EXHIBIT - 4.2.1
WATERFORD GAMING, L.L.C.
and
WATERFORD GAMING FINANCE CORP.
as Issuers,
$125,000,000
9.50% SENIOR NOTES DUE 2010
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FIRST SUPPLEMENTAL INDENTURE
Dated as of June 6, 2003
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U.S. BANK NATIONAL ASSOCIATION
as Trustee
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FIRST SUPPLEMENTAL INDENTURE dated as of June 6, 2003 (the "Supplemental
Indenture"), by and among WATERFORD GAMING, L.L.C., a Delaware limited liability
company (the "Company"), WATERFORD GAMING FINANCE CORP., a Delaware corporation
("Finance" and, together with the Company, the "Issuers"), and U.S. BANK
NATIONAL ASSOCIATION, as trustee (as successor to State Street Bank and Trust
Company the ("Trustee"), to the indenture, dated as of March 17, 1999 among the
Issuers and the Trustee (the "Indenture").
W I T N E S S E T H :
WHEREAS, the Issuers and State Street Bank and Trust Company (the Trustee's
predecessor in interest) have heretofore executed and delivered the Indenture
providing for the issuance of 9.50% Senior Notes due 2010 (the "Notes") of the
Issuers;
WHEREAS, there is currently outstanding under the Indenture $102,349,000 in
aggregate principal amount of the Notes;
WHEREAS, Section 8.2 of the Indenture provides that the Issuers and the
Trustee may, with the written consent of the holders of at least a majority in
aggregate principal amount of the outstanding Notes (the "Requisite Consents"),
enter into a supplemental indenture for the purpose of amending the Indenture;
provided, however, that without the consent of holders of at least 662/3% of the
aggregate principal amount of the outstanding Notes (the "Two-Thirds Consent"),
no such amendment may alter the Security and Control Agreement, dated as of
March 17, 2003 (the "Security and Control Agreement"), between the Issuers and
the Trustee, as trustee and securities intermediary, or the provisions of
Section 9.1 of the Indenture relating to a Change in Control (as defined in the
Indenture) in a manner adverse to the holders;
WHEREAS, the Issuers have offered to purchase (the "Offer") all of the
outstanding Notes upon the terms and subject to the conditions set forth in the
Offer to Purchase and Consent Solicitation Statement, dated April 15, 2003 (the
"Offer to Purchase"), and the accompanying Letter of Transmittal, as the same
may be further amended, supplemented or modified;
WHEREAS, the Offer is conditioned upon, among other things, the proposed
amendments (the "Proposed Amendments") to the Indenture set forth herein and a
supplemental indenture in respect of the Proposed Amendments having been
executed and delivered, with the operativeness of such Proposed Amendments with
respect to the Notes being subject to the acceptance by the Issuers of the Notes
comprising at least the Requisite Consents (except with respect to the
amendments of Section 4.20, Section 9.1 and Article X, which require the
Two-Thirds Consent) tendered pursuant to the Offer;
WHEREAS, the Issuers have received and delivered to the Trustee the
Requisite Consents to effect the Proposed Amendments (except with respect to the
amendments of Section 4.20, Section 9.1 and Article X, which require the
Two-Thirds Consent) under the Indenture;
WHEREAS, the Company has been authorized by a unanimous written consent of
its sole member to enter into this First Supplemental Indenture; and
WHEREAS, Finance has been authorized by a unanimous written consent of its
Board of Directors to enter into this First Supplemental Indenture;
WHEREAS, all other acts and proceedings required by law, by the Indenture,
by the certificate of formation and limited liability company agreement of the
Company and the certificate of incorporation and by-laws of Finance to execute
and deliver this First Supplemental Indenture, in accordance with its terms,
have been duly done and performed;
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, and for other good and valuable consideration the
receipt of which is hereby acknowledged, and for the equal and proportionate
benefit of the holders of the Notes, the Issuers and the Trustee hereby agree as
follows:
Section 1. Deletion of Certain Provisions
(a) Pursuant to the terms of the Offer to Purchase and the receipt of the
Requisite Consent, the Indenture is hereby amended to delete the following
sections in their entirety and, in the case of each such section, insert in lieu
thereof the phrase ["Intentionally Omitted"], and any and all references to such
sections, any and all obligations thereunder and any event of default related
solely to the following sections are hereby deleted throughout the Indenture,
and such sections and references shall be of no further force or effect.
o Section 4.3 (Limitation on Restricted Payments); o Section 4.5 (Payment of
Taxes and Other Claims); o Section 4.6 (Compliance Certificate; Notice of
Default); o Section 4.7 (Reports); o Section 4.8 (Limitation on Status as
Investment Company); o Section 4.9 (Limitation of Transactions with Affiliates);
o Section 4.10 (Limitation on Indebtedness and Disqualified
Capital Stock);
o Section 4.11 (Limitation on Liens);
o Section 4.12 (Limitation on Sale of Assets);
o Section 4.13 (Covenants with Respect to the Manager);
o Section 4.15 (Acceptance of Remaining Excess Cash Purchase Offers
and Offers Other than Change of Control Offers);
o Section 4.16 (Acceptance of Change of Control Offers); and
o Section 4.18 (Limitation on Merger, Sale or Consolidation).
(b) Pursuant to the terms of the Offer to Purchase and the receipt of the
Two-Thirds Consent, the Indenture is hereby amended to delete the following
sections and article in their entirety and, in the case of each such sections
and article, insert in lieu thereof the phrase ["Intentionally Omitted"], and
any and all references to such sections and article, any and all obligations
thereunder and any event of default related solely to the following sections and
article are hereby deleted throughout the Indenture, and such sections, article
and references shall be of no further force or effect.
o Section 4.20 (Covenants with Respect to Interest Reserve Account)
o Section 9.1 (Repurchase of Securities at Option of the Holder Upon a
Change of Control); and
o Article X (Security).
Section 2. Other Amendments to the Indenture
(a) Pursuant to the Offer to Purchase and the consent of holders
representing at least a majority in aggregate principal amount of the
outstanding Notes, Section 4.14 (Limitation on Activities of the Issuers) is
hereby deleted in its entirety and the following is hereby substituted in its
place:
"The Issuers may engage in any business activity whatsoever not explicitly
prohibited by this Indenture and may use any cash for any proper business
purpose under this Indenture."
(b) All definitions in the Indenture which are used exclusively in the
sections and clauses deleted pursuant to Sections 1(a) and 2(a) of this First
Supplemental Indenture are hereby deleted.
(c) All definitions in the Indenture which are used exclusively in the
sections and clauses deleted pursuant to Sections 1(b) of this First
Supplemental Indenture are hereby deleted.
Section 3. Effectiveness; Operativeness
(a) This First Supplemental Indenture (other than Sections 1 and 2 hereof)
will become effective and binding upon the Issuers, the Trustee and the holders
as of the date on which the Opinion of Counsel and Officers' Certificate (each
as defined in the Indenture) required by Section 11.4 of the Indenture is
delivered to the Trustee; and
(b) Sections 1(a), 2(a) and 2(b) of this First Supplemental Indenture will
become operative on and simultaneously with, and shall have no force or effect
prior to, the delivery by each of the Issuers of (i) an Officer' Certificate to
the effect that the Issuers have accepted for purchase at least a majority in
aggregate principal amount of the outstanding Notes, and (ii) an Opinion of
Counsel; provided, however, that this First Supplemental Indenture will cease to
be operative if the Issuers do not purchase in the Offer outstanding Notes
comprising at least the Requisite Consents prior to the termination of the
Offer.
(c) Sections 1(b) and 2(c) of this First Supplemental Indenture will become
operative on and simultaneously with, and shall have no force or effect prior
to, the delivery by each of the Issuers of (i) an Officers' Certificate to the
effect that the Issuers have accepted for purchase at least 662/3% in aggregate
principal amount of the outstanding Notes, and (ii) an Opinion of Counsel.
Section 4. Reference to and Effect on the Indenture
(a) On and after the effective date of this First Supplemental Indenture,
each reference in the Indenture to "this Indenture," "hereunder," "hereof," or
"herein" shall mean and be a reference to the Indenture as supplemented by this
First Supplemental Indenture unless the context otherwise requires.
(b) Except as specifically amended above, the Indenture shall remain in
full force and effect and is hereby ratified and confirmed.
Section 5. Governing Law
This First Supplemental Indenture shall be construed and enforced in
accordance with the laws of the State of New York, including without limitation
Section 5-1401 of the New York General Obligation Law.
Section 6. Defined Terms
Unless otherwise indicated, capitalized terms used herein and not defined
shall have the respective meanings given such terms in the Indenture.
Section 7. Trust Indenture Act Controls
If any provision of this First Supplemental Indenture limits, qualifies or
conflicts with another provision of this First Supplemental Indenture or the
Indenture that is required to be included by the Trust Indenture Act of 1939, as
amended (the "Act"), as in force at the date this First Supplemental Indenture
is executed, the provision required by the Act shall control.
Section 8. Trustee Disclaimer
The recitals contained in this First Supplemental Indenture shall be taken
as the statements of the Issuers, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this First Supplemental Indenture.
Section 9. Counterparts and Method of Execution
This First Supplemental Indenture may be executed in several counterparts,
all of which together shall constitute one agreement binding on all parties
hereto, notwithstanding that all the parties have not signed the same
counterpart.
Section 10. Titles
Section titles are for descriptive purposes only and shall not control or
alter the meaning of this First Supplemental Indenture as set forth in the text.
Section 11. Severability
In case any provision of this First Supplemental Indenture shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be effected or impaired thereby.
[Signature pages to follow]
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be executed as of the day and year first above written.
Waterford Gaming, L.L.C.
By:______________________________
Name: Xxx Xxxxxx
Title: Chief Executive Officer
Waterford Gaming Finance Corp.
By:______________________________
Name: Xxx Xxxxxx
Title: Chief Executive Officer
U.S. Bank National Association
By:______________________________
Name: Xxxxxx X. Xxxx, Xx.
Title: Vice President
