EXHIBIT 4.6
SECOND SUPPLEMENTAL
TRUST INDENTURE
TWG INTERNATIONAL U.S. CORPORATION, ISSUER
This Second Supplemental Trust Indenture, dated as of October 15, 1999
(this "Supplemental Indenture"), is made by and between the TWG International
U.S. Corporation ("TWG International") (together with any successors to its
rights, duties and obligations hereunder, the "Issuer"), and U.S. Trust
Company of Texas, N.A. (together with any successor trustee hereunder, the
"Trustee"), a national banking association having corporate trust offices
located in Dallas, Texas.
WHEREAS, the Issuer and the Trustee have heretofore executed and
delivered that certain Indenture dated as of March 31, 1998, as supplemented
on October 29, 1998 (the "Finance Indenture"), and the Issuer has issued its
12% Senior Secured Note Due March 17, 2005 (the "Finance Note") (which, by the
terms hereof, will be redesignated as the 12% Senior Secured Note Due March
17, 2005, Series 1998) thereunder; and
WHEREAS, Trans World Gaming Corp. ("TWG"), TWG Finance Corp. ("TWGF"),
the Issuer and the Trustee have executed that certain Indenture dated as of
March 31, 1998 as supplemented on October 29, 1998 (the "Finance Indenture"),
and TWG, TWGF and TWG International have issued their 12% Senior Secured Notes
Due March 17, 2005 (which, by the terms thereof, will be redesignated as the
12% Senior Secured Note Due March 17, 2005, Series 1998) (the "Primary Notes")
thereunder; and
WHEREAS, the Issuer and the Trustee have heretofore executed and
delivered that certain First Supplemental Trust Indenture to the Indenture
dated as of October 29, 1998; and
WHEREAS, the Finance Indenture provides in Section 8.2 thereof that the
Issuer, when authorized by a resolution of its Board of Director, and the
Trustee may, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Finance Notes at the time outstanding (the
"Holders"), add any provisions to change in any manner or eliminate any of the
provisions of the Finance Indenture or of any supplemental indenture or to
modify in an manner the rights of the Holders of the Finance Note, except
under certain circumstances not applicable herein; and
WHEREAS, the Issuer and the Trustee now desire to amend the Finance
Indenture for the purpose of (i) permitting the authorization and issuance
additional series of Securities pursuant to the terms of the Finance
Indenture, and pursuant to such authority, permitting the authorization and
issuance of $3,000,000 in principal amount of Securities, and (ii) making
certain corrections to the Form of Security for the Securities heretofore
issued and delivered; and
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WHEREAS, the execution and delivery of this Supplemental Indenture has
been duly and validly authorized in all respects by the Board of Directors of
the Issuer; and
WHEREAS, the Trustee is a party to this Supplemental Indenture in order
to acknowledge its acceptance of the terms and provisions hereof and to
evidence its consent to the amendments to the Finance Indenture made hereby;
and.
WHEREAS, the Holders are a party to this Supplemental Indenture in order
to consent to the terms and conditions hereof pursuant to the requirements of
Section 8.2 of the Finance Indenture; and
NOW, THEREFORE, in consideration of the mutual understandings, promises
and agreements herein contained and other good and valuable consideration, the
sufficiency of which are hereby acknowledged, the Issuer and the Trustee do
covenant and agree hereby, for the equal and proportionate benefit of the
respective Holders, from time to time, of the Notes, as follows:
ARTICLE I
DEFINITIONS AND AUTHORITY
Section 1.1. SUPPLEMENTAL INDENTURE. This Supplemental Indenture is
a Supplemental Indenture, and is adopted in accordance with Article 8 of the
Finance Indenture.
Section 1.2. DEFINITIONS.
(A) Unless the context shall require otherwise, all defined terms
contained in the Finance Indenture shall have the same respective meanings in
this Supplemental Indenture as such defined terms are given in the Finance
Indenture.
(B) As used in this Supplemental Indenture, except as otherwise
expressly provided or unless the context shall require otherwise:
(1) This "Supplemental Indenture" means this instrument as
originally executed or as it may, from time to time, be supplemented or
amended by one or more supplemental indentures hereto entered into pursuant to
the applicable provisions of the Finance Indenture.
(2) All references in this instrument to designated "Articles,"
"Sections," and other subdivisions are to the designated Articles, Sections,
and other subdivisions of this instrument as originally executed.
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Section 1.3. FINANCE INDENTURE TO REMAIN IN FORCE. Except as
amended by this Supplemental Indenture, the Finance Indenture shall remain in
full force and effect as to matters covered therein.
Section 1.4. SUCCESSORS AND ASSIGNS. All covenants and agreements
in this Supplemental Indenture by the Issuer and the Trustee shall bind the
Holders of the Securities, the Issuer, the Trustee and their respective
successors and assigns, whether so expressed or not.
Section 1.5. BENEFITS OF SUPPLEMENTAL INDENTURE. Nothing in this
Supplemental Indenture or in the Notes, express or implied, shall give any
Person, other than the parties hereto, their respective successors hereunder
and the Holders of the Notes, any benefit or any legal or equitable rights,
remedy or claim under this Supplemental Indenture.
Section 1.6. GOVERNING LAW. This Supplemental Indenture shall be
construed in accordance and governed by the laws of the State of New York.
ARTICLE II
AMENDMENTS TO FINANCE INDENTURE
Section 2.1. DEFINITIONS. Section 1.1 of the Finance Indenture is
amended to add or amend in their entirety the definitions of the following
terms:
"Additional Securities" means each series of parity Securities
which may from time to time be issued pursuant to the terms of Section 2.9 of
this Indenture.
"Issue Date" means the date on which a series of Securities are
originally issued under this Indenture.
"Primary Indenture" means that certain Indenture dated as of
March 31, 1998, as supplemented on October 29, 1998 pursuant to which the
Issuer, TWG and TWG Finance Corporation are issuers and the Trustee herein is
the trustee, as to those certain $17,000,000 12% Senior Secured Notes Due
March 17, 2005, together with any supplement to such Indenture and any
additional notes issued under such Indenture and the supplements thereto.
"Security" or "Securities" means any of the Issuer's 12% Senior
Secured Notes due March 17, 2005, Series 1998, and any Additional Securities
authenticated and delivered in accordance with Section 2.9 of this Indenture.
"Subscription Agreement" means the Subscription Agreement dated as
of March 16, 1998, among TWG, TWG International, TWG Financing and certain
Securityholders relating to the Series 1998 Securities, and any similar
agreement entered into in connection with the issuance of Additional
Securities issued under this Indenture.
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Section 2.2. AUTHENTICATION AND DELIVERY OF SECURITIES. Section 2.1 of
the Indenture is amended so that, as amended, Section 2.1 shall read in its
entirety as follows:
SECTION 2.1 AUTHENTICATION AND DELIVERY OF SECURITIES. Securities in
an aggregate principal amount not in excess of $17,000,000 (except as
otherwise provided in Section 2.6 and Section 2.9 hereof) may be executed by
the Issuer and delivered to the Trustee for authentication, and a responsible
officer of the Trustee shall thereupon authenticate and deliver said
Securities to the Issuer or upon the written order of the Issuer, signed by
both (a) the Chairman of the Board of Directors or any Vice Chairman of the
Board of Directors, or its Chief Executive Officer or President or any Vice
President (whether or not designated by a number or numbers or a word or words
added before or after the title "Vice President") and (b) by its Treasurer or
Secretary or any Assistant Treasurer or Secretary without any further action
by the Issuer. The Issuer's $17,000,000 aggregate principal amount of
Securities shall be designated the Issuer's 12% Senior Notes Due March 12,
2005, Series 1998 (sometimes referred to herein as the "Series 1998
Securities").
Section 2.3. ADDITIONAL SECURITIES. Section 2.9 is added to the
Finance Indenture, and Section 2.9 will read in its entirety as follows:
SECTION 2.9. ADDITIONAL SECURITIES.
(a) GENERAL. The Issuer may, subject to the requirements of Section
2.9(b), issue one or more installments of Additional Securities. When issued
and delivered, the Additional Securities will be payable from and secured by
this Indenture and the Collateral on a parity with any previously issued
outstanding Securities. The Additional Securities may be issued in one or
more series or not in any series, be in various principal amounts, mature at
different times, and bear interest at different rates from each other and
from Securities which are previously outstanding, be payable in installments,
be redeemable prior to maturity with or without premium on whatever terms or
prices, and contain such other provisions as may be provided in the
supplemental indenture pursuant to which the Additional Securities are issued.
(b) REQUIREMENTS FOR ISSUING ADDITIONAL SECURITIES. No Additional
Securities shall be issued unless:
(i) The prior written consent to the issuance of the Additional
Securities is given by the Holders of not less than a majority in aggregate
principal amount of Securities at the time Outstanding;
(ii) The Issuer delivers to the Trustee an Officers Certificate
stating to the effect that no Default exists in connection with any of the
covenants or requirements of this Indenture or any supplemental indenture
authorizing the issuance of Additional Securities, except Defaults that have
been waived in writing by the Holders; and
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(iii) The Issuer and the Trustee enter into a Supplemental
Indenture regarding the terms, issuance and delivery of Additional Securities
and the Trustee is provided with the documents required to be delivered to it
pursuant to Section 8.4 of this Indenture and other documents and opinions
reasonably requested by the Trustee.
Section 2.4 SUPPLEMENTAL INDENTURES. Section 8.1 of the Finance
Indenture is amended to add thereto a new subsection (e) which will read in
its entirely as follows:
(e) to provide for the issuance of Additional Securities in
accordance with Section 2.9 of this Indenture.
Section 2.5 Amendment to the Form of Face of the Series 1998 Security.
The Form of the Face of the Series 1998 Security is amended by amending the
fourth-to-the-last paragraph thereof, so that, as amended, such paragraph
shall read in its entirety as follows:
The interest so payable on any Interest Payment Date will, except as
otherwise provided in the Indenture referred to on the reverse hereof, be paid
to the Person in whose name this Security is registered on the 15th day of the
month next preceding the month in which such interest payment falls, whether
or not such Interest Record Date is a Business Day.
Section 2.6 Global Amendment. To the extent necessary, all other terms
of the Finance Indenture shall be deemed amended to reflect the issuance of
Additional Securities constituting the Finance Note and of Additional
Securities (as that term is defined in the Second Supplemental Trust Indenture
to the Primary Indenture executed contemporaneously herewith).
ARTICLE III
AUTHORIZATION AND TERMS OF ADDITIONAL SECURITIES
Section 3.1 AUTHORIZATION OF ADDITIONAL SECURITIES. Pursuant to
Section 2.9 of the Indenture, an Additional Security in an amount not in
excess of $3,000,000 (except as provided in Section 2.6) of the Indenture
entitled to the benefit and security of this Indenture and the Collateral
referred to herein are hereby authorized. The Additional Securities shall be
issued in the form of Exhibit A, attached hereto. Such Additional Security
shall be designated the Issuer's 12% Senior Note Due March 17, 2005, Series
1999 (sometimes referred to herein as the "Series 1999 Security"). Such
Additional Security may be executed by the Issuer and delivered to the Trustee
for authentication, and a responsible officer of the Trustee shall thereupon
authenticate and deliver said Securities to the Issuer or upon written order
of the Issuer signed by the Chairman of the Board of Directors or any Vice
Chairman of the Board of Directors, or its Chief Executive Officer or
President or any Vice President (whether or not designated by a number or
numbers or a word or words added before or after the title "Vice President.")
Such Additional Security shall be a "Security" under this Indenture in all
respects.
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Section 3.2 TERMS OF THE ADDITIONAL SECURITIES. The terms of the
Additional Security, including, but not limited to, date, denominations,
interest rate, maturity, and redemption provisions, if any, shall be as
provided in the form of Security attached hereto as EXHIBIT A and as provided
in the Indenture.
ARTICLE IV
MISCELLANEOUS
Section 4.1. RATIFICATION AND REAFFIRMATION. The Issuer and
Trustee hereby ratify and reaffirm all the terms and conditions of the Finance
Indenture, as specifically amended and supplemented by this Supplemental
Indenture, and each hereby acknowledges that the Finance Indenture remains in
full force and effect, as so amended and supplemented.
Section 4.2. EXECUTION AND COUNTERPARTS. This Supplemental
Indenture may be executed in several counterparts, all of which shall
constitute one and the same instrument and each of which shall be, and shall
be deemed to be, an original.
IN WITNESS WHEREOF, the Issuer and the Trustee have caused this
Supplemental Indenture to be signed on their behalf by their duly authorized
representative, all as of the date first hereinabove written.
TWG INTERNATIONAL U.S. CORPORATION
By:
-------------------------------
Name:
Title:
----------------------------
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U.S. TRUST COMPANY OF TEXAS, N.A.,
as Trustee
By:
--------------------------------
Name: John C. Stohlmann
Title: Vice President
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CONSENT OF THE SECURITYHOLDER
The undersigned, TWG Finance Corp. and Value Partners, Ltd., each the
Holder of a majority principal amount of the Finance Note and the Primary
Notes, respectively, by their execution hereof consent to this Supplemental
Indenture pursuant to Section 8.2 of the Finance Indenture and pursuant to
Section 2.9 of the Indenture, as amended by the Supplemental Indenture.
EXECUTED as of the day and year first above written.
TWG FINANCE CORP.
By:
---------------------------------
Name:
Title:
VALUE PARTNERS, LTD.
By:
---------------------------------
Name: Timothy G. Ewing
Managing Partner of Ewing & Partners
General Partner of Value Partners, Ltd.
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EXHIBIT "A"
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY STATE SECURITIES ACT, AND MAY NOT BE TRANSFERRED WITHOUT
REGISTRATION UNDER SUCH ACTS OR AN OPINION OF COUNSEL SATISFACTORY TO THE
ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED.
No. 1 $3,000,000.00
TWG INTERNATIONAL U.S. CORPORATION
12% Senior Secured Note Due March 17, 2005, Series 1999
Date: October 15, 1999
New York, New York
TWG International U.S. Corporation, a Nevada corporation (the "Issuer"),
for value received hereby promises to pay to TWG Finance Corp. a Delaware
corporation, or registered assigns, the principal sum of $3,000,000.00 at the
Issuer's office or agency for said purpose, on March 17, 2005, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and to pay interest
semi-annually on March 17 and September 17 (each an "Interest Payment Date")
of each year, commencing with March 17, 2000, on said principal sum in like
coin or currency at 12% simple interest per annum at said office or agency
from the most recent Interest Payment Date to which interest on the Securities
has been paid or duly provided for unless the date hereof is a date to which
interest on the Securities is paid or duly provided for, in which case from
the date of this Security, or unless no interest has been paid or duly
provided for on the Securities, in which case from the date of issuance. To
the extent lawful, the Issuer promises to pay interest on any interest payment
past due but unpaid on such unpaid principal amount at a rate of 17% per annum
compounded semi-annually.
The interest so payable on any Interest Payment Date will, except as
otherwise provided in the Indenture referred to on the reverse hereof, be paid
to the Person in whose name this Security is registered on the 15th day of the
month next preceding the month in which such interest payment falls, whether
or not a Business Day (each an "Interest Record Date"); PROVIDED that interest
may be paid, at the option of the Issuer, by mailing a check therefor payable
on the Interest Payment Date to the registered Holder entitled thereto at his
last address as it appears on the Security register.
If interest on the Securities is in default, the Trustee shall, prior to
the payment of interest, establish a special record date (the "Special Record
Date") for such payment, which Special Record Date shall be not more than
fifteen (15) nor less than ten (10) days prior to the date of the proposed
payment. Payment of such defaulted interest shall then be made by check, as
provided herein and in the Indenture, mailed or remitted to the persons in
whose names the
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Securities are registered on the Special Record Date at the addresses or
accounts of such persons shown on the security register.
Interest on this Security will be calculated on the basis of a 360-day
year, consisting of twelve 30-day months.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof which further provisions shall for all purposes
have the same effect as if set forth in this place.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
[Seal] TWG INTERNATIONAL U.S. CORPORATION
By:
-------------------------------
Its: Vice President
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REVERSE OF SECURITY
TWG INTERNATIONAL U.S. CORPORATION
12% Senior Secured Note Due March 17, 2005, Series 1999
This Security one of a series of duly authorized debt securities of the
Issuer designated as "12% Senior Secured Notes Due March 17, 2005, Series
1999", issued in the aggregate principal amount of $3,000,000.00, and issued
pursuant to a Supplemental Trust Indenture (Supplemental Indenture") dated as
of October 15, 1999, duly executed and delivered by the Issuer to U.S. Trust
Company of Texas, N.A., as Trustee (hereinafter referred to as the "Trustee"),
which Supplemental Indenture supplements the Indenture ("Original Indenture")
dated as of March 31, 1998 and supplemented on October 29, 1998, duly executed
and delivered by the Issuer to the Trustee. The Original Indenture and the
Supplemental Indenture are hereinafter referred to as the "Indenture."
Reference is hereby made to the Indenture and all indentures supplemental
thereto for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Issuer and the Holders
(the words "Holders" or "Holder" meaning the registered holders or registered
holder) of the Securities. The Securities are secured obligations of the
Issuer. Capitalized terms used in this Security and not defined herein shall
have the meaning set forth in the Indenture.
In case an Event of Default (as defined in the Indenture) shall have
occurred and be continuing, the principal and interest in respect of all of
the Securities then outstanding may be declared due and payable in the manner
and with the effect, and subject to the conditions, provided in the Indenture.
The Indenture provides that the Holders of 50% in aggregate principal amount
of the Securities then outstanding, by notice to the Trustee, may on behalf of
the Holders of all of the Securities, waive any existing Default or Event of
Default and its consequences under the Indenture except a continuing Default
or Event of Default in the payment of interest or premium on, or the principal
of, the Securities or in respect of a covenant or provision that cannot be
modified or amended without the consent of all Holders of the Securities. Any
such consent or waiver by the Holder of this Security (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such Holder
and upon all future Holders and owners of this Security and any Security which
may be issued in exchange or substitution therefor, whether or not any
notation thereof is made upon this Security or such other Securities.
The Indenture permits the Issuer and the Trustee, with the consent of
the Holders of not less than 50% in aggregate principal amount of the
Securities at the time outstanding, evidenced as in the Indenture provided, to
execute supplemental indentures adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or modifying in any manner the rights of the Holders of
the Securities; PROVIDED that no such supplemental indenture shall, without
the consent of each Holder affected thereby (with respect to any Securities
held by a non-consenting Securityholder) (i) reduce the principal amount of
Securities whose Holders must consent to an amendment, supplement or waiver,
(ii) reduce the principal of or change the fixed maturity of any Security or
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alter the provisions with respect to the redemption of the Securities, (iii)
reduce the rate of or change the time for payment of interest on any Security,
(iv) waive a Default or Event of Default in the payment of principal of or
premium, if any, or interest on the Securities (except a rescission of
acceleration of the Securities by the Holders of at least 50% in aggregate
principal amount of the then outstanding Securities and a waiver of the
payment default that resulted from such acceleration), (v) make any Security
payable in money other than that stated in the Securities, (vi) make any
change in the provisions of the Indenture relating to waivers of past Defaults
or the rights of Holders of Securities to receive payments of principal of or
interest on the Securities, (vii) waive a redemption payment with respect to
any Security or (viii) make any change in the foregoing amendment and waiver
provisions.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligations of the Issuer, which
are absolute and unconditional, to pay the principal of and the interest on
this Security at the place, times, and rate, and in the currency, herein
prescribed.
The Securities are issuable only as registered Securities without
coupons.
At the office or agency of the Issuer referred to on the face hereof and
in the manner and subject to the limitations provided in the Indenture,
Securities may be exchanged for a like aggregate principal amount of
Securities of other authorized denominations.
Upon due presentment for registration of transfer of this Security at
the above-mentioned office or agency of the Issuer, a new Security or
Securities of authorized denominations, for a like aggregate principal amount,
will be issued to the transferee as provided in the Indenture. No service
charge shall be made for any such transfer, but the Issuer may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto.
As provided in the Indenture, Issuer shall be required to make mandatory
prepayments equal to Excess Cash Flow until Obligations are fully defeased
pursuant to Section 10.2 or until one hundred percent (100%) of the principal
amount of the Securities, together with accrued and unpaid interest, is paid.
The Securities may also be redeemed by the Issuer, in whole, or in part, upon
mailing a notice of such redemption not less than 30 nor more than 60 days
prior to the date fixed for redemption to the Holders of Securities to be
redeemed, at a redemption price equal to 100% of the principal amount of the
Securities redeemed, together with accrued and unpaid interest to the date
fixed for redemption. If there is a Change of Control (as defined in the
Indenture), the Issuer shall be required to offer to purchase all outstanding
Securities at a purchase price equal to 101% of the principal amount thereof,
plus accrued unpaid interest, if any, through the date of such purchase.
Subject to payment by the Issuer of a sum sufficient to pay the amount
due upon redemption, interest on this Security shall cease to accrue upon the
date duly fixed for redemption of this Security.
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The Issuer, the Trustee and any authorized agent of the Issuer or the
Trustee may deem and treat the registered Holder hereof as the absolute owner
of this Security (whether or not this Security shall be overdue and
notwithstanding any notation of ownership or other writing hereon made by
anyone other than the Issuer or the Trustee or any authorized agent of the
Issuer or the Trustee), for the purpose of receiving payment of, or on account
of, the principal hereof and premium, if any, and subject to the provisions on
the face hereof, interest hereon and for all other purposes, and neither the
Issuer nor the Trustee nor any authorized agent of the Issuer or the Trustee
shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of, premium,
if any, or the interest on this Security, for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator, shareholder,
officer, employee or director, as such, past, present or future, of the Issuer
or Trustee or of any successor corporation, either directly or through the
Issuer or any successor corporation, whether by virtue of any constitution,
statute or rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of
the consideration for the issue hereof, expressly waived and released.
Customary abbreviations may be used in the name of a Securityholder 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).
This Security shall not be valid or obligatory until the certificate of
authentication hereon shall have been duly signed by an authorized signatory
of the Trustee acting under the Indenture.
[TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the within-mentioned
Indenture.
Dated:
U.S. Trust Company of Texas, N.A., as
Trustee
By:
-----------------------------------
Authorized Signatory
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
_____________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint______________________________________________agent to
transfer this Security on the books of Issuer. The agent may substitute
another to act for him.
If you want the Note certificate made out in another person's name, fill in
the form below:
_____________________________________________________________________________
(insert other person's soc. sec. or tax I.D. no.)
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Print or type other person's name, address and zip code)
Date: _______________________ ____________________________________
Your Signature
____________________________________
Signature Guaranty
____________________________________
Notice: Signature must be guaranteed
by an "Eligible Guarantor Institution"
as defined by Securities Exchange Act
Rule 17Ad-15.
(Sign exactly as your name appears on the other side of this Security)
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