EXHIBIT 4.4
SUPPLEMENTAL INDENTURE
THIS SUPPLEMENTAL INDENTURE (the "Supplement") is dated as of November 6,
1997, among Empress River Casino Finance Corporation, a Delaware corporation
(the "Company"), Empress Casino Joliet Corporation, f/k/a Empress River Casino
Corporation, an Illinois corporation ("Empress"), Empress Casino Hammond
Corporation, f/k/a Lake Michigan Charters, Ltd., an Indiana corporation
("Hammond Empress"), LMC Leasing, Ltd., a Delaware corporation ("Hammond
Leasing," and together with Empress Joliet and Empress Xxxxxxx, collectively
referred to herein as the "Guarantors"), First Trust National Association, a
national association, as Trustee, and New Empress Xxxxxxx, Inc., an Indiana
corporation ("New Hammond"). Except as otherwise defined herein, terms used in
this Supplement shall have the meanings assigned to them in the Indenture (as
defined below).
RECITALS
WHEREAS, the Company, the Guarantors and the Trustee are parties to that
certain Indenture dated as of April 1, 1994 (the "Indenture"), pursuant to which
the Company issued $150.0 million in 10.75% Senior Notes due 2002 (the "Notes");
and
WHEREAS, Section 10.1(1) of the Indenture permits the Company or any
Guarantor and the Trustee to enter into a supplemental indenture without the
consent of any holders of the Notes in order to cure ambiguities or
inconsistencies in the Indenture as long as such action does not adversely
affect the interest of any holder of the Notes in any respect; and
WHEREAS, the parties desire to cure certain ambiguities by entering into
this Supplement on the terms set forth below; and
WHEREAS, Section 10.1(3) of the Indenture permits the Company or any
Guarantor and the Trustee to enter into a supplemental indenture without the
consent of any holders of the Notes in order to provide for additional
Guarantors of the Securities; and
WHEREAS, New Xxxxxxx desires to become an Additional Guarantor under the
Indenture, as required by Section 5.22 of the Indenture;
NOW THEREFORE, in consideration of the mutual premises set forth herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
AGREEMENTS
1. STATUS OF INDENTURE. Except as specifically set forth herein, the Indenture
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and all related documents executed and delivered to the Trustee in connection
with the Indenture and the Company's and each Guarantor's liabilities thereunder
shall remain in full force and effect, and shall not be waived, modified,
superseded or otherwise affected by this Supplement. This Supplement is not to
be construed as a release, waiver or modification of any of the terms,
conditions, representations, warranties, covenants, rights or remedies set forth
in the Indenture and such other related documents, except as specifically set
forth herein.
2. SALE OF GUARANTOR. The definition of "Sale of a Guarantor" in Section 1.1
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of the Indenture is hereby deleted in its entirety and replaced with the
following:
"Sale of a Guarantor" means (i) any merger or consolidation of, or any
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sale, transfer or other conveyance, whether direct or indirect, of all or
substantially all of the assets of, any of Xxxxxxx Empress, Xxxxxxx
Leasing, or any Additional Guarantor in each case on a consolidated basis,
in one transaction or a series of related transactions; or (ii) during any
period of 12 consecutive months after the Issue Date, individuals who at
the beginning of any such 12-month period constituted the Board of
Directors of Xxxxxxx Empress, Xxxxxxx Leasing, or any Additional Guarantor
(together with any new directors whose election by such Board or whose
election by the stockholders of Xxxxxxx Empress, Xxxxxxx Leasing or such
Additional Guarantor was approved by a vote of a majority of the directors
then still in office who were either directors at the beginning of such
period or whose election or nomination for election was previously so
approved), cease for any reason to constitute a majority of the Board of
Directors of Xxxxxxx Empress, Xxxxxxx Leasing, or such Additional Guarantor
then in office, as applicable. Notwithstanding the foregoing, a Sale of a
Guarantor with respect to Xxxxxxx Empress, Xxxxxxx Leasing or any
Additional Guarantor shall not have been deemed to have occurred if
immediately after giving effect to the transaction giving rise to a Sale of
a Guarantor, (i) at least fifty-one percent (51%) of the outstanding
capital stock of the Guarantor which was a party to such transaction is
beneficially owned, directly or indirectly, by the Excluded Persons
immediately after the consummation of such transaction, (ii) a majority of
the members of the Board of Directors of such Guarantor prior to such Sale
of a Guarantor constitute at least a majority of the Board of Directors of
the surviving or transferee entity immediately after the consummation of
such transaction, and (iii) the Consolidated Net Worth of the Guarantor
which was a party to such transaction on a pro forma basis is at least
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equal to the Consolidated Net Worth of such Guarantor immediately prior to
such transaction.
3. BENEFICIAL OWNER. The definition of "beneficial owner" in Section 1.1 of
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the Indenture is hereby deleted in its entirety and replaced with the following:
"beneficial owner," for purposes of the definitions of Change of Control
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and Sale of a Guarantor, has the meaning attributed to it in Rules 13d-3
and 13d-5 under the Exchange Act, whether or not applicable, except that a
"person" shall be deemed to have "beneficial ownership" of all shares that
any such person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time.
4. ASSET SALE. The second paragraph of Section 5.14(a), beginning
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"Notwithstanding the foregoing provisions of the prior paragraph", is hereby
deleted in its entirety and replaced with the following:
"Notwithstanding the foregoing provisions of the prior paragraph, an Asset
Sale shall not be deemed to have occurred if:
(i) the Guarantors in the ordinary course of business and
consistent with past practice, convey, sell, leases, transfer, assign,
or otherwise dispose of assets acquired and held for resale in the
ordinary course of business;
(ii) Xxxxxxx Leasing leases the Empress III to Xxxxxxx
Empress, or if Xxxxxxx Empress fails to commence gaming operations,
leases the Empress III to a third party;
(iii) Xxxxxxx Leasing merges or consolidates into Xxxxxxx
Empress;
(iv) the Guarantors convey, sell, lease, transfer or
otherwise dispose of assets pursuant to and in accordance with the
provisions of Article VI;
(v) a Sale of a Guarantor is made in accordance with the
provisions of Section 5.20 or a transaction is excluded from the
definition of a Sale of a Guarantor; or
(vi) any amounts are paid, loaned, conveyed, assigned,
distributed or otherwise transferred by a Guarantor to one of its
wholly-owned Subsidiaries.
5. GUARANTY. New Xxxxxxx hereby agrees to guaranty, jointly and severally
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with the existing Guarantors and on a senior basis, the Company's obligation to
pay principal, premium and interest on the Securities on terms identical to
those contained in Article XIII of the Indenture, as if New Xxxxxxx had been an
original party to Article XIII of the Indenture, and in furtherance thereof
agrees to execute and deliver to the Trustee the form of Guaranty attached
hereto as Exhibit A.
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6. COUNTERPARTS. This Supplement may be executed in any number of
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counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Supplement as of
the date first above written.
EMPRESS RIVER CASINO FINANCE EMPRESS CASINO JOLIET
CORPORATION CORPORATION (f/k/a Empress River
Casino Corporation)
By:/s/ Xxxxx X. Xxxxx, Xx. By:/s/ Xxxxx X. Xxxxx, Xx.
--------------------------------- ----------------------------------
Name: Xxxxx X. Xxxxx, Xx. Name: Xxxxx X. Xxxxx, Xx.
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Title: Cheif Executive Officer Title: Cheif Executive Officer
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EMPRESS CASINO HAMMOND LMC LEASING, LTD.
CORPORATION (f/k/a Lake Michigan
Charters, Ltd.)
By:/s/ Xxxxx X. Xxxxx, Xx. By:/s/ Xxxxx X. Xxxxx, Xx.
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Name: Xxxxx X. Xxxxx, Xx. Name: Xxxxx X. Xxxxx, Xx.
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Title: Cheif Executive Officer Title: Cheif Executive Officer
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FIRST TRUST NATIONAL ASSOCIATION, NEW EMPRESS XXXXXXX, INC.
as Trustee
By:/s/ Xxxxxxx X Xxxxxxxx By:/s/ Xxxxx X. Xxxxx, Xx.
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Name: Xxxxxxx X Xxxxxxxx Name: Xxxxx X. Xxxxx, Xx.
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Title: Assistant Vice President Title: Cheif Executive Officer
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EXHIBIT A
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GUARANTY
For value received, ________________________, a _________________
corporation, hereby unconditionally guarantees to the Holder of the Security
upon which this Guaranty is endorsed the due and punctual payment, as set forth
in the Indenture pursuant to which such Security and this Guaranty were issued,
of the principal of, premium, if any, and interest on, such Security when and as
the same shall become due and payable for any reason according to the terms of
such Security and Article XIII of the Indenture. The Guaranty of the Security
upon which this Guaranty is endorsed will not become effective until the Trustee
signs the certificate of authentication on such Security.
___________________________________
By:________________________________
Attest:____________________________
