EXHIBIT 4.4
SECOND SUPPLEMENTAL INDENTURE
Second Supplemental Indenture (this "Supplemental Indenture"),
dated as of March 2, 2001, among Belle of Sioux City, L.P., an Iowa limited
partnership, Indiana Gaming II, L.P., an Indiana limited partnership and Indiana
Gaming Holding Company, an Indiana corporation (the "Guaranteeing
Subsidiaries"), Argosy Gaming Company, a Delaware corporation (the "Company"),
Argosy of Iowa, an Iowa corporation, Centroplex Centre Convention Hotel, L.L.C.,
a Louisiana limited liability company, Xxxxx Gaming Company, an Illinois
corporation, Argosy of Louisiana, Inc., a Louisiana corporation, Catfish Queen
Partnership in Commendam, a Louisiana partnership, The Indiana Gaming Company,
an Indiana corporation, Iowa Gaming Company, an Iowa corporation, Jazz
Enterprises, Inc., a Louisiana corporation and The Missouri Gaming Company, a
Missouri corporation (collectively, the "Subsidiary Guarantors") and Bank One
Trust Company, NA, as trustee under the Indenture referred to below (the
"Trustee").
W I T N E S S E T H
WHEREAS, the Company and the Subsidiary Guarantors have
heretofore executed and delivered to the Trustee an Indenture dated as of
June 8, 1999 as supplemented by a First Supplemental Indenture, dated as of
February 8, 2001 (the "Indenture") providing for the issuance of an initial
principal amount of $350,000,000 of 10 3/4% Senior Subordinated Notes due 2009
(the "Notes");
WHEREAS, the Indenture provides that under certain
circumstances the Guaranteeing Subsidiaries shall execute and deliver to the
Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiaries
shall unconditionally guarantee all of the Company's Obligations under the Notes
and the Indenture on the terms and conditions set forth herein (the "Subsidiary
Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the
Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto do hereby mutually covenant and agree as follows:
1. Capitalized Terms. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. Each of the Guaranteeing
Subsidiaries hereby agrees as follows:
(a) Along with all Subsidiary Guarantors named in the
Indenture, to jointly and severally Guarantee to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, the Notes or the obligations of the Company
hereunder or thereunder, that:
(i) the principal of and interest on the Notes will
be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the
overdue principal of and interest on the Notes, if any, if
lawful, and all other obligations of the Company to the
Holders or the Trustee hereunder or thereunder will be
promptly paid in full or performed, all in accordance with the
terms hereof and thereof; and
(ii) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that
same will 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 or otherwise.
Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the
Subsidiary Guarantors shall be jointly and severally
obligated to pay the same immediately.
(b) The obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or
the Indenture, the absence of any action to enforce the same, any waiver or
consent by any Holder of the Notes with respect to any provisions hereof or
thereof, the recovery of any judgment against the Company, any action to
enforce the same or any other circumstance which might otherwise constitute
a legal or equitable discharge or defense of a guarantor.
(c) The following is hereby waived: diligence
presentment, demand of payment, filing of claims with a court in the event
of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands
whatsoever.
(d) This Subsidiary Guarantee shall not be discharged
except by complete performance of the obligations contained in the Notes
and the Indenture, and the Guaranteeing Subsidiary accepts all obligations
of a Subsidiary Guarantor under the Indenture.
(e) If any Holder or the Trustee is required by any court
or otherwise to return to the Company, the Subsidiary Guarantors, or any
Custodian, Trustee, liquidator or other similar official acting in relation
to either the Company or the Subsidiary Guarantors, any amount paid by
either to the Trustee or such Holder, this Subsidiary Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and
effect.
(f) The Guaranteeing Subsidiaries shall not be entitled
to any right of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby.
(g) As between the Subsidiary Guarantors, on the one
hand, and the Holders and the Trustee, on the other hand, (x) the maturity
of the obligations guaranteed hereby may be accelerated as provided in
Article 6 of the Indenture for the purposes of this Subsidiary Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in
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the event of any declaration of acceleration of such obligations as
provided in Article 6 of the Indenture, such obligations (whether or not
due and payable) shall forthwith become due and payable by the Subsidiary
Guarantors for the purpose of this Subsidiary Guarantee.
(h) The Subsidiary Guarantors shall have the right to
seek contribution from any non-paying Subsidiary Guarantor so long as the
exercise of such right does not impair the rights of the Holders under the
Guarantee.
(i) Pursuant to Section 11.03 of the Indenture, after
giving effect to any maximum amount and any other contingent and fixed
liabilities that are relevant under any applicable Bankruptcy or fraudulent
conveyance laws, and after giving effect to any collections from, rights to
receive contribution from or payments made by or on behalf of any other
Subsidiary Guarantor in respect of the obligations of such other Subsidiary
Guarantor under Article 11 of the Indenture, this new Subsidiary Guarantee
shall be limited to the maximum amount permissible such that the
obligations of such Subsidiary Guarantor under this Subsidiary Guarantee
will not constitute a fraudulent transfer or conveyance.
(j) Pursuant to Section 11.02 of the Indenture, the
obligations of each Subsidiary Guarantor under its Subsidiary Guarantee
pursuant to Article II of the Indenture shall be junior and subordinated to
the Senior Indebtedness of such Subsidiary Guarantor on the same basis as
the Notes are junior and subordinated to the Senior Indebtedness of the
Company.
3. Execution and Delivery. Each Guaranteeing Subsidiary
agrees that the Subsidiary Guarantees shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Subsidiary Guarantee.
4. Guaranteeing Subsidiaries May Consolidate, Etc. on
Certain Terms.
(a) The Guaranteeing Subsidiaries may not consolidate
with or merge with or into (whether or not such Subsidiary Guarantor is the
surviving Person) another corporation, Person or entity whether or not
affiliated with such Subsidiary Guarantor unless:
(i) subject to Sections 11.05 and 11.06 of the Indenture,
the Person formed by or surviving any such consolidation or merger (if
other than a Subsidiary Guarantor or the Company) unconditionally
assumes all the obligations of such Subsidiary Guarantor, pursuant to
a supplemental indenture in form and substance reasonably satisfactory
to the Trustee, under the Notes, the Indenture and the Subsidiary
Guarantee on the terms set forth herein or therein; and
(ii) immediately after giving effect to such transaction,
no Default or Event of Default exists.
(b) In case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor corporation, by
supplemental indenture, executed and delivered
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to the Trustee and satisfactory in form to the Trustee, of the
Subsidiary Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of the Indenture to
be performed by the Subsidiary Guarantor, such successor corporation
shall succeed to and be substituted for the Subsidiary Guarantor with
the same effect as if it had been named herein as a Subsidiary
Guarantor. Such successor corporation thereupon may cause to be signed
any or all of the Subsidiary Guarantees to be endorsed upon all of the
Notes issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee. All the Subsidiary
Guarantees so issued shall in all respects have the same legal rank
and benefit under the Indenture as the Subsidiary Guarantees
theretofore and thereafter issued in accordance with the terms of the
Indenture as though all of such Subsidiary Guarantees had been issued
at the date of the execution hereof.
(c) Except as set forth in Articles 4 and 5 and
Section 11.05 of Article 11 of the Indenture, and notwithstanding clauses
(a) and (b) above, nothing contained in the Indenture or in any of the
Notes shall prevent any consolidation or merger of a Subsidiary Guarantor
with or into the Company or another Subsidiary Guarantor, or shall prevent
any sale or conveyance of the property of a Subsidiary Guarantor as an
entirety or substantially as an entirety to the Company or another
Subsidiary Guarantor.
5. Releases.
(a) In the event of a sale or other disposition of all of
the assets of any Subsidiary Guarantor, by way of merger, consolidation or
otherwise, or a sale or other disposition of all to the capital stock of
any Subsidiary Guarantor, in each case to a Person that is not (either
before or after giving effect to such transaction) a Restricted Subsidiary
of the Company, then such Subsidiary Guarantor (in the event of a sale or
other disposition, by way of merger, consolidation or otherwise, of all of
the capital stock of such Subsidiary Guarantor) or the corporation
acquiring the property (in the event of a sale or other disposition of all
or substantially all of the assets of such Subsidiary Guarantor) will be
released and relieved of any obligations under its Subsidiary Guarantee;
provided that the Net Proceeds of such sale or other disposition are
applied in accordance with the applicable provisions of the Indenture,
including without limitation Section 4.15 of the Indenture. Upon delivery
by the Company to the Trustee of an Officers' Certificate and an Opinion of
Counsel to the effect that such sale or other disposition was made by the
Company in accordance with the provisions of the Indenture, including
without limitation Section 4.15 of the Indenture, the Trustee shall execute
any documents reasonably required in order to evidence the release of any
Subsidiary Guarantor from its obligations under its Subsidiary Guarantee.
(b) Any Subsidiary Guarantor not released from its
obligations under its Subsidiary Guarantee shall remain liable for the full
amount of principal of and interest on the Notes and for the other
obligations of any Subsidiary Guarantor under the Indenture as provided in
Article 11 of the Indenture.
6. No Recourse Against Others. No past, present or
future director, officer, employee, incorporator, stockholder or agent of
the Guaranteeing Subsidiary, as such, shall have any liability for any
obligations of the Company or any Guaranteeing Subsidiary under the Notes,
any Subsidiary Guarantees, the Indenture or this Supplemental Indenture or
for
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any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of the Notes by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be effective
to waive liabilities under the federal securities laws and it is the view
of the SEC that such a waiver is against public policy.
7. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE
OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL
INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS
OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
8. Counterparts. The parties may sign any number of
copies of this Supplemental Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
9. Effect of Headings. The Section headings herein are
for convenience only and shall not affect the construction hereof.
10. The Trustee. The Trustee shall not be responsible in
any manner whatsoever for or in respect of the validity or sufficiency of
this Supplemental Indenture or for or in respect of the recitals contained
herein, all of which recitals are made solely by the Guaranteeing
Subsidiaries and the Company.
(Signature Page Follows)
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
Dated: March 2, 2001
BELLE OF SIOUX CITY, L.P.
By: IOWA GAMING COMPANY
its General Partner
By: /s/ Xxxx X. Xxxxx
---------------------------------
Xxxx X. Xxxxx
Treasurer
INDIANA GAMING II, L.P.
By: INDIANA GAMING HOLDING COMPANY
its General Partner
By: /s/ Xxxx X. Xxxxx
---------------------------------
Xxxx X. Xxxxx
Treasurer
INDIANA GAMING HOLDING COMPANY
By: /s/ Xxxx X. Xxxxx
---------------------------------
Xxxx X. Xxxxx
Treasurer
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ARGOSY GAMING COMPANY
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Xxxx X. Xxxxx
Senior Vice President and
Chief Financial Officer
ARGOSY OF IOWA, INC.
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Xxxx X. Xxxxx
Treasurer
CENTROPLEX CENTRE CONVENTION HOTEL,
L.L.C.
By: Arogsy Gaming Company
its Sole Member
By: /s/ Xxxx X. Xxxxx
------------------------------
Xxxx X. Xxxxx
Senior Vice President and
Chief Financial Officer
XXXXX GAMING COMPANY
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Xxxx X. Xxxxx
Treasurer
ARGOSY OF LOUISIANA, INC.
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Xxxx X. Xxxxx
Treasurer
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CATFISH QUEEN PARTNERSHIP IN COMMENDAM
By: ARGOSY OF LOUISIANA, INC.
its General Partner
By: /s/ Xxxx X. Xxxxx
----------------------------------
Xxxx X. Xxxxx
Treasurer
THE INDIANA GAMING COMPANY
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Xxxx X. Xxxxx
Treasurer
IOWA GAMING COMPANY
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Xxxx X. Xxxxx
Treasurer
JAZZ ENTERPRISES, INC.
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Xxxx X. Xxxxx
Treasurer
THE MISSOURI GAMING COMPANY
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Xxxx X. Xxxxx
Treasurer
BANK ONE TRUST COMPANY, NA
as Trustee
By: /s/ Xxxxx Xxxx
-------------------------------------
Authorized Signator
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