SUPPLEMENTAL INDENTURE MTR GAMING GROUP, INC., as Issuer and THE GUARANTORS NAMED HEREIN
Exhibit 4.2
MTR GAMING GROUP,
INC.,
as Issuer
and
THE GUARANTORS
NAMED HEREIN
9% SENIOR SUBORDINATED NOTES DUE 2012
Supplemental
Indenture
Dated as of June 15, 2007
Supplementing the
Indenture
Dated as of May 25, 2006
(as supplemented as of June 1, 2007)
▇▇▇▇▇ FARGO BANK,
N.A.,
as Trustee
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of June 15, 2007 (the “Effective Date”), among MTR Gaming Group, Inc., a Delaware corporation (the “Issuer”), the guarantors executing this Supplemental Indenture (the “Guarantors”) and ▇▇▇▇▇ Fargo Bank, N.A., as trustee (the “Trustee”), under the Indenture dated as of May 25, 2006, as supplemented on June 1, 2007 (the “Indenture”). Capitalized terms used herein and not otherwise defined shall have the respective meanings ascribed to them in the Indenture.
W I T N E S S E T H:
WHEREAS, MTR, the Trustee and the Guarantors have heretofore executed and delivered the Indenture providing for the issuance by the Issuer of 9% Senior Subordinated Notes due 2012 (the “Notes”);
WHEREAS, MTR has solicited consents from the Holders of the Notes to certain proposed amendments to the Indenture, in accordance with the terms and conditions of a Consent Solicitation Statement, dated June 4, 2007 (the “Solicitation Statement”);
WHEREAS, Section 9.2 of the Indenture provides that, with the consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding, voting as a single class, the Issuer, the Guarantors and the Trustee may amend or supplement the Indenture and the Notes in accordance with Section 9.2 of the Indenture;
WHEREAS, the Holders of a majority in aggregate principal amount of the outstanding Notes have duly consented to the proposed amendments set forth in this Supplemental Indenture in accordance with Section 9.2 of the Indenture;
WHEREAS, the Issuer has heretofore delivered or is delivering contemporaneously herewith to the Trustee (i) copies of resolutions of the Boards of Directors of the Issuer and the Guarantors authorizing the execution of this Supplemental Indenture, (ii) evidence of the written consent of the Holders set forth in the immediately preceding paragraph, and (iii) the Officers’ Certificate and the Opinion of Counsel described in Section 12.4 of the Indenture; and
WHEREAS, all other acts and proceedings required by law and the Indenture necessary to authorize the execution and delivery of this Supplemental Indenture and to make this Supplemental Indenture a valid and binding agreement for the purposes expressed herein, in accordance with its terms, have been complied with or have been duly done or performed.
NOW, THEREFORE, in consideration of the foregoing and notwithstanding any provision of the Indenture which, absent this Supplemental Indenture, might operate to limit such action, the parties hereto, intending to be legally bound hereby, agree as follows:
SECTION 1.01. Amendment of Definition of “Permitted Indebtedness.” Paragraph (g) is hereby added to the definition of “Permitted Indebtedness” contained in Section 1.1 of the Indenture entitled “Definitions,” to read as follows:
(g) Indebtedness outstanding on the Issue Date represented by the Senior Notes and any Guarantees thereof, including any Refinancing Indebtedness with respect thereto.
SECTION 1.02. Amendment of Definition of “Permitted Liens.” Paragraph (m) of the definition of “Permitted Liens” contained in Section 1.1 of the Indenture entitled “Definitions,” is hereby amended to read as follows:
(m) Liens securing Indebtedness incurred under the Credit Agreement and any Refinancing Indebtedness with respect to the Senior Notes and Guarantees thereof in accordance with Section 4.11.
SECTION 1.03. Amendment of Definition of “Refinancing Indebtedness.” Paragraph D of the definition of “Refinancing Indebtedness” contained in Section 1.1 of the Indenture entitled “Definitions,” is hereby amended to read as follows:
(D) such Refinancing Indebtedness shall be secured (if secured) in a manner no more adverse to the Holders of the Notes than the terms of the Liens (if any) securing such refinanced Indebtedness, including, without limitation, the amount of Indebtedness secured shall not be increased; provided, however, that this clause (D) shall not apply to any Refinancing of the Senior Notes.
SECTION 1.04. Amendment of Section 1.1 The following definitions of “Additional Payment”, “Applicable Quarter”, “Filing Date”, “Indebtedness Ratio” and “Special Indebtedness” are hereby added to Section 1.1 of the Indenture entitled “Definitions” to read as follows:
“Additional Payment” shall have the meaning specified in Section 4.20.
“Applicable Quarter” shall have the meaning specified in Section 4.20.
“Filing Date” shall have the meaning specified in Section 4.20.
“Indebtedness Ratio” shall have the meaning specified in Section 4.20.
“Special Indebtedness” shall have the meaning specified in Section 4.20.
SECTION 1.05 Amendment of Section 4.11. The third paragraph of Section 4.11 of the Indenture entitled “Limitation on Incurrence of Additional Indebtedness” is hereby amended to read in its entirety as follows:
In addition, the foregoing limitations of the first paragraph of this Section 4.11 will not prohibit:
(a) if no Event of Default shall have occurred and be continuing, the Company’s incurrence or the incurrence by any Guarantor of Indebtedness in an aggregate amount incurred and outstanding at any time pursuant to this paragraph (a) (plus any Refinancing Indebtedness incurred to retire, defease, refinance, replace or refund such Indebtedness) of up to $10,000,000; and
(b) the Company’s incurrence or the incurrence by any Guarantor of Indebtedness pursuant to the Credit Agreement in an aggregate amount incurred and outstanding at any time pursuant to this paragraph (b) (plus any Refinancing Indebtedness incurred to retire, defease, replace or refund such Indebtedness) of up to $135,000,000, minus the amount of any such Indebtedness (1) retired with the Net Cash Proceeds from any Asset Sale or Event of Loss applied to permanently reduce the outstanding amounts or the commitments with respect to such Indebtedness pursuant to Section 4.13 or (2) assumed by a transferee in an Asset Sale.
Section 1.06. Addition of new Section 4.20. The following Section 4.20 is hereby added to Article IV of the Indenture entitled “Covenants” to read in its entirety as follows:
Section 4.20. Payment of Certain Additional Payments. Commencing with the Company’s fiscal quarter ended June 30, 2008, and continuing until and including such quarter in which the Notes shall no longer be outstanding (each an “Applicable Quarter”), in the event the ratio of the Company’s Special Indebtedness (as defined below) to the Company’s Consolidated EBITDA for the four full fiscal quarters ended immediately prior to the applicable determination date exceeds 4.0 to 1.0 (the “Indebtedness Ratio”), as determined on the date on which the Company’s consolidated financial statements with respect to each such fiscal quarter are required to be delivered to the Trustee or, if sooner, filed with the SEC (any such date, a “Filing Date”), then for each such quarter the Company will, as promptly as practicable, but in any event within 10 days following such Filing Date, pay a fee of $5.00 in cash for each $1,000 in principal amount of then Outstanding Notes (each such payment, an “Additional Payment”). Any such Additional Payment shall be payable only to holders of Notes shown on the records of the registrar for the Notes as registered holders of Notes at the close of business on the date immediately following the Filing Date with respect to each such quarter. As promptly as practicable after the end of each Applicable Quarter, the Company’s Chief Financial Officer will execute and deliver a certificate to the Trustee stating and certifying the ratio of the Company’s Special Indebtedness to the Company’s Consolidated EBITDA with respect to each such Applicable Quarter.
Solely for purposes of the foregoing provisions with respect to the Additional Payments, the term “Special Indebtedness” shall have the same meaning as Indebtedness, except that amounts borrowed by North Metro Harness Initiative, LLC of up to $41.7 million shall be excluded from such definition of Indebtedness, provided that such
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loan does not constitute Recourse Indebtedness with respect to the Company and the Guarantors. For purposes of the foregoing provisions, clauses (a) through (d) of the definition of “Consolidated Coverage Ratio” as set forth herein, shall apply.
SECTION 2.01. Reference to and Effect on the Indenture. On and after the Effective Date, each reference in the Indenture to “this Indenture,” “hereunder,” “hereof,” or “herein” (and all references to the Indenture in any other agreements, documents or instruments) shall mean and be a reference to the Indenture as supplemented by this Supplemental Indenture, unless the context otherwise requires. The Indenture, as supplemented by this Supplemental Indenture, shall be read, taken and construed as one and the same instrument. Except as specifically amended above, the Indenture shall remain in full force and effect and is hereby ratified and confirmed.
SECTION 2.02. Governing Law. Section 12.8 of the Indenture shall apply to this Supplemental Indenture.
SECTION 2.03. Trust Indenture Act Controls. No modification of any provisions of the Indenture effected by this Supplemental Indenture is intended to eliminate or limit any provision of the Indenture that is required to be included therein by the Trust Indenture Act of 1939, as amended, as in force as of the effectiveness of this Supplemental Indenture.
SECTION 2.04. Trustee Disclaimer; Trust. The recitals contained in this Supplemental Indenture shall be taken as the statements of MTR, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Supplemental Indenture. The Trustee accepts the trust created by the Indenture, as supplemented by this Supplemental Indenture, and agrees to perform the same upon the terms and conditions of the Indenture, as supplemented hereby.
SECTION 2.05. Counterparts. This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall constitute but one and the same instrument.
SECTION 2.06. Effect of Headings. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
SECTION 2.07. Severability. In case any provision of this Supplemental Indenture shall be invalid, illegal or unenforceable, including any amendment or waiver that, pursuant to Section 9.2 of the Indenture, requires the consent of each Holder affected, the validity, legality and enforceability of the remaining provisions shall not in any way be effected or impaired thereby.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed all as of the date hereof.
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MTR GAMING GROUP, INC. |
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By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Title: President and CEO |
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MOUNTAINEER PARK, INC. |
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By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name: |
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Title: |
President |
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PRESQUE ISLE DOWNS, INC. |
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By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name: |
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Title: |
President |
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SPEAKEASY GAMING OF LAS VEGAS, INC. |
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By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name: |
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Title: |
President |
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SCIOTO DOWNS, INC. |
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By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name: |
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Title: |
President |
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SPEAKEASY GAMING OF FREMONT, INC. |
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By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name: |
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Title: |
President |
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▇▇▇▇▇▇▇ RACING, INC. |
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By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name: |
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Title: |
President |
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▇▇▇▇▇ FARGO BANK, N.A., as Trustee |
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By: |
/s/ ▇▇▇▇▇▇ ▇. ▇’▇▇▇▇▇▇▇ |
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Name: ▇▇▇▇▇▇ ▇. ▇’▇▇▇▇▇▇▇ |
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Title: Vice President |
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