Exhibit 4.8
[FORM OF NOTE]
XXXXXXX XX, LLC
THE OLD XXXXXXXXXX XXXXX CAPITAL CORP.
8 3/4% [SERIES A] [SERIES B](1) SENIOR SECURED NOTE
DUE 2012
CUSIP: __________
No. $_________________
Xxxxxxx Xx, LLC, a Delaware limited liability company (the "Company") and
The Old Xxxxxxxxxx Xxxxx 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 Xxxxxxx Xx, LLC, 000 Xxxx Xxxxx Xxxxxx, X.X. Box 1750, Dubuque, Iowa
52004-1750, Attention: Xxxxxxx X. Xxxxxx.
________________________
(1) Series A should be replaced with Series B in the Exchange Notes.
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IN WITNESS WHEREOF, the Issuers have caused this instrument to be duly
executed.
Xxxxxxx Xx, LLC,
a Delaware limited liability company
By: ___________________________
Name:
Title:
By: ___________________________
Name:
Title:
The Old Xxxxxxxxxx Xxxxx 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 (00 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("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 ENTITLED
TO RECEIVE CASH PAYMENTS OF INTEREST DURING THE PERIOD WHICH SUCH HOLDER HOLDS
THIS NOTE. NOTHING IN THIS
______________________
(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.
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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 REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN
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(5) To be included only on Reg S Temporary Global Notes.
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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 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.
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(6) To be included only on Transfer Restricted Notes.
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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 xx.xx. 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.
(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
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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 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 Xxxxxx is
withdrawing his election to have such Notes purchased.
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(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 Xxxxxxx Xx 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 Xxxxxxx
Xx 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 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.
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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 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
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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 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
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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).
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").
_______________________
(7) To be included only on Transfer Restricted Notes.
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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.
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
A-12
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.
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:
XXXXXXX XX, LLC
THE OLD XXXXXXXXXX XXXXX CAPITAL CORP.
000 Xxxx Xxxxx Xxxxxx
P.O. Box 1750
Dubuque, Iowa 52004-1750
Attention: Xxxxxxx X. Xxxxxx
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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.
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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 face of this 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-15
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
Increase Principal Signature of
Amount of in Amount of Authorized
Decrease in Principal this Global Officer
Principal Amount of Note of
Amount of this Following Trustee or
Date of this Global Global Such Decrease Note
Exchange Note Note or Increase Custodian
------- ----------- -------- ------------- ------------
_____________________
(8) This should be included only if the Note is issued in global form.
A-16
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 Xxxxxxx Xx, LLC, a Delaware
limited liability company (the "Company") and The Old Xxxxxxxxxx Xxxxx 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-17
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-18
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:
