PENN » Topics » Section 9.1 Amendment

These excerpts taken from the PENN 10-K filed Feb 29, 2008.
THIS AMENDMENT NO. 1 (this “Amendment”), dated as of June 15, 2007, to the Rights Agreement, dated as of March 2, 1999 (the “Rights Agreement”) between Penn National Gaming, Inc., a Pennsylvania corporation (the “Company”) and Continental Stock Transfer and Trust Company, a New York corporation (the “Rights Agent”).

 

R E C I T A L S

 

WHEREAS, the Company and the Rights Agent have heretofore executed and entered into the Rights Agreement;

 

WHEREAS, the Company desires to amend the Rights Agreement in accordance with Section 27 thereof;

 

WHEREAS, the Company, PNG Acquisition Company Inc., a Delaware corporation (“Parent”) and PNG Merger Sub Inc., a Pennsylvania corporation and wholly owned subsidiary of Parent (“Merger Sub”) have entered into an Agreement and Plan of Merger, dated as of June 15, 2007 (as amended and supplemented from time to time, the “Merger Agreement”), pursuant to which Merger Sub will merge with and into the Company (the “Merger”), with the Company as the surviving entity in the Merger; and

 

WHEREAS, at a special meeting of the Board of Directors of the Company held on June 15, 2007, the Board approved the amendment of the Rights Agreement as set forth herein.

 

NOW, THEREFORE, in consideration of the foregoing and the mutual agreements set forth in the Rights Agreement and herein, the parties hereto agree as follows:

 

A G R E E M E N T

 

1.             Amendment of the Definition of “Acquiring Person”.  Section 1.1 of the Rights Agreement is hereby amended by adding the following sentence to the end thereof:

 

“The foregoing or any provision to the contrary in this Agreement notwithstanding, none of Fortress Investment Group LLC (“Fortress”), Centerbridge Partners, L.P. (“Centerbridge”), PNG Holdings LLC, a Delaware limited liability company (“Holdings”), PNG Acquisition Company Inc., a Delaware corporation and wholly owned subsidiary of Holdings (“Parent”) or PNG Merger Sub Inc., a Pennsylvania corporation and wholly owned subsidiary of Parent (“Merger Sub”) is, nor are any of their Affiliates and Associates, nor shall any of Fortress, Centerbridge, Holdings, Parent or Merger Sub or their respective Affiliates or Associates be deemed to be, an Acquiring Person to the extent each is a Beneficial Owner as result of (i) the approval, execution or delivery of that certain Agreement and Plan of Merger, dated as of June 15, 2007, between the Company, Parent and Merger Sub (as it may be amended and supplemented from time to time, the “Merger Agreement”) or (ii) the

 



 

consummation of the Merger (as defined in the Merger Agreement) or any other transaction contemplated by the Merger Agreement.”

 

2.             Amendment of the Definition of “Adverse Person”.  Section 11.1.1.4 of the Rights Agreement is hereby amended by adding the following sentence to the end thereof:

 

“The foregoing or any provision to the contrary in this Agreement notwithstanding, none of Fortress, Centerbridge, Holdings, Parent or Merger Sub is, nor are any of their Affiliates and Associates, nor shall any of Fortress, Centerbridge, Holdings, Parent or Merger Sub or their respective Affiliates or Associates be deemed to be, an Adverse Person to the extent each is a Beneficial Owner as result of (i) the approval, execution or delivery of the Merger Agreement or (ii) the consummation of the Merger (as defined in the Merger Agreement) or any other transaction contemplated by the Merger Agreement.”

 

3.             Amendment of Section 20.  Section 20 of the Rights Agreement is hereby amended by adding a new Section 20.12 to the end thereof to read in its entirety as follows:

 

“The Rights Agent shall not be subject to, nor be required to comply with, or determine if any person or entity has complied with, the Merger Agreement or any other agreement between or among the parties to the Merger Agreement, even though reference to the Merger Agreement may be made in this Amendment, or to comply with any notice, instruction, direction, request or other communication, paper or document other than as expressly set forth in this Amendment and in the Rights Agreement.”

 

THIS AMENDMENT NO. 1 (this “Amendment”),
dated as of June 15, 2007, to the Rights Agreement, dated as of March 2,
1999 (the “Rights Agreement”) between Penn National Gaming, Inc., a
Pennsylvania corporation (the “Company”) and Continental Stock Transfer and
Trust Company, a New York corporation (the “Rights Agent”).



 



R E C I T A L S



 



WHEREAS, the Company and the Rights Agent have
heretofore executed and entered into the Rights Agreement;



 



WHEREAS, the Company desires to amend the Rights
Agreement in accordance with Section 27 thereof;



 



WHEREAS, the Company, PNG Acquisition Company Inc.,
a Delaware corporation (“Parent”) and PNG Merger Sub Inc., a Pennsylvania
corporation and wholly owned subsidiary of Parent (“Merger Sub”) have entered
into an Agreement and Plan of Merger, dated as of June 15, 2007 (as
amended and supplemented from time to time, the “Merger Agreement”), pursuant
to which Merger Sub will merge with and into the Company (the “Merger”), with the
Company as the surviving entity in the Merger; and



 



WHEREAS, at a special meeting of the Board of Directors
of the Company held on June 15, 2007, the Board approved the amendment of
the Rights Agreement as set forth herein.



 



NOW, THEREFORE, in consideration of the foregoing
and the mutual agreements set forth in the Rights Agreement and herein, the
parties hereto agree as follows:



 



A G R E E M E N T



 



1.             Amendment
of the Definition of “Acquiring Person”
.  Section 1.1 of the Rights Agreement is
hereby amended by adding the following sentence to the end thereof:



 



“The foregoing or any
provision to the contrary in this Agreement notwithstanding, none of Fortress
Investment Group LLC (“Fortress”), Centerbridge Partners, L.P. (“Centerbridge”),
PNG Holdings LLC, a Delaware limited liability company (“Holdings”), PNG
Acquisition Company Inc., a Delaware corporation and wholly owned subsidiary of
Holdings (“Parent”) or PNG Merger Sub Inc., a Pennsylvania corporation and
wholly owned subsidiary of Parent (“Merger Sub”) is, nor are any of their
Affiliates and Associates, nor shall any of Fortress, Centerbridge, Holdings,
Parent or Merger Sub or their respective Affiliates or Associates be deemed to
be, an Acquiring Person to the extent each is a Beneficial Owner as result of (i) the
approval, execution or delivery of that certain Agreement and Plan of Merger,
dated as of June 15, 2007, between the Company, Parent and Merger Sub (as
it may be amended and supplemented from time to time, the “Merger Agreement”)
or (ii) the



 
















 



consummation of the Merger
(as defined in the Merger Agreement) or any other transaction contemplated by
the Merger Agreement.”



 



2.             Amendment
of the Definition of “Adverse Person”
.  Section 11.1.1.4 of the Rights Agreement
is hereby amended by adding the following sentence to the end thereof:



 



“The foregoing or any
provision to the contrary in this Agreement notwithstanding, none of Fortress,
Centerbridge, Holdings, Parent or Merger Sub is, nor are any of their
Affiliates and Associates, nor shall any of Fortress, Centerbridge, Holdings,
Parent or Merger Sub or their respective Affiliates or Associates be deemed to
be, an Adverse Person to the extent each is a Beneficial Owner as result of (i) the
approval, execution or delivery of the Merger Agreement or (ii) the
consummation of the Merger (as defined in the Merger Agreement) or any other
transaction contemplated by the Merger Agreement.”



 



3.             Amendment
of Section 20
.  Section 20
of the Rights Agreement is hereby amended by adding a new Section 20.12 to
the end thereof to read in its entirety as follows:



 



“The Rights Agent shall not
be subject to, nor be required to comply with, or determine if any person or
entity has complied with, the Merger Agreement or any other agreement between
or among the parties to the Merger Agreement, even though reference to the
Merger Agreement may be made in this Amendment, or to comply with any notice,
instruction, direction, request or other communication, paper or document other
than as expressly set forth in this Amendment and in the Rights Agreement.”



 



This excerpt taken from the PENN DEF 14A filed Apr 30, 2007.

Section 9.1   Amendment

The Board reserves the right at any time or times to modify, alter or amend, in whole or in part, any or all of the provisions of the Plan to any extent and in any manner that it may deem advisable, and no consent or approval by the shareholders of the Company or by any other person, committee or entity of any kind shall be required to make any modification, alteration or amendment; provided, however, that the Board shall not, without the requisite affirmative approval of the shareholders of the Company, make any modification, alteration or amendment that requires shareholders’ approval under any applicable law, the Internal Revenue Code or stock exchange requirements and shall not make any modification, alteration or amendment to the provisions of Articles III and IV regarding the number of Options that are issued to Directors. No modification, alteration or amendment of the Plan may, without the consent of the Optionee (or the Optionee’s Beneficiaries in case of the Optionee’s death) to whom any Option shall theretofore have been granted under the Plan, adversely affect any right of such Optionee under such Option, except in accordance with the provisions of the Plan and/or any Option Agreement applicable to any such Option. Subject to the provisions of this Section 9.1, any modification, alteration or amendment of any provisions of the Plan may be made retroactively. Except as otherwise provided in Section 4.1 hereof, neither the Committee nor the Board shall reduce the exercise price of Stock Options previously awarded to any participant, whether through amendment, cancellation or replacement grant, or any other means, without the requisite prior affirmative approval of the shareholders of the Company.

This excerpt taken from the PENN 8-K filed Sep 21, 2006.
AMENDMENT, dated as of September 18, 2006 (this “Amendment ), to (a) the Credit Agreement dated as of October 3, 2005 the (“Credit Agreement”), among PENN NATIONAL GAMING, INC. (the “Borrower”), the subsidiary guarantors party thereto from time to time (the “Guarantors” and, together with the Borrower, the “Pledgors”), the lenders from time to time party thereto (the “Lenders”), the L/C Lenders party thereto, DEUTSCHE BANK SECURITIES INC., GOLDMAN SACHS CREDIT PARTNERS L.P. and LEHMAN BROTHERS INC., as joint lead arrangers and joint bookrunners (in such capacities, together with their respective successors in such capacities, “Lead Arrangers”), GOLDMAN SACHS CREDIT PARTNERS L.P. and LEHMAN COMMERCIAL PAPER INC., as co-syndication agents (in such capacities, together with their respective successors in such capacities, “Co-syndication Agents”), DEUTSCHE BANK TRUST COMPANY AMERICAS, as swingline lender (in such capacity, together with its successors in such capacity, “Swingline Lender”),  as administrative agent (in such capacity, together with its successors in such capacity, “Administrative Agent”) and as collateral agent (in such capacity, together with its successors in such capacity, “Collateral Agent”), and CALYON NEW YORK BRANCH, WELLS FARGO BANK, NATIONAL ASSOCIATION and BANK OF SCOTLAND as co-documentation agents (in such capacities, together with their respective successors in such capacities, “Co-Documentation Agents”), (b) the Security Agreement dated as of October 3, 2005 among the Pledgors and the Collateral Agreement (the “Security Agreement”), (c) each Ship Mortgage (as defined in the Credit Agreement) entered into by any Pledgors (as defined in the Credit Agreement) and (d) each Mortgage (as defined in the Credit Agreement) entered into by any Pledgors.

A.            Pursuant to the Credit Agreement, the Lenders have extended credit to the Borrower pursuant to the terms and subject to the conditions set forth therein.

B.            The Borrower has requested that the Required Lenders agree, subject to the conditions and terms set forth in this Amendment, to amend the Credit Agreement, as set forth below.

C.            The Required Lenders are willing to amend the Credit Agreement pursuant to the terms and subject to the conditions set forth herein.

D.            Pursuant to the Security Agreement, the Pledgors have granted the Lenders a security interest in the Pledged Collateral (as defined in the Security Agreement).

E.             The Pledgors have requested that the Collateral Agent and the Required Lenders agree, subject to the conditions and terms set forth in the Amendment, to amend the Security Agreement as set forth below.

F.             The Collateral Agent and the Required Lenders are willing to amend the Security Agreement pursuant to the terms and subject to the conditions set forth herein.

G.            Capitalized terms used but not defined herein have the meanings assigned to them in the Credit Agreement or the Security Agreement, as applicable.

Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, and subject to the conditions set forth herein, the parties hereto hereby agree as follows:




SECTION 1.              Amendment to Section 2.01(d) of the Credit Agreement.  The first sentence of Section 2.01(d) of the Credit Agreement is hereby deleted in its entirety and replaced with the following:

“No more than twenty-five separate Interest Periods in respect of LIBOR Loans may be outstanding at any one time.”

These excerpts taken from the PENN 8-K filed Oct 4, 2005.
Amendment”), unless (A) such changes would have, in the aggregate, an ACBR Material Adverse Effect, in which case the parties hereto shall not be required to execute an Amendment, or (B) if the FTC requests or requires any change to this Agreement that would adversely affect the economics of the transactions contemplated by this Agreement, in which case the party whose economics would be adversely affected (the “
amendment shall have meanings correlative to the foregoing; (ii) in the computation of periods of time from a specified date to a later specified date, “
This excerpt taken from the PENN 8-K filed Jun 22, 2005.
Amendment”), unless (A) such changes would have, in the aggregate, an ACBR Material Adverse Effect, in which case the parties hereto shall not be required to execute an Amendment, or (B) if the FTC requests or requires any change to this Agreement or the Securities Purchase Agreement that would adversely affect the economics of the transactions contemplated by this Agreement and the Securities Purchase Agreement, in which case the party whose economics would be adversely affected (the “
This excerpt taken from the PENN 8-K filed Apr 8, 2005.
Amendment.  This Amendment is an amendment to and shall be deemed an integral part of the Lease except to the extent to which the provisions of this Amendment modify the provisions of the Lease.  The provisions of the Lease shall remain in full force and effect.

 

3.              

These excerpts taken from the PENN 10-K filed Mar 30, 2005.
Amendment.  This Agreement is an amendment to and shall be deemed an integral part of the Lease except to the extent to which the provisions of this Agreement modify the provisions of the Lease. The provisions of the Lease shall remain in full force and effect.

 

3.                                      

Amendment.  This Amendment is an amendment to and shall be deemed an integral part of the Lease except to the extent to which the provisions of this Amendment modify the provisions of the Lease.  The provisions of the Lease shall remain in full force and effect.

 

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