Exhibit 4.8
EXCHANGE AGENT AGREEMENT
THIS EXCHANGE AGENT AGREEMENT (this "Agreement") is made and entered into
as of __________________ by and between Argosy Gaming Company, a Delaware
corporation, (The "Issuer"), and Bank One Trust Company, N.A., a national
banking association incorporated and existing under the laws of the United
States, as exchange agent ("Exchange Agent").
RECITALS
The Issuer is making an offer to exchange, upon the terms and subject to
the conditions set forth in the Issuer's Prospectus dated _________________ (the
"Prospectus"), and the accompanying letters of transmittal (each a "Letter of
Transmittal"), attached hereto as EXHIBIT A (which together constitute the
"Exchange Offer"), their 10 3/4% Senior Subordinated Notes due 2009 (the
"Outstanding Notes") for an equal principal amount of its 10 3/4% Senior
Subordinated Exchange Notes due 2009 (the "Exchange Notes").
The Exchange Offer will commence as soon as practicable after the Issuer's
Registration Statement on Form S-4 relating to the Exchange Offer is declared
effective under the Securities Act of 1933, as certified in writing to Exchange
Agent by the Issuer (the "Effective Time"); and this Agreement shall be deemed
to take effect at the Effective Time.
AGREEMENT
NOW, THEREFORE, Exchange Agent is hereby appointed by the Issuer, and
Exchange Agent hereby accepts such appointment and shall act as Exchange Agent
in connection with the Exchange Offer. In connection therewith, the undersigned
parties hereby agree as follows:
1. MAILING TO HOLDERS OF THE OUTSTANDING NOTES. Immediately upon receipt
of certification from the Issuer as to the Effective Time and copies of the
Prospectus, Letter of Transmittal and Notice of Guaranteed Delivery, Exchange
Agent will mail to each Holder (as defined in the Indenture) of any Outstanding
Notes (i) a Letter of Transmittal with instructions (including instructions for
completing a substitute Form W-9), substantially in the form attached hereto as
EXHIBIT A (the "Letter of Transmittal"), (ii) a Prospectus, (iii) a return
envelope for use in effecting the surrender of the Outstanding Notes in exchange
for the Exchange Notes and (iv) a Notice of Guaranteed Delivery substantially in
the form attached hereto as EXHIBIT B (the "Notice of Guaranteed Delivery") all
in accordance with the procedures described in the prospectus.
Copies of the Prospectus, Letter of Transmittal and Notice of Guaranteed
Delivery will be furnished to Exchange Agent by the Issuer in quantities agreed
to between Exchange Agent and the Issuer.
Exchange Agent, in its capacity as transfer agent and registrar of the
Outstanding Notes, possesses a list (including mailing addresses) of the Holders
of the Outstanding Notes.
2. ATOP REGISTRATION. As of the date hereof, the Exchange Agent shall
have established an account with the Depository Trust Company ("DTC") in its
name to facilitate book-entry transfers of Outstanding Notes through DTC's
Automated Tender Offer Program.
3. RECEIPT OF LETTERS OF TRANSMITTAL AND RELATED ITEMS. From and after
the Effective Time, Exchange Agent is hereby authorized and directed to accept
(subject to withdrawal rights described in the Prospectus) (i) Letters of
Transmittal, duly executed in accordance with the instructions thereto (or a
manually signed facsimile thereof), and any requisite collateral documents from
Holders of the Outstanding Notes and (ii) surrendered Outstanding Notes to which
such Letters of Transmittal relate. Exchange Agent is authorized to request
from any person tendering Outstanding Notes such additional documents as
Exchange Agent or the Issuer deem appropriate.
4. DEFECTIVE OR DEFICIENT OUTSTANDING NOTES AND INSTRUMENTS. As soon as
practicable after receipt, Exchange Agent shall examine the Outstanding Notes,
the Letters of Transmittal and the other documents delivered or mailed to
Exchange Agent in connection with tenders of Outstanding Notes to ascertain
whether (i) the Letters of Transmittal are completed and executed in accordance
with the instructions set forth therein, (ii) the Outstanding Notes have
otherwise been properly tendered in accordance with the Prospectus and the
Letters of Transmittal and (iii) if applicable, the other documents (including
the Notice of Guaranteed Delivery) are properly completed and executed. If any
Letter of Transmittal or other document has been improperly completed or
executed or the Outstanding Notes accompanying such Letter of Transmittal are
not in proper form for transfer or have been improperly tendered or if some
other irregularity in connection with any tender of any Outstanding Notes
exists, Exchange Agent shall promptly report such information to the Issuer and,
upon consultation with the Issuer and its counsel, endeavor, subject to the
terms and conditions of the Exchange Offer, to cause such action to be taken as
is necessary to correct such irregularity. All questions as to the validity,
form, eligibility (including timeliness of receipt), acceptance and withdrawal
of any Outstanding Notes tendered or delivered shall be determined by the
Issuer, in its sole discretion. Notwithstanding the above, the Exchange Agent
shall not be under any duty to give notification of defects in such tenders and
shall not incur any liability for failure to give such notification unless such
failure constitutes gross negligence or willful misconduct. The Issuer reserves
the absolute right (i) to reject any or all tenders of any particular
Outstanding Notes determined by the Issuer not to be in proper form or the
acceptance or exchange of which may, in the opinion of Issuer's counsel, be
unlawful and (ii) to waive any of the conditions of the Exchange Offer or any
defect or irregularity in the tender of any particular Outstanding Notes, and
the Issuer's interpretation of the terms and conditions of the Exchange Offer
(including the Letter of Transmittal and Notice of Guaranteed Delivery and the
instructions set forth therein) will be final and binding.
5. REQUIREMENTS OF TENDERS. Tenders of Outstanding Notes shall be made
only as set forth in the Prospectus and the Letter of Transmittal, and
Outstanding Notes shall be considered properly tendered only when:
(a) (i) a properly completed and duly executed Letter of Transmittal (or a
manually signed facsimile thereof), with any required signature guarantee and
any other required documents, are received by the Exchange Agent at the address
set forth in the Letter of Transmittal and Outstanding Notes are received by the
Exchange Agent at its address or by book-entry transfer through DTC's Automated
Tender Offer Program into its account on or prior to the Expiration Date or (ii)
a properly completed and duly executed Notice of Guaranteed Delivery
substantially in the form attached hereto as EXHIBIT B (by facsimile
transmission, mail or hand delivery), with an appropriate guarantee of signature
and delivery from any member firm of a registered national securities exchange
or of the National Association of Securities Dealers, Inc., a commercial bank or
trust company having an office or a correspondent in the United States or an
"eligible guarantor institution" within the meaning of Rule 17 Ad-15 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), are received
by the Exchange Agent on or prior to the Expiration Date and the Letters of
Transmittal (or a facsimile thereof), together with the certificate(s)
representing the Outstanding Notes in proper form for transfer or a book-entry
confirmation through DTC's Automated Tender Offer Program, as the case may be,
and any other required documents required by the Letters of Transmittal are
received by the Exchange Agent within five (5) New York Stock Exchange trading
days after the Expiration Date. For purposes of this Agreement, an "Eligible
Guarantor Institution" within the meaning of Rule 17 Ad-15 under the Exchange
Act shall mean a member of a registered national securities exchange or of the
National Association of Securities Dealers, Inc., or a commercial bank or trust
company having an office or correspondent in the United States. The Notice of
Guaranteed Delivery may be delivered to the Exchange Agent by hand or
transmitted by telegram, facsimile transmission or letter, and
(b) the adequacy of the items relating to Outstanding Notes, and the
Letters of Transmittal therefor and any Notice of Guaranteed Delivery and any
other required documents has been favorably passed upon by the Issuer as above
provided.
Notwithstanding the provisions of the preceding paragraph, Outstanding
Notes that the Issuer otherwise shall approve as having been properly tendered
shall be considered to be properly tendered for all purposes of the Exchange
Offer. As used herein, "Expiration Date" shall mean 5:00 p.m., New York City
time, _______________, unless the Exchange Offer is extended by the Issuer at
its sole discretion, in which case, the term "Expiration Date" shall mean the
latest date and time to which the Exchange Offer is extended.
6. EXCHANGE OF THE OUTSTANDING NOTES. Promptly after the Expiration Date,
upon surrender of the Outstanding Notes in accordance with the Letter of
Transmittal and Prospectus, Exchange Agent is hereby directed to deliver or
cause to be delivered Exchange Notes as promptly as possible to the Holders of
such surrendered Outstanding Notes, in accordance with this Agreement and the
terms of the Exchange Offer. The principal amount of the Exchange Notes to be
delivered to a Holder shall equal the principal amount of the Outstanding Notes
surrendered.
Promptly after the consummation of the Exchange Offer and after the
Outstanding Notes have been accepted for exchange pursuant to the Exchange
Offer, Exchange Agent shall request
from the registrar and transfer agent for the Exchange Notes the appropriate
amount of Exchange Notes to be issued in connection with such exchange.
The Exchange Notes issued in exchange for certificated Outstanding Notes
are to be mailed by Exchange Agent, in accordance with the instructions
contained in the Letter of Transmittal, by first class or registered mail, and
under coverage of Exchange Agent's blanket surety bond for first class or
registered mail losses protecting the Issuer from loss or liability arising out
of the non-receipt or non-delivery of such Exchange Notes or the replacement
thereof.
All Outstanding Notes must be tendered in accordance with the terms and
conditions set forth in the Exchange Offer. Issuance of the Exchange Notes for
accepted Outstanding Notes pursuant to the Exchange Offer shall be made only
after deposit with Exchange Agent of the Outstanding Notes, the Letter of
Transmittal and any other required documents.
Exchange Agent shall follow and act upon such instructions in connection
with the Exchange Offer which may be given to Exchange Agent by the Issuer,
counsel for the Issuer or such other persons as the Issuer may authorize.
7. APPLICATION OF THE EXCHANGE NOTES. The Exchange Notes and any other
property (the "Property") to be deposited with, or received by Exchange Agent
from the Issuer as exchange agent constitute a special, segregated account, held
solely for the benefit of the Issuer and Holders tendering Outstanding Notes, as
their interests may appear, and the Property shall not be commingled with the
securities, money, assets or property of Exchange Agent or any other person,
firm or corporation. Exchange Agent hereby waives any and all rights of lien
(including banker's lien), attachment or set-off whatsoever, if any, against the
Property, whether such rights arise by reason of statutory or common law, by
contract or otherwise except to the extent set forth in the Indenture with
respect to the Outstanding Notes and the Exchange Notes.
8. REQUESTS. On each business day after receipt of the first Letter of
Transmittal, and up to and including the Expiration Date, Exchange Agent shall
advise by telephone, not later than 5:00 p.m., Columbus, Ohio time, Issuer's
counsel, and such other persons as they may direct of the principal amount of
the Outstanding Notes which have been duly tendered on such day, stating
separately (i) the principal amount of the Outstanding Notes tendered pursuant
to DTC's Automated Tender Offer Program, as described in the section of the
Prospectus captioned "The Exchange Offer," (ii) the principal amount of the
Outstanding Notes tendered about which Exchange Agent has questions concerning
validity, (iii) the number of Outstanding Notes tendered and not withdrawn that
are represented by certificates, (iv) the number of Outstanding Notes tendered
and not withdrawn that are represented by Notices of Guaranteed Delivery and
(v) the aggregate principal amount of the Outstanding Notes tendered and not
withdrawn through the time of such telephone call. Promptly thereafter (by the
next day), Exchange Agent shall confirm such advice to each of the above persons
in writing, to be transmitted by telecopier, overnight courier or other special
form of delivery. Exchange Agent shall also inform the aforementioned persons,
and such other persons as may be designated by either of them, upon request made
from time to time, of such other information as either of them may request. In
addition, the Exchange Agent shall provide, and cooperate in making available to
the Issuer, such other information as they may reasonably request upon written
request made from time to
time. The Exchange Agent shall, without limitation, permit the Issuer, and
such other persons as it may reasonably request, access to those persons on
the Exchange Agent's staff who are responsible for receiving tenders of
Outstanding Notes in order to insure that, immediately prior to the
Expiration Date, the Issuer shall have received information in sufficient
detail to enable them to decide whether to extend the Expiration Date of the
Exchange Offer.
9. RECORD KEEPING. Each Letter of Transmittal, Outstanding Note, Notice of
Guaranteed Delivery and any other documents received by the Exchange Agent in
connection with the Exchange Offer shall be stamped by the Exchange Agent to
show the date of the receipt (or if Outstanding Notes are tendered by book-entry
delivery such form of record keeping of receipt as is customary for tenders
through DTC's Automated Tender Offer Program) and, if defective, the date and
time the last defect was waived by the Issuer or was cured. Each Letter of
Transmittal and Outstanding Note that is accepted by the Issuer shall be
retained in the Exchange Agent's possession until the Expiration Date. As
promptly as practicable thereafter, the Exchange Agent will deliver by certified
mail with proper insurance, those items, together with all properly tendered and
canceled Outstanding Notes that are represented by certificates, to counsel for
the Issuer. If after the Expiration Date the Exchange Agent receives any
Letters of Transmittal (or functional equivalent thereof), the Exchange Agent
shall return the same together with all enclosures to the party from whom such
documents were received.
10. DISCREPANCIES IN THE AMOUNT OF THE OUTSTANDING NOTES OWNED. Exchange
Agent shall endeavor to reconcile any discrepancies between the amount of the
Outstanding Notes, claimed to be owned by a surrendering Holder of the
Outstanding Notes and the amount of the Outstanding Notes indicated on the books
of the Transfer Agent as of the applicable record date. If, based upon reliable
documentation, Exchange Agent determines that the Outstanding Notes with respect
to which such discrepancy exists are valid Outstanding Notes, then Exchange
Agent shall deliver the Exchange Notes provided for herein to the holder
surrendering such Outstanding Notes. In case of any questions about whether the
Outstanding Notes are valid Outstanding Notes, Exchange Agent shall be entitled
to receive instructions from the Issuer and proceed based upon such
instructions.
11. OUTSTANDING NOTES AND OTHER NAMES. If an Exchange Note is to be
registered in a name other than that of the record Holder of surrendered
Outstanding Notes, conditions to the issuance thereof shall be (i) that the
Outstanding Note so surrendered shall be properly endorsed and otherwise in
proper form for transfer and that the person requesting such exchange shall
pay to Exchange Agent any transfer or other taxes required by reason of the
registration of such Exchange Note in any name other than that of the Holder
of the Outstanding Note surrendered, or otherwise required, or shall
establish to Exchange Agent's satisfaction that such tax has been paid or is
not payable and (ii) that the record Holder deliver such other documents and
instruments as Issuer's counsel or Exchange Agent shall require.
If the Letter of Transmittal is signed by a person other than the
registered Holder of the tendered Outstanding Note or the Exchange Note is to be
issued (or any untendered principal amount of the Outstanding Note is to be
reissued) to a person other than the registered Holder of the tendered
Outstanding Note, the registered Holder must either properly endorse the
Outstanding Note tendered or transmit a properly completed separate bond power
guaranteed by
an Eligible Institution (as defined in the Letter of Transmittal), and such
Outstanding Note must otherwise be in proper form for transfer. In addition,
such registered Holder and/or such other person shall deliver such other
documents and instruments as Issuer's counsel or Exchange Agent shall
require, in which case the Exchange Note shall be mailed to such assignee or
transferee at the address so required.
12. PARTIAL TENDERS. If, pursuant to the Exchange Offer, less than all of
the principal amount of any Outstanding Note submitted to Exchange Agent is to
be tendered, Exchange Agent shall, promptly after the Expiration Date, return,
or cause the registrar with respect to each such Outstanding Note to return, a
new Outstanding Note for principal amount not being tendered to, or in
accordance with the instruction of, the Holder of Outstanding Note who has made
a partial tender of Outstanding Note deposited with Exchange Agent.
13. WITHDRAWALS. A tendering Holder may withdraw tendered Outstanding
Notes as set forth in the Prospectus under the caption "The Exchange Offer -
Withdrawal of Tenders," in which event Exchange Agent shall, as promptly as
practicable after proper notification of such withdrawal, return such
Outstanding Notes to, or in accordance with the instructions of, such Holder and
such Outstanding Notes shall no longer be considered properly tendered. All
questions as to the validity, form and eligibility of notices of withdrawal,
including timeliness of receipt, shall be determined by the Issuer, in its sole
discretion, which determination shall be final and binding on all parties. A
withdrawal of tender of Outstanding Notes may not be rescinded and any
Outstanding Notes withdrawn will thereafter be deemed not validly tendered for
purposes of the Exchange Offer, provided, however, that withdrawn Outstanding
Notes may be retendered by again following one of the procedures therefor
described in the Prospectus at any time on or prior to the Expiration Date.
14. REJECTION OF TENDERS. If, pursuant to the Exchange Offer, the Issuer
does not accept for exchange all of the Outstanding Notes tendered by a Holder
of Outstanding Notes, Exchange Agent shall, promptly after the Expiration Note,
return or cause to be returned the Outstanding Notes not accepted to, or in
accordance with the instructions of, such Holder of Outstanding Notes.
15. CANCELLATION OF EXCHANGED OUTSTANDING NOTES. Exchange Agent is
authorized and directed to cancel all Outstanding Notes received by Exchange
Agent upon delivering the Exchange Notes to tendering holders of the
Outstanding Notes as provided herein. Exchange Agent shall maintain a record
as to which Outstanding Notes have been exchanged pursuant to Section 7
hereof.
16. REQUESTS FOR INFORMATION. Exchange Agent shall accept and comply with
telephone and mail requests for information concerning the proper surrender of
the Outstanding Notes. Upon request by any person, Exchange Agent shall furnish
to such person copies of the Prospectus, any supplements to the Prospectus, the
Letter of Transmittal and the other materials referred to in the Prospectus as
being available to holders of Outstanding Notes. The Issuer will supply
Exchange Agent with copies of such documents upon request by Exchange Agent.
Notwithstanding anything herein to the contrary, the Exchange Agent is not
authorized to offer
any concessions or to pay any commissions to any brokers, dealers, banks or
other persons or to engage or to utilize any persons to solicit tenders.
17. TAX MATTERS. Exchange Agent shall comply with applicable requirements
of the Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder in connection with the Exchange Offer and shall file with
the Internal Revenue Service all reports and other information required to be
filed with the Internal Revenue Service in connection with the Exchange Offer,
provided, however, that if Exchange Agent has questions with respect to any such
information, it shall so notify, and request direction from, the Issuer.
18. REPORTS. Within 5 days after the Expiration Date, Exchange Agent shall
furnish the Issuer a final report showing the disposition of the Exchange Notes.
19. FEES. For Exchange Agent's services as exchange agent hereunder, the
Issuer will pay Exchange Agent $100.00 per Letter of Transmittal mailed by the
Exchange Agent pursuant to Section 1 hereof, plus reasonable out-of-pocket
expenses, including reasonable counsel fees and disbursements.
20. MISCELLANEOUS. As exchange agent hereunder, Exchange Agent:
a. shall have no duties or obligations other than those specifically set
forth in this Agreement;
b. will make no representation and will have no responsibility as to the
validity, value or genuineness of the Exchange Offer and shall not make any
recommendation as to whether a Holder of Outstanding Notes should or should not
tender its Outstanding Notes;
c. shall not be obligated to take any legal action hereunder which might by
Exchange Agent's reasonable judgment involve any expense or liability not
covered by the indemnity provided in Section 21 hereof unless Exchange Agent
shall have been furnished with an indemnity against such expense or liability
which, in the Exchanges Agent's reasonable judgment, is adequate;
d. may rely on and shall be protected in acting in good faith upon any
certificate, instrument, opinion, notice, instruction, letter, telegram or other
document, or any security, delivered to Exchange Agent and believed by Exchange
Agent to be genuine and to have been signed by the proper party or parties;
e. may rely on and shall be protected in acting in good faith upon the
written instructions of the Chief Financial Officer or President of the Issuer
or such other employees and representatives as the Issuer may hereafter
designate in writing;
f. shall not be liable for any claim, loss, liability or expense, incurred
without Exchange Agent's negligence or willful misconduct, arising out of or in
connection with the administration of Exchange Agent's duties hereunder; and
g. may consult with counsel reasonably satisfactory to the Issuer, and the
opinion of such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by Exchange Agent hereunder
in good faith and in accordance with the opinion of such counsel.
21. INDEMNIFICATION. THE ISSUER CONVENANTS AND AGREES TO REIMBURSE,
INDEMNIFY AND HOLD EXCHANGE AGENT HARMLESS AGAINST ANY COSTS, EXPENSES
(INCLUDING REASONABLE EXPENSES OF EXCHANGE AGENT'S LEGAL COUNSEL), LOSSES OR
DAMAGE INCLUDING ANY CLAIMS AGAINST EXCHANGE AGENT BY ANY HOLDER TENDERING
OUTSTANDING NOTES FOR EXCHANGE WHICH, WITHOUT NEGLIGENCE, WILLFUL MISCONDUCT OR
BAD FAITH ON EXCHANGE AGENT'S PART OR ARISING OUT OF OR ATTRIBUTABLE THERETO,
MAY BE PAID, INCURRED OR SUFFERED BY EXCHANGE AGENT OR TO WHICH EXCHANGE AGENT
MAY BECOME SUBJECT BY REASON OF OR AS A RESULT OF: (I) THE ADMINISTRATION OF
EXCHANGE AGENT'S DUTIES HEREUNDER, (II) EXCHANGE AGENT'S COMPLIANCE WITH THE
INSTRUCTIONS SET FORTH HEREIN OR WITH ANY WRITTEN OR ORAL INSTRUCTIONS DELIVERED
TO EXCHANGE AGENT PURSUANT HERETO, OR (III) LIABILITY RESULTING FROM EXCHANGE
AGENT'S ACTIONS AS EXCHANGE AGENT PURSUANT HERETO . The Issuer shall be
entitled to participate at its own expense in the defense of any claim
indemnified hereunder, and if the Issuer so elects at any time after receipt of
such notice, the Issuer shall assume the defense of any suit brought to enforce
any such claim. In the event that the Issuer assumes the defense of any such
suit, the Issuer shall not be liable for the fees and expenses thereafter
accruing of any counsel retained by Exchange Agent, unless in the reasonable
judgment of the Issuer's counsel it is advisable for Exchange Agent to be
represented by separate counsel. In no case shall the Issuer be liable under
this indemnity with respect to any claim or action against Exchange Agent,
unless the Issuer shall be promptly notified by Exchange Agent, by letter or by
facsimile confirmed by letter, of the written assertion of a claim or shall have
been served with a summons or other first legal process giving information as to
the nature and basis of an action, but failure so to promptly notify the Issuer
shall not relieve the Issuer from any liability which it may have otherwise than
on account of this indemnity, except to the extent the Issuer is materially
prejudiced or forfeits substantial rights and defenses by reason of such
failure.
22. APPLICABLE LAW. This Agreement and appointment of Exchange Agent as
exchange agent shall be construed and enforced in accordance with the laws of
the State of Texas and shall inure to the benefit of, and the obligations
created hereby shall be binding upon, the successor and assigns of the parties
hereto.
23. NOTICES. Notices or demands authorized by this Agreement to be given
or made by Exchange Agent or by a holder of the Outstanding Notes to or on the
Issuer shall be sufficiently given or made if sent by facsimile transmission or
by first-class mail, postage prepaid, addressed (until another address is filed
in writing with Exchange Agent) as follows:
Argosy Gaming Company
000 Xxxxx Xxxxxx
Xxxxx, XX 00000
Attn: Mr. G. Xxx Xxxxxxxx
Fax: (000) 000-0000
With copy to:
Mr. R. Xxxxxx Xxxxxx, Xx.
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Any notice or demand authorized by this Agreement to be given or made by
the Issuer or by a holder of the Outstanding Notes to or in Exchange Agent shall
be sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address if filed in writing with the Issuer) as
follows:
Bank One Trust Company, N.A.
000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxxxx, Xxxx 00000-0000
Attention: Xx. Xxxx Xxxxxx
Corporate Trust Operations
Fax: (000) 000-0000
With copy to:
Bank One Trust Company, N.A.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000-0000
Attention: Xx. Xxxxx X. Xxxx
Corporate Trust Administration
Fax: (000) 000-0000
Any notice or demand authorized by this Agreement to be given or made by
the Issuer or Exchange Agent to or on a holder of the Outstanding Notes shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the Company's
books.
24. CHANGE OF EXCHANGE AGENT. Exchange Agent may resign and be discharged
from its duties under this Agreement by giving to the Issuer thirty days prior
written notice, by first-class mail, postage prepaid, specifying a date when
such resignation shall take effect. If Exchange Agent resigns or becomes
incapable of acting as exchange agent and the Issuer fails to appoint a new
exchange agent within a period of 30 days after it has been notified in writing
of such resignation or incapacity by Exchange Agent, the Issuer shall become the
exchange agent and any holder of the Outstanding Notes may apply to any court of
competent jurisdiction for the appointment of a successor to Exchange Agent.
Pending the appointment of a successor to Exchange Agent, either by the Issuer
or by such a court, the duties of the exchange agent shall be carried out by the
Issuer. After appointment, the successor exchange agent shall be vested with
the same powers, rights, duties and responsibilities as if it had been
originally name as exchange agent without the further act or deed; but the
Exchange Agent shall deliver and transfer to the successor exchange agent any
property at the time held by it hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for the purpose.
25. TERMS. This Agreement shall terminate, except for Section 19, 21 and
25 hereof, 30 days after the Expiration Date; provided, however, that the term
of this Agreement may be extended at the request of the Issuer and the agreement
of Exchange Agent. Any portion of the Exchange Notes which remain undistributed
to the holders of the Outstanding Notes after the Expiration Date shall be
marked, canceled and delivered to the Issuer upon demand, and any holders of
unsurrendered Outstanding Notes shall thereafter have no right to exchange their
Outstanding Notes for Exchange Notes.
26. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original, and such counterparts together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the Issuer and Exchange Agent have caused this
Agreement to be signed by their respective officers thereunto authorized as of
the date first written above.
ARGOSY GAMING COMPANY
By:
Name:
Title:
BANK ONE TRUST COMPANY, N.A.
By:
Name:
Title: Authorized Signer
