SECOND SUPPLEMENTAL INDENTURE
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SECOND SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of December 20, 2002, among Penn National Gaming, Inc., a Pennsylvania corporation (the "Company"), the Guarantors (as defined in the Indenture referred to herein) and State Street Bank and Trust Company, as trustee under the Indenture referred to below (the "Trustee").
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the "Original Indenture"), dated as of February 28, 2002 providing for the issuance of an aggregate principal amount of up to $175 million of 87/8% Senior Subordinated Notes due 2010 (the "Notes") and a First Supplemental Indenture dated as of June 4, 2002 (together with the Original Indenture, the "Indenture"):
WHEREAS, Section 9.01 of the Indenture provides that the Company, the Guarantors and the Trustee may amend or supplement the Indenture without the consent of any holders of the Notes to cure any ambiguity, defect or inconsistency;
WHEREAS, it has been determined by the Company that ambiguities, defects and/or inconsistencies exist by reason of the inadvertent failure of the Original Indenture to conform to the prospectus pursuant to which the Notes were originally offered and sold, and the respective Boards of Directors of the Company and of the Guarantors have authorized this Supplemental Indenture to cure such ambiguities, defects and/or inconsistencies; 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 Company, each Guarantor and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AMENDMENTS TO INDENTURE. The Original Indenture shall be amended as follows:
(a) by removing the definitions of "Existing Indebtedness" and "Guarantor" set forth in Section 1.01 in their entirety and replacing them with the following definitions:
| 'Existing Indebtedness' means the existing Guarantees of the Company with respect to the Indebtedness of Pennwood, the Indebtedness of the Company under its 111/8% senior subordinated notes due 2008 in the aggregate principal amount of $200,000,000 (and the guarantees related thereto) and up to $500,000 in aggregate principal amount of other Indebtedness of the Company and its Subsidiaries (other than Indebtedness under the Senior Credit Facilities) in existence on the date of this Indenture, until such amounts are repaid. | ||
'Guarantor' means each of (1) all Subsidiaries of the Company on the date of this Indenture that are guarantors under the Company's indenture dated March 12, 2001 with respect to the Company's 111/8% senior subordinated notes due 2008 and listed on Schedule I hereto; and (2) any other Subsidiary that executes a Subsidiary Guarantee in accordance with the provisions of this Indenture; and their respective successors and assigns." |
(b) by removing clause (15) of the definition of "Permitted Investments" set forth in Section 1.01 in its entirety and replacing it with the following clause:
| "(15) the Notes, Indebtedness under the Senior Credit Facilities and the Company's 111/8% senior subordinated notes due 2008 and guarantees related thereto;" |
(c) by adding the following sentence to Section 2.14:
| "All Notes issued under this Indenture will rank pari passu in right of payment with the Company's 111/8% senior subordinated notes due 2008 in the aggregate principal amount of $200,000,000." |
(d) by removing Section 4.07(c) in its entirety and replacing it with the following:
| "(c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of this Indenture (excluding Restricted Payments permitted by clauses (ii), (iii) and (iv) of the next succeeding paragraph), is less than the sum, without duplication, of: (i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing on April 1, 2001 to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate net cash proceeds received by the Company since March 12, 2001 as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), plus (iii) to the extent that any Restricted Investment that was made after March 12, 2001 is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment, plus (iv) to the extent that any Unrestricted Subsidiary of the Company is redesignated as a Restricted Subsidiary in compliance with Section 4.18 hereof after the Issue Date, the lesser of (A) the fair market value of the Company's Investment in such Subsidiary as of the date of such redesignation or (B) such fair market value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary." |
(e) by removing Section 6.01(f) in its entirety and replacing it with the following provision:
| "(f) a final judgment or final judgments for the payment of money are entered by a court or courts of competent jurisdiction against the Company or any of its Restricted Subsidiaries and such judgment or judgments remain undischarged for a period (during which execution shall not be effectively stayed) of 60 days; provided that the aggregate of all such undischarged judgments exceeds $5 million;" |
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(f) by removing Sections 6.01 (h) and (i) in their entirety and replacing them with the following provisions:
| "(h) the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken as a whole would constitute a Significant Subsidiary, pursuant to or within the meaning of Bankruptcy Law: (i) commences a voluntary case, (ii) consents to the entry of an order for relief against it in an involuntary case, (iii) consents to the appointment of a custodian of it or for all or substantially all of its property, (iv) makes a general assignment for the benefit of its creditors, or (v) generally is not paying its debts as they become due; or | ||
(i) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (1) is for relief against the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, in an involuntary case; (2) appoints a custodian of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary or for all or substantially all of the property of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary; or (3) orders the liquidation of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary; and the order or decree remains unstayed and in effect for 60 consecutive days." |
(g) by removing the first paragraph of Section 6.02 in its entirety and replacing it with the following paragraph:
| "If any Event of Default (other than an Event of Default specified in clause (h) or (i) of Section 6.01 hereof with respect to the Company, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary) occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately. Upon any such declaration, the Notes shall become due and payable immediately. Notwithstanding the foregoing, if an Event of Default specified in clause (h) or (i) of Section 6.01 hereof occurs with respect to the Company, any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, all outstanding Notes shall be due and payable immediately without further action or notice. The Holders of a majority in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may on behalf of all of the Holders rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if the Trustee shall have received an Officers' Certificate that all existing Events of Default (except nonpayment of principal, interest or premium that has become due solely because of the acceleration) have been cured or waived." |
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(h) by removing the first clause of Section 10.03(a) (ii) and replacing it with the following clause:
| "any other default on Designated Senior Debt occurs and is continuing that then permits holders of the Designated Senior Debt to accelerate its maturity and the Trustee receives a notice of the default (a "Payment Blockage Notice") from the Credit Agent, the Company or any holder of any Designated Senior Debt." |
(i) by removing the first sentence of Section 4 of Exhibit A—Form of Note and replacing it with the following sentence:
| "The Company issued the Notes under an Indenture dated as of February 28, 2002 ("Indenture") between the Company, the Guarantors and the Trustee." |
(j) by adding the following to the end of each of clauses (i) and (ii) of Section 12 of Exhibit A—Form of Note:
| ", without regard to the subordination provisions of Article X of the Indenture," |
(k) by deleting Section 17 of Exhibit A—Form of Note (which shall result in Section 18 being renumbered as Section 17), and
(l) by adding the following as Section 18 to Exhibit A (Form of Note):
| "18. RANKING. This Note ranks pari passu in right of payment with the Company's 111/8% senior subordinated notes due 2008 in the aggregate principal amount of $200,000,000 and will rank pari passu in right of payment with any Additional Notes." |
3. The Company, the Guarantors and the Trustee hereby agree that in all respects not amended, the Indenture is hereby ratified and affirmed and remains in full force and effect.
4. 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.
5. 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.
6. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
7. 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 Company and each Guarantor.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
| PENN NATIONAL GAMING, INC. | |||
By: |
/s/ XXXXX X. XXXXXXX Name: Xxxxx X. Xxxxxxx Title: Chief Executive Officer |
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MOUNTAINVIEW THOROUGHBRED RACING ASSOCIATION |
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By: |
/s/ XXXXXX X. XXXXXXXX Name: Xxxxxx X. Xxxxxxxx Title: Secretary/Treasurer |
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PENNSYLVANIA NATIONAL TURF CLUB, INC. |
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By: |
/s/ XXXXXX X. XXXXXXXX Name: Xxxxxx X. Xxxxxxxx Title: Secretary/Treasurer |
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PENN NATIONAL SPEEDWAY, INC. |
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By: |
/s/ XXXXXX X. XXXXXXXX Name: Xxxxxx X. Xxxxxxxx Title: Secretary |
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STERLING AVIATION INC. |
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By: |
/s/ XXXXXX X. XXXXXXXX Name: Xxxxxx X. Xxxxxxxx Title: Secretary/Treasurer |
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PENN NATIONAL HOLDING COMPANY |
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By: |
/s/ XXXXXX X. XXXXXXXX Name: Xxxxxx X. Xxxxxxxx Title: Secretary/Treasurer |
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XXXXXXX.XXX, INC. |
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By: |
/s/ XXXXXX X. XXXXXXXX Name: Xxxxxx X. Xxxxxxxx Title: Secretary/Treasurer |
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PENN NATIONAL GAMING OF WEST VIRGINIA, INC. |
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By: |
/s/ XXXXXX X. XXXXXXXX Name: Xxxxxx X. Xxxxxxxx Title: Secretary/Treasurer |
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PNGI POCONO, INC. |
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By: |
/s/ XXXXXX X. XXXXXXXX Name: Xxxxxx X. Xxxxxxxx Title: Secretary/Treasurer |
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TENNESSEE DOWNS, INC. |
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By: |
/s/ XXXXXX X. XXXXXXXX Name: Xxxxxx X. Xxxxxxxx Title: Secretary/Treasurer |
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PENN NATIONAL GSFR, INC. |
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By: |
/s/ XXXXXX X. XXXXXXXX Name: Xxxxxx X. Xxxxxxxx Title: Secretary/Treasurer |
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BSL, INC. |
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By: |
/s/ XXXXXX X. XXXXXXXX Name: Xxxxxx X. Xxxxxxxx Title: Secretary/Treasurer |
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BTN, INC. |
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By: |
/s/ XXXXXX X. XXXXXXXX Name: Xxxxxx X. Xxxxxxxx Title: Secretary/Treasurer |
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PNGI XXXXXXX TOWN GAMING LIMITED LIABILITY COMPANY BY: Penn National Gaming of West Virginia, Inc., Managing Member |
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By: |
/s/ XXXXXX X. XXXXXXXX Name: Xxxxxx X. Xxxxxxxx Title: Secretary/Treasurer |
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THE DOWNS RACING, INC. |
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By: |
/s/ XXXXXX X. XXXXXXXX Name: Xxxxxx X. Xxxxxxxx Title: Secretary/Treasurer |
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XXXXXX BARRE XXXXX, INC. |
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By: |
/s/ XXXXXXX X. XXXXXXXX Name: Xxxxxxx X. Xxxxxxxx Title: President |
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BACKSIDE, INC. |
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By: |
/s/ XXXXXX X. XXXXXXXX Name: Xxxxxx X. Xxxxxxxx Title: Assistant Secretary |
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MILL CREEK LAND, INC. |
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By: |
/s/ XXXXXX X. XXXXXXXX Name: Xxxxxx X. Xxxxxxxx Title: Secretary/Treasurer |
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NORTHEAST CONCESSIONS, INC. |
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By: |
/s/ XXXXXX X. XXXXXXXX Name: Xxxxxx X. Xxxxxxxx Title: Treasurer/Vice President |
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PNGI XXXXXXX TOWN FOOD & BEVERAGE LIMITED LIABILITY COMPANY |
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BY: PNGI Xxxxxxx Town Gaming Limited Liability Company, Member |
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BY: Penn National Gaming of West Virginia, Inc., Managing Member |
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By: |
/s/ XXXXXX X. XXXXXXXX Name: Xxxxxx X. Xxxxxxxx Title: Secretary/Treasurer |
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CRC HOLDINGS, INC. |
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By: |
/s/ XXXXXX X. XXXXXXXX Name: Xxxxxx X. Xxxxxxxx Title: Secretary/Treasurer |
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LOUISIANA CASINO CRUISES, INC. |
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By: |
/s/ XXXXXX X. XXXXXXXX Name: Xxxxxx X. Xxxxxxxx Title: Secretary/Treasurer |
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CHC CASINOS CORP. |
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By: |
/s/ XXXXXX X. XXXXXXXX Name: Xxxxxx X. Xxxxxxxx Title: Secretary/Treasurer |
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PENN BULLPEN, INC. |
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By: |
/s/ XXXXXX X. XXXXXXXX Name: Xxxxxx X. Xxxxxxxx Title: Secretary/Treasurer |
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PENN BULLWHACKERS, INC. |
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By: |
/s/ XXXXXX X. XXXXXXXX Name: Xxxxxx X. Xxxxxxxx Title: Secretary/Treasurer |
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PENN MILLSITE, INC. |
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By: |
/s/ XXXXXX X. XXXXXXXX Name: Xxxxxx X. Xxxxxxxx Title: Secretary/Treasurer |
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PENN SILVER HAWK, INC. |
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By: |
/s/ XXXXXX X. XXXXXXXX Name: Xxxxxx X. Xxxxxxxx Title: Secretary/Treasurer |
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STATE STREET BANK AND TRUST COMPANY, as Trustee |
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By: |
/s/ XXXXXX X. XXXX, XX. Xxxxxx X. Xxxx, Xx. Vice President |
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SECOND SUPPLEMENTAL INDENTURE
W I T N E S S E T H
