Exhibit 4.4B
SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY PENINSULA GAMING, LLC
Supplemental Indenture (this "Supplemental Indenture"), dated as of
June 16, 2004, among Peninsula Gaming, LLC, a Delaware limited liability company
(the "Parent Issuer"), the direct parent of Xxxxxxx Xx, LLC, a Delaware limited
liability company (the "Company"), the Company and The Old Xxxxxxxxxx Xxxxx
Capital Corp., a Delaware corporation ("Capital" and, together with the Company,
the "Original Issuers"), and U.S. Bank National Association, as trustee under
the Indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Original Issuers and the Subsidiary Guarantors (as defined
therein) have heretofore executed and delivered to the Trustee an indenture (the
"Indenture"), dated as of April 16, 2004, providing for the issuance of 8 3/4%
Senior Secured Notes due 2012 (the "Notes");
WHEREAS, on the date hereof, the Parent Issuer, the Original Issuers
and the Guarantors are effecting the Reorganization Transactions (as defined in
the Indenture);
WHEREAS, the Indenture requires that as part of the Reorganization
Transactions the Parent Issuer execute and deliver to the Trustee this
Supplemental Indenture pursuant to which the Parent Issuer shall become a party
to the Indenture and an "Issuer" for all purposes under the Notes, the
Indenture, the Security Documents, the Intercreditor Agreement and the
Registration Rights Agreement and liable for all Obligations of an "Issuer"
thereunder; and
WHEREAS, pursuant to Section 9.1 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 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. Parent Issuer as Additional "Issuer." The Parent Issuer hereby
becomes a party to and bound by all of the terms, conditions and other
provisions of the Indenture with all attendant rights, duties and obligations
stated therein, and hereby becomes an "Issuer" for all purposes under the Notes,
the Indenture, the Security Documents, the Intercreditor Agreement and the
Registration Rights Agreement and liable for all Obligations of an "Issuer"
thereunder, with the same force and effect as if the Parent Issuer was
originally named as an "Issuer" in the Indenture and as if the Parent Issuer
executed the Indenture on the date thereof.
3. Original Issuers Remain Issuers. For the avoidance of doubt, nothing
herein shall or shall be deemed to modify or otherwise affect the Obligations of
the Original Issuers or the Subsidiary Guarantors under the Notes, the
Indenture, the Security Documents, the Intercreditor Agreement or the
Registration Rights Agreement, and the Original Issuers each shall remain
liable, jointly and severally with the Parent Issuer, for all Obligations of an
"Issuer" thereunder.
4. NEW YORK LAW TO GOVERN AND CONSENT TO JURISDICTION. THIS INDENTURE
AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE
STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF
THE NEW YORK GENERAL OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULES
327(B); PROVIDED, THAT WITH RESPECT TO THE CREATION, ATTACHMENT, PERFECTION,
PRIORITY, ENFORCEMENT OF AND REMEDIES RELATING TO THE SECURITY INTEREST IN ANY
REAL PROPERTY COLLATERAL, THE GOVERNING LAW MAY BE THE LAWS OF THE JURISDICTIONS
WHERE SUCH COLLATERAL IS LOCATED WITHOUT REGARD TO THE CONFLICT OF LAW
PROVISIONS THEREOF.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR
RELATING HERETO OR ANY OF THE SECURITY DOCUMENTS, OR ANY OF THE OBLIGATIONS, MAY
BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN XXX XXXXX,
XXXXXX XXX XXXX XX XXX XXXX. BY EXECUTING AND DELIVERING THIS INDENTURE, EACH
PARTY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY SUBMITS TO
AND ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND
VENUE OF SUCH COURTS; WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; AGREES THAT
SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE ISSUER
OR GUARANTOR AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 12.2 OF THE
INDENTURE; AGREES THAT SERVICE AS PROVIDED ABOVE IS SUFFICIENT TO CONFER
PERSONAL JURISDICTION OVER THE APPLICABLE PARTY IN ANY SUCH PROCEEDING IN ANY
SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT; AND AGREES EACH OTHER PARTY RETAINS THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY PARTY IN THE
COURTS OF ANY OTHER JURISDICTION HAVING JURISDICTION OVER SUCH PARTY.
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.
[signature page follows]
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.
THE ORIGINAL ISSUERS:
Xxxxxxx Xx, LLC
By:/s/M. XXXXX XXXXXXX
---------------------------------
Name: M. Xxxxx Xxxxxxx
Title: Chief Executive Officer
The Old Xxxxxxxxxx Xxxxx Capital Corp.
By:/s/M. XXXXX XXXXXXX
---------------------------------
Name: M. Xxxxx Xxxxxxx
Title: Chief Executive Officer
THE PARENT ISSUER:
Peninsula Gaming, LLC
By:/s/M. XXXXX XXXXXXX
---------------------------------
Name: M. Xxxxx Xxxxxxx
Title: Chief Executive Officer
THE TRUSTEE:
U.S. Bank National Association
By:/s/Xxxxx X. Xxxxxx, III
--------------------------------
Name: Xxxxx X. Xxxxxx, III
Title: Vice President
