Exhibit 4.15
$120,000,000
13% Senior Subordinated Notes due 2009
of
Showboat, Inc.
Company
Ocean Showboat, Inc.
Atlantic City Showboat, Inc.
Showboat Operating Company
Guarantors
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FIRST SUPPLEMENTAL INDENTURE
Dated as of May 28, 1998
To
INDENTURE
Dated as of August 10, 1994
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Marine Midland Bank
As Trustee
This FIRST SUPPLEMENTAL INDENTURE, dated as of May 28, 1998 (this
"Supplemental Indenture"), to the Indenture (as defined below) is by and between
MARINE MIDLAND BANK, as Trustee (the "Trustee"), and SHOWBOAT, INC., a Nevada
corporation (the "Company") and OCEAN SHOWBOAT, INC, a New Jersey corporation,
ATLANTIC CITY SHOWBOAT, INC. a New Jersey corporation, and SHOWBOAT OPERATING
COMPANY, a Nevada corporation (collectively, the "Guarantors").
RECITALS
A. The Company and the Guarantors are a party to that certain
Indenture dated as of August 10, 1994 (the "Indenture"), pursuant to which the
Company's 13% Senior Subordinated Notes due 2009 (the "Notes") were originally
issued.
B. Section 9.02 of the Indenture provides that, with the consent of
at least a majority in principal amount of the outstanding Notes, the Company
and the Trustee may amend the Indenture and the Notes as set forth below,
subject to the provisions of Sections 6.04 and 6.07 thereof.
C. Pursuant to an Agreement and Plan of Merger, dated as of December
18, 1997, by and between the Company. Xxxxxx'x Entertainment, Inc., a Delaware
corporation ("Xxxxxx'x"), HEI Acquisition Corp., a Delaware corporation and an
indirect, wholly owned subsidiary of Xxxxxx'x ("HEI"), subject to certain
conditions, HEI will be merged with and into the Company (the "Merger"), with
the Company being the surviving corporation in the Merger and as a result
thereof, the Company will become an indirect, wholly owned subsidiary of
Xxxxxx'x.
D. In connection with the Merger, Xxxxxx'x Operating Company, Inc.,
a Delaware corporation and a wholly owned subsidiary of Xxxxxx'x ("HOC"), has
offered to purchase any and all of the Notes for cash, upon the terms and
subject to the conditions set forth in that certain Offer to Purchase and
Consent Solicitation Statement dated May 13, 1998 and accompanying Letter of
Transmittal and Consent as supplemented (collectively, the "Offer to Purchase").
E. Under the terms of the Offer to Purchase) holders that tender
Notes in accordance with the terms of the Offer to Purchase and who deliver a
duly executed Letter of Transmittal and Consent are deemed to consent to certain
amendments to the Indenture which would permanently delete or amend certain of
the covenants, events of default and other related provisions of the Indenture
(the "Proposed Amendments").
F. In accordance with the terms of the Indenture, holders of in
excess of a majority in principal amount of the Notes have tendered their Notes
and consented to the Proposed Amendments to be effected by this Supplemental
Indenture.
G. The Company has authorized the execution and delivery of this
Supplemental Indenture and the Trustee has received an Opinion of Counsel
pursuant to Sections 9.06 and 12.04 of the Indenture and an Officers'
Certificate of the Company pursuant to Sections 9.06 and 12.04 of the Indenture,
and therefore the Company and the Trustee are authorized to execute and deliver
this Supplemental Indenture.
H. All other conditions precedent and requirements necessary to
make this Supplemental Indenture when duly executed and delivered, a valid and
binding agreement, enforceable in accordance with its terms (subject to the
provisions of this Supplemental Indenture becoming operative as provided in
Section 2 below), have been performed and fulfilled.
NOW, THEREFORE, the parties hereto agree as follows (defined terms
used herein and not otherwise defined herein shall have the meanings ascribed to
them in the indenture):
1. Amendments to Indenture.
1.1 Deletions.
(a) The text contained in each of the following Sections of the
Indenture is hereby deleted in its entirety and replaced, in each case, with
"Intentionally omitted."
Section 4.05 (Taxes); Section 4.06 (Stay, Extension and Usury
Laws); Section 4.07 (Restricted Payments); Section 4.08
(Dividend and Other Payment Restrictions Affecting
Subsidiaries), Section 4.09 (Incurrence of Indebtedness and
Issuance of Disqualified Stock), Section 4.10 (Asset Sales);
Section 4.11 (Transactions With Affiliates); Section 4.12
(Liens); Section 4.13 (Additional Subsidiary Guarantees);
Section 4.14 (Redesignation of Non-Recourse Subsidiary);
Section 4.15 (Offer to Purchase upon Change of Control);
Section 4.16 (Corporate Existence); Section 4.17 (Line of
Business); Section 4.18 (No Senior Subordinated Indebtedness);
Section 4.19 (Escrow Agent).
1.2 Amendments. The following Sections of the Indenture are hereby amended
as set forth below:
1.2.1 Section 4.03. Reports. Section 4.03 of the Indenture is hereby
amended to read in its entirety as follows' "The Company shall at all times
comply with TIA Section 314(a)."
1.2.2 Section 4.04. Compliance Certificate. Section 4.03 of the
Indenture is hereby amended by. deleting "(including with respect to any
Restricted Payments made during such year, the basis upon which the calculations
required by Section 4.07 were computed, which calculations may be based on the
Company's latest available financial statements)" from clause (a), and deleting
clauses (b) and (c) and replacing them with "(b) Intentionally omitted."
1.2.3 Section 5.01. Merger. Consolidation or Sale of Assets. Section
5.01 of the Indenture is hereby amended by deleting the text contained in clause
(a)(iv) and replacing it with "Intentionally omitted;" deleting the text
contained in clause (a)(v) and replacing it with "Intentionally omitted," and
deleting the text contained in clause (a)(vi) and replacing it with
"Intentionally omitted."
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1.2.4 Section 6.01. Events of Default. Section 601 of the Indenture
is hereby amended by deleting the text contained in clauses (e), (f) and (g)
and, in each case, replacing such deleted text with "Intentionally omitted;".
1.2.5 Section 1.01. Definitions. All definitions set forth in
Section 1.01 of the Indenture that relate to defined terms used solely in
sections deleted hereby are deleted in their entirety.
2. Confirmations Effectiveness. As amended by this Supplemental Indenture, the
Indenture and the Notes are ratified and confirmed in all respects and the
Indenture as so amended shall be read, taken and construed as one and the same
instrument. The provisions of this Supplemental Indenture shall become operative
only upon the Acceptance Date, as defined in the Offer to Purchase. This
Supplemental Indenture may be executed in any number of counterparts, each of
which counterparts together shall constitute but one and the same instrument.
3. Trust Indenture Act. If and to the extent that any provision of this
Supplemental Indenture limits, qualifies or conflicts with another provision
included in this Supplemental Indenture or in the Indenture, which is required
to be included in this Supplemental Indenture or the Indenture by the Trust
Indenture Act of 1939, as amended (the "TIA"), such required provision of the
TIA shall control.
4. Exchanged Notes. Pursuant to Section 9.05 of the Indenture, all Notes
authenticated and delivered after the date hereof in exchange for or in lieu of
any Notes theretofore issued shall have imprinted or stamped thereon a legend in
substantially the following form:
"The Indenture has been amended pursuant to a First
Supplemental Indenture dated as of May 27, 1998, copies of
which are available from the Company or the Trustee."
5. Governing Law. This Supplemental Indenture shall be deemed governed by, and
construed in accordance with, the internal laws of the State of New York, but
without giving effect to applicable principles of conflicts of law thereof to
the extent that the application of the laws of another jurisdiction would be
required thereby.
6. Rights of Trustee Without limiting any other protections or rights afforded
the Trustee at Law, by contract or otherwise, the Trustee will be entitled to
the full benefits afforded by Sections 7.02 and 7.03 of the Indenture in
connections with its execution and delivery of this Supplemental Indenture. The
Trustee shall not be responsible in any manner whatsoever for or in respect of
the validity and 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.
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IN WITNESS WHEREOF, the parties have caused this Supplemental
Indenture to be duly executed as of the date first written above.
SHOWBOAT, INC.,
a Nevada corporation
By: /s/ X. X. Xxxxxxxx XXX
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Name: X. Xxxx Xxxxxxxx III
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Title: President & Chief Executive Officer
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MARINE MIDLAND BANK
as Trustee
By:
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Name:
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Title:
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OCEAN SHOWBOAT, INC.
a New Jersey corporation
By: /s/ X. X. Xxxxxxxx XXX
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Name: X. Xxxx Xxxxxxxx III
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Title: President & Chief Executive Officer
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ATLANTIC CITY SHOWBOAT, INC.
a New Jersey corporation
By: /s/ X. X. Xxxxxxxx III
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Name: X. Xxxx Xxxxxxxx III
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Title: Chairman of the Board
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SHOWBOAT OPERATING COMPANY
a Nevada corporation
By: /s/ X. X. Xxxxxxxx III
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Name: X. Xxxx Xxxxxxxx III
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Title: Vice Chairman
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