EXHIBIT 4.5
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"),
dated as of March 12, 2001, among Indiana Gaming Company, L.P. (the
"Guaranteeing Subsidiary"), 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, 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 (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, as further supplemented by a Second Supplemental Indenture,
dated as of March 12, 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 Subsidiary shall execute and deliver to the
Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary
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. The Guaranteeing Subsidiary
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 Subsidiary 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
2
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 SUBSIDIARY MAY CONSOLIDATE, ETC. ON
CERTAIN TERMS.
(a) The Guaranteeing Subsidiary 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
3
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
4
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 Subsidiary and the
Company.
(SIGNATURE PAGE FOLLOWS)
5
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
Dated: March 12, 2001
INDIANA GAMING COMPANY, L.P.
By: THE INDIANA GAMING COMPANY
its General Partner
By: /s/ Xxxx X. Xxxxx
---------------------------------
Xxxx X. Xxxxx
Treasurer
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
S-1
ARGOSY OF LOUISIANA, INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Xxxx X. Xxxxx
Treasurer
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
S-2
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
BANK ONE TRUST COMPANY, NA
as Trustee
By: /s/ Xxxxx Xxxx
-------------------------------------
Authorized Signator
S-3
