO TRUSTEE
If the Issuers elect to redeem Notes pursuant to the optional redemption
provisions of Section 3.7 hereof, it shall furnish to the Trustee, at least 30
days (unless a shorter period is acceptable to the Trustee) but not more than 60
days (unless a longer period is acceptable to the Trustee) before a redemption
date, an Officers' Certificate stating that such redemption is being made
pursuant to Section 3.7 and setting forth (i) the redemption date, (ii) the
principal amount of Notes to be redeemed and (iii) the redemption price.
SECTION 3.2 SELECTION OF NOTES TO BE REDEEMED
If less than all of the Notes are to be redeemed at any time, the Trustee
shall select the Notes or portions thereof to be redeemed among the Holders of
the Notes in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes are listed or, if the Notes are
not so listed, on a pro rata basis, by lot or in accordance with any other
method the Trustee considers fair and appropriate, provided that Notes in
denomination of $1,000 or less may not be redeemed in part. In the event of
partial redemption by lot, the particular Notes to be redeemed shall be
selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the redemption date by the Trustee from the outstanding Notes not
previously called for redemption.
The Trustee shall promptly notify the Issuers in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes in denominations of larger than $1,000 selected shall be in amounts of
$1,000 or integral multiples of $1,000; except that if all of the Notes of a
Holder are to be redeemed, the entire outstanding amount of Notes held by such
Holder, even if not an integral multiple of $1,000, shall be redeemed. Except as
provided in the preceding sentence, provisions of this Indenture that apply to
Notes called for redemption also apply to portions of Notes called for
redemption.
SECTION 3.3 NOTICE OF REDEMPTION
Subject to the provisions of Section 3.7 hereof, at least 30 days but not
more than 60 days before a redemption date (except in the case of a Regulatory
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Redemption requiring less notice), the Issuers shall mail or cause to be mailed,
by first class mail, a notice of redemption to each Holder whose Notes are to be
redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the principal
amount of such Note to be redeemed and that, on or after the redemption date
upon surrender of such Note, a new Note or Notes in principal amount equal to
the unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(f) that, unless the Issuers default in making such redemption payment,
Interest (and Liquidated Damages, if any) on Notes or portions thereof called
for redemption ceases to accrue on and after the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture pursuant
to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Issuers' request, the Trustee shall give the notice of redemption
in the Issuers' name and at its expense; provided, however, that the Issuers
shall have delivered to the Trustee, at least 35 days prior to the redemption
date (unless a shorter period shall be acceptable to the Trustee or is required
pursuant to a Regulatory Redemption), an Officers' Certificate requesting that
the Trustee give such notice and setting forth the information to be stated in
such notice as provided in the preceding paragraph.
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION
Once notice of redemption is mailed in accordance with Section 3.3 hereof,
Notes called for redemption become irrevocably due and payable on the redemption
date at the redemption price. At any time prior to the mailing of a notice of
redemption to the Holders pursuant to Section 3.3, the Issuers may withdraw,
revoke or rescind any notice of redemption delivered to the Trustee without any
continuing obligation to redeem the Notes as contemplated by such notice of
redemption.
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SECTION 3.5 DEPOSIT OF REDEMPTION PRICE
At or before 10:00 a.m. on the redemption date, the Issuers shall deposit
with the Trustee or with the Paying Agent immediately available funds sufficient
to pay the redemption price of and accrued and unpaid Interest (and Liquidated
Damages, if any) on all Notes to be redeemed on that date. The Trustee or the
Paying Agent shall promptly return to the Issuers any money deposited with the
Trustee or the Paying Agent by the Issuers in excess of the amounts necessary to
pay the redemption price of, and accrued and unpaid Interest (and Liquidated
Damages, if any) on, all Notes to be redeemed.
If the Issuers comply with the provisions of the preceding paragraph, on
and after the redemption date, Interest (and Liquidated Damages, if any) shall
cease to accrue on the Notes or the portions of Notes called for redemption,
regardless of whether such Notes are presented for payment. If a Note is
redeemed on or after an Interest Record Date but on or prior to the related
Interest Payment Date, then any accrued and unpaid Interest (and Liquidated
Damages, if any) shall be paid to the Person in whose name such Note was
registered at the close of business on such Interest Record Date. If any Note
called for redemption shall not be so paid upon surrender for redemption because
of the failure of the Issuers to comply with the preceding paragraph, Interest
shall be paid on the unpaid principal, from the redemption date until such
principal is paid, and to the extent lawful on any Interest not paid on such
unpaid principal, in each case at the rate provided in the Notes and in Section
4.1 hereof.
If the redemption date hereunder is on or after an Interest Record Date on
which the Holders of record have a right to receive the corresponding Interest
due and Liquidated Damages, if any, and on or before the associated Interest
Payment Date, any accrued and unpaid Interest (and Liquidated Damages, if any),
due on such Interest Payment Date shall be paid to the Person in whose name a
Note is registered at the close of business on such Interest Record Date.
SECTION 3.6 NOTES REDEEMED IN PART
Upon surrender of a Note that is redeemed in part, the Issuers shall issue
and, upon receipt of an Authentication Order, the Trustee shall authenticate for
the Holder at the expense of the Issuers a new Note equal in principal amount to
the unredeemed portion of the Note surrendered.
SECTION 3.7 OPTIONAL REDEMPTION
(a) Except as set forth in Section 3.7(b), the Notes are not redeemable at
the Issuers' option prior to April 15, 2008. Thereafter, the Notes shall be
subject to redemption, in whole or in part, at the option of the Issuers at the
redemption prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid Interest (and Liquidated Damages, if any)
thereon, to the applicable redemption date, if redeemed during the 12-month
period beginning on April 15 of the years indicated below:
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YEAR PERCENTAGE
---- ----------
2008 104.375%
2009 102.917%
2010 101.458%
2011 and thereafter 100.000%
(b) Notwithstanding Section 3.7(a), at any time or from time to time prior
to April 15, 2007, the Issuers may redeem, at their option, up to 35% of the
aggregate principal amount of the Notes then outstanding, at a redemption price
of 108.75% of the principal amount thereof, plus accrued and unpaid Interest,
plus Liquidated Damages, if any, thereon, if any, through the applicable
redemption date, with the net cash proceeds of one or more Equity Offerings;
provided, that (i) such redemption shall occur within 60 days of the date of
closing of such Equity Offering and (ii) at least 65% of the aggregate principal
amount of Notes issued under this Indenture remains outstanding immediately
after giving effect to each such redemption.
The restrictions on the optional redemption contained herein do not limit
the right of the Issuers or any of the Subsidiaries to separately make open
market, privately negotiated or other purchases of the Notes from time to time.
(c) Any redemption pursuant to this Section 3.7 shall be made pursuant to
the provisions of Sections 3.1 through 3.6 hereof.
SECTION 3.8 REGULATORY REDEMPTION
Notwithstanding any other provisions hereof, Notes to be redeemed pursuant
to a Required Regulatory Redemption shall be redeemable by the Issuers, in whole
or in part, at any time upon not less than 20 Business Days nor more than 60
days notice (or such earlier date as may be ordered by any applicable
Governmental Authority) at a price equal to the lesser of (a) the Holder's cost
thereof and (b) 100% of the principal amount thereof, plus in either case
accrued and unpaid Interest, plus Liquidated Damages, if any, thereon, if any,
to the redemption date (or such earlier period as ordered by a Governmental
Authority). The Issuers are not required to pay or reimburse any Holder or
beneficial owner of the Notes for the expenses of any such Holder or beneficial
owner related to the application for any Gaming License, qualification or
finding of suitability in connection with a Required Regulatory Redemption. Such
expenses of any such Holder or beneficial owner shall, therefore, be the
obligation of such Holder or beneficial owner. Any Required Regulatory
Redemption shall be made in accordance with the provisions of Sections 3.3, 3.4
and 3.5 unless other procedures are required by any Governmental Authority.
SECTION 3.9 NO MANDATORY REDEMPTION
The Issuers shall not be required to make mandatory redemption payments
with respect to the Notes (except for a Required Regulatory Redemption and any
offer to repurchase Notes that the Issuers are required to make in accordance
with the provisions of Sections 4.13 and 4.15 below). The Notes shall not have
the benefit of any sinking fund.
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ARTICLE IV
COVENANTS
SECTION 4.1 PAYMENT OF NOTES
The Issuers shall pay or cause to be paid the principal of, premium, if
any, and Interest on the Notes on the dates and in the manner provided in the
Notes. Principal, premium, if any, and Interest shall be considered paid on the
date due if the Paying Agent (if other than the Company or a subsidiary thereof)
holds as of 12:00 noon Eastern time on the due date money deposited by the
Issuers in immediately available funds and designated for and sufficient to pay
all principal, premium, if any, and Interest then due. The Issuers shall pay all
Liquidated Damages, if any, in the same manner on the dates and in the amounts
set forth in the Registration Rights Agreement and herein.
The Issuers shall pay interest (including Accrued Bankruptcy Interest in
any proceeding under any Bankruptcy Law) on overdue principal at the then
applicable interest rate on the Notes to the extent lawful; it shall pay
interest (including Accrued Bankruptcy Interest in any proceeding under any
Bankruptcy Law) on overdue installments of Interest and Liquidated Damages, if
any, (without regard to any applicable grace period) at the same rate to the
extent lawful.
SECTION 4.2 MAINTENANCE OF OFFICE OR AGENCY
The Issuers shall maintain in the Borough of Manhattan, The City of New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Issuers in respect of the Notes and this Indenture may be served. The
Issuers shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Issuers
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office.
The Issuers may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such additional designations;
provided, that no such designation or rescission shall in any manner relieve the
Issuers of their obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York. The Issuers shall give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
The Issuers hereby designate the Corporate Trust Office of the Trustee as
one such office or agency of the Issuers in accordance with Section 2.3 hereof.
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SECTION 4.3 SEC REPORTS AND REPORTS TO HOLDERS
Regardless of whether required by the rules and regulations of the SEC, so
long as any Notes are outstanding, the Company shall furnish to the Trustee and
Holders, within 15 days after the Company is or would have been required to file
such with the SEC, (i) all quarterly and annual financial information that would
be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if
the Company were required to file such Forms, including for each a "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and,
with respect to the annual information only, a report thereon by the Company's
independent certified public accountants and (ii) all information that would be
required to be contained in a filing with the SEC on Form 8-K if the Company
were required to file such reports. From and after the time the Company files a
registration statement with the SEC with respect to the Notes, the Company
shall, in lieu of providing such information to the Trustee and the Holders,
file such information with the SEC so long as the SEC shall accept such filings.
SECTION 4.4 COMPLIANCE CERTIFICATE
(a) The Issuers shall deliver to the Trustee, within 120 days after the
end of each fiscal year, an Officers' Certificate stating that a review of the
activities of the Issuers and the Restricted Subsidiaries during the preceding
fiscal year has been made under the supervision of the signing Officers with a
view to determining whether the Issuers and the Restricted Subsidiaries have
kept, observed, performed and fulfilled their obligations under this Indenture,
and further stating, as to each such Officer signing such certificate, that to
his or her knowledge the Issuers and the Restricted Subsidiaries are not in
default in the performance or observance of any of the terms, provisions and
conditions of this Indenture (or, if a Default or Event of Default shall have
occurred and be continuing, describing all such Defaults or Events of Default of
which he or she may have knowledge and what action the Issuers are taking or
proposes to take with respect thereto). Each of the Issuers shall provide the
Trustee with timely written notice of any change in its fiscal year end, which
is currently December 31.
(b) The Issuers shall, so long as any of the Notes are outstanding,
deliver to the Trustee, within five Business Days of any Officer becoming aware
of any Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Issuers are taking or propose to
take with respect thereto.
SECTION 4.5 TAXES
The Issuers shall pay, and shall cause each of the Restricted Subsidiaries
to pay, prior to delinquency, all material taxes, assessments, and governmental
levies except such as are contested in good faith and by appropriate proceedings
or where the failure to effect such payment would not have a material adverse
effect on the ability of the Issuers and the Subsidiary Guarantors to satisfy
their obligations under the Notes, the Subsidiary Guaranties and this Indenture.
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SECTION 4.6 STAY, EXTENSION AND USURY LAWS
Each of the Issuers covenants (to the extent that it may lawfully do so)
that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Indenture; and each of the Issuers (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
SECTION 4.7 LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS AND
DISQUALIFIED EQUITY INTERESTS
(a) The Issuers shall not, and shall not permit any of the Restricted
Subsidiaries to, directly or indirectly, (x) create, incur, issue, assume,
guaranty or otherwise become directly or indirectly liable with respect to,
contingently or otherwise (collectively, "incur"), any Indebtedness (including,
without limitation, Acquired Debt) or (y) issue any Disqualified Capital Stock;
provided, that the Company and the Restricted Subsidiaries may incur
Indebtedness (including, without limitation, Acquired Debt) and issue shares of
Disqualified Capital Stock if (a) no Default or Event of Default shall have
occurred and be continuing at the time of, or would occur after giving effect on
a pro forma basis to such incurrence or issuance, and (b) the Interest Coverage
Ratio for the Company's most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the date on
which such additional Indebtedness is incurred or such Disqualified Capital
Stock is issued would have been not less than 2.0 to 1.0 determined on a pro
forma basis (including a pro forma application of the net proceeds therefrom),
as set forth in the definition of Interest Coverage Ratio, as if the additional
Indebtedness had been incurred, or the Disqualified Capital Stock had been
issued, as the case may be, at the beginning of such four-quarter period.
(b) Notwithstanding the foregoing, the foregoing limitations shall not
prohibit the incurrence of:
(i) Indebtedness under a Senior Credit Facility; provided, that the
aggregate principal amount of Indebtedness so incurred on any date, together
with all other Indebtedness incurred pursuant to this clause (i) and outstanding
on such date, shall not exceed $35,000,000, less the aggregate amount of
commitment reductions contemplated by clause (iii)(C) of Section 4.13(a);
provided, however, that Indebtedness permitted to be incurred pursuant to this
clause (i) shall be increased by $15,000,000 (A) upon the acquisition of any
Gaming Property or (B) to effectuate a Gaming Property Financing, provided
further, that any increase pursuant to this proviso shall be reduced dollar for
dollar by the amount of Acquired Debt secured by the assets of such Gaming
Property (unless such Acquired Debt could have been incurred under, and reduces
the amount available under Section 4.7(b)(ii) below);
(ii) FF&E Financing and Indebtedness represented by Capital Lease
Obligations, mortgage financings or other Purchase Money Obligations; provided,
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that (1) no Indebtedness incurred under the Notes is utilized for the purchase
or lease of FF&E financed with such FF&E Financing or such other Indebtedness,
and (2) the aggregate principal amount of such Indebtedness (including any
Acquired Debt referred to in the parenthetical in Section 4.7(b)(i) above and
including any Refinancing Indebtedness and any other Indebtedness incurred to
repay, redeem, discharge, retire, defease, refund, refinance or replace any
Indebtedness pursuant to this clause (ii)) outstanding at any time (excluding
any Gaming FF&E Financing incurred pursuant to this clause (ii)) does not exceed
the product of (x) $7,500,000 times (y) the number of Gaming Properties owned
and controlled after the Issue Date by any of the Company and the Restricted
Subsidiaries on the date of such incurrence;
(iii) Indebtedness solely in respect of bankers acceptances, letters
of credit payment obligations in connection with self-insurance or similar
requirements, security for workers' compensation claims, appeal bonds, surety
bonds, insurance obligations or bonds, and performance bonds, and similar bonds
or obligations, all incurred in the ordinary course of business (including,
without limitation, to maintain any license or permits) in accordance with
customary industry practices;
(iv) Hedging Obligations incurred to fix or hedge interest rate risk
with respect to any fixed or variable rate Indebtedness otherwise permitted by
this Indenture; provided, that the notional principal amount of each such
Hedging Obligation does not exceed the principal amount of the Indebtedness to
which such Hedging Obligation relates;
(v) Indebtedness of any Issuer, any Subsidiary Guarantor or any
Restricted Subsidiary owed to and held by a Subsidiary Guarantor or an Issuer,
as the case may be, that is unsecured and subordinated in right of payment to
the Notes and the Subsidiary Guaranties, as the case may be; provided, that any
subsequent issuance or transfer of any Capital Stock that results in any such
Subsidiary Guarantor or Restricted Subsidiary, as the case may be, ceasing to be
a Subsidiary Guarantor or a Restricted Subsidiary, or any transfer of such
Indebtedness (other than to an Issuer or a Subsidiary Guarantor) shall be
deemed, in each case, to constitute the incurrence of such Indebtedness by such
Issuer, such Subsidiary Guarantor or such Restricted Subsidiary, as the case may
be;
(vi) Indebtedness outstanding on the Issue Date, including the Notes
outstanding on the Issue Date, but excluding Indebtedness under any Senior
Credit Facility (other than the OED FF&E Facility) outstanding on the Issue
Date;
(vii) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
(except in the case of daylight overdrafts) drawn against insufficient funds in
the ordinary course of business;
(viii) the accrual of interest, the accretion or amortization of
original issue discount and the payment of interest on any Indebtedness in the
form of additional Indebtedness with the same terms;
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(ix) Indebtedness arising from agreements for indemnification,
adjustment of purchase price or similar obligations, in each case, incurred in
connection with the disposition of any business or assets of the Company, any of
the Subsidiary Guarantors or any of the Restricted Subsidiaries; provided that
the maximum aggregate liability in respect of all such Indebtedness shall at no
time exceed the gross proceeds actually received by the Company or the
applicable Subsidiary Guarantor or Restricted Subsidiary in connection with such
disposition;
(x) any Subsidiary Guaranty of the Notes;
(xi) Indebtedness issued in exchange for, or the proceeds of which
are substantially contemporaneously used to extend, repay, redeem, discharge,
refinance, renew, replace, or refund (collectively, "Refinance"), Indebtedness
incurred pursuant to the Interest Coverage Ratio test set forth in the
immediately preceding paragraph, Section 4.7(b)(vi) above, this clause (xi) or
Section 4.7(b)(xiii) below (the "Refinancing Indebtedness"); provided, that (a)
the principal amount of such Refinancing Indebtedness does not exceed the
principal amount of Indebtedness so Refinanced (plus any required premiums and
out-of-pocket expenses reasonably incurred in connection therewith), (b) the
Refinancing Indebtedness has a final scheduled maturity that equals or exceeds
the final stated maturity, and a Weighted Average Life to Maturity that is equal
to or greater than the Weighted Average Life to Maturity, of the Indebtedness
being Refinanced and (c) the Refinancing Indebtedness ranks, in right of
payment, no more favorable to the Notes or applicable Subsidiary Guaranty, as
the case may be, than the Indebtedness being Refinanced;
(xii) guarantees by Restricted Subsidiaries of Indebtedness of any
Restricted Subsidiary or the Company or guarantees by the Company of
Indebtedness of any Restricted Subsidiaries if the Indebtedness so guaranteed is
permitted under another provision of this Section 4.7 and so long as such
guarantee otherwise complies with this Indenture;
(xiii) Indebtedness (including, without limitation, Acquired Debt)
to acquire one or more Gaming Properties if: (a) no Default or Event of Default
shall have occurred and be continuing at the time of, or would occur after
giving effect on a pro forma basis to such incurrence, and (b) the Interest
Coverage Ratio for the Company's most recently ended four full fiscal quarters
for which internal financial statements are available immediately preceding the
date on which such additional Indebtedness is to be incurred (the "Four Quarter
Reference Period") would have been greater than (x) 1.5 to 1.0 if the last
fiscal quarter in the Four Quarter Reference Period is either the first or
second fiscal quarter of 2004, (y) 1.75 to 1.0 if the last fiscal quarter in the
Four Quarter Reference Period is either in the third or fourth fiscal quarter of
2004 and (z) 2.0 to 1.0 otherwise, in each case determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom), as set forth
in the definition of Interest Coverage Ratio, as if such additional Indebtedness
had been incurred at the beginning of such four-quarter period; and
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(xiv) Indebtedness not otherwise permitted by clauses (i) through
(xiii) of this Section 4.7(b) in an aggregate principal amount (or accreted
value, as applicable) at any time outstanding pursuant to this clause (xiv),
including all Refinancing Indebtedness incurred to repay, redeem, discharge,
retire, defease, refund, refinance or replace any Indebtedness incurred pursuant
to this clause (xiv), not to exceed $10,000,000.
(c) Upon each incurrence of Indebtedness, if such Indebtedness could have
been incurred under more than one provision of this Section 4.7, (i) the Company
may designate pursuant to which provision of this Section 4.7 such Indebtedness
is being incurred, (ii) the Company may subdivide an amount of Indebtedness and
designate more than one provision pursuant to which such amount of Indebtedness
is being incurred and shall be permitted to classify such item of Indebtedness
on the date of its incurrence, or later reclassify, all or a portion of such
item of Indebtedness, in any manner that complies with this Section 4.7, and
(iii) such Indebtedness shall not be deemed to have been incurred or outstanding
under any other provision of this Section 4.7 except that all incurrences under
the Notes, the Subsidiary Guaranties and this Indenture shall be deemed to have
been incurred pursuant to Section 4.7(b)(vi) above.
SECTION 4.8 LIMITATION ON LIENS
The Issuers shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, create, incur, assume or suffer to exist any Lien on any
asset (including, without limitation, all real, tangible or intangible property)
of the Company or any Restricted Subsidiary, whether now owned or hereafter
acquired, or on any income or profits therefrom, or assign or convey any right
to receive income therefrom, except Permitted Liens.
SECTION 4.9 LIMITATION ON RESTRICTED PAYMENTS
(a) The Issuers shall not, and shall not permit any of the Restricted
Subsidiaries to, directly or indirectly make a Restricted Payment unless, at the
time of such Restricted Payment:
(i) no Default or Event of Default has occurred and is continuing or
would occur as a consequence thereof, and
(ii) immediately after giving effect to such Restricted Payment on a
pro forma basis, the Company could incur at least $1.00 of additional
Indebtedness under the Interest Coverage Ratio test set forth in Section 4.7(a),
and
(iii) such Restricted Payment (the value of any such payment, if
other than cash, being determined in good faith by the Managers of the Company
and evidenced by a resolution set forth in an Officers' Certificate delivered to
the Trustee), together with the aggregate of all other Restricted Payments made
after the Issue Date (including Restricted Payments permitted by clauses (i),
(ii), (ix) and (x) of Section 4.9(b)
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hereof and excluding Restricted Payments permitted by the other clauses
therein), is less than the sum of:
(1) 50% of the Consolidated Net Income of the Company for the period
(taken as one accounting period) from the beginning of the first full fiscal
quarter immediately following the Issue Date to the end of the Company's most
recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, if such Consolidated Net
Income for such period is a deficit, 100% of such deficit), plus
(2) 100% of the aggregate net cash proceeds (or of the net cash
proceeds received upon the conversion of non-cash proceeds into cash) received
by the Company from (x) the issuance or sale, other than to a Subsidiary, of
Equity Interests of the Company (other than Disqualified Capital Stock) and (y)
any equity contribution from a holder of the Company's Capital Stock (other than
a Subsidiary), in each case, after the Issue Date and on or prior to the time of
such Restricted Payment, plus
(3) 100% of the aggregate net cash proceeds (or of the net cash
proceeds received upon the conversion of non-cash proceeds into cash) received
by the Company from the issuance or sale, other than to a Subsidiary, of any
convertible or exchangeable debt security of the Company that has been converted
or exchanged into Equity Interests of the Company (other than Disqualified
Capital Stock) pursuant to the terms thereof after the Issue Date and on or
prior to the time of such Restricted Payment (including any additional net cash
proceeds received by the Company upon such conversion or exchange), plus
(4) the aggregate Return from Unrestricted Subsidiaries after the
Issue Date and on or prior to the time of such Restricted Payment.
(b) The foregoing provisions shall not prohibit:
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment would not have
been prohibited by the provisions of this Indenture;
(ii) the redemption, purchase, retirement or other acquisition of
any Equity Interests of the Company or Indebtedness of the Company or any
Restricted Subsidiary in exchange for, or out of the proceeds of, the
substantially concurrent sale (other than to a Subsidiary) of, other Equity
Interests of the Company (other than Disqualified Capital Stock);
(iii) with respect to each tax year or portion thereof that the
Company qualifies as a Flow Through Entity and so long as Section 4.9(a)(i)
above is satisfied, the payment of Permitted Tax Distributions (whether paid in
such tax year or portion thereof, or any subsequent tax year); provided, that
(A) prior to the first payment of Permitted Tax Distributions during any
particular calendar year the Company provides an Officers' Certificate and an
Opinion of Counsel to the effect that the Company and
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each other Flow Through Entity in respect of which such distributions are being
made qualify as Flow Through Entities for Federal income tax purposes and for
the states in respect of which such distributions are being made for such tax
year or portion thereof, (B) at the time of such distribution, the most recent
audited financial statements of the Company for periods including such tax year
or portion thereof provided to the Trustee pursuant to Section 4.3 provide that
the Company and each subsidiary of the Company in respect of which such
distributions are being made was treated as a Flow Through Entity for the period
of such financial statements, and (C) in the case of the portion, if any, of any
Permitted Tax Distribution that is proposed to be distributed for a particular
taxable period or portion thereof, which portion of such Permitted Tax
Distribution is attributable to a Flow Through Entity that is not a Restricted
Subsidiary, such portion of such proposed Permitted Tax Distribution shall be
limited to the Excess Cash Distribution Amount for Taxes;
(iv) the redemption, repurchase or payoff of any Indebtedness of the
Company or a Restricted Subsidiary with proceeds of any Refinancing Indebtedness
permitted to be incurred pursuant to clause (xi) of Section 4.7(b);
(v) distributions or payments to PGP for or in respect of (A) tax
preparation, accounting, licensure, legal and administrative fees and expenses,
including travel and similar reasonable expenses, incurred on behalf of the
Issuers or their respective Subsidiaries or in connection with PGP's ownership
of the Issuers or their respective Subsidiaries, consistent with industry
practice, (B) so long as Section 4.9(a)(i) above is satisfied, distributions
pursuant to, and in accordance with, Management Arrangements and (C) so long as
Section 4.9(a)(i) above is satisfied, reasonable and customary directors' or
managers' fees to, and indemnity provided on behalf of, the Managers of PGP and
the Company, and reimbursement of customary and reasonable travel and similar
expenses incurred in the ordinary course of business;
(vi) (A) the repurchase, redemption or other retirement or
acquisition of Equity Interests of the Company or any Restricted Subsidiary from
its employees, members or managers (or their heirs or estates) or employees,
members or managers (or their heirs or estates) of the Restricted Subsidiaries
or (B) any dividend, distribution or other payment to PGP to enable PGP to
repurchase, redeem, or otherwise retire or acquire Equity Interests of PGP from
any of its employees, members or managers (or their heirs or estates) or
employees, members or managers (or their heirs or estates) of any of their
respective subsidiaries, in the case of each of the preceding clauses (A) and
(B) upon the death, disability or termination of employment or pursuant to the
terms of any subscription, stock option, stockholder or other agreement or plan
in effect on the Issue Date in an aggregate amount pursuant to this clause (vi)
to all such employees, members or managers (or their heirs or estates) not to
exceed $750,000 in any twelve month period on and after the Issue Date
(provided, however, that any amounts not used in any such twelve month period
may be carried forward to the next succeeding twelve month period until used);
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(vii) the redemption and repurchase of any Equity Interests or
Indebtedness of PGP, the Company or any of the Restricted Subsidiaries to the
extent required by any Gaming Authority;
(viii) the payment of (x) accrued distributions under the Seller
Preferred in accordance with its terms and (y) an amount not in excess of the
face amount of the Seller Preferred outstanding on the Issue Date, plus accrued
and unpaid distributions thereon as of the redemption date;
(ix) any dividend, distribution or other payment by any of the
Restricted Subsidiaries on its Equity Interests that is paid pro rata to all
holders of such Equity Interests;
(x) the declaration and payment of dividends and distributions to
holders of Disqualified Equity Interests of the Company or any of the Restricted
Subsidiaries issued or incurred in accordance with Section 4.7;
(xi) consummation on the Issue Date of the Transactions; and
(xii) so long as Section 4.9(a)(i) above is satisfied, Restricted
Payments not otherwise permitted by this Section 4.9 in an aggregate amount
pursuant to this clause (xii) not to exceed $15,000,000.
Promptly following the end of each fiscal quarter during which any
Restricted Payment was made pursuant to clause (iii) of Section 4.9(a), the
Company shall deliver to the Trustee an Officers' Certificate stating that each
such Restricted Payment was permitted and setting forth the basis upon which the
calculations required by this Section 4.9 were computed, which calculations may
be based upon the Company's latest available internal financial statements. For
purposes of this Section 4.9, the amount of any Restricted Payment made or
returned, if other than in cash, shall be the fair market value thereof, as
determined in the reasonable good faith judgment of the Managers of the Company,
unless stated otherwise, at the time made or returned, as applicable.
For purposes of determining compliance with this Section 4.9, if a
Restricted Payment meets the criteria of more than one of the exceptions
described in clauses (i) through (x) and (xii) of Section 4.9(b) above or is
entitled to be made according to Section 4.9(a), the Company may, in its sole
discretion, classify the Restricted Payment in any manner that complies with
this Section 4.9.
SECTION 4.10 LIMITATION ON RESTRICTIONS ON SUBSIDIARY DIVIDENDS
The Issuers shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any Restricted
Subsidiary to:
(a) pay dividends or make any other distributions to the Company or
any of the Restricted Subsidiaries (i) on such Restricted Subsidiary's Capital
Stock or (ii)
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with respect to any other interest or participation in, or measured by, such
Restricted Subsidiary's profits, or
(b) pay any Indebtedness owed to the Company or any of the Restricted
Subsidiaries, or
(c) make loans or advances to the Company or any of the Restricted
Subsidiaries, or
(d) transfer any of its assets to the Company or any of the Restricted
Subsidiaries,
except, with respect to clauses (a) through (d) above, for such encumbrances or
restrictions existing under or by reason of:
(1) a Senior Credit Facility containing dividend or other payment
restrictions that are not more restrictive in any material respect than those
contained in this Indenture on the Issue Date;
(2) this Indenture, the Security Documents and the Notes;
(3) applicable law or any applicable rule or order of any
Governmental Authority;
(4) Acquired Debt; provided, that such encumbrances and restrictions
are not applicable to any Person, or the properties or assets of any Person,
other than the Person, or the property or assets of the Person, so acquired;
(5) customary non-assignment and net worth provisions of any
contract, lease or license entered into in the ordinary course of business;
(6) customary restrictions on the transfer of assets subject to a
Permitted Lien imposed by the holder of such Lien;
(7) the agreements governing Refinancing Indebtedness; provided,
that such restrictions contained in any agreement governing such Refinancing
Indebtedness are no more restrictive in any material respect than those
contained in any agreements governing the Indebtedness being refinanced;
(8) the provisions of any Indebtedness or other agreements existing
on the Issue Date, as such agreements are in effect on the Issue Date, without
giving effect to any amendment or supplement thereto or modification thereof, in
each case, to the extent not more restrictive in any material respect than such
provisions as in effect on the Issue Date;
(9) any restrictions with respect to a Restricted Subsidiary imposed
pursuant to a binding agreement that has been entered into for the sale or
disposition of all or substantially all of the Equity Interests or assets of
such Restricted
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Subsidiary; provided, that such restrictions only apply to the Equity Interests
or assets of such Restricted Subsidiary being sold; and
(10) customary restrictions imposed on the transfer of copyrighted,
trademarked or patented materials.
SECTION 4.11 ADDITIONAL COLLATERAL
The Issuers shall, and shall cause each of the Subsidiary Guarantors to,
grant to the Trustee a first priority security interest in all Collateral,
whether owned on the Issue Date or thereafter acquired, and to execute and
deliver all documents and to take all action reasonably necessary to perfect and
protect such a security interest in favor of the Trustee, in each case, subject
to the terms of the Intercreditor Agreement.
SECTION 4.12 LIMITATION ON TRANSACTIONS WITH AFFILIATES
(a) The Issuers shall not, and shall not permit any of the Restricted
Subsidiaries to, directly or indirectly, sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into any contract, agreement, understanding, loan, advance
or guaranty with, or for the benefit of, any Affiliate of the Issuers or any of
the Restricted Subsidiaries (each of the foregoing, an "Affiliate Transaction"),
except for:
(i) Affiliate Transactions that, together with all related Affiliate
Transactions, have an aggregate value of not more than $1,000,000; provided,
that such transactions are conducted in good faith and on terms that are no less
favorable to such Issuer or the relevant Restricted Subsidiary than those that
would have been obtained in a comparable transaction at such time by such Issuer
or such Restricted Subsidiary on an arm's length basis from a Person that is not
an Affiliate of such Issuer or such Restricted Subsidiary;
(ii) Affiliate Transactions that, together with all related
Affiliate Transactions, have an aggregate value of not more than $5,000,000;
provided, that (a) a majority of the disinterested Managers of the Company or,
if none, a disinterested committee appointed by the Managers of the Company for
such purpose, determine that such transactions are conducted in good faith and
on terms that are no less favorable to such Issuer or the relevant Restricted
Subsidiary than those that would have been obtained in a comparable transaction
at such time by such Issuer or such Restricted Subsidiary on an arm's length
basis from a Person that is not an Affiliate of such Issuer or such Restricted
Subsidiary and (b) prior to entering into such transaction the Company shall
have delivered to the Trustee an Officers' Certificate certifying to such
effect; or
(iii) Affiliate Transactions for which the Company delivers to the
Trustee an opinion issued by an accounting, appraisal or investment banking firm
of national standing (other than Jefferies & Company, Inc. or any of its
Affiliates) as to the fairness of such transaction to such Issuer or such
Restricted Subsidiary from a financial point of view.
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(b) Notwithstanding the foregoing, the following shall be deemed not to be
Affiliate Transactions:
(i) transactions between or among the Issuers and/or any or all of
the Restricted Subsidiaries;
(ii) Restricted Payments permitted by the provisions of this
Indenture described above under Section 4.9;
(iii) reasonable and customary compensation (including directors'
fees) paid to, and indemnity and customary employee benefit arrangements
(including directors' and officer's liability insurance) provided for the
benefit of, any director, officer, employee or consultant of the Company or any
Restricted Subsidiary, or Manager of PGP, in each case entered into in the
ordinary course of business and for services provided to the Company, such
Restricted Subsidiary or PGP, respectively, as determined in good faith by the
Managers of the Company;
(iv) any agreement or arrangement as in effect on the Issue Date
among the Issuers and/or one or more Restricted Subsidiaries, on the one hand,
and any officers or Managers thereof and/or any Affiliates of the Company, on
the other hand (without giving effect to any amendment or supplement thereto or
modification thereof, except for any such amendment, supplement, modification or
replacement agreement that is not more disadvantageous to the Holders in any
material respect than the original agreement thereof as in effect on the Issue
Date), and any transactions contemplated thereby;
(v) Permitted Investments (other than Permitted Investments pursuant
to clause (xiii) of the definition thereof); and
(vi) transactions with a joint venture engaged in a Related
Business; provided, that all the outstanding ownership interests of such joint
venture are controlled only by the Company, the Restricted Subsidiaries and
Persons who are not Affiliates of the Company.
SECTION 4.13 LIMITATION ON ASSET SALES
(a) The Issuers shall not, and shall not permit any Restricted Subsidiary
to, make any Asset Sale unless:
(i) such Issuer or such Restricted Subsidiary receives consideration
at the time of such Asset Sale not less than the fair market value of the assets
subject to such Asset Sale (as determined by the Company's Managers in good
faith);
(ii) at least 75% of the consideration for such Asset Sale is in the
form of either (a) cash or Cash Equivalents or liabilities of the Company or any
Restricted Subsidiary (other than liabilities that are by their terms
subordinated to the Notes or any Subsidiary Guaranty) that are assumed by the
transferee of such assets
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(provided, that following such Asset Sale, there is no further recourse to the
Company or the Restricted Subsidiaries or the Company and the Restricted
Subsidiaries are fully indemnified with respect to such liabilities; provided,
further, that the 75% limitation set forth in this clause (ii) of this Section
4.13(a) shall not apply to any proposed Asset Sale for which an independent
certified accounting firm has certified to the Managers of the Company and the
Trustee that the after-tax cash portion of the consideration to be received by
the Company or such Restricted Subsidiary in such proposed Asset Sale is equal
to or greater than what the net after-tax cash proceeds would have been had such
proposed Asset Sale complied with the 75% limitation set forth in this clause
(ii) of this paragraph), or (b) assets of the type described in clause (iii)(A)
of this Section 4.13(a) below; and
(iii) within 360 days of such Asset Sale, the Net Proceeds thereof
are (A) invested in assets related to the business of the Company or the
Restricted Subsidiaries (which, in the case of an Asset Sale of the Diamond Jo
or any replacement Gaming Vessel (a "Replacement Vessel"), must be a Gaming
Vessel having a fair market value, as determined by an independent appraisal, at
least equal to the fair market value of the Diamond Jo or such Replacement
Vessel immediately preceding such Asset Sale), (B) applied to repay Indebtedness
under Purchase Money Obligations incurred in connection with the assets so sold,
(C) applied to repay Indebtedness under the Senior Credit Facility and
permanently reduce the commitment thereunder in the amount of the Indebtedness
so repaid or (D) to the extent not used as provided in clauses (A), (B), or (C)
of this Section 4.13(a)(iii) or any combination thereof, applied to make an
offer to purchase Notes as described below (an "Excess Proceeds Offer");
provided, that the Company shall not be required to make an Excess Proceeds
Offer until the amount of Excess Proceeds is greater than $10,000,000.
(b) All Net Proceeds from an Event of Loss shall be used as follows: (1)
first, the Company shall use such net cash proceeds to the extent necessary to
rebuild, repair, replace or restore the assets subject to such Event of Loss
with comparable assets and (2) then, to the extent any Net Proceeds from an
Event of Loss are not used as described in the preceding clause (1), all such
remaining Net Proceeds shall be reinvested or used as provided in the
immediately preceding Section 4.13(a)(iii).
(c) Pending the final application of any Net Proceeds, the Company may
temporarily reduce Indebtedness under the Senior Credit Facility or temporarily
invest such Net Proceeds in Cash Equivalents.
(d) Net Proceeds not invested or applied as set forth in any of the
preceding subclause (A), (B) or (C) of Section 4.13(a)(iii) above constitute
"Excess Proceeds." If the Company elects, or becomes obligated to make an Excess
Proceeds Offer, the Issuers shall offer to purchase Notes having an aggregate
principal amount equal to the Excess Proceeds (the "Purchase Amount"), at a
purchase price equal to 100% of the aggregate principal amount thereof, plus
accrued and unpaid Interest (and Liquidated Damages) if any, to the purchase
date. The Issuers must commence such Excess Proceeds Offer not later than 30
days after the expiration of the 360 day period following the Asset Sale that
produced such Excess Proceeds. If the aggregate purchase
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price for the Notes tendered pursuant to the Excess Proceeds Offer is less than
the Excess Proceeds, the Company and the Restricted Subsidiaries may use the
portion of the Excess Proceeds remaining after payment of such purchase price
for general corporate purposes.
Each Excess Proceeds Offer shall remain open for a period of 20 Business
Days and no longer, unless a longer period is required by law (the "Excess
Proceeds Offer Period"). Promptly after the termination of the Excess Proceeds
Offer Period, the Issuers shall purchase and mail or deliver payment for the
Purchase Amount for the Notes or portions thereof tendered, pro rata or by such
other method as may be required by law, or, if less than the Purchase Amount has
been tendered, all Notes tendered pursuant to the Excess Proceeds Offer. The
principal amount of Notes to be purchased pursuant to an Excess Proceeds Offer
may be reduced by the principal amount of Notes acquired by the Issuers through
purchase or redemption (other than pursuant to a Change of Control Offer)
subsequent to the date of the Asset Sale and surrendered to the Trustee for
cancellation.
If the Purchase Amount for the Excess Proceeds Offer hereunder is made on
or after an Interest Record Date on which the Holders of record have a right to
receive the corresponding Interest due and Liquidated Damages, if any, and on or
before the associated Interest Payment Date, any accrued and unpaid Interest
(and Liquidated Damages, if any), due on such Interest Payment Date shall be
paid to the Person in whose name a Note is registered at the close of business
on such Interest Record Date.
Each Excess Proceeds Offer shall be conducted in compliance with
applicable regulations under the Federal securities laws, including Exchange Act
Rule 14e-1. To the extent that the provisions of any securities laws or
regulations conflict with this Section 4.13, the Issuers shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached their obligations under this Section 4.13 by virtue thereof.
The Issuers shall not, and shall not permit any of the Restricted
Subsidiaries to, create or suffer to exist or become effective any restriction
that would impair the ability of the Issuers to make an Excess Proceeds Offer
upon an Asset Sale or, if such Excess Proceeds Offer is made, to pay for the
Notes tendered for purchase.
SECTION 4.14 RESTRICTION ON SALE AND ISSUANCE OF SUBSIDIARY STOCK
The Issuers shall not, and shall not permit any Restricted Subsidiary to,
issue or sell any Equity Interests (other than directors' qualifying shares) of
any Restricted Subsidiary to any Person other than the Company or a Wholly Owned
Subsidiary of the Company; provided, that the Company and the Restricted
Subsidiaries may sell all (but not less than all) of the Capital Stock of a
Restricted Subsidiary owned by the Company and the Restricted Subsidiaries if
the Net Proceeds from such Asset Sale are used in accordance with the terms of
Section 4.13.
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SECTION 4.15 REPURCHASE UPON A CHANGE OF CONTROL
(a) Upon the occurrence of a Change of Control, the Issuers shall offer to
repurchase all of the Notes then outstanding (the "Change of Control Offer") at
a purchase price equal to 101% of the principal amount thereof, plus accrued and
unpaid Interest (and Liquidated Damages, if any), to the date of repurchase (the
"Change of Control Payment"). Within 30 days following any Change of Control,
the Issuers must mail or cause to be mailed a notice to each Holder stating,
among other things:
(i) the purchase price and the purchase date, which shall be no
earlier than 30 days nor later than 45 days from the date such notice is mailed
(the "Change of Control Payment Date");
(ii) that any Holder electing to have Notes purchased pursuant to a
Change of Control Offer shall be required to surrender the Notes, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Notes
completed, to the Paying Agent at the address specified in the notice prior to
the close of business on the third Business Day preceding the Change of Control
Payment Date; and
(iii) that the Holder shall be entitled to withdraw such election if
the Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of Notes delivered for purchase, and a statement that such
Holder is withdrawing his election to have such Notes purchased.
(b) The Issuers shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of the Notes in connection with a Change of Control. To the extent
that the provisions of any securities laws or regulations conflict with this
Section 4.15, the Issuers shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached their obligations under
this Section 4.15 by virtue thereof.
(c) On the Change of Control Payment Date, the Issuers shall, to the
extent lawful, (i) accept for payment the Notes or portions thereof tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent an
amount equal to the Change of Control Payment in respect of all Notes or
portions thereof so tendered and not withdrawn, and (iii) deliver or cause to be
delivered to the Trustee the Notes so accepted, together with an Officers'
Certificate stating that the Notes or portions thereof tendered to the Issuers
are accepted for payment. The Paying Agent shall promptly mail to each Holder of
Notes so accepted payment in an amount equal to the purchase price for such
Notes, and the Trustee shall authenticate and mail (or cause to be transferred
by book entry) to each Holder a new Note equal in principal amount to any
unpurchased portion of the Notes surrendered, if any; provided, that each such
new Note shall be in the principal amount of $1,000 or an integral multiple
thereof. The Issuers shall announce the results of the Change of Control Offer
on or as soon as practicable after the Change of Control Payment Date.
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(d) The Issuers shall not be required to make a Change of Control Offer
upon a Change of Control if a third party makes the Change of Control Offer in
the manner, at the times and otherwise in compliance with the requirements set
forth in this Indenture applicable to a Change of Control Offer made by the
Issuers, and purchases all Notes validly tendered and not withdrawn under such
Change of Control Offer.
(e) If the Change of Control Payment Date hereunder is on or after an
Interest Record Date on which the Holders of record have a right to receive the
corresponding Interest due and Liquidated Damages, if any, and on or before the
associated Interest Payment Date, any accrued and unpaid Interest (and
Liquidated Damages, if any), due on such Interest Payment Date will be paid to
the Person in whose name a Note is registered at the close of business on such
Interest Record Date.
SECTION 4.16 SUBSIDIARY GUARANTORS
All of the Issuers' present and future Restricted Subsidiaries (other than
Foreign Subsidiaries and other than a Restricted Subsidiary that is a co-Issuer
of the Notes) jointly and severally shall guarantee all principal, premium, if
any, Interest and Liquidated Damages, if any, on the Notes on a senior secured
basis.
SECTION 4.17 LIMITATION ON STATUS AS INVESTMENT COMPANY
The Issuers, the Subsidiary Guarantors and the Restricted Subsidiaries
shall be prohibited from being required to register as an "investment company"
(as that term is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act")), or from otherwise becoming subject to regulation
under the Investment Company Act.
SECTION 4.18 MAINTENANCE OF PROPERTIES AND INSURANCE
The Issuers and the Subsidiary Guarantors shall cause all material
properties used or useful to the conduct of their business and the business of
each of the Restricted Subsidiaries to be maintained and kept in good condition,
repair and working order (reasonable wear and tear excepted) in all material
respects and supplied with all necessary equipment and shall cause to be made
all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in their reasonable judgment may be necessary, so that the
business carried on in connection therewith may be properly conducted at all
times; provided, however, that nothing in this Section 4.18 shall prevent the
Issuers, any Subsidiary Guarantor or any Restricted Subsidiary from
discontinuing any operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is (a) in the good
faith judgment of the Managers of each of the Issuers, desirable in the conduct
of the business of such entity and (b) not otherwise prohibited by this
Indenture or the Security Documents.
The Issuers and Subsidiary Guarantors shall provide, or cause to be
provided, for themselves and each of the Restricted Subsidiaries, insurance
(including appropriate self-insurance) against loss or damage of the kinds that,
in the reasonable,
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good faith opinion of the Managers of each of the Issuers is adequate and
appropriate for the conduct of the business of the Issuers, the Subsidiary
Guarantors and such Restricted Subsidiaries.
SECTION 4.19 CORPORATE EXISTENCE
Subject to Article V hereof, the Issuers shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) their limited
liability company and corporate existence, as applicable, and the corporate,
partnership or other existence of each of the Restricted Subsidiaries, in
accordance with the respective organizational documents (as the same may be
amended from time to time) of the Issuers or any such Restricted Subsidiary and
(ii) the rights (charter and statutory), licenses and franchises of the Issuers
and each of the Restricted Subsidiaries; provided, however, that the Issuers
shall not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of the Restricted Subsidiaries,
if the Company's Managers shall determine in good faith that the preservation
thereof is no longer desirable in the conduct of the business of the Issuers and
each of the Restricted Subsidiaries, taken as a whole, and that the loss thereof
would not have a material adverse effect on the ability of the Issuers and the
Subsidiary Guarantors to satisfy their obligations under the Notes, the
Subsidiary Guaranties and this Indenture.
SECTION 4.20 RESTRICTIONS ON ACTIVITIES OF CAPITAL
Capital shall not hold any assets, become liable for any obligations or
engage in any business activities; provided, that Capital may be a co-obligor of
the Notes (including any Additional Notes incurred pursuant to Section 4.7)
pursuant to the terms of this Indenture, may be a co-obligor of the OED 13%
Senior Secured Notes due 2010 pursuant to the terms of the OED Indenture, may be
a co-obligor under the OED Credit Facility and the OED FF&E Facility, to the
extent they remain outstanding after the Issue Date, and may engage in any
activities directly related or necessary in connection therewith.
SECTION 4.21 ENTITY CLASSIFICATION
The Company is classified as a Flow Through Entity and shall not take, or
fail to take, any action which would result in the Company no longer being
classified as a Flow Through Entity except (i) pursuant to a Permitted C-Corp
Conversion or (ii) any transaction permitted under Article V hereof.
SECTION 4.22 RULE 144A INFORMATION
The Issuers shall, and the Subsidiary Guarantors shall, furnish to the
Holders or beneficial holders of Notes, upon their written request, and to
prospective purchasers thereof designated by such Holders or beneficial holders
of Notes, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act for so long as is required for an offer or sale of the
Notes to qualify for an exemption under Rule 144A.
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SECTION 4.23 REORGANIZATION TRANSACTIONS
Notwithstanding anything in this Indenture to the contrary, if the
Requisite Regulatory Approvals shall have been received the Reorganization
Transactions may be consummated without the consent of any Holder and, for the
avoidance of doubt, the Reorganization Transactions shall not constitute an
Asset Sale, an Affiliate Transaction or a Restricted Payment or be subject to
Section 4.14 or Article V.
ARTICLE V
SUCCESSORS
SECTION 5.1 MERGER, CONSOLIDATION OR SALE OF ASSETS
No Issuer may consolidate or merge with or into (regardless of whether
such Issuer is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets (determined on a consolidated basis for such Issuer and its Restricted
Subsidiaries) in one or more related transactions to, any other Person, unless:
(a) either (A) such Issuer is the surviving Person or (B) the Person
formed by or surviving any such consolidation or merger (if other than such
Issuer) or to which such sale, assignment, transfer, lease, conveyance or other
disposition has been made is either (x) a corporation organized and existing
under the laws of the United States of America, any state thereof or the
District of Columbia or (y) if at least one Issuer following any such
consolidation, merger, sale, assignment, transfer, lease, conveyance or other
disposition is a corporation organized and existing under the laws of the United
States of America, any state thereof or the District of Columbia, a limited
liability company formed and existing under the laws of the United States of
America, any state thereof or the District of Columbia;
(b) the Person formed by or surviving any such consolidation or merger (if
other than such Issuer) or the Person to which such sale, assignment, transfer,
lease, conveyance or other disposition has been made assumes all the Obligations
of such Issuer under the Notes, this Indenture, the Security Documents, the
Intercreditor Agreement and the Registration Rights Agreement, pursuant to a
supplemental indenture to this Indenture and joinders, as applicable, to the
Security Documents, the Intercreditor Agreement and the Registration Rights
Agreement, each in a form reasonably satisfactory to the Trustee,
(c) immediately after giving effect to such transaction on a pro forma
basis, no Default or Event of Default exists;
(d) such transaction would not result in the loss or suspension or
material impairment of any Gaming License unless a comparable replacement Gaming
License is effective prior to or simultaneously with such loss, suspension or
material impairment; and
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(e) such Issuer, or any Person formed by or surviving any such
consolidation or merger, or to which such sale, assignment, transfer, lease,
conveyance or other disposition has been made, shall be permitted, at the time
of such transaction and after giving pro forma effect thereto as if such
transaction had occurred at the beginning of the applicable four-quarter period,
to incur at least $1.00 of additional Indebtedness pursuant to the applicable
Interest Coverage Ratio test set forth in Section 4.7(a) or Section
4.7(b)(xiii).
SECTION 5.2 SUCCESSOR CORPORATION SUBSTITUTED
In the event of any transaction (other than a lease or a transfer of less
than all of the Issuers' assets) described in and complying with the conditions
listed in Section 5.1 in which such Issuer is not the surviving Person, such
surviving Person or transferee shall succeed to, and be substituted for, and may
exercise every right and power of, such Issuer under, and such Issuer shall be
discharged from its Obligations under, this Indenture, the Notes, the Security
Documents and the Registration Rights Agreement, with the same effect as if such
successor Person had been named as such Issuer herein or therein.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT
(a) Each of the following shall constitute an "Event of Default" under
this Indenture:
(i) the Issuers default in the payment of Interest on any Note when
the same becomes due and payable and the Default continues for a period of 30
days;
(ii) the Issuers default in the payment of the principal (or
premium, if any) on any Note when the same becomes due and payable at maturity,
upon redemption, by acceleration, in connection with an Excess Proceeds Offer or
a Change of Control Offer or otherwise;
(iii) either of the Issuers default in the performance of or
breaches the provisions of Section 4.13, Section 4.15 or Article V;
(iv) either of the Issuers or any Subsidiary Guarantor fails to
comply with any of its other agreements or covenants in, or provisions of, the
Notes or this Indenture and the Default continues for 60 days after written
notice thereof has been given to the Issuers by the Trustee or to the Issuers
and the Trustee by the Holders of at least 25% in aggregate principal amount of
the then outstanding Notes, such notice to state that it is a "Notice of
Default";
(v) an event of default occurs under (after giving effect to any
waivers, amendments, applicable grace periods or any extension of any maturity
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date) any mortgage, indenture or instrument under which there may be issued or
by which there may be secured or evidenced any Indebtedness for money borrowed
by the Issuers or any Restricted Subsidiary (or the payment of which is
guaranteed by the Issuers or any Restricted Subsidiary), whether such
Indebtedness or guaranty now exists or is created after the Issue Date, if (a)
either (1) such default results from the failure to pay principal of or interest
on such Indebtedness or (2) as a result of such event of default the maturity of
such Indebtedness has been accelerated, and (b) the principal amount of such
Indebtedness, together with the principal amount of any other such Indebtedness
with respect to which such a payment event of default (after the expiration of
any applicable grace period or any extension of the maturity date) has occurred,
or the maturity of which has been so accelerated, exceeds $5,000,000 in the
aggregate;
(vi) a final non-appealable judgment or judgments for the payment of
money (other than to the extent of any judgment as to which a reputable
insurance company has accepted liability) is or are entered by a court or courts
of competent jurisdiction against either of the Issuers or any Subsidiary and
such judgment or judgments are not discharged, bonded or stayed within 60 days
after entry, provided that the aggregate of all such judgments exceeds
$5,000,000;
(vii) the cessation of substantially all gaming operations of the
Company and the Restricted Subsidiaries, taken as a whole, for more than 90
days, except as a result of an Event of Loss;
(viii) any revocation, suspension, expiration (without previous or
concurrent renewal) or loss of any Gaming License of the Company or any
Restricted Subsidiary for more than 90 days;
(ix) any Subsidiary Guaranty of a Subsidiary Guarantor which is a
Significant Subsidiary ceases to be in full force and effect or shall be held in
any judicial proceeding to be unenforceable or invalid or is declared null and
void (other than in accordance with the terms of the Subsidiary Guaranty and
this Indenture) or any Subsidiary Guarantor which is a Significant Subsidiary
denies or disaffirms its Obligations under its Subsidiary Guaranty or the
Security Documents (in each case, other than by reason of the termination of
this Indenture or the release of any such Subsidiary Guaranty in accordance with
this Indenture);
(x) (A) any event of default under a Security Document (after giving
effect to any applicable grace periods, applicable notice periods, waivers or
amendments) or (B) the failure of the Issuers or any Restricted Subsidiary to
comply with any material agreement or covenant in, or material provision of, any
of the Security Documents, or any breach in any material respect of any material
representation or warranty made by the Issuers or any Restricted Subsidiary in
any Security Document, and the continuance of such failure or breach for a
period of 30 days after written notice is given to the Issuers by the Trustee or
to the Issuers and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Notes outstanding;
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(xi) any of the Security Documents ceases to be in full force and
effect or any of the Security Documents ceases to give the Trustee (or, in the
case of a mortgage, ceases to give the Trustee or any other trustee under such
mortgage) any of the Liens, rights, powers or privileges purported to be created
thereby, or any of the Security Documents is declared null and void, or any of
the Issuers or any Subsidiary Guarantor denies that it has any further liability
under any Security Document to which it is a party or gives notice of such
effect (in each case other than by reason of the termination of this Indenture
or any such Security Document in accordance with its terms or the release of any
Subsidiary Guarantor in accordance with this Indenture) and the continuance of
such failure for a period of 30 days after written notice is given to the
Issuers by the Trustee or to the Issuers and the Trustee by the Holders of at
least 25% in aggregate principal amount of the Notes outstanding;
(xii) either of the Issuers or any Subsidiary Guarantor pursuant to
or within the meaning of any Bankruptcy Law:
(1) commences a voluntary case,
(2) consents to the entry of an order for relief against it
in an involuntary case,
(3) consents to the appointment of a custodian of it or for
all or substantially all of its property,
(4) makes a general assignment for the benefit of its
creditors, or
(5) admits in writing its inability to pay debts as the same
become due; and
(xiii) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(1) is for relief against either of the Issuers or any
Subsidiary Guarantor in an involuntary case,
(2) appoints a custodian of either of the Issuers or any
Subsidiary Guarantor or for all or substantially all of
their property, or
(3) orders the liquidation of either of the Issuers, or any
Subsidiary Guarantor,
and the order or decree remains unstayed and in effect for 60 days.
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(b) The Issuers are required, upon becoming aware of any Default or Event
of Default, to deliver to the Trustee a statement specifying such Default or
Event of Default and what action the Issuers are taking or propose to take with
respect thereto.
SECTION 6.2 ACCELERATION
Subject to the terms of the Intercreditor Agreement, if an Event of
Default (other than an Event of Default specified in clause (xii) or (xiii) of
Section 6.1(a)) occurs and is continuing, the Trustee by written notice to the
Issuers, or the Holders of at least 25% in principal amount of the then
outstanding Notes by written notice to the Issuers and the Trustee, may declare
the unpaid principal of and any accrued Interest (and Liquidated Damages, if
any) on all the Notes to be due and payable. Upon such declaration the
principal, premium, if any, Interest (and Liquidated Damages, if any) shall be
due and payable immediately. If an Event of Default specified in clause (xii) or
(xiii) of Section 6.1(a) occurs, all outstanding Notes shall ipso facto become
and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder. At any time after a declaration of
acceleration, but before a judgment or decree for payment of the money due has
been obtained by the Trustee, the Holders of a majority in aggregate principal
amount of the Notes outstanding, by written notice to the Issuers and the
Trustee, may rescind and annul such declaration and its consequences if (a) the
Issuers have paid or deposited with the Trustee a sum sufficient to pay (i) all
sums paid or advanced by the Trustee and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, (ii) all
overdue Interest (including any Interest accrued subsequent to an Event of
Default specified in clause (xii) or (xiii) of Section 6.1(a) and Liquidated
Damages, if any, on all Notes, (iii) the principal of and premium, if any, on
any Notes that have become due otherwise than by such declaration or occurrence
of acceleration and Interest thereon at the rate borne by the Notes, and (iv) to
the extent that payment of such Interest is lawful, Interest upon overdue
Interest at the rate borne by the Notes; (b) all Events of Default, other than
the non-payment of principal of and Interest on the Notes that have become due
solely by such declaration or occurrence of acceleration, have been cured or
waived; and (c) the rescission would not conflict with any judgment, order or
decree of any court of competent jurisdiction.
SECTION 6.3 OTHER REMEDIES
If an Event of Default occurs and is continuing, subject to the terms of
the Intercreditor Agreement, the Trustee may pursue any available remedy to
collect the payment of principal, premium, if any, Liquidated Damages, if any,
and Interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or omission
by the Trustee or any Holder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or constitute a waiver of
or acquiescence in the Event of Default. All remedies are cumulative to the
extent permitted by law.
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SECTION 6.4 WAIVER OF DEFAULTS
Subject to Section 6.7 hereof, Holders of a majority of the aggregate
principal amount of the then outstanding Notes by written notice to the Trustee
may on behalf of the Holders of all of the Notes (a) waive any existing or past
Default or Event of Default and its consequences under this Indenture (x) except
a continuing Default or Event of Default in the payment of the principal of,
premium, if any, or Interest (and Liquidated Damages, if any) on any Note or (y)
a Default or an Event of Default with respect to any covenant or provision which
cannot be modified or amended without the consent of the Holder of each
outstanding Note affected or supermajority approval, which Default or Event of
Default may be waived only with the consent of each outstanding Note affected or
such supermajority approval, respectively, and/or (b) rescind an acceleration
and its consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default (except nonpayment of principal or
Interest that has become due solely because of the acceleration) have been cured
or waived. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
SECTION 6.5 CONTROL BY MAJORITY
Subject to all provisions of the Indenture and applicable law, the Holders
of a majority in aggregate principal amount of the then outstanding Notes may
direct the time, method and place of conducting any proceeding for exercising
any remedy available to the Trustee or exercising any trust or power conferred
on the Trustee. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, that the Trustee determines in good faith
may be unduly prejudicial to the rights of other Holders not joining in the
giving of such direction or that may involve the Trustee in personal liability
and the Trustee may take any other action it deems proper that is not
inconsistent with any such direction received from Holders.
SECTION 6.6 LIMITATION ON SUITS
A Holder may pursue a remedy with respect to this Indenture or the Notes
only if:
(a) the Holder gives to the Trustee written notice of a continuing Event
of Default;
(b) the Holders of at least 25% in aggregate principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the remedy;
(c) such Holder or Holders offer and, if requested, provide to the Trustee
indemnity satisfactory to the Trustee against any costs, liability or expense;
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(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a direction
inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or
to obtain a preference or priority over another Holder.
SECTION 6.7 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT
Notwithstanding any other provision of this Indenture, except as permitted
by Section 9.2 hereof, the right of any Holder to receive payment of the
principal of, premium and Interest (and Liquidated Damages, if any) on a Note,
on or after the respective due dates expressed in the Note (including in
connection with an offer to purchase) or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 6.8 COLLECTION SUIT BY TRUSTEE
If an Event of Default specified in Section 6.1(a)(i) or 6.1(a)(ii) hereof
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Issuers for the whole
amount of principal of, premium and Interest (and Liquidated Damages, if any)
remaining unpaid on the Notes and interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM
The Trustee is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Issuers (or any
other obligor upon the Notes), their creditors or their property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.7 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.7 hereof out of the estate in
any such proceeding, shall be denied for any
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reason, payment of the same shall be secured by a Lien on, and shall be paid out
of, any and all distributions, dividends, money, securities and other properties
that the Holders may be entitled to receive in such proceeding whether in
liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding; provided, however that the Trustee
may, on behalf of the Holders, vote for the election of a trustee in bankruptcy
or similar official and may be a member of the creditor's committee.
SECTION 6.10 PRIORITIES
Subject to the terms of the Intercreditor Agreement, if the Trustee
collects any money pursuant to this Article, it shall pay out the money in the
following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.7 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection (including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel);
Second: to Holders for amounts due and unpaid on the Notes for principal,
Interest and Liquidated Damages, if any, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Notes for
principal, premium Interest, and Liquidated Damages, if any, respectively;
Third: without duplication, to the Holders for any other Obligations owing
to the Holders under the Notes or this Indenture; and
Fourth: to the applicable Issuers or Subsidiary Guarantors or to such
other party as a court of competent jurisdiction shall direct.
The Trustee may fix a Record Date and payment date for any payment to
Holders pursuant to this Section 6.10.
SECTION 6.11 UNDERTAKING FOR COSTS
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.7 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
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ARTICLE VII
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE
(a) If an Event of Default of which the Trustee has knowledge has occurred
and is continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in its
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default of which the
Trustee has knowledge:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only those
duties that are specifically set forth in this Indenture and no others, and no
implied covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; however, the
Trustee shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) this paragraph (c) does not limit the effect of paragraph (b) of
this Section 7.1;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by an Officer of the Trustee, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received by
it pursuant to Section 6.5 hereof.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to Sections 7.1 and
7.2 hereof.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders,
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unless such Holder shall have offered to the Trustee security and indemnity
satisfactory to it against any loss, liability or expense.
(f) Upon request from the Issuers, the Trustee is hereby authorized and
directed to and shall enter into the Intercreditor Agreement in connection with
the Senior Credit Facility and any amendment, restatement, supplement, renewal,
replacement or other modification thereof, entered into in accordance with the
terms of this Indenture, including Section 4.7 hereof.
(g) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Issuers. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.2 RIGHTS OF TRUSTEE
(a) In connection with the Trustee's rights and duties under this
Indenture, the Trustee may conclusively rely upon any document believed by it to
be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting under this Indenture,
it may require an Officers' Certificate or an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel. The
Trustee may consult with counsel and the written advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection from
liability in respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Issuers shall be sufficient if signed by
an Officer of the Issuers.
(f) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction.
(g) Except with respect to Section 4.1 hereof, the Trustee shall have no
duty to inquire as to the performance of the Issuers' covenants in Article IV
hereof. In addition, the Trustee shall not be deemed to have knowledge of any
Default or Event of
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Default except (i) any Event of Default occurring pursuant to Sections
6.1(a)(i), 6.1(a)(ii) and 4.1 hereof or (ii) any Default or Event of Default of
which the Trustee shall have received written notification in the manner set
forth in this Indenture or of which a Responsible Officer of the Trustee shall
have actual knowledge thereof or unless written notice of any event which is in
fact a Default or Event of Default is received by the Trustee at the Corporate
Trust Office, and such notice references this Indenture and the Notes. Delivery
of reports, information and documents to the Trustee under Section 4.3 is for
informational purposes only and the Trustee's receipt of the foregoing shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuers'
compliance with any of their covenants thereunder (as to which the Trustee is
entitled to rely exclusively on an Officers' Certificate).
(h) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the Trustee
may, in its discretion, make such further inquiry or investigation into such
facts or matters as it may see fit.
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE
The Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Issuers or any Affiliate of
the Issuers with the same rights it would have if it were not Trustee. However,
in the event that the Trustee acquires any conflicting interest (as defined in
the TIA) it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with like
rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
SECTION 7.4 TRUSTEE'S DISCLAIMER
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Issuers' use of the proceeds from the Notes or any money
paid to the Issuers or upon the Issuers' direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
SECTION 7.5 NOTICE OF DEFAULTS
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders a notice in the manner
and to the extent provided by Section 313(c) of the TIA of the Default or Event
of Default within 90 days after it occurs. Except in the case of a Default or
Event of Default in payment of principal of, premium, if any, Liquidated
Damages, if any, or Interest on any Note, the
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Trustee may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the
interests of the Holders.
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES
Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, and for so long as Notes remain outstanding, the Trustee
shall mail to the Holders a brief report dated as of such reporting date that
complies with TIA Section 313(a) (but if no event described in TIA Section
313(a) has occurred within the 12 months preceding the reporting date, no report
need be transmitted). The Trustee also shall comply with TIA Section 313(b)(2).
The Trustee shall also transmit by mail all reports as required by TIA Section
313(c).
A copy of each report at the time of its mailing to the Holders of Notes
shall be mailed by the Trustee to the Issuers and filed by the Trustee with the
SEC and each stock exchange on which the Notes are listed in accordance with TIA
Section 313(d). The Issuers shall promptly notify the Trustee when the Notes are
listed on any stock exchange.
To the extent requested by the Company and at the Company's expense, the
Trustee shall provide any Gaming Authority with:
(a) copies of all notices, reports and other written communications that
the Trustee gives to the Holders;
(b) a list of all of the Holders promptly after the original issuance of
the Notes and periodically thereafter if the Company so directs;
(c) notice of any Default or Event of Default under this Indenture, any
acceleration of the Indebtedness evidenced by the Notes, or the institution of
any legal actions or proceedings before any court or governmental authority in
respect of a Default or Event of Default;
(d) notice of the removal or resignation of the Trustee within five
Business Days of the effectiveness thereof;
(e) notice of any transfer or assignment of rights under this Indenture
known to the Trustee within five Business Days of the effectiveness thereof;
(f) a copy of any amendment to the Notes or this Indenture within five
Business Days of the effectiveness thereof; and
(g) such other information and documentation that may be requested by any
Gaming Authority or as otherwise required by applicable law.
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SECTION 7.7 COMPENSATION AND INDEMNITY
The Issuers shall pay to the Trustee from time to time reasonable
compensation as shall be agreed to in writing by the Issuers and the Trustee for
its acceptance of this Indenture and services hereunder and under the Security
Documents. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Issuers shall reimburse the
Trustee promptly upon request for all reasonable disbursements, advances and
expenses incurred or made by it in addition to the compensation for its
services. Such expenses shall include the reasonable compensation, disbursements
and expenses of the Trustee's agents and counsel, except such disbursements and
expenses as may be attributable to its negligence or bad faith.
The Issuers and the Subsidiary Guarantors, jointly and severally, shall
indemnify the Trustee against any and all losses, liabilities or expenses
(including reasonable attorneys' fees) incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture and under the Security Documents, including the costs and expenses of
enforcing this Indenture and under the Security Documents against the Issuers
(including this Section 7.7) and defending itself against any claim (whether
asserted by the Issuers or any Holder or any other Person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except, in each case, to the extent any such loss, liability or
expense may be attributable to its negligence, bad faith or willful misconduct.
The Trustee shall notify the Issuers promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Issuers shall not relieve the
Issuers of their obligations hereunder. The Issuers shall defend the claim and
the Trustee shall cooperate in the defense. In the event that a conflict of
interest or conflicting defenses would arise in connection with the
representation of the Issuers and the Trustee by the same counsel, the Trustee
may have separate counsel and the Issuers shall pay the reasonable fees and
expenses of such counsel. The Issuers need not pay for any settlement made
without their consent, which consent shall not be unreasonably withheld.
The obligations of the Issuers under this Section 7.7 shall survive the
satisfaction and discharge of this Indenture.
To secure the Issuers' payment obligations in this Section 7.7, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture until such payment obligations have been paid in
full.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Sections 6.1(a)(xii) or 6.1(a)(xiii) hereof occurs, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section 313(b)(2) to
the extent applicable.
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SECTION 7.8 REPLACEMENT OF TRUSTEE
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.8 and upon the Issuers' receipt of
notice from the successor Trustee of such appointment.
The Trustee may resign in writing at any time and be discharged from the
trust hereby created by so notifying the Issuers. The Holders of a majority in
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Issuers in writing. The Issuers may remove the
Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of the Trustee for any reason, the Issuers shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Issuers.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuers, or
the Holders of at least 10% in principal amount of the then outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder who has been a Holder
for at least six months, fails to comply with Section 7.10 hereof, such Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Issuers. Thereupon, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture and the Intercreditor Agreement. The successor Trustee shall mail a
notice of its succession to Holders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee; provided
all sums owing to the Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.7 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.8, the Issuers' obligations under Section 7.7 hereof
shall continue for the benefit of the retiring Trustee.
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SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION
There shall at all times be a Trustee hereunder that is a corporation or
trust company (or a member of a bank holding company) organized and doing
business under the laws of the United States of America or of any state thereof
that is authorized under such laws to exercise corporate trustee power, that is
subject to supervision or examination by federal or state authorities and that
has (or the bank holding company of which it is a member has) a combined capital
and surplus of at least $50,000,000 as set forth in its most recent published
annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to TIA Section
310(b).
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUERS
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE
The Issuers may, at the option of their Managers evidenced by a resolution
set forth in an Officers' Certificate, elect to have either Section 8.2 or 8.3
hereof be applied to all outstanding Notes and Subsidiary Guaranties upon
compliance with the conditions set forth below in this Article VIII.
SECTION 8.2 LEGAL DEFEASANCE AND DISCHARGE
Upon the Issuers' exercise under Section 8.1 hereof of the option
applicable to this Section 8.2, each of the Issuers and the Subsidiary
Guarantors, as applicable, shall, subject to the satisfaction of the applicable
conditions set forth in Section 8.4 hereof, be deemed to have been discharged
from its obligations with respect to all outstanding Notes and Subsidiary
Guaranties, as applicable, on the date the conditions set forth below are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance
means that the Issuers shall be deemed to have paid and discharged all amounts
owed under the outstanding Notes and the Subsidiary Guarantors shall be deemed
to have paid and discharged the entire Indebtedness represented by the
outstanding Subsidiary Guaranties, which shall thereafter be deemed to be
"outstanding" only for the purposes of Section 8.5 hereof and the other Sections
of this Indenture
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referred to in clauses (a) and (b) of this Section 8.2 below, and to have
satisfied all its other obligations under such Notes, such Subsidiary Guaranties
and this Indenture (and the Trustee, on demand of and at the expense of the
Issuers, shall execute proper instruments acknowledging the same, including
instruments releasing the Collateral as security for the Notes and the
Subsidiary Guaranties), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders to
receive solely from the trust fund described in Section 8.4 hereof, and as more
fully set forth in Section 8.4, payments in respect of the principal of,
premium, if any, and Interest and Liquidated Damages, if any, on such Notes when
such payments are due, (b) the Issuers' obligations with respect to such Notes
under Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 2.10, 4.2, 4.6, 4.17, 4.19,
8.5, 8.6 and 8.7 hereof, and (c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and the Issuers' and the Subsidiary
Guarantors' obligations in connection therewith.
SECTION 8.3 COVENANT DEFEASANCE
Upon the Issuers' exercise under Section 8.1 hereof of the option
applicable to this Section 8.3, subject to the satisfaction of the applicable
conditions set forth in Section 8.4 hereof, the Issuers and the Subsidiary
Guarantors shall be released from their respective obligations under Sections
4.3, 4.4, 4.5, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.18,
4.20, 4.21 and 4.22 and Article V hereof on and after the date the conditions
set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the
Notes and the Subsidiary Guaranties shall thereafter be deemed not "outstanding"
for the purposes of any direction, waiver, consent or declaration or act of
Holders (and the consequences of any thereof) in connection with such covenants,
but shall continue to be deemed "outstanding" for all other purposes hereunder
(it being understood that such Notes shall not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding Notes and the Subsidiary Guaranties, the Issuers and
the Subsidiary Guarantors may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 6.1 hereof,
but, except as specified above, the remainder of this Indenture and such Notes
and Subsidiary Guaranties shall be unaffected thereby. In addition, upon the
Issuers' exercise under Section 8.1 hereof of the option applicable to this
Section 8.3, subject to the satisfaction of the applicable conditions set forth
in Section 8.4 hereof, (x) Sections 6.1(a)(iii) through 6.1(a)(xi) hereof shall
not constitute Events of Default to the extent such events occur thereafter and
(y) Sections 6.1(xii) and 6.1(xiii) hereof shall not constitute an Event of
Default to the extent they occur after the 91st day following the occurrence of
the Issuers' exercise of Covenant Defeasance; provided, however that for all
other purposes as set forth herein, such Covenant Defeasance provisions shall be
effective.
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SECTION 8.4 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE
The following shall be the conditions to the application of either Section
8.2 or 8.3 hereof to the outstanding Notes:
(a) in the case of an election under Section 8.2 or 8.3 hereof, the
Issuers must irrevocably deposit, or cause to be irrevocably deposited, with the
Trustee, in trust, for the benefit of the Holders, cash in United States legal
tender, non-callable Government Securities, or a combination thereof, in such
amounts as shall be sufficient, in the opinion of a nationally recognized firm
of independent public accountants, to pay the principal of, premium, if any, and
Interest (and Liquidated Damages, if any) on the outstanding Notes on the Stated
Maturity or on the applicable redemption date, as the case may be (and the
Issuers must specify whether the Notes are being defeased to Stated Maturity or
a particular redemption date), and the Trustee must have, for the benefit of
Holders, a valid, perfected exclusive security interest in such trust;
(b) in the case of an election under Section 8.2 hereof, the Issuers must
deliver to the Trustee an Opinion of Counsel reasonably satisfactory to the
Trustee confirming that: (i) the Issuers have received from, or there has been
published by, the Internal Revenue Service a ruling or (ii) since the Issue
Date, there has been a change in the applicable Federal income tax law, in
either case to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders shall not recognize income, gain or loss for Federal
income tax purposes as a result of such Legal Defeasance and shall be subject to
Federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.3 hereof, the Issuers must
deliver to the Trustee an Opinion of Counsel reasonably satisfactory to the
Trustee from United States legal counsel confirming that Holders shall not
recognize income, gain or loss for Federal income tax purposes as a result of
such Covenant Defeasance and shall be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such Covenant Defeasance had not occurred;
(d) in the case of an election under Section 8.2 or 8.3 hereof, no Default
or Event of Default shall have occurred and be continuing on the date of the
deposit (other than a Default or Event of Default resulting from the borrowing
of funds to be applied to such deposit);
(e) in the case of an election under Section 8.2 or 8.3 hereof, the Legal
Defeasance or Covenant Defeasance, as applicable, may not result in a breach or
violation of, or constitute a default under any other material agreement or
instrument (other than this Indenture) to which the Issuers, any of the
Subsidiary Guarantors or any of the Restricted Subsidiaries is a party or by
which the Issuers or any of the Restricted Subsidiaries are bound;
(f) in the case of an election under Section 8.2 or 8.3 hereof, the
Issuers must deliver to the Trustee an Officers' Certificate stating that the
deposit was not made by the Issuers with the intent of preferring the Holders
over the other creditors of
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the Issuers with the intent of defeating, hindering, delaying or defrauding
creditors of the Issuers or others;
(g) in the case of an election under Section 8.2 or 8.3 hereof, the
Issuers must deliver to the Trustee an Officers' Certificate confirming the
satisfaction of the applicable conditions in clauses (a) through (f) above, and
an Opinion of Counsel, confirming the satisfaction of the applicable conditions
in clauses (a) (with respect to the validity and perfection of the security
interest) (b), (c) and (e) above.
Legal Defeasance and Covenant Defeasance shall be deemed to occur on the
date all of the applicable conditions set forth in this Section 8.4 are
satisfied.
SECTION 8.5 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS
Subject to Section 8.6 hereof, all money and Government Securities
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.5, the "Trustee") pursuant
to Section 8.4 hereof in respect of the outstanding Notes shall be held in trust
and applied by the Trustee, in accordance with the provisions of such Notes and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company or one of its subsidiaries acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, and Interest (and
Liquidated Damages, if any), but such money need not be segregated from other
funds except to the extent required by law.
The Issuers and the Subsidiary Guarantor, jointly and severally, shall pay
and indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the cash or Government Securities deposited pursuant to Section
8.4 hereof or the principal and interest received in respect thereof, other than
any such tax, fee or other charge which by law is for the account of the
Holders.
Anything in this Article VIII to the contrary notwithstanding, the Trustee
shall deliver or pay to the Issuers from time to time upon the request of the
Issuers any money or Government Securities held by it as provided in Section 8.4
hereof which, in the opinion of a firm of independent public accountants
nationally recognized in the United States expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.4(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 8.6 REPAYMENT TO ISSUERS
Any money deposited with the Trustee or any Paying Agent, or then held by
the Issuers, in trust for the payment of the principal of, premium, if any,
Liquidated Damages, if any, or Interest on any Note and remaining unclaimed for
two years after such principal, and premium, if any, Liquidated Damages, if any,
or Interest has become
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due and payable shall be paid to the Issuers on their written request or (if
then held by the Company) shall be discharged from such trust; and the Holder of
such Note shall thereafter, as a creditor, look only to the Issuers for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Issuers as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Issuers cause to be published once, in the New York Times and The Wall Street
Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such money
then remaining shall be repaid to the Issuers.
SECTION 8.7 REINSTATEMENT
If the Trustee or Paying Agent is unable to apply any United States legal
tender or Government Securities in accordance with Section 8.2 or 8.3 hereof, as
the case may be, by reason of any order directing the repayment of the deposited
money to the Issuers or otherwise making the deposit unavailable to make
payments under the Notes when due, or if any court enters an order avoiding the
deposit of money with the Trustee or Paying Agent or otherwise requires the
payment of the money so deposited to the Issuers or to a fund for the benefit of
its creditors, then (so long as the insufficiency exists or the order remains in
effect) the Issuers' and the Subsidiary Guarantors' obligations under this
Indenture, the Notes, the Subsidiary Guaranties and the Security Documents shall
be revived and reinstated as though no deposit had occurred pursuant to Section
8.3 or 8.4 hereof until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with Section 8.3 or 8.4 hereof, as the case
may be; provided, however, that, if the Issuers make any payment of principal
of, premium, if any, and Interest (and Liquidated Damages, if any) on any Note
following the reinstatement of its obligations, the Issuers shall be subrogated
to the rights of the Holders of such Notes to receive such payment from the
money held by the Trustee or Paying Agent.
SECTION 8.8 SATISFACTION AND DISCHARGE
The Issuers may terminate their obligations and the obligations of the
Subsidiary Guarantors under this Indenture, the Notes, the Subsidiary Guaranties
and the Security Documents (except as described below) (whereupon the Trustee
shall release the Collateral from the Lien created by the Security Documents as
provided under Section 10.4(b)(3)) when:
(1) either:
(a) all the Notes previously authenticated and delivered (except lost,
stolen or destroyed Notes which have been replaced and Notes for whose payment
money has theretofore been deposited with the Trustee or the paying agent in
trust or segregated and held in trust by the Issuers and thereafter repaid to
the Issuers or a Subsidiary Guarantor or discharged from such trust) have been
delivered to the Trustee for cancellation, or
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(b) (i) all Notes have been called for redemption pursuant to the
provisions of Section 3.7 hereof by mailing to Holders a notice of redemption or
all Notes otherwise have become due and payable;
(ii) the Issuers have irrevocably deposited or caused to be
irrevocably deposited with the Trustee, in trust for the benefit of the Holders,
cash in U.S. dollars, non-callable Government Securities, or a combination
thereof, in an amount sufficient to pay and discharge the entire Indebtedness on
the Notes not theretofore delivered to the Trustee for cancellation, for
principal of, and Interest and Liquidated Damages, if any, on the Notes to the
date of redemption or maturity, as the case may be, together with irrevocable
instructions from the Issuers directing the Trustee to apply such funds to the
payment thereof at maturity or redemption, as the case may be;
(iii) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit);
(iv) such deposit shall not result in a breach or violation of, or
constitute a default under, any material agreement or instrument (other than
this Indenture) to which the Issuers, any of the Subsidiary Guarantors or any of
the Restricted Subsidiaries are a party or by which the Issuers, any of the
Subsidiary Guarantors or any of the Restricted Subsidiaries are bound; and
(2) each of the Issuers and the Subsidiary Guarantors has paid all other
sums payable by it under this Indenture, the Notes, the Subsidiary Guarantors,
the Intercreditor Agreement and the Security Documents, and
(3) the Issuers shall have delivered to the Trustee an Officers
Certificate and an Opinion of Counsel confirming the satisfaction of all
conditions set forth in clauses (1) and (2) above.
ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.1 WITHOUT CONSENT OF HOLDERS OF NOTES
Notwithstanding Section 9.2 hereof, the Issuers, the Subsidiary Guarantors
and the Trustee may amend or supplement this Indenture, the Notes, the
Subsidiary Guaranties, the Registration Rights Agreement, or, subject to the
Intercreditor Agreement, the Security Documents, without the consent of any
Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
95
(c) to provide for the assumption of the Issuers' or the Subsidiary
Guarantors' obligations to the Holders in the case of a merger or consolidation
or sale of all or substantially all of its assets in accordance with this
Indenture;
(d) to evidence the release of any Subsidiary Guaranty permitted to be
released under the terms of this Indenture and the Security Documents or to
evidence the addition of any new Subsidiary Guarantor;
(e) to make any change that would provide any additional rights or
benefits to the Holders (including the addition of any Subsidiary Guarantor) or
that does not adversely affect the rights hereunder of any Holder under this
Indenture, the Notes, the Subsidiary Guaranties, the Registration Rights
Agreement, the Security Documents or the Intercreditor Agreement;
(f) to comply with the provisions of the Depositary, Euroclear or
Clearstream or the Trustee with respect to the provisions of this Indenture or
the Notes relating to transfers and exchanges of Notes or beneficial interests
therein;
(g) to comply with requirements of the SEC in order to effect or maintain
the qualification of this Indenture under the TIA;
(h) to provide for the issuance of Additional Notes in accordance with the
limitations set forth in this Indenture as of the date hereof;
(i) to comply with applicable gaming laws and racing laws; or
(j) to enter into additional or supplemental Security Documents.
Upon the request of the Issuers accompanied by a resolution of the
Managers of each Issuer authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the documents
described in Section 9.6 hereof, the Trustee shall join with the Issuers 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 such amended or supplemental Indenture that adversely
affects its own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.2 WITH CONSENT OF HOLDERS OF NOTES
(a) Except as expressly stated otherwise in this Section 9.2, and subject
to Sections 6.4 and 6.7 hereof, the Issuers, the Subsidiary Guarantors and the
Trustee may amend, supplement or otherwise modify this Indenture, the Notes, the
Subsidiary Guaranties, or, subject to the Intercreditor Agreement, the Security
Documents, with the consent of the Holders of a majority in aggregate principal
amount of the Notes then outstanding (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer
for, the Notes), and, subject to Sections 6.4 and 6.7 hereof, any existing
Default or Event of Default (other
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than a Default or Event of Default in the payment of the principal of, premium,
if any, or Interest on the Notes, except a payment default resulting from an
acceleration that has been rescinded) or compliance with any provision of this
Indenture, the Notes, the Subsidiary Guaranties, and, subject to the
Intercreditor Agreement, the Security Documents may be waived with the consent
of the Holders of a majority in aggregate principal amount of the then
outstanding Notes (including consents obtained in connection with a purchase of,
or tender offer or exchange offer for, the Notes).
(b) Subject to Sections 6.4 and 6.7 hereof, and except as stated otherwise
in this Section 9.2, the Holders of a majority in aggregate principal amount of
the Notes then outstanding may waive compliance in a particular instance by the
Issuers or any Restricted Subsidiary with any provision of this Indenture or the
Notes.
It being understood that, except as expressly stated otherwise in Section
9.2(c), Sections 4.13 and 4.15 hereof may be amended, waived or modified in
accordance with Section 9.2(a).
(c) Without the consent of each Holder affected, an amendment or waiver
may not with respect to any Notes held by a non-consenting Holder:
(1) reduce the principal amount of Notes whose Holders must consent
to an amendment, supplement or waiver;
(2) reduce the principal of, or the premium (including, without
limitation, redemption premium but not including, except as described in clause
(3) below, any redemption premium relating to Sections 4.13 and 4.15) on, or
change the fixed maturity of, any Note;
(3) alter the price at which repurchases of the Notes may be made
pursuant to an Excess Proceeds Offer or Change of Control Offer after the
corresponding Asset Sale or Change of Control has occurred;
(4) reduce the rate of or change the time for payment of Interest
(or Liquidated Damages, if any), including default interest, on any Note (other
than any advance notice requirement with respect to any redemption of the
Notes);
(5) waive a Default or Event of Default in the payment of principal
of, or premium, if any, Interest or Liquidated Damages, if any, on or redemption
payment with respect to, any Note (except a rescission of acceleration of the
Notes by the Holders of at least a majority in aggregate principal amount of the
Notes and a waiver of the payment default that resulted from such acceleration);
(6) make any Note payable in money other than that stated in the
Notes;
(7) make any change in the provisions of this Indenture relating to
waivers of past Defaults with respect to, or the rights of Holders to receive,
payments of Interest on the Notes;
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(8) waive a redemption payment with respect to any Note (other than,
except as described in Section 9.2(b)(3), provisions relating to or payments
required by Section 4.13 and Section 4.15;
(9) adversely affect the contractual ranking of the Notes or
Subsidiary Guarantors; or
(10) make any changes in the foregoing amendment and waiver
provisions.
(d) Notwithstanding the foregoing Sections 9.2(a), (b) and (c) and subject
to the Intercreditor Agreement, no portion of the Collateral may be released
from the Lien of the Security Documents (except in accordance with the
provisions of this Indenture and the Security Documents), and none of the
Security Documents or the provisions of this Indenture relating to the
Collateral may be amended or supplemented, and the rights of any Holders
thereunder may not be waived or modified, without, in each case, the consent of
the Holders of at least 75% in aggregate principal amount of the then
outstanding Notes.
(e) In connection with any amendment, supplement or waiver under this
Article IX, the Issuers may, but shall not be obligated to, offer to any Holder
who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
(f) It shall not be necessary for the consent of the Holders under
Sections 9.2(a), (b), (c) or (d) to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
(g) After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Trustee shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Trustee to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
Indenture or waiver.
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT
Every amendment or supplement to this Indenture or the Notes shall be set
forth in an amended or supplemental Indenture that complies with the TIA as then
in effect.
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS
Until an amendment, supplement or waiver becomes effective (as determined
by the Issuers and which may be prior to any such amendment, supplement or
waiver becoming operative), a consent to it by a Holder is a continuing consent
by the Holder and every subsequent Holder that evidences the same Indebtedness
as the consenting Holder's Note, even if notation of the consent is not made on
any Note. However, any such Holder or subsequent Holder may revoke the consent
as to its Note if
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such consent by its terms is not irrevocable and the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective (as determined by the Issuers and which may be prior to any such
amendment, supplement or waiver becoming operative).
The Issuers may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be the date so fixed by the
Issuers notwithstanding the provisions of the TIA. If a record date is fixed,
then notwithstanding the last sentence of the immediately preceding paragraph,
those Persons who were Holders at such record date, and only those Persons (or
their duly designated proxies), shall be entitled to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date.
After an amendment, supplement or waiver becomes effective, it shall bind
every Holder unless it makes a change described in any of paragraphs (1) through
(10) of Section 9.2(c) hereof, in which case, the amendment, supplement or
waiver shall bind only each Holder who has consented to it and every subsequent
Holder that evidences the same debt as the consenting Holder's Note; provided,
that any such waiver shall not impair or affect the right of any Holder to
receive payment of principal and premium of and Interest (and Liquidated
Damages, if any) on a Note, on or after the respective dates set for such
amounts to become due and payable expressed in such Note, or to bring suit for
the enforcement of any such payment on or after such respective dates.
SECTION 9.5 NOTATION ON OR EXCHANGE OF NOTES
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Issuers in
exchange for all Notes may issue and the Trustee shall authenticate new Notes
that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.6 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment or supplemental indenture authorized
pursuant to this Article IX if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. Upon the
request of the Issuers accompanied by a resolution of the Managers of each of
Issuer authorizing the execution of any such amended or supplemental Indenture,
and upon the filing with the Trustee of evidence satisfactory to the Trustee of
the consent of the Holders as aforesaid, and upon receipt by the Trustee of the
documents described in Section 9.6 hereof, the Trustee shall join with the
Issuers in the execution of such amended or supplemental Indenture unless such
amended or supplemental Indenture adversely affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
amended or
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supplemental Indenture. If such amendment or supplement does adversely affect
the rights, duties, liabilities or immunities of the Trustee, the Trustee may,
but need not, sign it. The Issuers may not sign an amendment or supplemental
indenture until the Managers of each Issuer approve it. In executing any
amendment or supplemental Indenture, the Trustee shall be entitled to receive
indemnity reasonably satisfactory to it and to receive and (subject to Section
7.1 hereof) shall be fully protected in relying upon, an Officers' Certificate
and an Opinion of Counsel stating that the execution of such amendment or
supplemental indenture is authorized or permitted by this Indenture.
ARTICLE X
COLLATERAL AND SECURITY
SECTION 10.1 SECURITY DOCUMENTS; SECURITY INTERESTS.
(a) The due and punctual payment of the principal and premium, if any, of,
and Interest (and Liquidated Damages, if any) on, the Notes when and as the same
shall be due and payable, whether on an Interest Payment Date, at maturity, by
acceleration, repurchase, redemption or otherwise, Interest on the overdue
principal of and Interest (to the extent permitted by law), if any, on the Notes
and performance of all other Obligations under this Indenture, the Notes, the
Security Documents and the Registration Rights Agreement, shall be secured as
provided in the Security Documents.
(b) After the Issue Date, the Issuers shall, and shall cause each of the
Domestic Restricted Subsidiaries to, use commercially reasonable efforts (which
shall be deemed not to include any obligation to pay money to any third parties
other than filing fees, reasonable fees and expenses of the third party or other
de minimis payments) to grant a perfected security interest in all of the
Issuers' and the Domestic Restricted Subsidiaries' assets, including assets
acquired after the Issue Date in accordance with the Security Documents, but in
any event excluding the Excluded Assets.
(c) Notwithstanding any provision in this Indenture or the Security
Documents to the contrary, in the event that the Issuers or any of the Domestic
Restricted Subsidiaries grant a Lien on any of the Issuers' or any of the
Domestic Restricted Subsidiaries' assets in connection with the Senior Credit
Facility, the Issuers shall be required to, and shall be required to cause the
Domestic Restricted Subsidiaries to, secure the Notes with a Lien on such assets
(other than Excluded Assets) that is subordinated to the obligations under the
Senior Credit Facility in accordance with the Intercreditor Agreement, except in
circumstances where the Trustee cannot perfect such a Lien by means other than a
Lien filing.
(d) The Issuers shall, and shall cause each of the Domestic Restricted
Subsidiaries to, do or cause to be done all such acts and things as may be
necessary or proper, or as may be required by the provisions of the Security
Documents, to assure and confirm to the Trustee the security interest in the
Collateral contemplated hereby and by the Security Documents, as from time to
time constituted, so as to render the same available for the security and
benefit of this Indenture and of the Notes secured hereby, according to the
intent and purposes herein and therein expressed, including (1) using all
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commercially reasonable efforts to obtain customary consents and waivers from
landlords of premises where any of the Collateral is located, and (2) taking all
commercially reasonable efforts to grant a perfected Lien on all real property
(other than real property constituting Excluded Assets) owned by the Issuers and
the Domestic Restricted Subsidiaries and to provide customary title insurance
for the benefit of the Trustee with respect thereto; including, without
limitation, commercially reasonable efforts to cause the removal of record of
all existing monetary encumbrances such that the Security Documents shall
constitute a first priority Lien on all such real property, subject to Permitted
Liens. The Issuers shall, and shall cause each of the Domestic Restricted
Subsidiaries to, take, upon request of the Trustee, any and all actions required
to cause the Security Documents to create and maintain, as security for the
Obligations under this Indenture, the Notes, the Security Documents and the
Registration Rights Agreement, valid and enforceable, perfected (except as
expressly provided herein or therein) Liens in and on all the Collateral, in
favor of the Trustee, superior to and prior to the rights of all third Persons
(other than holders of Permitted Liens), and subject to no other Liens, other
than as provided herein and therein; provided, that the Trustee's Lien securing
the Collateral may be subordinated pursuant to the terms of the Intercreditor
Agreement to a Lien securing Indebtedness outstanding pursuant to Section 4.7
hereof, but only to the extent provided in the Intercreditor Agreement.
(e) Each of the Issuers represents and warrants and covenants that it (or
the Domestic Restricted Subsidiaries) has executed and delivered, filed and
recorded and/or shall execute and deliver, file and record, all instruments and
documents, and has done or shall do or cause to be done all such acts and other
things as are necessary to subject the Collateral to the Lien of the Security
Documents. The Issuers (or the Domestic Restricted Subsidiaries) shall execute
and deliver, file and record all instruments and do all acts and other things as
may be reasonably necessary or advisable to perfect, maintain and protect the
security interests created by the Security Documents and shall pay all filing,
recording, mortgage or other taxes or fees incidental thereto.
(f) The security interests in the Collateral created by the Security
Documents as now or hereafter in effect shall be held by the Trustee for the
equal and ratable benefit and security of the Notes without preference, priority
or distinction of any thereof over any other by reason, or difference in time,
of issuance, sale or otherwise, and for the enforcement of the payment of
principal of, premium, if any, and Interest (and Liquidated Damages, if any) on
the Notes in accordance with their terms.
(g) Each Holder, by its acceptance of a Note, consents and agrees to the
terms of the Security Documents and the Intercreditor Agreement (including,
without limitation, the provisions providing for foreclosure and release of the
Collateral) as the same may be in effect or may be amended from time to time in
accordance with their terms and authorizes and directs the Secured Party to
enter into the Security Documents and the Intercreditor Agreement and to perform
its obligations and exercise its rights thereunder in accordance therewith. The
Issuers initially appoint the Trustee as Secured Party and/or Trustee under the
Security Documents and the Intercreditor Agreement. Any successor Trustee shall
act as Secured Party and/or Trustee under the Security Documents or appoint
another Person to act in such capacity.
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SECTION 10.2 FURTHER ASSURANCES AND SECURITY.
Each of the Issuers represents and warrants that at the time the Security
Documents and this Indenture are executed, the Issuers (or the Restricted
Subsidiaries) (a) shall have full right, power and lawful authority to grant,
bargain, sell, release, convey, hypothecate, assign, mortgage, pledge, transfer
and confirm, absolutely, the Collateral, in the manner and form done, or
intended to be done, in the Security Documents, free and clear of all Liens,
except for Permitted Liens, and shall forever warrant and defend the title to
the same against the claims of all Persons whatsoever, subject to the terms of
the Intercreditor Agreement; (b) shall execute, acknowledge and deliver to the
Trustee, at the Issuers' expense, at any time and from time to time such further
assignments, transfer, assurances or other instruments as may be required by the
Trustee to effectuate the terms of this Indenture or the Security Documents,
subject to the terms of the Intercreditor Agreement; and (c) shall at any time
and from time to time do or cause to be done all such acts and things as may be
necessary or proper, or as may be required by the Trustee, to assure and confirm
to the Trustee the security interest in the Collateral contemplated hereby and
by the Security Documents, subject to the terms of the Intercreditor Agreement.
SECTION 10.3 OPINIONS.
(a) The Issuers shall, to the extent required under the TIA, furnish to
the Trustee (i) promptly after the recording or filing, or re-recording or
re-filing of the Security Documents and other security filings, an Opinion of
Counsel (who may be counsel for the Issuers) stating that in the opinion of such
counsel the Security Documents and other security filings have been properly
recorded, filed, re-recorded or re-filed so as to make effective and perfect the
security interest intended to be created thereby and reciting the details of
such action.
(b) The Issuers shall, to the extent required under the TIA, furnish to
the Trustee within three months after each anniversary of the Issue Date, an
Opinion of Counsel, dated as of such date, stating either that (i) in the
opinion of such counsel, all action has been taken with respect to the
recording, registering, filing, re-recording, re-registering and refiling of all
supplemental indentures, financing statements, continuation statements or other
instruments of further assurance as is necessary to maintain the Liens of the
Security Documents, subject to the terms of the Intercreditor Agreement, and
reciting the details of such action or (ii) in the opinion of such Counsel, no
such action is necessary to maintain such Liens, which Opinion of Counsel also
shall state what actions it then believes are necessary to maintain the
effectiveness of such Liens during the next year.
(c) All Opinions of Counsel required by this Section 10.3, 12.4 or 12.5,
may contain qualifications, assumptions, exceptions and limitations as are
customary or appropriate for similar opinions relating to the nature of the
Collateral and as are reasonably acceptable to the Trustee.
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SECTION 10.4 RELEASE OF COLLATERAL.
(a) Upon the full and final payment and performance of all the Issuers'
and the Subsidiary Guarantors' Obligations under this Indenture, the Notes, the
Subsidiary Guaranties and the Security Documents will terminate, and all of the
Liens on the Collateral created hereunder and under the Security Documents shall
be released.
(b) In addition, the Secured Party shall release from the Liens created by
this Indenture and the Security Documents at the sole cost and expense of the
Issuers:
(1) Collateral that is sold, transferred, disbursed or otherwise
disposed of in accordance with the provisions of this Indenture and the Security
Documents; provided, that the Secured Party shall not release such Liens in the
event that the transaction is subject to Article V hereof;
(2) Collateral that is released with the consent of the Holders of
not less than 75% in aggregate principal amount of the outstanding Notes as
provided under Section 9.2(d) hereof;
(3) all Collateral upon defeasance of this Indenture in accordance
with the provisions of Article VIII hereof or discharge of this Indenture in
accordance with the provisions of Section 8.8 hereof; provided that the funds
deposited with the Trustee, in trust, for the benefit of the Holders as required
by such provisions shall not be released; and
(4) Collateral of a Subsidiary Guarantor whose Subsidiary Guaranty
is released in accordance with this Indenture and the Security Documents;
provided, that the Secured Party has received all documentation required by the
TIA in connection therewith. Upon compliance with the above provisions, the
Trustee shall execute, deliver or acknowledge any necessary or proper
instruments of termination, satisfaction or release to evidence the release of
any Collateral permitted to be released pursuant to this Indenture or the
Security Documents.
(c) The release of any Collateral from the terms of the Security Documents
shall not be deemed to impair the security under this Indenture in contravention
of the provisions hereof and of the Security Documents if and to the extent the
Collateral is released pursuant to the terms of this Indenture and the Security
Documents.
(d) For the avoidance of doubt (i) any Collateral owned by any subsidiary
that is not a Foreign Subsidiary that is designated by the Managers of the
Company as an Unrestricted Subsidiary in accordance with the terms of this
Indenture shall be released from the Lien of this Indenture and the Security
Documents at the time of such designation and (ii) any Collateral that shall
constitute an Excluded Asset at any time, or from time to time, after the date
of this Indenture, shall be released from the Lien
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of this Indenture and the Security Documents at the time such Collateral shall
constitute an Excluded Asset.
SECTION 10.5 CERTIFICATES OF THE ISSUERS.
The Issuers shall furnish to the Trustee, prior to each proposed release
of Collateral, all documents required by TIA ss. 314(d). The Trustee may, to the
extent permitted by Sections 7.1 and 7.2 hereof, accept as conclusive evidence
of compliance with the foregoing provisions the appropriate statements contained
in such instruments. Any certificate or opinion required by TIA ss. 314(d) may
be made by an Officer of the Issuers, except in cases where TIA ss. 314(d)
requires that such certificate or opinion be made by an independent engineer,
appraiser or other expert within the meaning of TIA ss. 314(d).
SECTION 10.6 AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE UNDER
THE SECURITY DOCUMENTS AND THE INTERCREDITOR AGREEMENT.
Subject to the terms of the Intercreditor Agreement, the Trustee may, in
its sole discretion and without the consent of the Holders, on behalf of the
Holders, take all actions it deems necessary or appropriate in order to (a)
enforce any of the terms of the Security Documents or the Intercreditor
Agreement and (b) collect and receive any and all amounts payable in respect of
the Obligations of the Issuers and the Subsidiary Guarantors hereunder and under
the Notes, the Security Documents and the Registration Rights Agreement. Subject
to the terms of the Intercreditor Agreement, and to the extent permitted by this
Indenture or the Security Documents, the Trustee shall have the power to
institute and to maintain such suits and proceedings as it may deem expedient to
prevent any impairment of the Collateral by any acts that may be unlawful or in
violation of the Security Documents or this Indenture, and such suits and
proceedings as the Trustee may deem expedient to preserve or protect its
interest and the interests of the Holders in the Collateral (including power to
institute and maintain suits or proceedings to restrain the enforcement of or
compliance with any legislative or other governmental enactment, rule or order
that may be unconstitutional or otherwise invalid if the enforcement of, or
compliance with, such enactment, rule or order would impair the security
interest hereunder or be prejudicial to the interests of the Holders or the
Trustee).
SECTION 10.7 AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE
UNDER THE SECURITY DOCUMENTS AND THE INTERCREDITOR
AGREEMENT.
The Trustee is authorized to receive any funds for the benefit of the
Holders distributed under the Security Documents or the Intercreditor Agreement,
and to make further distributions of such funds to the Holders according to the
provisions of this Indenture and the Security Documents, subject to the terms of
the Intermediary Agreement.
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SECTION 10.8 INTERCREDITOR AGREEMENT.
Notwithstanding anything herein or in any Security Document to the
contrary, the relative rights and remedies of the Trustee hereunder or under any
Security Documents and of the agent or any other Person acting on behalf of and
for the benefit of the lender(s) under the Senior Credit Facility shall be
subject to and governed by the terms of the Intercreditor Agreement at any time
the Intercreditor Agreement is in effect. In the event of any inconsistency
between the terms hereof or of any Security Documents and the Intercreditor
Agreement, the Intercreditor Agreement shall control at any time the
Intercreditor Agreement is in effect.
ARTICLE XI
SUBSIDIARY GUARANTIES
SECTION 11.1 SUBSIDIARY GUARANTIES
By its execution hereof, each of the Subsidiary Guarantors acknowledges
and agrees that it receives substantial benefits from the Issuers and that such
party is providing its Subsidiary Guaranty for good and valuable consideration,
including, without limitation, such substantial benefits and services.
Accordingly, subject to the provisions of this Article XI, each Subsidiary
Guarantor, jointly and severally, hereby unconditionally guarantees on a senior
secured basis to each Holder of a Note authenticated and delivered by the
Trustee and its successors and assigns that: (i) the principal of, premium, if
any, and Interest and Liquidated Damages, if any, on the Notes shall be duly and
punctually paid in full when due, whether at maturity, by acceleration, call for
redemption, upon a Change of Control Offer, an Asset Sale Offer, or otherwise,
and Interest on overdue principal, premium, if any, Liquidated Damages, if any,
and (to the extent permitted by law) interest on any Interest, if any, on the
Notes and all other obligations of the Issuers to the Holders or the Trustee
under the Notes, this Indenture, the Security Documents and the Registration
Rights Agreement (including fees, expenses or other) shall be promptly paid in
full or performed, all in accordance with the terms hereof; and (ii) in case of
any extension of time of payment or renewal of any Notes or any of such other
obligations under the Notes, this Indenture, the Security Documents or
Registration Rights Agreement, the same shall be promptly paid in full when due
or performed in accordance with the terms of the extension or renewal, whether
at stated maturity, by acceleration, call for redemption, upon a Change of
Control, an Asset Sale Offer, or otherwise, subject, however, in the case of
clauses (i) and (ii) above, to the limitations set forth in Section 11.6 hereof
(collectively, the "Subsidiary Guaranty Obligations").
Subject to the provisions of this Article XI, each Subsidiary Guarantor
hereby agrees that its Subsidiary Guaranty hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes, this
Indenture, the Security Documents, the Registration Rights Agreement or the
absence of any action to enforce the same, any waiver or consent by any Holder
with respect to any thereof, any releases of the Collateral, the entry of any
judgment against the Issuers, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a Subsidiary Guarantor. Each Subsidiary Guarantor hereby waives and
relinquishes: (a) any right to require the Trustee, the Holders or the Issuers
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(each, a "Benefited Party") to proceed against the Issuers, the Restricted
Subsidiaries or any other Person or to proceed against or exhaust any security
held by a Benefited Party at any time or to pursue any other remedy in any
Secured Party's power before proceeding against the Subsidiary Guarantors; (b)
any defense that may arise by reason of the incapacity, lack of authority, death
or disability of any other Person or Persons or the failure of a Benefited Party
to file or enforce a claim against the estate (in administration, bankruptcy or
any other proceeding) of any other Person or Persons; (c) demand, protest and
notice of any kind (except as expressly required by this Indenture), including
but not limited to notice of the existence, creation or incurring of any new or
additional Indebtedness or obligation or of any action or non-action on the part
of the Subsidiary Guarantors, the Issuers, the Restricted Subsidiaries, any
Benefited Party, any creditor of the Subsidiary Guarantors, the Issuers or the
Restricted Subsidiaries or on the part of any other Person whomsoever in
connection with any obligations the performance of which are hereby guaranteed;
(d) any defense based upon an election of remedies by a Benefited Party,
including but not limited to an election to proceed against the Subsidiary
Guarantors for reimbursement; (e) any defense based upon any statute or rule of
law which provides that the obligation of a surety must be neither larger in
amount nor in other respects more burdensome than that of the principal; (f) any
defense arising because of a Benefited Party's election, in any proceeding
instituted under the Bankruptcy Law, of the application of Section 1111(b)(2) of
the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a
security interest under Section 364 of the Bankruptcy Code. The Subsidiary
Guarantors hereby covenant that, except as otherwise provided therein, the
Subsidiary Guaranties shall not be discharged except by payment in full of all
Subsidiary Guaranty Obligations, including the principal, premium, if any, and
Interest (and LD, if any) on the Notes and all other costs provided for under
this Indenture or as provided in Article VIII.
If any Holder or the Trustee is required by any court or otherwise to
return to either the Issuers or the Subsidiary Guarantors, or any trustee or
similar official acting in relation to either the Issuers or the Subsidiary
Guarantors, any amount paid by the Issuers or the Subsidiary Guarantors to the
Trustee or such Holder, the Subsidiary Guaranties, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each of the Subsidiary
Guarantors agrees that it shall not be entitled to any right of subrogation in
relation to the Holders in respect of any Subsidiary Guaranty Obligations hereby
until payment in full of all such obligations guaranteed hereby. Each Subsidiary
Guarantor agrees that, as between it, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article VI hereof for the purposes
hereof, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the Subsidiary Guaranty Obligations, and (y) in
the event of any acceleration of such obligations as provided in Article VI
hereof, such Subsidiary Guaranty Obligations (whether or not due and payable)
shall forthwith become due and payable by such Subsidiary Guarantor for the
purpose of the Subsidiary Guaranty.
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SECTION 11.2 EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTIES
To evidence the Subsidiary Guaranties set forth in Section 11.1 hereof,
each of the Subsidiary Guarantors agrees that a notation of the Subsidiary
Guaranties substantially in the form included in Exhibit A hereto shall be
endorsed on each Note authenticated and delivered by the Trustee and that this
Indenture (with respect to Subsidiary Guarantors as of the Issue Date) and, with
respect to Subsidiary Guarantors after the Issue Date, a Supplemental Indenture
substantially in the form of Exhibit E hereto executed in accordance with
Section 11.4 hereof, shall be executed on behalf of each of the Subsidiary
Guarantors by an Officer of each of the Subsidiary Guarantors.
Each of the Subsidiary Guarantors agree that the Subsidiary Guaranties set
forth in this Article XI shall remain in full force and effect and apply to all
the Notes notwithstanding any failure to endorse on each Note a notation of the
Subsidiary Guaranties.
If an Officer whose signature is on a Note or a notation of Subsidiary
Guaranty no longer holds that office at the time the Trustee authenticates the
Note on which the Subsidiary Guaranties are endorsed, the Subsidiary Guaranties
shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Subsidiary Guaranties set forth
in this Indenture on behalf of the Subsidiary Guarantors.
SECTION 11.3 SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS
(a) Nothing contained in this Indenture or in the Notes shall prevent any
consolidation or merger of any Subsidiary Guarantor with or into each other or
with or into the Company; provided, however, that such consolidation or merger
shall otherwise comply with this Indenture. Upon any such consolidation or
merger, the Subsidiary Guaranty of the Subsidiary Guarantor that does not
survive the consolidation or merger shall no longer be of any force or effect.
(b) Except for a merger or consolidation in which a Subsidiary Guarantor
is sold and its Subsidiary Guaranty is released in compliance with the
provisions of Section 11.5 hereof, no Subsidiary Guarantor shall consolidate or
merge with or into (whether or not such Subsidiary Guarantor is the surviving
Person) another Person unless, subject to the provisions of the following
paragraph and the other provisions of this Indenture and the Security Documents,
(i) the Person formed by, resulting from or surviving any such consolidation or
merger (if other than such Subsidiary Guarantor) (A) expressly assumes all the
obligations of such Subsidiary Guarantor pursuant to a supplemental indenture in
form reasonably satisfactory to the Trustee, pursuant to which such Person shall
unconditionally guaranty, on a senior secured basis, all of such Subsidiary
Guarantor's obligations under such Subsidiary Guarantor's Subsidiary Guaranty on
the terms set forth in this Indenture, (B) executes a secondary agreement and
other Security Documents necessary or reasonably requested by the Trustee to
grant, and grants, a valid, enforceable, perfected Lien on the Collateral
107
owned by such Person to secure such Obligations on the terms set forth in the
Security Documents, and (C) delivers to the Trustee an Opinion of Counsel that
such supplemental indenture and such guaranty and Security Documents have been
duly authorized, executed and delivered and that each such document and this
Indenture constitutes a legal, valid, binding and enforceable obligation of such
Person, in each case, subject to customary qualifications; and (ii) immediately
before and immediately after giving effect to such transaction on a pro forma
basis, no Default or Event of Default shall have occurred or be continuing. The
provisions of this Section 11.3(b) shall not apply to the merger of any
Subsidiary Guarantors with or into each other or with or into the Company. In
case of any such consolidation or merger and upon the assumption by the
successor corporation, by supplemental indenture, executed and delivered to the
Trustee and reasonably satisfactory in form to the Trustee, of the Subsidiary
Guaranties endorsed upon the Notes and the due and punctual performance of all
of the covenants and conditions of this Indenture to be performed by such
Subsidiary Guarantor, such successor corporation shall succeed to and be
substituted for such Subsidiary Guarantor with the same effect as if it had been
named herein as a Subsidiary Guarantor. Such successor corporation thereupon may
cause to be signed any or all of the Subsidiary Guaranties to be endorsed upon
all of the Notes issuable hereunder which theretofore shall not have been signed
by the Issuers and delivered to the Trustee. All the Subsidiary Guaranties so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Subsidiary Guaranties theretofore and thereafter issued in
accordance with the terms of this Indenture as though all of such Subsidiary
Guaranties had been issued at the date of the execution hereof.
(c) The Trustee, subject to the provisions of Section 11.2 hereof, shall
be entitled to receive an Officers' Certificate as conclusive evidence that any
such consolidation or merger, and any such assumption of Subsidiary Guaranty
Obligations, comply with the provisions of this Section 11.3. Such Officers'
Certificate shall comply with the provisions of Section 11.2 hereof.
SECTION 11.4 SUBSIDIARY GUARANTY BY FUTURE RESTRICTED SUBSIDIARIES
The Issuers shall cause each of the existing and future Restricted
Subsidiaries (other than Foreign Subsidiaries and other than a Restricted
Subsidiary that is a co-Issuer of the Notes) to (i) execute and deliver to the
Trustee a supplemental indenture substantially in the form of Exhibit E hereto
and a guaranty substantially in the form included in Exhibit A hereto, pursuant
to which such Restricted Subsidiary shall unconditionally guaranty on a senior
secured basis, all of the Issuers' Obligations under the Notes and this
Indenture on the terms set forth in this Indenture, (ii) execute a security
agreement and other Security Documents necessary or reasonably requested by the
Trustee to grant, and grant, the Trustee a valid, enforceable, perfected Lien on
the Collateral described therein, and (iii) deliver to the Trustee an Opinion of
Counsel that such supplemental indenture, guaranty and Collateral Documents have
been duly authorized, executed and delivered by such Restricted Subsidiary and
that each of such documents and this Indenture, guaranty and Collateral
Documents have constitutes a legal, valid, binding and enforceable obligation of
such Restricted Subsidiary, in each case subject to customary qualifications
including exceptions for bankruptcy, fraudulent
108
transfer and equitable principles. Thereafter, such Restricted Subsidiary shall
be a Subsidiary Guarantor for all purposes of this Indenture.
SECTION 11.5 RELEASE OF SUBSIDIARY GUARANTORS
Notwithstanding Section 11.3 hereof, upon the sale or disposition
(including by merger or sale or transfer of all of the Equity Interests) of a
Subsidiary Guarantor (as an entirety) to a Person which is not and is not
required to become a Subsidiary Guarantor, the designation of a Domestic
Restricted Subsidiary as an Unrestricted Subsidiary or the liquidation, or
dissolution of a Subsidiary Guarantor, which transaction is otherwise in
compliance with this Indenture (including, without limitation, Sections 4.13 and
4.14), such Subsidiary Guarantor shall be deemed released from its Obligations
under its Subsidiary Guaranty and the Security Documents; provided, however,
that any such termination shall occur only to the extent that all obligations of
such Subsidiary Guarantor under all of its guarantees of, and under all of its
pledges of assets or other security interests which secure, any Indebtedness of
the Issuers or any Indebtedness of any other of the Restricted Subsidiaries
shall also terminate upon such release, sale or transfer and none of its Equity
Interests are pledged for the benefit of any holder of any Indebtedness of the
Issuers or any Indebtedness of any of the Restricted Subsidiaries.
The Trustee, subject to the provisions of Section 12.4 hereof, shall be
entitled to receive an Officers' Certificate as conclusive evidence that such
sale or other disposition or that such designation was made by the Issuers in
accordance with the provisions of this Indenture. Except as provided in Section
11.3 hereof, any Subsidiary Guarantor not released from its obligations under
its Subsidiary Guaranty shall remain liable for the full amount of principal of
and Interest on the Notes and for the other obligations of any Subsidiary
Guarantor under this Indenture as provided in this Article XI.
Notwithstanding the foregoing provisions of this Article XI, (i) any
Subsidiary Guarantor whose Subsidiary Guaranty would otherwise be released
pursuant to the provisions of this Section 11.5 may elect, at its sole
discretion, by written notice to the Trustee, to maintain such Subsidiary
Guaranty in effect notwithstanding the event or events that otherwise would
cause the release of such Subsidiary Guaranty (which election to maintain such
Subsidiary Guaranty in effect may be conditional or for a limited period of
time), and (ii) any subsidiary of the Issuers which is not a Subsidiary
Guarantor may elect, at its sole discretion, by written notice to the Trustee,
to become a Subsidiary Guarantor (which election may be conditional or for a
limited period of time).
SECTION 11.6 LIMITATION OF SUBSIDIARY GUARANTOR'S LIABILITY; CERTAIN
BANKRUPTCY EVENTS
(a) Each Subsidiary Guarantor, and by its acceptance of Notes each Holder,
hereby confirms that it is the intention of all such parties that the Subsidiary
Guaranty Obligation of such Subsidiary Guarantor pursuant to its Subsidiary
Guaranty not constitute a fraudulent transfer or conveyance for purposes of any
Bankruptcy Law,
109
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or
any similar federal or state law. To effectuate the foregoing intention, the
Holders and such Subsidiary Guarantor hereby irrevocably agree that the
Subsidiary Guaranty Obligations of such Subsidiary Guarantor under this Article
XI shall be limited to the maximum amount as shall, after giving effect to all
other contingent and fixed liabilities of such Subsidiary Guarantor and after
giving effect to any collections from or payments made by or on behalf of any
other Subsidiary Guarantor in respect of the Subsidiary Guaranty Obligations of
such other Subsidiary Guarantor under this Article XI, result in the Subsidiary
Guaranty Obligations of such Subsidiary Guarantor under the Subsidiary Guaranty
of such Subsidiary Guarantor not constituting a fraudulent transfer or
conveyance.
(b) Each Subsidiary Guarantor hereby covenants and agrees, to the fullest
extent that it may do so under applicable law, that in the event of the
insolvency, bankruptcy, dissolution, liquidation or reorganization of either of
the Issuers, such Subsidiary Guarantor shall not file (or join in any filing
of), or otherwise seek to participate in the filing of, any motion or request
seeking to stay or to prohibit (even temporarily) execution on the Subsidiary
Guaranty and hereby waives and agrees not to take the benefit of any such stay
of execution, whether under Section 362 or 105 of the Bankruptcy Law or
otherwise.
SECTION 11.7 APPLICATION OF CERTAIN TERMS AND PROVISIONS TO THE
SUBSIDIARY GUARANTORS
(a) For purposes of any provision of this Indenture which provides for the
delivery by any Subsidiary Guarantor of an Officers' Certificate and/or an
Opinion of Counsel, the definitions of such terms in Section 1.1 hereof shall
apply to such Subsidiary Guarantor as if references therein to the Issuers were
references to such Subsidiary Guarantor.
(b) Any request, direction, order or demand which by any provision of this
Indenture is to be made by any Subsidiary Guarantor, shall be sufficient if
evidenced as described in Section 12.2 hereof as if references therein to the
Issuers were references to such Subsidiary Guarantor.
(c) Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders to
or on any Subsidiary Guarantor may be given or served as described in Section
12.2 hereof as if references therein to the Issuers were references to such
Subsidiary Guarantor.
(d) Upon any demand, request or application by any Subsidiary Guarantor to
the Trustee to take any action under this Indenture, such Subsidiary Guarantor
shall furnish to the Trustee such certificates and opinions as are required in
Section 12.4 hereof as if all references therein to the Issuers were references
to such Subsidiary Guarantor.
110
ARTICLE XII
MISCELLANEOUS
SECTION 12.1 TRUST INDENTURE ACT CONTROLS
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by the TIA ss. 318(c), the imposed duties shall control.
SECTION 12.2 NOTICES
Any notice or communication by the Issuers or the Trustee to the other is
duly given if in writing and delivered in Person or mailed by first class mail
(registered or certified, return receipt requested), telecopier or overnight air
courier guaranteeing next day delivery, to the others' address:
If to the Issuers
or the Subsidiary Guarantors:
Diamond Jo, LLC
The Old Evangeline Downs Capital Corp.
400 East Third Street
P.O. Box 1750
Dubuque, Iowa 52004-1750
Attention: Michael S. Luzich
Telecopier No.: (563) 557-0549
with copies (which
shall not constitute
notice) to:
Mayer, Brown, Rowe & Maw LLP
1675 Broadway
New York, NY 10019
Attn: Nazim Zilkha, Esq.
Telecopier No.: (212) 262-1910
with a copy (which
shall not constitute
notice) to:
Diamond Jo, LLC
The Old Evangeline Downs Capital Corp.
7137 Mission Hills Drive
Las Vegas, Nevada 89113
Attention: Michael S. Luzich
Telecopier No.: 702-247-6822
111
If to the Trustee:
U.S. Bank National Association
60 Livingston Avenue
St. Paul, MN 55107-2292
Attention: Corporate Trust Department
Telecopier No.: (651) 495-8097
The Issuers or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: (i) at the time delivered by hand, if personally
delivered; (ii) five Business Days after being deposited in the mail, postage
prepaid; (iii) when receipt acknowledged, if telecopied; and (iv) the next
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Issuers mail a notice or communication to Holders, they shall mail
a copy to the Trustee and each Agent at the same time.
SECTION 12.3 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES
Holders may communicate pursuant to TIA Section 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Issuers, the
Trustee, the Registrar and anyone else shall have the protection of TIA Section
312(c).
SECTION 12.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT
Upon any request or application by the Issuers to the Trustee to take any
action under this Indenture, the Issuers shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section 12.5
hereof) stating that, in the opinion of the signers, all conditions precedent
and covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and
112
(b) an Opinion of Counsel in form and substance reasonably satisfactory to
the Trustee (which shall include the statements set forth in Section 12.5
hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been satisfied.
SECTION 12.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall include:
(a) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
satisfied; and
(d) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been satisfied;
provided, however, that with respect to matters of fact, an Opinion of Counsel
may rely on an Officers' Certificate or certificate of public officials.
SECTION 12.6 RULES BY TRUSTEE AND AGENTS
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 12.7 LEGAL HOLIDAYS
If any payment date is a Legal Holiday, payment may be made at the place
of payment on the next succeeding day that is not a Legal Holiday, and no
Interest shall accrue for the intervening period.
SECTION 12.8 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS
No director, officer, employee, incorporator, stockholder, member or
controlling person of any of the Issuers or any Subsidiary Guarantor, as such,
will have any liability for any Obligations of any of the Issuers or any
Subsidiary Guarantor under the Notes, the Indenture, the Security Documents or
the Registration Rights Agreement or for any claim based on, in respect of, or
by reason of, such Obligations or their
113
creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release will be part of the consideration for issuance
of the Notes and the Subsidiary Guaranties.
SECTION 12.9 GOVERNING LAW AND SUBMISSION TO JURISDICTION
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED IN THE STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION,
SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND NEW YORK
CIVIL PRACTICE LAWS AND RULES 327(b); PROVIDED, THAT WITH RESPECT TO THE
CREATION, ATTACHMENT, PERFECTION, PRIORITY, ENFORCEMENT OF AND REMEDIES RELATING
TO THE SECURITY INTEREST IN ANY REAL PROPERTY COLLATERAL, THE GOVERNING LAW MAY
BE THE LAWS OF THE JURISDICTIONS WHERE SUCH COLLATERAL IS LOCATED WITHOUT REGARD
TO THE CONFLICT OF LAW PROVISIONS THEREOF.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY OF THE ISSUERS OR GUARANTORS
ARISING OUT OF OR RELATING HERETO OR ANY OF THE SECURITY DOCUMENTS, OR ANY OF
THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND
DELIVERING THIS AGREEMENT, EACH ISSUER OR GUARANTOR, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY SUBMITS TO AND ACCEPTS GENERALLY AND
UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; WAIVES
ANY DEFENSE OF FORUM NON CONVENIENS; AGREES THAT SERVICE OF ALL PROCESS IN ANY
SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, TO THE APPLICABLE ISSUER OR GUARANTOR AT ITS ADDRESS
PROVIDED IN ACCORDANCE WITH SECTION 12.3 OF THE INDENTURE; AGREES THAT SERVICE
AS PROVIDED ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE
APPLICABLE ISSUER OR GUARANTOR IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND
OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND AGREES
THE TRUSTEE RETAINS THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR TO BRING PROCEEDINGS AGAINST ANY OF THE ISSUERS OR GUARANTORS IN THE
COURTS OF ANY OTHER JURISDICTION HAVING JURISDICTION OVER SUCH ISSUER OR
GUARANTOR.
SECTION 12.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Issuers or the Restricted Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
114
SECTION 12.11 SUCCESSORS
All agreements of the Issuers and the Subsidiary Guarantors in this
Indenture and the Notes shall bind their successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 12.12 SEVERABILITY
In case any one or more of the provisions of this Indenture or in the
Notes or in the Subsidiary Guaranties shall be held invalid, illegal or
unenforceable, in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions shall not in any way be affected or impaired thereby, it being
intended that all of the provisions hereof shall be enforceable to the full
extent permitted by law.
SECTION 12.13 COUNTERPART ORIGINALS
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
SECTION 12.14 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part of this Indenture and shall in no way modify or restrict any
of the terms or provisions hereof.
[Signatures on following page]
115
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed this Indenture as of
the date first written above.
THE ISSUERS:
DIAMOND JO, LLC
By: /s/M. BRENT STEVENS
-------------------------------------
Name: M. Brent Stevens
Title: Chief Executive Officer
By: /s/NATALIE A. SCHRAMM
-------------------------------------
Name: Natalie A. Schramm
Title: Chief Financial Officer
THE OLD EVANGELINE DOWNS CAPITAL CORP.
By: /s/M. BRENT STEVENS
------------------------------------
Name: M. Brent Stevens
Title: Chief Executive Officer
By: /s/NATALIE A. SCHRAMM
-------------------------------------
Name: Natalie A. Schramm
Title: Chief Financial Officer
THE GUARANTORS:
THE OLD EVANGELINE DOWNS, L.L.C.
By: /s/M. BRENT STEVENS
------------------------------------
Name: M. Brent Stevens
Title: Chief Executive Officer
By: /s/NATALIE A. SCHRAMM
-------------------------------------
Name: Natalie A. Schramm
Title: Chief Financial Officer
OED ACQUISITION, LLC
By: /s/M. BRENT STEVENS
------------------------------------
Name: M. Brent Stevens
Title: Chief Executive Officer
PENINSULA GAMING CORP.
By: /s/M. BRENT STEVENS
-------------------------------------
Name: M. Brent Stevens
Title: Chief Executive Officer
THE TRUSTEE:
U.S. BANK NATIONAL ASSOCIATION
By: /s/FRANK P. LESLIE III
------------------------------------
Name: Frank P. Leslie III
Title: Vice President
EXHIBIT 4.8
EXHIBIT A
[FORM OF NOTE]
DIAMOND JO, LLC
THE OLD EVANGELINE DOWNS CAPITAL CORP.
8 3/4% [SERIES A] [SERIES B](1) SENIOR SECURED NOTE
DUE 2012
CUSIP: __________
No. $_________________
Diamond Jo, LLC, a Delaware limited liability company (the "Company") and
The Old Evangeline Downs Capital Corp., a Delaware corporation ("Capital" and,
together with the Company, the "Issuers," which term includes any successors
under, and any additional "Issuers" that may become a party to the Indenture
hereinafter referred to), for value received, hereby promise to pay to Cede &
Co, or registered assigns, the principal sum of __________ Dollars, on April 15,
2012.
Interest Payment Dates: April 15 and October 15, commencing October 15,
2004.
Interest Record Dates: April 1 and October 1
Reference is made to the further provisions of this Note on the reverse
side, which shall, for all purposes, have the same effect as if set forth at
this place.
Upon request, the Issuers shall promptly make available to a holder of
this Note information regarding the issue price, the amount of original issue
discount, the issue date, and the yield to maturity of this Note. Holders should
contact Diamond Jo, LLC, 400 East Third Street, P.O. Box 1750, Dubuque, Iowa
52004-1750, Attention: Michael S. Luzich.
- ----------
(1) Series A should be replaced with Series B in the Exchange Notes.
A-1
IN WITNESS WHEREOF, the Issuers have caused this instrument to be duly
executed.
Diamond Jo, LLC,
a Delaware limited liability company
By: ___________________________
Name:
Title:
By: ___________________________
Name:
Title:
The Old Evangeline Downs Capital Corp.,
a Delaware corporation
By: ___________________________
Name:
Title:
By: ___________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned Indenture.
U.S. Bank National Association
By: ___________________________
Authorized Signatory
Dated: _______________
(Reverse of Note)
8 3/4% [Series A] [Series B](2) Senior Secured Note due 2012
[THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.6 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.6(a) OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUERS.](3)
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY, TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO
A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"), TO THE ISSUERS OR THEIR
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.](4)
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE
- ----------
(2) Series A should be replaced with Series B in the Exchange Notes.
(3) To be included only on Global Notes deposited with DTC as Depositary.
(4) To be included only on Global Notes deposited with DTC as Depositary.
A-3
ENTITLED TO RECEIVE CASH PAYMENTS OF INTEREST DURING THE PERIOD WHICH SUCH
HOLDER HOLDS THIS NOTE. NOTHING IN THIS LEGEND SHALL BE DEEMED TO PREVENT
INTEREST FROM ACCRUING ON THIS NOTE.](5)
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS (OR SUCH
OTHER PERIOD THAT MAY HEREAFTER BE PROVIDED UNDER RULE 144(k) UNDER THE
SECURITIES ACT AS PERMITTING RESALES OF RESTRICTED SECURITIES BY NON-AFFILIATES
WITHOUT RESTRICTION) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE
LAST DATE ON WHICH THE ISSUERS OR ANY AFFILIATE OF THE ISSUERS WAS THE OWNER OF
THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE "RESALE RESTRICTION
TERMINATION DATE") ONLY (A) TO THE ISSUERS, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE
SECURITIES ACT, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PURCHASERS THAT
OCCUR OUTSIDE THE UNITED STATES IN ACCORDANCE WITH REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT
THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH
AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUERS' AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE
(D), (E) OR (F) TO
- ----------
(5) To be included only on Reg S Temporary Global Notes.
A-4
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS SECURITY IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE TRUSTEE AND IN EACH CASE IN ACCORDANCE WITH
APPLICABLE SECURITIES LAWS OF ANY U.S. STATE OR ANY OTHER APPLICABLE
JURISDICTION.](6)
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. Interest. The Issuers promise to pay Interest on the principal amount
of this Note at 8 3/4% per annum from the Issue Date until maturity and shall
pay the Liquidated Damages, if any, payable pursuant to Section 4 of the
Registration Rights Agreement referred to below. The Issuers shall pay Interest
and Liquidated Damages, if any, semi-annually on April 15 and October 15 of each
year, or if any such day is not a Business Day, on the next succeeding Business
Day (each an "Interest Payment Date"). The first Interest Payment Date shall be
October 15, 2004. Interest on the Notes shall accrue from the most recent date
to which Interest has been paid or, if no Interest has been paid, from the Issue
Date; provided that if there is no existing Default in the payment of Interest,
and if this Note is authenticated between an Interest Record Date (defined
below) referred to on the face hereof and the next succeeding Interest Payment
Date, Interest shall accrue from such next succeeding Interest Payment Date. The
Issuers shall pay Interest (including Accrued Bankruptcy Interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any,
from time to time on demand at the rate then in effect; it shall pay Interest
(including Accrued Bankruptcy Interest in any proceeding under any Bankruptcy
Law) on overdue installments of Interest and Liquidated Damages, if any,
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest shall be calculated on the basis of
a 360-day year consisting of twelve 30-day months.
2. Method of Payment. The Issuers shall pay Interest on the Notes and
Liquidated Damages, if any, to the Persons who are registered Holders of Notes
at the close of business on the April 1 or October 1 next preceding the Interest
Payment Date (each an "Interest Record Date"), even if such Notes are cancelled
after such Interest Record Date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture (as defined below) with
respect to defaulted interest. The Notes shall be payable as to principal,
Interest, premium, if any, and Liquidated Damages, if any, at the office or
agency of the Issuers maintained within the City and State of New York for such
purpose, or, at the option of the Issuers, payment of Interest and Liquidated
Damages, if any, may be made by check mailed to the Holders at their addresses
set forth in the register of Holders, and provided that payment by wire transfer
of immediately available funds to an account within the United States shall be
required with respect to principal of and Interest, premium, if any, and
Liquidated Damages, if any, on all Global
- ----------
(6) To be included only on Transfer Restricted Notes.
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Notes. Such payment shall be in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts.
3. Paying Agent and Registrar. Initially, U.S. Bank National Association,
the Trustee under the Indenture, shall act as Paying Agent and Registrar. The
Issuers may change any Paying Agent or Registrar without notice to any Holder.
The Company or any of its subsidiaries may act in any such capacity.
4. Indenture. The Issuers issued the Notes under an Indenture, dated as of
the Issue Date ("Indenture"), by and among the Issuers, the Subsidiary
Guarantors party thereto and the Trustee. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (15 U.S. Code ss.ss. 77aaa-77bbbb). The
Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms.
The Obligations under the Indenture, the Intercreditor Agreement, the
Notes and the Subsidiary Guaranties thereof are secured by the Collateral
described in the Security Documents, subject to the provisions of such
agreements and the Intercreditor Agreement. Holders are referred to the Security
Documents and the Intercreditor Agreement for a statement of such terms.
5. Optional Redemption.
(a) Except as set forth in Section 5(b), the Notes are not redeemable at
the Issuers' option prior to April 15, 2008. Thereafter, the Notes shall be
subject to redemption, in whole or in part, at the option of the Issuers at the
redemption prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid Interest (and Liquidated Damages, if any)
thereon, to the applicable redemption date, if redeemed during the 12-month
period beginning on April 15 of the years indicated below:
YEAR PERCENTAGE
---- ----------
2008 104.375%
2009 102.917%
2010 101.458%
2011 and thereafter 100.000%
(b) Notwithstanding Section 5(a), at any time or from time to time prior
to April 15, 2007, the Issuers may redeem, at their option, up to 35% of the
aggregate principal amount of the Notes then outstanding, at a redemption price
of 108.75% of the principal amount thereof, plus accrued and unpaid Interest
(and Liquidated Damages, if any) thereon, through the applicable redemption
date, with the net cash proceeds of one or more Equity Offerings; provided, that
(i) such redemption shall occur within 60 days of the date of closing of such
Equity Offering and (ii) at least 65% of the aggregate principal amount of Notes
issued under the Indenture remains outstanding immediately after giving effect
to each such redemption.
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(c) Notice of redemption shall be mailed by first class mail at least 30
days but not more than 60 days before the redemption date to each Holder whose
Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in integral multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date, Interest ceases to accrue on Notes or portions
thereof called for redemption unless the Issuers default in such payments due on
the redemption date.
6. Regulatory Redemption. Notwithstanding any other provisions hereof,
Notes to be redeemed pursuant to a Required Regulatory Redemption shall be
redeemable by the Issuers, in whole or in part, at any time upon not less than
20 Business Days nor more than 60 days notice (or such earlier date as may be
ordered by any applicable Governmental Authority) at a price equal to the lesser
of (a) the Holder's cost thereof and (b) 100% of the principal amount thereof,
plus in either case accrued and unpaid Interest, plus Liquidated Damages, if
any, thereon, if any, to the date of redemption (or such earlier period as
ordered by a Governmental Authority). The Issuers are not required to pay or
reimburse any Holder or beneficial owner of the Notes for the expenses of any
such Holder or beneficial owner related to the application for any Gaming
License, qualification or finding of suitability in connection with a Required
Regulatory Redemption. Such expenses of any such Holder or beneficial owner
shall, therefore, be the obligation of such Holder or beneficial owner. Any
Required Regulatory Redemption shall be made in accordance with the provisions
of Section 3.3, 3.4 and 3.5 of the Indenture unless other procedures are
required by any Governmental Authority.
7. Mandatory Redemption. The Issuers shall not be required to make
mandatory redemption payments with respect to the Notes (except for a Required
Regulatory Redemption and any offer to repurchase Notes that the Issuers are
required to make in accordance with Sections 4.13 and 4.15 of the Indenture).
The Notes shall not have the benefit of any sinking fund.
8. Offers to Purchase.
(a) Change of Control. Upon the occurrence of a Change of Control,
the Issuers shall offer to repurchase all of the Notes then outstanding (the
"Change of Control Offer") at a purchase price equal to 101% of the principal
amount thereof, plus accrued and unpaid interest, if any, to the date of
repurchase (the "Change of Control Payment"). Within 30 days following any
Change of Control, the Issuers must mail or cause to be mailed a notice to each
Holder stating, among other things: (i) the purchase price and the purchase
date, which shall be no earlier than 30 days nor later than 45 days from the
date such notice is mailed (the "Change of Control Payment Date"); (ii) that any
Holder electing to have Notes purchased pursuant to a Change of Control Offer
shall be required to surrender the Notes, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Notes completed, to the Paying
Agent at the address specified in the notice prior to the close of business on
the third Business Day preceding the Change of Control Payment Date; and (iii)
that the Holder shall be entitled to withdraw such election if the Paying Agent
receives, not later than the close of business
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on the second Business Day preceding the Change of Control Payment Date, a
telegram, telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of Notes delivered for purchase, and a statement
that such Holder is withdrawing his election to have such Notes purchased.
(b) Asset Sale. Subject to certain exceptions set forth in the Indenture,
the Issuers shall not, and shall not permit any Restricted Subsidiary to, make
any Asset Sale unless: (i) such Issuer or such Restricted Subsidiary receives
consideration at the time of such Asset Sale not less than the fair market value
of the assets subject to such Asset Sale (as determined by the Company's
Managers in good faith); (ii) at least 75% of the consideration for such Asset
Sale is in the form of either (a) cash or Cash Equivalents or liabilities of the
Company or any Restricted Subsidiary (other than liabilities that are by their
terms subordinated to the Notes or any Subsidiary Guaranty) that are assumed by
the transferee of such assets (provided, that following such Asset Sale, there
is no further recourse to the Company or the Restricted Subsidiaries or the
Company and the Restricted Subsidiaries are fully indemnified with respect to
such liabilities; provided, further, that the 75% limitation set forth in this
clause (ii) of this paragraph shall not apply to any proposed Asset Sale for
which an independent certified accounting firm has certified to the Managers of
the Company and the Trustee that the after-tax cash portion of the consideration
to be received by the Company or such Restricted Subsidiary in such proposed
Asset Sale is equal to or greater than what the net after-tax cash proceeds
would have been had such proposed Asset Sale complied with the 75% limitation
set forth in this clause (ii) of this paragraph), or (b) assets of the type
described in clause (iii)(a) below; and (iii) within 360 days of such Asset
Sale, the Net Proceeds thereof are (a) invested in assets related to the
business of the Company or the Restricted Subsidiaries (which, in the case of an
Asset Sale of the Diamond Jo or any replacement Gaming Vessel (a "Replacement
Vessel"), must be a Gaming Vessel having a fair market value, as determined by
an independent appraisal, at least equal to the fair market value of the Diamond
Jo or such Replacement Vessel immediately preceding such Asset Sale), (b)
applied to repay Indebtedness under Purchase Money Obligations incurred in
connection with the assets so sold, (c) applied to repay Indebtedness under the
Senior Credit Facility and permanently reduce the commitment thereunder in the
amount of the Indebtedness so repaid or (d) to the extent not used as provided
in clauses (a), (b), or (c) or this paragraph or any combination thereof,
applied to make an offer to purchase Notes as described below (an "Excess
Proceeds Offer"); provided, that the Company shall not be required to make an
Excess Proceeds Offer until the amount of Excess Proceeds is greater than
$10,000,000.
9. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents, and the
Issuers may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Issuers need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed
A-8
in part. Also, it need not exchange or register the transfer of any Notes for a
period of 15 days before a selection of Notes to be redeemed or during the
period between an Interest Record Date and the corresponding Interest Payment
Date.
10. Persons Deemed Owners. The registered Holder of a Note may be treated
as its owner for all purposes.
11. Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture, the Notes or the Subsidiary Guaranties, or, subject to the
Intercreditor Agreement, the Security Documents, may be amended or supplemented
with the consent of the Holders of a majority in principal amount of the then
outstanding Notes, and any existing Default or compliance with any provision of
the Indenture, the Notes or the Subsidiary Guaranties may be waived with the
consent of the Holders of a majority in principal amount of the then outstanding
Notes. Without the consent of any Holder of a Note, the Indenture, the Notes,
the Subsidiary Guaranties, the Registration Rights Agreement or, subject to the
Intercreditor Agreement, the Security Documents may be amended or supplemented
to cure any ambiguity, defect or inconsistency, to provide for uncertificated
Notes in addition to or in place of certificated Notes, to provide for the
assumption of the Issuers' or the Subsidiary Guarantors' obligations to Holders
of the Notes in case of a merger or consolidation or sale of all or
substantially all of its assets in accordance with the Indenture, to evidence
the release of any Subsidiary Guaranty permitted to be released under the terms
of the Indenture and the Security Documents or to evidence the addition of any
new Subsidiary Guarantor, to make any change that would provide any additional
rights or benefits to the Holders of the Notes (including the addition of any
Subsidiary Guarantor) or that does not adversely affect the rights under the
Indenture, the Notes, the Subsidiary Guaranties, the Registration Rights
Agreement, the Security Documents or the Intercreditor Agreement of any such
Holder, to comply with the provisions of the Depositary, Euroclear or
Clearstream or the Trustee with respect to the provisions of the Indenture or
the Notes relating to transfers and exchanges of Notes or beneficial interests
therein, to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the TIA, to provide for the
issuance of Additional Notes in accordance with the limitations set forth in the
Indenture, to comply with applicable gaming laws and racing laws, or to enter
into additional or supplemental Security Documents. Notwithstanding Sections
9.2(a), (b) and (c) of the Indenture and subject to the Intercreditor Agreement,
no portion of the Collateral may be released from the Lien of the Security
Documents (except in accordance with the provisions of this Indenture and the
Security Documents), and none of the Security Documents or the provisions of the
Indenture relating to the Collateral may be amended or supplemented, and the
rights of any Holders thereunder may not be waived or modified, without, in each
case, the consent of the Holders of at least 75% in aggregate principal amount
of the then outstanding Notes.
12. Defaults and Remedies. The Indenture provides that each of the
following constitutes an Event of Default: (i) the Issuers default in the
payment of Interest on any Note when the same becomes due and payable and the
Default continues for a period of 30 days; (ii) the Issuers default in the
payment of the principal (or premium, if any) on any Note when the same becomes
due and payable at maturity, upon redemption, by
A-9
acceleration, in connection with an Excess Proceeds Offer or a Change of Control
Offer or otherwise; (iii) either of the Issuers default in the performance of or
breaches the provisions of Section 4.13, Section 4.15 or Article V of the
Indenture; (iv) either of the Issuers or any Subsidiary Guarantor fails to
comply with any of its other agreements or covenants in, or provisions of, the
Notes or this Indenture and the Default continues for 60 days after written
notice thereof has been given to the Issuers by the Trustee or to the Issuers
and the Trustee by the Holders of at least 25% in aggregate principal amount of
the then outstanding Notes, such notice to state that it is a "Notice of
Default"; (v) an event of default occurs under (after giving effect to any
waivers, amendments, applicable grace periods or any extension of any maturity
date) any mortgage, indenture or instrument under which there may be issued or
by which there may be secured or evidenced any Indebtedness for money borrowed
by the Issuers or any Restricted Subsidiary (or the payment of which is
guaranteed by the Issuers or any Restricted Subsidiary), whether such
Indebtedness or guaranty now exists or is created after the Issue Date, if (a)
either (1) such default results from the failure to pay principal of or interest
on such Indebtedness or (2) as a result of such event of default the maturity of
such Indebtedness has been accelerated, and (b) the principal amount of such
Indebtedness, together with the principal amount of any other such Indebtedness
with respect to which such a payment event of default (after the expiration of
any applicable grace period or any extension of the maturity date) has occurred,
or the maturity of which has been so accelerated, exceeds $5,000,000 in the
aggregate; (vi) a final non-appealable judgment or judgments for the payment of
money (other than to the extent of any judgment as to which a reputable
insurance company has accepted liability) is or are entered by a court or courts
of competent jurisdiction against either of the Issuers or any Subsidiary and
such judgment or judgments are not discharged, bonded or stayed within 60 days
after entry, provided that the aggregate of all such judgments exceeds
$5,000,000;; (vii) the cessation of substantially all gaming operations of the
Company and the Restricted Subsidiaries, taken as a whole, for more than 90
days, except as a result of an Event of Loss; (viii) any revocation, suspension,
expiration (without previous or concurrent renewal) or loss of any Gaming
License of the Company or any Restricted Subsidiary for more than 90 days; (ix)
any Subsidiary Guaranty of a Subsidiary Guarantor which is a Significant
Subsidiary ceases to be in full force and effect or shall be held in any
judicial proceeding to be unenforceable or invalid or is declared null and void
(other than in accordance with the terms of the Subsidiary Guaranty and the
Indenture) or any Subsidiary Guarantor which is a Significant Subsidiary denies
or disaffirms its Obligations under its Subsidiary Guaranty or the Security
Documents (in each case, other than by reason of the termination of the
Indenture or the release of any such Subsidiary Guaranty in accordance with the
Indenture); (x) (A) any event of default under a Security Document (after giving
effect to any applicable grace periods, applicable notice periods, waivers or
amendments) or (B) the failure of the Issuers or any Restricted Subsidiary to
comply with any material agreement or covenant in, or material provision of, any
of the Security Documents, or any breach in any material respect of any material
representation or warranty made by the Issuers or any Restricted Subsidiary in
any Security Document, and the continuance of such failure or breach for a
period of 30 days after written notice is given to the Issuers by the Trustee or
to the Issuers and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Notes
A-10
outstanding; (xi) any of the Security Documents ceases to be in full force and
effect or any of the Security Documents ceases to give the Trustee (or, in the
case of a mortgage, ceases to give the Trustee or any other trustee under such
mortgage) any of the Liens, rights, powers or privileges purported to be created
thereby, or any of the Security Documents is declared null and void, or any of
the Issuers or any Subsidiary Guarantor denies that it has any further liability
under any Security Document to which it is a party or gives notice of such
effect (in each case other than by reason of the termination of the Indenture or
any such Security Document in accordance with its terms or the release of any
Subsidiary Guarantor in accordance with the Indenture) and the continuance of
such failure for a period of 30 days after written notice is given to the
Issuers by the Trustee or to the Issuers and the Trustee by the Holders of at
least 25% in aggregate principal amount of the Notes outstanding; (xii) either
of the Issuers or any Subsidiary Guarantor pursuant to or within the meaning of
any Bankruptcy Law: (1) commences a voluntary case, (2) consents to the entry of
an order for relief against it in an involuntary case, (3) consents to the
appointment of a custodian of it or for all or substantially all of its
property, (4) makes a general assignment for the benefit of its creditors, or
(5) admits in writing its inability to pay debts as the same become due; and
(xi) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that: (1) is for relief against either of the Issuers or any
Subsidiary Guarantor in an involuntary case, (2) appoints a custodian of either
of the Issuers or any Subsidiary Guarantor or for all or substantially all of
their property, or (3) orders the liquidation of either of the Issuers, or any
Subsidiary Guarantor, and the order or decree remains unstayed and in effect for
60 days.
14. Trustee Dealings with Issuers. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Issuers or their Affiliates, and may otherwise deal with the Issuers or
their Affiliates, as if it were not the Trustee.
15. No Recourse Against Others. No director, officer, employee,
incorporator, stockholder, member or controlling person of any of the Issuers or
any Subsidiary Guarantor, as such, will have any liability for any Obligations
of any of the Issuers or any Subsidiary Guarantor under the Notes, the
Indenture, the Security Documents or the Registration Rights Agreement or for
any claim based on, in respect of, or by reason of, such Obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release will be part of the consideration for issuance
of the Notes and the Subsidiary Guaranties.
16. Authentication. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
17. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
A-11
18. Additional Rights of Holders of Transfer Restricted Notes.(7) In
addition to the rights provided to Holders of Notes under the Indenture, Holders
of Transfer Restricted Notes shall have all the rights set forth in the
Registration Rights Agreement dated as of the date of the Indenture, by and
among the Issuers, the Subsidiary Guarantors and the Initial Purchaser (the
"Registration Rights Agreement").
19. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuers have caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon, and any such redemption shall not
be affected by any defect in or omission of such numbers.
20. Notation of Subsidiary Guaranty. As more fully set forth in the
Indenture, to the extent permitted by law, each of the Subsidiary Guarantors
from time to time, in accordance with Article XI of the Indenture,
unconditionally and jointly and severally guarantees, to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, that:
By its execution of its Subsidiary Guaranty, each of the Subsidiary
Guarantors acknowledges and agrees that it receives substantial benefits from
the Issuers and that such party is providing its Subsidiary Guaranty for good
and valuable consideration, including, without limitation, such substantial
benefits and services. Accordingly, subject to the provisions of Article XI of
the Indenture, each Subsidiary Guarantor, jointly and severally, unconditionally
guarantees on a senior secured basis to each Holder of a Note authenticated and
delivered by the Trustee and its successors and assigns that: (i) the principal
of, premium, if any, Interest, and Liquidated Damages, if any, on the Notes
shall be duly and punctually paid in full when due, whether at maturity, by
acceleration, call for redemption, upon a Change of Control Offer, an Asset Sale
Offer, or otherwise, and Interest on overdue principal, premium, if any,
Liquidated Damages, if any, and (to the extent permitted by law) interest on any
Interest, if any, on the Notes and all other obligations of the Issuers to the
Holders or the Trustee under the Notes, the Indenture, the Security Documents or
the Registration Rights Agreement (including fees, expenses or other) shall be
promptly paid in full or performed, all in accordance with the terms of the
Indenture; and (ii) in case of any extension of time of payment or renewal of
any Notes or any of such other obligations under the Notes, the Indenture, the
Security Documents, or Registration Rights Agreement, the same shall be promptly
paid in full when due or performed in accordance with the terms of the extension
or renewal, whether at stated maturity, by acceleration, call for redemption,
upon a Change of Control, an Asset Sale Offer, or otherwise, subject, however,
in the case of clauses (i) and (ii) above, to the limitations set forth in
Section 11.6 of the Indenture.
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(7) To be included only on Transfer Restricted Notes.
A-12
When a successor assumes all the obligations of its predecessor under the
Notes and the Indenture, the predecessor may be released from those obligations.
21. Governing Law and Consent to Jurisdiction. THIS INDENTURE AND THE
NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE
OF NEW YORK, INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE
NEW YORK GENERAL OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULES
327(b); PROVIDED, THAT WITH RESPECT TO THE CREATION, ATTACHMENT, PERFECTION,
PRIORITY, ENFORCEMENT OF AND REMEDIES RELATING TO THE SECURITY INTEREST IN ANY
REAL PROPERTY COLLATERAL, THE GOVERNING LAW MAY BE THE LAWS OF THE JURISDICTIONS
WHERE SUCH COLLATERAL IS LOCATED WITHOUT REGARD TO THE CONFLICT OF LAW
PROVISIONS THEREOF.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY OF THE ISSUERS OR GUARANTORS
ARISING OUT OF OR RELATING HERETO OR ANY OF THE SECURITY DOCUMENTS, OR ANY OF
THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND
DELIVERING THIS AGREEMENT, EACH ISSUER OR GUARANTOR, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY SUBMITS TO AND ACCEPTS GENERALLY AND
UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; WAIVES
ANY DEFENSE OF FORUM NON CONVENIENS; AGREES THAT SERVICE OF ALL PROCESS IN ANY
SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, TO THE APPLICABLE ISSUER OR GUARANTOR AT ITS ADDRESS
PROVIDED IN ACCORDANCE WITH SECTION 12.3 OF THE INDENTURE; AGREES THAT SERVICE
AS PROVIDED ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE
APPLICABLE ISSUER OR GUARANTOR IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND
OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND AGREES
THE TRUSTEE RETAINS THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR TO BRING PROCEEDINGS AGAINST ANY OF THE ISSUERS OR GUARANTORS IN THE
COURTS OF ANY OTHER JURISDICTION HAVING JURISDICTION OVER SUCH ISSUER OR
GUARANTOR.
20. Security. This Note is Guaranteed and secured by substantially all of
the assets of the Issuer and the Subsidiary Guarantors (other than Excluded
Assets), subject to certain exceptions and limitations more fully set forth in
the Indenture and Security Documents.
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The Issuers shall furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
DIAMOND JO, LLC
THE OLD EVANGELINE DOWNS CAPITAL CORP.
400 East Third Street
P.O. Box 1750
Dubuque, Iowa 52004-1750
Attention: Michael S. Luzich
A-14
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (We) assign and transfer
this Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint
________________________________________________________
to transfer this Note on the books of the Issuers. The agent may substitute
another to act for it.
Date: _____________________________
Your Signature:________________________
(Sign exactly as your name appears on the
face of this Note)
Signature Subsidiary Guaranty*
________________________________________________________________________________
*NOTICE: The Signature must be guaranteed by an Institution which is a member of
one of the following recognized signature Subsidiary Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York Stock
Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program
(SEMP); or (iv) such other guaranty program acceptable to the Trustee.
A-15
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuers pursuant
to Section 4.13 or Section 4.15 of the Indenture, check the box below:
Section 4.13 [ ] Section 4.15 [ ]
If you want to elect to have only part of the Note purchased by the
Issuers pursuant to Section 4.13 or 4.15 of the Indenture, state the amount you
elect to have purchased (in denominations of $1,000 only, except if you have
elected to have all of your Notes purchased): $_____________
Date:________________________________ Your Signature:______________________
(Sign exactly as your name appears on
the Note)
Social Security or Tax Identification No.:______________
Signature Subsidiary Guaranty*
________________________________________________________________________________
*NOTICE: The Signature must be guaranteed by an Institution which is a member of
one of the following recognized signature Subsidiary Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York Stock
Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program
(SEMP); or (iv) such other guaranty program acceptable to the Trustee.
A-16
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE(8)
The following exchanges of an interest in this Global Note for an interest
in another Global Notes or for a Definitive Note, or exchanges of an interest in
another Global Note or a Definitive Note for an interest in this Global Note,
have been made:
Amount of
Amount of Increase in Signature of
Decrease in Principal Principal Amount of Authorized Officer
Principal Amount Amount of this Global Note of
of this Global this Global Following Such Trustee or Note
Date of Exchange Note Note Decrease or Increase Custodian
---------------- ---------------- ------------ -------------------- ------------------
- ----------
(8) This should be included only if the Note is issued in global form.
A-17
GUARANTEE
Each of the entities listed on the signature page hereto (hereinafter
referred to as the "Subsidiary Guarantors," which term includes any successors
or assigns under the Indenture, dated the date hereof, among the Subsidiary
Guarantors (as defined therein), the Issuers (defined below) and U.S. Bank
National Association, as trustee (the "Indenture") as supplemented by any
supplemental indenture thereto, has executed either the Indenture or a
supplemental indenture in substantially the form attached on Exhibit E to the
Indenture and has irrevocably and unconditionally guaranteed on a senior secured
basis the Subsidiary Guaranty Obligations (as defined in Section 11.1 of the
Indenture), which include (i) the due and punctual payment of the principal of,
premium, if any, and Interest and Liquidated Damages, if any, on the 8 3/4%
Senior Secured Notes due 2012 (the "Notes") of Diamond Jo, LLC, a Delaware
limited liability company (the "Company") and The Old Evangeline Downs Capital
Corp., a Delaware corporation ("Capital" and, together with the Company, the
"Issuers," which term includes any successors under, and any additional
"Issuers" that may become a party to the Indenture hereinafter referred to),
whether at maturity, by acceleration, call for redemption, upon a Change of
Control Offer, an Asset Sale Offer, or otherwise, and the due and punctual
payment of Interest on the overdue principal and premium, if any, Liquidated
Damages, if any, and (to the extent permitted by law) interest on any Interest,
if any, on the Notes, and the due and punctual performance of all other
obligations of the Issuers to the Holders or the Trustee under the Notes, the
Indenture, the Security Documents and the Registration Rights Agreement
(including fees, expenses or other) all in accordance with the terms set forth
in Article XI of the Indenture, and (ii) in case of any extension of time of
payment or renewal of any Notes or any such other obligations under the Noets,
the Indenture, the Security Documents or Registration Rights Agreement, that the
same shall be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration,
call for redemption, upon a Change of Control Offer, an Asset Sale Offer, or
otherwise.
The obligations of each Subsidiary Guarantor to the Holders and to the
Trustee pursuant to this Subsidiary Guaranty and the Indenture are expressly set
forth in Article XI of the Indenture and reference is hereby made to such
Indenture for the precise terms of this Subsidiary Guaranty.
No director, officer, employee, incorporator, stockholder, member or
controlling person of any of the Issuers or any Subsidiary Guarantor, as such,
will have any liability for any Obligations of any of the Issuers or any
Subsidiary Guarantor under the Notes, the Indenture, the Security Documents or
the Registration Rights Agreement or for any claim based on, in respect of, or
by reason of, such Obligations or their creation. Each Holder by accepting a
Note waives and releases all such liability. The waiver and release will be part
of the consideration for issuance of the Notes and the Subsidiary Guaranties.
This is a continuing Subsidiary Guaranty and shall remain in full force
and effect and shall be binding upon each Subsidiary Guarantor and its
successors and assigns
A-18
until full and final payment of all of the Issuers' obligations under the
Notes and Indenture or until released or legally defeased in accordance with the
Indenture and shall inure to the benefit of the successors and assigns of the
Trustee and the Holders, and, in the event of any transfer or assignment of
rights by any Holder or the Trustee, the rights and privileges herein conferred
upon that party shall automatically extend to and be vested in such transferee
or assignee, all subject to the terms and conditions hereof. This is a
Subsidiary Guaranty of payment and performance and not of collectibility.
This Subsidiary Guaranty shall not be valid or obligatory for any purpose
until the certificate of authentication on the Note upon which this Subsidiary
Guaranty is noted shall have been executed by the Trustee under the Indenture by
the manual signature of one of its authorized officers.
The obligations of each Subsidiary Guarantor under this Subsidiary
Guaranty shall be limited to the extent necessary to insure that it does not
constitute a fraudulent conveyance under applicable law.
THE TERMS OF ARTICLE XI OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
[signature page follows]
A-19
IN WITNESS WHEREOF, each Subsidiary Guarantor has caused this instrument
to be duly executed.
Dated: _____________
[NAME OF SUBSIDIARY GUARANTOR]
By: _________________________________
Name:
Title:
[NAME OF SUBSIDIARY GUARANTOR]
By: _________________________________
Name:
Title:
[NAME OF SUBSIDIARY GUARANTOR]
By: _________________________________
Name:
Title:
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Diamond Jo, LLC
The Old Evangeline Downs Capital Corp.
400 East Third Street
P.O. Box 1750
Dubuque, Iowa 52004-1750
U.S. Bank National Association
60 Livingston Avenue
St. Paul, MN 55107-2292
Re: 8 3/4% Senior Secured Notes due 2012
Dear Sirs:
Reference is hereby made to the Indenture, dated as of April 16, 2004 (the
"Indenture"), among Diamond Jo, LLC, a Delaware limited liability company (the
"Company") and The Old Evangeline Downs Capital Corp., a Delaware corporation
("Capital" and, together with the Company, the "Issuers," which term includes
any successors under, and any additional "Issuers" that may become a party to
the Indenture), the Subsidiary Guarantors party thereto and U.S. Bank National
Association, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture. ______________, (the
"Transferor") owns and proposes to transfer the Note[s] or interest in such
Note[s] specified in Annex A hereto, in the principal amount of $___________ in
such Note[s] or interests (the "Transfer"), to __________ (the "Transferee"), as
further specified in Annex A hereto. In connection with the Transfer, the
Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE SHALL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
144A GLOBAL NOTE OR OF A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer is
being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any State of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
shall be subject to the restrictions on
B-1
transfer enumerated in the Private Placement Legend printed on the 144A Global
Note and/or the Definitive Note and in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE SHALL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
REGULATION S GLOBAL NOTE OR OF A DEFINITIVE NOTE PURSUANT TO REGULATION S. The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S
under the Securities Act, (iii) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act and (iv) if the
proposed transfer is being made prior to the expiration of the Distribution
Compliance Period, the transfer is not being made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial Purchaser) and the
interest transferred shall be held immediately thereafter through Euroclear or
Clearstream. Upon consummation of the proposed transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
shall be subject to the restrictions on Transfer enumerated in the Private
Placement Legend printed on the Regulation S Global Note and/or the Definitive
Note and in the Indenture and the Securities Act.
3. [ ] CHECK IF TRANSFEREE SHALL TAKE DELIVERY OF A BENEFICIAL INTEREST IN A
GLOBAL NOTE OR OF A DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE SECURITIES
ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is being effected in
compliance with the transfer restrictions applicable to beneficial interests in
Restricted Global Notes and Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act and any applicable blue sky securities laws
of any State of the United States, and accordingly the Transferor hereby further
certifies that (check one):
(a) [ ] Such Transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act; or
(b) [ ] Such Transfer is being effected to the Issuers or a subsidiary
thereof; or
(c) [ ] Such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act; or
(d) [ ] such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements
of the Securities Act other than Rule 144A, Rule 144 or Rule 904, and the
Transferor hereby further certifies that it has not engaged in any general
solicitation within the
B-2
meaning of Regulation D under the Securities Act and the Transfer complies
with the transfer restrictions applicable to beneficial interests in a
Restricted Global Note or Restricted Definitive Notes and the requirements
of the exemption claimed, which certification is supported by (1) a
certificate executed by the Transferee in a form of Exhibit D to the
Indenture and (2) if such Transfer is in respect of a principal amount of
Notes at the time of transfer of less than $250,000, an Opinion of Counsel
provided by the Transferor or the Transferee (a copy of which the
Transferor has attached to this certification and provided to the Issuers,
which has confirmed its acceptability), to the effect that such Transfer
is in compliance with the Securities Act.
Upon consummation of the proposed transfer in accordance with the terms of
the Indenture, the transferred beneficial interest or Definitive Note shall be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Definitive Notes and in the Indenture and the Securities
Act.
4. [ ] CHECK IF TRANSFEREE SHALL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN
UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any State of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note shall no longer be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Global Notes, on
Restricted Definitive Notes and in the Indenture and the Securities Act.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is
being effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any State of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note shall no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture and the Securities
Act.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer
is being effected pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act other than Rule 144, Rule 903 or
Rule 904 and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any State of the United
States and (ii) the
B-3
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act.
Upon consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note shall not be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Global Notes or Restricted Definitive Notes and
in the Indenture.
[signature page follows]
B-4
This certificate and the statements contained herein are made for your benefit
and the benefit of the Issuers.
_______________________________ Dated: ____________________________
[Insert Name of Transferor]
By: ____________________________
Name:
Title:
B-5
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in
(i) [ ] 144A Global Note, or
(ii) [ ] 501 Global Note, or
(iii) [ ] Reg S Global Note; or
(b) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee shall hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note, or
(ii) [ ] 501 Global Note, or
(iii) [ ] Reg S Global Note,
(iv) [ ] Unrestricted Global Note; or
(b) [ ] a Restricted Definitive Note; or
(c) [ ] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-6
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Diamond Jo, LLC
The Old Evangeline Downs Capital Corp.
400 East Third Street
P.O. Box 1750
Dubuque, Iowa 52004-1750
U.S. Bank National Association
60 Livingston Avenue
St. Paul, MN 55107-2292
Re: 8 3/4% Senior Secured Notes due 2012
Dear Sirs:
Reference is hereby made to the Indenture, dated as of April 16, 2004 (the
"Indenture"), between Diamond Jo, LLC, a Delaware limited liability company (the
"Company") and The Old Evangeline Downs Capital Corp., a Delaware corporation
("Capital" and, together with the Company, the "Issuers," which term includes
any successors under, and any additional "Issuers" that may become a party to
the Indenture), the Subsidiary Guarantors party thereto and U.S. Bank National
Association, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
____________, (the "Owner") owns and proposes to exchange the Note[s] or
interest in such Note[s] specified herein, in the principal amount of
$____________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A RESTRICTED
GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN AN
UNRESTRICTED GLOBAL NOTE.
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global Note
for a beneficial interest in an Unrestricted Global Note in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the United States
Securities Act of 1933, as amended (the "Securities Act"), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities
C-1
Act and (iv) the beneficial interest in an Unrestricted Global Note is being
acquired in compliance with any applicable blue sky securities laws of any State
of the United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Definitive Note is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Unrestricted Definitive Note is being acquired
in compliance with any applicable blue sky securities laws of any State of the
United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Owner's Exchange
of a Restricted Definitive Note for a beneficial interest in an Unrestricted
Global Note, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any State
of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any State of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL NOTES.
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
(i) the Restricted Definitive Note is being acquired for the Owner's own account
without transfer and (ii)
C-2
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any State of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the Restricted
Definitive Note issued shall continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Definitive Note and in the Indenture and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL
INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange of the
Owner's Restricted Definitive Note for a beneficial interest in the: [CHECK ONE]
[ ] 144A Global Note, [ ] Reg S Global Note, or [ ] 501 Global Note with an
equal principal amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any State of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the beneficial interest
issued shall be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the relevant Restricted Global Note and in
the Indenture and the Securities Act.
[signature page follows]
C-3
This certificate and the statements contained herein are made for your benefit
and the benefit of the Issuers.
______________________________
[Insert Name of Owner]
By:___________________________
Name:
Title:
Dated:__________________
C-4
EXHIBIT D
FORM OF CERTIFICATE FROM ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
Diamond Jo, LLC
The Old Evangeline Downs Capital Corp.
400 East Third Street
P.O. Box 1750
Dubuque, Iowa 52004-1750
U.S. Bank National Association
60 Livingston Avenue
St. Paul, MN 55107-2292
Re: 8 3/4% Senior Secured Notes due 2012
Dear Sirs:
Reference is hereby made to the Indenture, dated as of April 16, 2004 (the
"Indenture"), between Diamond Jo, LLC, a Delaware limited liability company (the
"Company") and The Old Evangeline Downs Capital Corp., a Delaware corporation
("Capital" and, together with the Company, the "Issuers," which term includes
any successors under, and any additional "Issuers" that may become a party to
the Indenture), the Subsidiary Guarantors party thereto and U.S. Bank National
Association, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of: (a) a beneficial interest in a Global Note, or (b) a
Definitive Note, we confirm that:
1. We understand and acknowledge that the Notes have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"), or
any other applicable securities law, are being offered for resale in
transactions not requiring registration under the Securities Act or any
other securities law, including resales pursuant to Rule 144A under the
Securities Act ("Rule 144A"), and may not be offered, sold or otherwise
transferred except in compliance with the registration requirements of the
Securities Act or any other applicable securities law, pursuant to an
exemption therefrom and in each case in compliance with the transfer set
forth below.
2. We are an institutional "accredited investor" under the Securities Act
within the meaning of subparagraph (a) (1), (2), (3) or (7) of Rule 501
under the Securities Act (an "Accredited Investor") and, if the Notes are
to be purchased for one or more accounts ("investor accounts") for which
we are acting as fiduciary or agent, each such investor account is an
Accredited Investor on a like basis. We have such knowledge and
D-1
experience in financial and business matters as to be capable of
evaluating the merits and risks of purchasing the Notes and invest in or
purchase securities similar to the Notes in the normal course of our
business. We and any investor accounts for which we are acting are each
aware that we may be required, and are each able, to bear the economic
risk of our or its investment in the Notes for an indefinite period of
time, including the risk of an entire loss of our or such investor
account's investment in the Notes.
3. We are purchasing the Notes for our own account, or for one or more
investor accounts for which we are acting as a fiduciary or agent, in each
case for investment, and not with a view to, or for offer or sale in
connection with, any distribution thereof in violation of the Securities
Act, subject to any requirement of law that the disposition of our
property or the property of such investor account or accounts be at all
times within our or their control and subject to our or their ability to
resell such Notes pursuant to Rule 144A or any exemption from registration
available under the Securities Act.
4. We agree on our own behalf and on behalf of any investor account for which
we are purchasing Notes to offer, sell or otherwise transfer such Notes
prior to the date which is two years (or such other period that may
hereafter be provided under Rule 144(k) under the Securities Act as
permitting resales of restricted securities by non-affiliates without
restriction) after the later of the date of original issue and the last
date on which either of the Issuers or any affiliate of the Issuers was
the owner of such Notes (or any predecessor thereof) (the "Resale
Restriction Termination Date") only (a) to either of the Issuers, (b)
pursuant to a registration statement which has been declared effective
under the Securities Act, (c) for so long as the Notes are eligible for
resale pursuant to Rule 144A to a person we reasonably believe is a
"qualified institutional buyer" as defined in Rule 144A (a "QIB") that
purchases for its own account or for the account of a QIB and to whom
notice is given that the transfer is being made in reliance on Rule 144A,
(d) pursuant to offers and sales to Non-U.S. purchasers that occur outside
the United States in accordance with Regulation S under the securities
act, (e) to an Accredited Investor that is acquiring the Notes for its own
account, or for the account of such an Accredited Investor, for investment
purposes, and not with a view to, or for offer or sale in connection with,
any distribution in violation of the Securities Act, or (f) pursuant to
another available exemption from the registration requirements of the
Securities Act, subject in each of the foregoing cases to any requirement
of law that the disposition of our property or the property of such
investor account or accounts be at all times within our or their control
and in each case in compliance with any applicable securities laws of any
U.S. state or any other applicable jurisdiction. The foregoing
restrictions on resale will not apply subsequent to the Resale Restriction
Termination Date. If any resale or other transfer of the Notes is proposed
to be made pursuant to clause (d) above prior to the Resale Restriction
Termination Date, the transferor shall deliver a letter from the
transferee substantially in the form of this letter to the Issuers and the
Trustee, which shall provide, among other things, that the transferee is
an Accredited Investor and that it is acquiring such Notes for investment
purposes and not for distribution in violation of the Securities Act. Each
purchaser acknowledges that the Issuers and the Trustee reserve the right
prior to the offer, sale or other transfer made
D-2
prior to the Resale Termination Date pursuant to clause (e) or (f) above
to require the delivery of an opinion of counsel, certifications and/or
other information satisfactory to each of them.
5. We understand that the Notes will be delivered in registered form only and
that the certificates delivered to us in respect of the Notes will contain
a legend substantially to the following effect:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS
(OR SUCH OTHER PERIOD THAT MAY HEREAFTER BE PROVIDED UNDER RULE 144(k)
UNDER THE SECURITIES ACT AS PERMITTING RESALES OF RESTRICTED SECURITIES BY
NON-AFFILIATES WITHOUT RESTRICTION) AFTER THE LATER OF THE ORIGINAL ISSUE
DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUERS OR ANY AFFILIATE OF THE
ISSUERS WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS
SECURITY) (THE "RESALE RESTRICTION TERMINATION DATE") ONLY (A) TO THE
ISSUERS, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A
UNDER THE SECURITIES ACT, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PURCHASERS THAT OCCUR OUTSIDE THE UNITED STATES IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF
RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS
OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED
INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR
SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUERS' AND THE
TRUSTEE'S RIGHT
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PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR
(F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE
FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE AND
IN EACH CASE IN ACCORDANCE WITH APPLICABLE SECURITIES LAWS OF ANY U.S.
STATE OR ANY OTHER APPLICABLE JURISDICTION.
6. If we are acquiring any of the Notes as a fiduciary or agent for one or
more investor accounts, we represent that we have sole investment
discretion with respect to each such account and we have full power to
make the foregoing representations, warranties, acknowledgments and
agreements on behalf of each such investor account.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED
IN NEW YORK, INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW.
[signature page follows]
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You and the Issuers are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
_______________________________ Dated: __________________, ____
[Insert Name of Accredited Investor]
By:________________________________
Name:
Title:
D-5
EXHIBIT E
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT
SUBSIDIARY GUARANTORS
Supplemental Indenture (this "Supplemental Indenture"), dated as of ____,
among ___________________ (the "Guaranteeing Subsidiary"), Diamond Jo, LLC, a
Delaware limited liability company (the "Company") and The Old Evangeline Downs
Capital Corp., a Delaware corporation ("Capital" and, together with the Company,
the "Issuers," which term includes any successors under, and any additional
"Issuers" that may become a party to the Indenture hereinafter referred to), and
U.S. Bank National Association, as trustee under the Indenture referred to below
(the "Trustee").
W I T N E S S E T H
WHEREAS, the Issuers and the Subsidiary Guarantors (as defined therein)
have heretofore executed and delivered to the Trustee an indenture (the
"Indenture"), dated as of April 16, 2004, providing for the issuance of 8 3/4%
Senior Secured Notes due 2012 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture and a Subsidiary Guaranty in the form of Annex A to the Indenture
endorsed on the Notes pursuant to which it shall unconditionally guaranty all of
the Issuers' obligations under the Notes and the Indenture on the terms and
conditions set forth herein (the "Subsidiary Guaranty"); and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. Joinder to Indenture. Each of the parties hereto hereby agrees to
become bound by the terms, conditions and other provisions of the Indenture with
all attendant rights, duties and obligations stated therein, with the same force
and effect as if originally named as a Subsidiary Guarantor therein and as if
such party executed the Indenture on the date thereof.
3. Agreement to Subsidiary Guaranty. The Guaranteeing Subsidiary
irrevocably and unconditionally guarantees the Subsidiary Guaranty Obligations,
which include (i) the due and punctual payment of the principal of, premium, if
any, and interest
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and Liquidated Damages, if any, on the Notes, whether at maturity, by
acceleration, call for redemption, upon a Change of Control Offer, an Asset Sale
Offer, or otherwise, the due and punctual payment of interest on the overdue
principal and premium, if any, and (to the extent permitted by law) interest on
any interest on the Notes, and payment of expenses, and the due and punctual
performance of all other obligations of the Issuers, to the Holders or the
Trustee under the Notes, the Indenture, the Security Documents and the
Registration Rights Agreement (including fees and expenses or other) all in
accordance with the terms set forth in Article XI of the Indenture, and (ii) in
case of any extension of time of payment or renewal of any Notes or any such
other obligations under the Notes, the Indenture, the Security Documents and the
Registration Rights Agreement, that the same shall be promptly paid in full when
due or performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration, call for redemption, upon a Change
of Control Offer, an Asset Sale Offer, or otherwise.
The obligations of Guaranteeing Subsidiary to the Holders and to the
Trustee pursuant to this Subsidiary Guaranty and the Indenture are expressly set
forth in Article X of the Indenture and reference is hereby made to such
Indenture for the precise terms of this Subsidiary Guaranty.
No director, officer, employee, incorporator, stockholder, member or
controlling person of any of the Issuers or any Subsidiary Guarantor, as such,
will have any liability for any Obligations of any of the Issuers or any
Subsidiary Guarantor under the Notes, the Indenture, the Security Documents or
the Registration Rights Agreement or for any claim based on, in respect of, or
by reason of, such Obligations or their creation. Each Holder by accepting a
Note waives and releases all such liability. The waiver and release will be part
of the consideration for issuance of the Notes and the Subsidiary Guaranties.
This is a continuing Subsidiary Guaranty and shall remain in full force
and effect and shall be binding upon the Guaranteeing Subsidiary and its
successors and assigns until full and final payment of all of the Issuers'
obligations under the Notes and Indenture or until released in accordance with
the Indenture and shall inure to the benefit of the successors and assigns of
the Trustee and the Holders, and, in the event of any transfer or assignment of
rights by any Holder or the Trustee, the rights and privileges herein conferred
upon that party shall automatically extend to and be vested in such transferee
or assignee, all subject to the terms and conditions hereof. This is a
Subsidiary Guaranty of payment and performance and not of collectibility.
The obligations of the Guaranteeing Subsidiary under its Subsidiary
Guaranty shall be limited to the extent necessary to insure that it does not
constitute a fraudulent conveyance under applicable law.
THE TERMS OF ARTICLE XI OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
4. NEW YORK LAW TO GOVERN AND CONSENT TO JURISDICTION. THIS INDENTURE AND
THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW
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YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK,
INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(B);
PROVIDED, THAT WITH RESPECT TO THE CREATION, ATTACHMENT, PERFECTION, PRIORITY,
ENFORCEMENT OF AND REMEDIES RELATING TO THE SECURITY INTEREST IN ANY REAL
PROPERTY COLLATERAL, THE GOVERNING LAW MAY BE THE LAWS OF THE JURISDICTIONS
WHERE SUCH COLLATERAL IS LOCATED WITHOUT REGARD TO THE CONFLICT OF LAW
PROVISIONS THEREOF.
JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY OF THE ISSUERS OR GUARANTORS
ARISING OUT OF OR RELATING HERETO OR ANY OF THE SECURITY DOCUMENTS, OR ANY OF
THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND
DELIVERING THIS AGREEMENT, EACH ISSUER OR GUARANTOR, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY SUBMITS TO AND ACCEPTS GENERALLY AND
UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; WAIVES
ANY DEFENSE OF FORUM NON CONVENIENS; AGREES THAT SERVICE OF ALL PROCESS IN ANY
SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, TO THE APPLICABLE ISSUER OR GUARANTOR AT ITS ADDRESS
PROVIDED IN ACCORDANCE WITH SECTION 12.3 OF THE INDENTURE; AGREES THAT SERVICE
AS PROVIDED ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE
APPLICABLE ISSUER OR GUARNATOR IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND
OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND AGREES
THE TRUSTEE RETAINS THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR TO BRING PROCEEDINGS AGAINST ANY OF THE ISSUERS OR GUARANTORS IN THE
COURTS OF ANY OTHER JURISDICTION HAVING JURISDICTION OVER SUCH ISSUER OR
GUARANTOR.
5. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
6. Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
[signature page follows]
E-3
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
THE ISSUERS:
Diamond Jo, LLC
By: _________________________________
Name:
Title:
The Old Evangeline Downs Capital Corp.
By: _________________________________
Name:
Title:
GUARANTEEING SUBSIDIARY:
NAME:
By: _________________________________
Name:
Title:
THE TRUSTEE:
U.S. Bank National Association
By: _________________________________
Name:
Title:
E-4
EXHIBIT F
FORM OF INTERCREDITOR AGREEMENT
[attached]
F-1
EXHIBIT G
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY PENINSULA GAMING, LLC
Supplemental Indenture (this "Supplemental Indenture"), dated as of ____,
among Peninsula Gaming, LLC, a Delaware limited liability company (the "Parent
Issuer"), the direct parent of Diamond Jo, LLC, a Delaware limited liability
company (the "Company"), the Company and The Old Evangeline Downs Capital Corp.,
a Delaware corporation ("Capital" and, together with the Company, the "Original
Issuers"), and U.S. Bank National Association, as trustee under the Indenture
referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Original Issuers and the Subsidiary Guarantors (as defined
therein) have heretofore executed and delivered to the Trustee an indenture (the
"Indenture"), dated as of April 16, 2004, providing for the issuance of 8 3/4%
Senior Secured Notes due 2012 (the "Notes");
WHEREAS, on the date hereof, the Parent Issuer, the Original Issuers and
the Guarantors are effecting the Reorganization Tranactions (as defined in the
Indenture);
WHEREAS, the Indenture requires that as part of the Reorganization
Transactions the Parent Issuer execute and deliver to the Trustee this
Supplemental Indenture pursuant to which the Parent Issuer shall become a party
to the Indenture and an "Issuer" for all purposes under the Notes, the
Indenture, the Security Documents, the Intercreditor Agreement and the
Registration Rights Agreement and liable for all Obligations of an "Issuer"
thereunder; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto mutually covenant and agree for the equal and ratable benefit of the
Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. Parent Issuer as Additional "Issuer." The Parent Issuer hereby becomes
a party to and bound by all of the terms, conditions and other provisions of the
Indenture with all attendant rights, duties and obligations stated therein, and
hereby becomes an "Issuer" for all purposes under the Notes, the Indenture, the
Security Documents, the Intercreditor Agreement and the Registration Rights
Agreement and liable for all Obligations of an "Issuer" thereunder, with the
same force and effect as if the Parent Issuer was originally named as an
"Issuer" in the Indenture and as if the Parent Issuer executed the Indenture on
the date thereof.
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3. Original Issuers Remain Issuers. For the avoidance of doubt, nothing
herein shall or shall be deemed to modify or otherwise affect the Obligations of
the Original Issuers or the Subsidiary Guarantors under the the Notes, the
Indenture, the Security Documents, the Intercreditor Agreement or the
Registration Rights Agreement, and the Original Issuers each shall remain
liable, jointly and severally with the Parent Issuer, for all Obligations of an
"Issuer" thereunder.
4. NEW YORK LAW TO GOVERN AND CONSENT TO JURISDICTION. THIS INDENTURE AND
THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE
STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF
THE NEW YORK GENERAL OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULES
327(B); PROVIDED, THAT WITH RESPECT TO THE CREATION, ATTACHMENT, PERFECTION,
PRIORITY, ENFORCEMENT OF AND REMEDIES RELATING TO THE SECURITY INTEREST IN ANY
REAL PROPERTY COLLATERAL, THE GOVERNING LAW MAY BE THE LAWS OF THE JURISDICTIONS
WHERE SUCH COLLATERAL IS LOCATED WITHOUT REGARD TO THE CONFLICT OF LAW
PROVISIONS THEREOF.
JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY OF THE ISSUERS OR GUARANTORS
ARISING OUT OF OR RELATING HERETO OR ANY OF THE SECURITY DOCUMENTS, OR ANY OF
THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND
DELIVERING THIS AGREEMENT, EACH ISSUER OR GUARANTOR, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY SUBMITS TO AND ACCEPTS GENERALLY AND
UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; WAIVES
ANY DEFENSE OF FORUM NON CONVENIENS; AGREES THAT SERVICE OF ALL PROCESS IN ANY
SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, TO THE APPLICABLE ISSUER OR GUARANTOR AT ITS ADDRESS
PROVIDED IN ACCORDANCE WITH SECTION 12.3 OF INDENTURE; AGREES THAT SERVICE AS
PROVIDED ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE
ISSUER OR GUARNATOR IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE
CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND AGREES THE
TRUSTEE RETAINS THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW
OR TO BRING PROCEEDINGS AGAINST ANY OF THE ISSUERS OR GUARANTORS IN THE COURTS
OF ANY OTHER JURISDICTION HAVING JURISDICTION OVER SUCH ISSUER OR GUARANTOR.
5. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
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6. Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.
[signature page follows]
G-3
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
THE ORIGINAL ISSUERS:
Diamond Jo, LLC
By:_________________________________
Name:
Title:
The Old Evangeline Downs Capital Corp.
By:_________________________________
Name:
Title:
THE PARENT ISSUER:
Peninsula Gaming, LLC
By:_________________________________
Name:
Title:
THE TRUSTEE:
U.S. Bank National Association
By: _________________________________
Name:
Title:
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