DIAMOND JO WORTH, LLC AND DIAMOND JO WORTH CORP. (as Issuers) 11% Senior Secured Notes due 2012 THIRD SUPPLEMENTAL INDENTURE DATED OCTOBER 16, 2007 TO THE INDENTURE DATED AS OF JULY 19, 2005 (as Trustee)
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EXHIBIT
4.28
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XXXXXXX
XX WORTH, LLC
AND
XXXXXXX
XX WORTH CORP.
(as
Issuers)
$119,500,000
11%
Senior Secured Notes due 2012
DATED
OCTOBER 16, 2007
TO
THE
INDENTURE
DATED AS
OF JULY 19, 2005
U.S. BANK
NATIONAL ASSOCIATION
(as
Trustee)
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NEWYORK
6265882 (2K)
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THIS
THIRD SUPPLEMENTAL INDENTURE, dated as of October 16, 2007 (the “Supplemental
Indenture”), by and among Xxxxxxx Xx Worth, LLC (the “Company”, a Delaware
limited liability company, Xxxxxxx Xx Worth Corp. (“DJW Corp.”), a
Delaware corporation, and U.S. Bank National Association, as trustee (the “Trustee”). Capitalized
terms used but not otherwise defined herein shall have the meanings ascribed to
such terms in the Indenture (as defined below).
RECITALS
WHEREAS,
the Company, DJW Corp. and the Trustee are parties to that certain Indenture,
dated as of July 19, 2005, (the “Original Indenture”),
relating to the Company’s and DJW Corp.’s 11% Senior Secured Notes due 2012 (the
“Notes”), as
supplemented and amended by the First Supplemental Indenture, dated as of August
31, 2006 (the “First
Supplemental Indenture”) and the Second Supplemental Indenture, dated as
of December 21, 2006 (the “Second Supplemental
Indenture”, and together with the Original Indenture and the First
Supplemental Indenture, the “Indenture”);
WHEREAS,
Xxxxxxx Xx, LLC (“DJL”) and the City of
Dubuque, Iowa (the “City”) have entered
into a Port of Dubuque Public Parking Facility Development Agreement, dated as
of February 5, 2007 (as amended, the “Development
Agreement”) regarding certain real property (the “Development
Property”) on which DJL is undertaking the construction of a new casino
facility and related improvements (the “Improvements”);
and
WHEREAS,
the City has authorized the issuance of $23,025,000 aggregate principal amount
of Urban Renewal Tax Increment Revenue Bonds, Taxable Series 2007 (the “City of Dubuque
Bonds”), the proceeds of which will be used to construct a parking
facility on the property adjacent to the Development Property; and
WHEREAS,
the principal and interest on the City of Dubuque Bonds are expected to be paid
from the real property taxes payable by DJL with respect to the Development
Property and the Improvements; and
WHEREAS,
DJL and the City have entered into a Minimum Assessment Agreement (the “Minimum Assessment
Agreement”), dated as of October 1, 2007, pursuant to which DJL has
agreed, (i) to pay property taxes in respect of the Dubuque Property and the
Improvements based on an assessed property value specified in the Minimum
Assessment Agreement, and (ii) in the event that for any reason taxes collected
by the City in respect of the Development Property and the Improvements are
insufficient to satisfy the debt service obligations in respect of the City of
Dubuque Bonds, to pay to the City, as taxes or other supplementary payments, an
aggregate amount necessary to pay when due the principal of and interest on the
City of Dubuque Bonds; and
WHEREAS,
Peninsula Gaming, LLC (“PGL”) has agreed to
guarantee DJL’s obligations under the Minimum Assessment Agreement to make
property tax payments in respect of the Dubuque Property and the Improvements
and certain other payments; and
WHEREAS,
the Company has authorized the purchase of the City of Dubuque Bonds from the
City and wishes to amend and supplement the Indenture to permit such investment,
to permit the issuance of Additional Notes to finance such investment and other
related matters; and
WHEREAS,
Section 9.2 of the Indenture authorizes the Company, DJW Corp. and the Trustee,
in accordance with the terms thereof, to enter into this Supplemental Indenture
with the consent of the Holders of at least a majority in principal amount of
the outstanding Notes; and
WHEREAS,
the Company has received consents from Holders of at least a majority in
principal amount of the outstanding Notes as of September 28, 2007, the record
date established by the Company approving this Supplemental Indenture;
and
WHEREAS,
the Company has requested the Trustee and the Trustee has agreed to join in the
execution of this Supplemental Indenture pursuant to Section 9.2 of the
Indenture on the terms and subject to the conditions set forth
below;
NOW,
THEREFORE, in consideration of the promises and mutual agreements herein
contained, the Company, DJW Corp. and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the Holders from time to time of the
Notes as follows:
ARTICLE
I
INDENTURE
1.1 Integral
Part. This Supplemental Indenture constitutes an integral part
of the Indenture.
ARTICLE
II
AMENDMENTS
TO THE INDENTURE
2.1 Amendment to Section 1.1
Definitions.
(a) Section
1.1 is hereby amended to add the following definitions:
“City of Dubuque Bonds” means
the $23,025,000 aggregate principal amount of Urban Renewal Tax Increment
Revenue Bonds, Taxable Series 2007, of the City of Dubuque, Iowa issued as of
October 16, 2007 pursuant to that certain Official Statement, dated October 1,
2007.
(b) The
definition of “Permitted Investments” is hereby amended to insert the following
provision immediately following clause (xiv):
“(xv) Investments
in the City of Dubuque Bonds.”
2.2 Amendment to Section 4.7
Limitation on Incurrence of Additional Indebtedness and Disqualified Equity
Interests. Section 4.7(b)(xvi) (which was added pursuant to
the Second Supplemental Indenture) is hereby amended to delete the reference to
the amount “$36.5 million” and insert in its place the amount “$59.5
million.”
ARTICLE
III
MISCELLANEOUS
3.1 The
Trustee. The recitals in this Supplemental Indenture shall be
taken as the statements of the Company and DJW Corp. and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Supplemental
Indenture.
3.2 Limited
Effect. This Supplemental Indenture shall be deemed to be an
amendment to the Indenture, and the Indenture, as amended hereby, is hereby
ratified, approved and confirmed in each and every respect. All
references to the Indenture in the Notes or any other document, instrument,
agreement or writing shall hereafter be deemed to refer to the Indenture as
amended hereby.
3.3 Counterparts; Facsimile
Signatures. This Supplemental Indenture may be executed by the
parties hereto in separate counterparts, including by facsimile, each of which
when so executed and delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
3.4 GOVERNING
LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW BUT
EXCLUDING TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ALL OTHER CONFLICTS
OF LAWS PRINCIPLES AND CHOICE OF LAW RULES OF NEW YORK.
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NEWYORK
6265882 (2K)
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IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to
be duly executed as of the date and year first written above.
XXXXXXX
XX WORTH, LLC
By: /s/ Xxxxxxx
Xxxxxxx
Name: Xxxxxxx
Xxxxxxx
Title: Chief
Financial Officer
XXXXXXX
XX WORTH CORP.
By: /s/ Xxxxxxx
Xxxxxxx
Name: Xxxxxxx
Xxxxxxx
Title: Chief
Financial Officer
U.S. BANK
NATIONAL ASSOCIATION
By: /s/ Xxxxxxx
Xxxxxxxxxx
Name: Xxxxxxx
Xxxxxxxxxx
Title: Vice
President
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NEWYORK
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