EXHIBIT 4.1
PENINSULA GAMING COMPANY, LLC,
PENINSULA GAMING CORP.
as Issuers,
and the Subsidiary Guarantors referred to herein
12 1/4% Senior Notes due 2006
_______________________________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of February 15, 2002
________________________________________
U.S. BANK NATIONAL ASSOCIATION
(f/k/a Firstar Bank of Minnesota, N.A.)
as Trustee
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE, effective as of February 15, 2002
(the "First Supplemental Indenture"), is entered into by and among Peninsula
Gaming Company, LLC, a Delaware limited liability company (the "Company"), and
Peninsula Gaming Corp., a Delaware corporation ("PGC" and together with the
Company, the "Issuers"), any future Subsidiary Guarantors (as defined in the
Original Indenture) and U.S. Bank National Association (f/k/a Firstar Bank of
Minnesota, N.A.), as trustee (the "Trustee") under and pursuant to an Indenture
dated as of July 15, 1999, by and between the Issuers, the Subsidiary Guarantors
and the Trustee (the "Original Indenture"). All capitalized terms used in this
First Supplemental Indenture that are defined in the Original Indenture, either
directly or by reference therein, have the respective meanings assigned to them
therein, except to the extent such terms are otherwise defined in this First
Supplemental Indenture or the context clearly requires otherwise.
WHEREAS, Section 9.2 of the Original Indenture provides, among other
things, that, with the consent of the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes, the Issuers and the
Trustee may amend or supplement the Original Indenture; and
WHEREAS, the Issuers desire to amend and supplement the Original
Indenture by way of the adoption of the amendments set forth in Article I of
this First Supplemental Indenture (the "Proposed Amendments"); and
WHEREAS, the Holders of at a majority in aggregate principal amount of
the outstanding Notes have consented to the Proposed Amendments; and
WHEREAS, the Board of Directors of the Issuers have adopted resolutions
authorizing and approving the Proposed Amendments, and the Issuers and the
Trustee are executing and delivering this First Supplemental Indenture in order
to provide for such amendments;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this First
Supplemental Indenture hereby agree as follows:
ARTICLE I
AMENDMENTS TO ORIGINAL INDENTURE
Section 1.1. Section 1.1 of the Original Indenture - Definitions.
Section 1.1 of the Original Indenture is hereby amended by adding the following
definitions in the corresponding alphabetical order:
(a) "OED" means The Old Xxxxxxxxxx Xxxxx, X.X., a Louisiana limited
liability company.
(b) "Permitted OED Investment" means a direct or indirect Investment by
the Company in OED in an aggregate amount not to exceed $15.0 million, plus the
payment of certain reimbursable developmental, legal and licensure expenses to
be paid out of the proceeds of the Racino Project.
(c) "Racino Project" means the construction and development by OED of a
racetrack and gaming operation in Louisiana.
Section 1.2. Section 4.7 of the Original Indenture - Limitations on
Restricted Payments. Section 4.7(b) of the Original Indenture is hereby amended
by inserting the following additional provision:
"(x) the Premitted OED Investment."
Section 1.3. Guarantee by OED Acquisition, LLC.
OED Acquisition, LLC, a Delaware limited liability company,
unconditionally guarantees all of the Issuers' Obligations as set forth in
Article X of the Original Indenture in the same manner and to the same extent as
if it had executed the Original Indenture as one of the parties thereto defined
as a "Subsidiary Gurantor" therein.
ARTICLE II
GENERAL PROVISIONS
Section 2.1. Effectiveness and Operativeness. The provisions of this
First Supplemental Indenture shall become effective, and the amendments provided
for in Article I of this First Supplemental Indenture shall be operative,
immediately upon the execution and delivery by the Trustee of this First
Supplemental Indenture.
Section 2.2. Ratification of Indenture. The Original Indenture is in
all respects acknowledged, ratified and confirmed, and shall continue in full
force and effect in accordance with the terms thereof and as supplemented by
this First Supplemental Indenture. The Original Indenture and this First
Supplemental Indenture, shall be read, taken and construed as one and the same
instrument.
Section 2.3. Certificate and Opinion as to Conditions Precedent.
Simultaneously with and as a condition to the execution of this First
Supplemental Indenture, the Issuers are delivering to the Trustee:
(a) Officers' Certificates in the forms attached hereto as
Exhibit A-1 and Exhibit A-2; and
(b) an Opinion of Counsel covering the matters described in
Exhibit B attached hereto.
Section 4.04. Effect of Headings. The Article and Section headings in
this First Supplemental Indenture are for convenience only and shall not affect
the construction of this First Supplemental Indenture.
Section 4.05. Governing Law. THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE
CONSTRUED AND INTERPRETED AND THE RIGHTS OF THE PARTIES SHALL BE DETERMINED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION,
SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAWS AND NEW YORK
CIVIL PRACTICE LAWS AND RULES 327(B). EACH OF THE ISSUERS HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH
OF MANHATTAN IN THE
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CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE
CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS. EACH OF THE ISSUERS IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH
OF THE ISSUERS IRREVOCABLY CONSENTS, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO
SO UNDER APPLICABLE LAW, TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE ISSUERS AT THE ADDRESS SET
FORTH HEREIN, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY HOLDER TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST EITHER OF THE ISSUERS IN ANY OTHER JURISDICTION.
Section 4.06. Multiple Counterparts. This First Supplemental Indenture
may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
Section 4.07. Trustee's 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, enforceability or sufficiency of
this First Supplemental Indenture.
Section 4.08. Successors and Assigns. All agreements of the Issuers and
any Subsidiary Guarantors in this First Supplemental Indenture shall bind its
successors. All agreements of the Trustee in this First Supplemental Indenture
shall bind its successors.
[Remainder of Page Left Blank Intentionally; Signature Page Follows]
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IN WITNESS WHEREOF, the parties to this First Supplemental Indenture
have caused the Supplemental Indenture to be duly executed as of day and year
first above written.
PENINSULA GAMING COMPANY, LLC
Attest:_________________________ By:_________________________________
Name: Xxxxxxx X. Xxxxxx Name: M. Xxxxx Xxxxxxx
Title: Title:
PENINSULA GAMING CORP.
Attest:_________________________ By:_________________________________
Name: Xxxxxxx X. Xxxxxx Name: M. Xxxxx Xxxxxxx
Title: Title:
OED ACQUISITION, LLC
Attest:_________________________ By:_________________________________
Name: Xxxxxxx X. Xxxxxx Name: M. Xxxxx Xxxxxxx
Title: Title:
U.S. BANK NATIONAL ASSOCIATION
(Firstar Bank of Minnesota, N.A),
as Trustee
By:_________________________________
Name:
Title:
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