EXHIBIT (4)(c)(10)
EXECUTION COPY
RESORTS INTERNATIONAL HOTEL FINANCING, INC.
$35,000,000
11 % Junior Mortgage Notes Due 2004
____________________________________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of March 5, 1997
______________________________________________
Resorts International Hotel, Inc., as Guarantor
U.S. Trust Company of California, N.A., as Trustee
FIRST SUPPLEMENTAL INDENTURE, dated as of March 5,
1997 (this "First Supplemental Indenture"), among Resorts
International Hotel Financing, Inc., as issuer (the
"Company"), Resorts International Hotel, Inc., as guarantor
(the "Guarantor"), and U.S. Trust Company of California,
N.A., as trustee (the "Trustee").
Capitalized terms used herein but not otherwise
defined herein shall have the meanings given to such terms
in the Indenture, dated as of May 3, 1994, among the
Company, the Guarantor and the Trustee (the "Indenture").
Recitals
WHEREAS, the Company, the Guarantor and the
Trustee entered into the Indenture pursuant to which the
Company issued its 11 % Junior Mortgage Notes Due 2004 (the
"Securities");
WHEREAS, in connection with the Indenture, (i) the
Guarantor and the Company entered into a Mortgage, dated as
of May 3, 1994, and an Assignment of Leases and Rents, dated
as of May 3, 1994, (ii) the Company, the Guarantor and the
Trustee entered into an Assignment of Agreements, dated as
of May 3, 1994 (the "Assignment"), and (iii) the Guarantor
and the Trustee entered into a Mortgage, dated as of May 3,
1994 (collectively, the "Security Documents");
WHEREAS, the Company has caused to be delivered to
the holders of the Securities an Offer to Purchase and
Consent Solicitation Statement, dated February 7, 1997 (as
the same may be amended from time to time, the "Statement"),
and a related Consent and Letter of Transmittal, pursuant to
which (i) the Company has offered to purchase for cash all
of the outstanding Securities (such offer on the terms set
forth in the Statement and such Consent and Letter of
Transmittal, the "Offer") and (ii) the Company has solicited
consents to the execution and delivery of this First
Supplemental Indenture;
WHEREAS, Section 11.02 of the Indenture provides
that the Company, the Guarantor and the Trustee may amend or
supplement the Indenture and the Securities and enter into
certain transactions with the consent of the holders of not
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less than 66 % in Outstanding Amount of the Securities then
Outstanding (the "Requisite Holders"), subject to
paragraphs (a), (b), (c), (d) and (e) thereof;
WHEREAS, the Company has received the consents of
the Requisite Holders to the execution and delivery of this
First Supplemental Indenture;
WHEREAS, all actions necessary to make this First
Supplemental Indenture a legal, valid and binding obligation
of the parties hereto in accordance with its terms and the
terms of the Indenture have been performed; and
WHEREAS, the Company, the Guarantor and the
Trustee desire to enter into, execute and deliver this First
Supplemental Indenture in compliance with the provisions of
the Indenture.
NOW, THEREFORE, the Company and the Guarantor do
hereby covenant and agree to and with the Trustee, for the
Ratable Benefit of Holders of the Securities, as follows.
ARTICLE ONE
AMENDMENTS TO INDENTURE
This First Supplemental Indenture to the Indenture
is hereby amended as follows:
1.1. Amendment of Article One. Article One
("Definitions and Other Provisions of General Application")
of the Indenture is hereby amended by deleting from
Section 1.01 ("Definitions") the definition of "Mortgage
Documents" in its entirety and inserting in lieu thereof the
following: ""Mortgage Documents" means the RIH Junior
Promissory Note.".
1.2 Amendment of Article Four. Article Four
("Guaranty") of the Indenture is hereby amended by deleting
in its entirety Section 4.03 ("Mortgage Securing Guaranty")
and inserting in lieu thereof the following:
"[intentionally omitted]".
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1.3 Amendment of Article Six. Article Six
("Security") of the Indenture is hereby amended by deleting
in their entirety Sections 6.01 ("Assignment Agreement"),
6.02 ("Recording, Etc."), 6.03 ("Custody of Mortgage
Documents") and 6.04 ("Suits to Protect the Trust Estate and
Mortgage Documents"), and inserting in each case in lieu
thereof the following: "[intentionally omitted]".
1.4 Amendment of Article Seven. Article Seven
("Remedies") of the Indenture is hereby amended by deleting
paragraph (c) of Section 7.01 ("Events of Default") thereof
in its entirety and inserting in lieu thereof the following:
"[intentionally omitted]".
1.5 Amendment of Article Ten. Article Ten
("Consolidation, Merger, Conveyance, Transfer or Lease") of
the Indenture is hereby amended by deleting in their
entirety Sections 10.01 ("Consolidation, Merger, Conveyance
or Transfer Only on Certain Terms") and 10.04 ("Limitation
on Sales of Trust Estate"), and inserting in each case in
lieu thereof the following: "[intentionally omitted]".
1.6. Amendment of Article Twelve.
(a) Article Twelve ("Covenants") of the Indenture is hereby
amended by deleting in their entirety Sections 12.05 ("To
Keep Books; Inspection by Trustee"), 12.07 ("Limitation on
Dividends and Restricted Payments"), 12.08 ("Limitation on
Additional Indebtedness and Issuance of Notes"), 12.09
("Limitation on Repayment of Subordinated Indebtedness"),
12.10 ("Limitation on Certain Transactions"), 12.11
("Restriction of Activities"), 12.12 ("Limitation on
Subsidiaries; Consolidated Group"), 12.13 ("Limitations on
Liens"), 12.16 ("Maintenance of Properties"), 12.17
("Insurance"), 12.20 ("Validity of Liens"), 12.21
("Transactions with Stockholders and Affiliates") and 12.22
("Limitation on Open Market Purchases"), and inserting in
each case in lieu thereof the following: "[intentionally
omitted]".
(b) Article Twelve ("Covenants") of the Indenture
is hereby further amended by deleting paragraphs (a), (b)
and (e) of Section 12.06 ("Reports and Compliance
Certificates") thereof in their entirety and inserting in
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each case in lieu thereof the following: "[intentionally
omitted]".
ARTICLE TWO
SECURITY DOCUMENTS
2.1. Obligations. The parties hereto hereby
agree that all obligations, liabilities, covenants and
agreements of each of the parties hereto under or in
connection with the Security Documents are hereby terminated
and canceled and are of no further force or effect.
2.2. Release. The parties hereto do hereby
release and discharge any and all right, title and interest
that they may have or that they may be entitled to by virtue
of the Security Documents and do hereby declare any and all
liens created by virtue of the Security Documents fully
released and discharged.
2.3. Consent. In satisfaction of Section 1.02(d)
of the Assignment, the Trustee hereby consents to and
approves of the release and discharge by the Company of any
and all of its right, title and interest that it may have or
that it may be entitled to by virtue of the Assignment in
the Assigned Properties (as defined in the Assignment).
2.4. Filings. (a) Upon the execution of this
First Supplemental Indenture, the Company or the Guarantor,
as the case may be, shall provide written notice to the
other parties hereto of any Uniform Commercial Code
termination statements, irrevocable stock powers, mortgage
release documents or other instruments or documents
(collectively, the "Filing Documents") that the Company or
the Guarantor, as the case may be, will require, in its sole
discretion, in order to release and discharge any right,
title or interest that any party hereto may have or that it
may be entitled to by virtue of the Security Documents.
(b) Upon the effectiveness of this First
Supplemental Indenture pursuant to Section 3.4 hereof, the
parties hereto shall deliver the Filing Documents, duly
executed and validly authorized, to the Company or the
Guarantor, as the case may be.
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ARTICLE THREE
MISCELLANEOUS
3.1 Acceptance by Trustee. The Trustee accepts
the amendments to the Indenture effected by this First
Supplemental Indenture and agrees to execute the trusts
created by the Indenture as hereby amended, but only upon
the terms and conditions set forth in the Indenture.
3.2 Trustee's Disclaimer. The Trustee shall not
be responsible for and makes no representation as to the
validity or adequacy of this First Supplemental Indenture or
the Securities, and it shall not be responsible for any
statement of the Company in this First Supplemental
Indenture or any document issued in connection with the
Offer.
3.3 Ratification. Except as hereby expressly
amended, the Indenture and the Securities issued thereunder
are in all respects ratified and confirmed and all the
terms, conditions and provisions thereof shall remain in
full force and effect. This First Supplemental Indenture
shall form a part of the Indenture and the First
Supplemental Indenture and the Indenture shall be read,
taken and construed as one and the same instrument for all
purposes, and every Holder of Securities heretofore or
hereafter authenticated and delivered under the Indenture
shall be bound hereby.
3.4 Effectiveness. This First Supplemental
Indenture shall become effective as of the date first above
written; provided, however, that the provisions of Article
One and Article Two (other than Section 2.4(a)) hereto shall
not become operative until the Offer is consummated on the
Payment Date.
3.5 Governing Law. This First Supplemental
Indenture shall be governed by, and construed in accordance
with, the laws of the State of New York, regardless of the
laws that might otherwise govern under applicable principles
of conflicts of law of the State of New York.
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3.6 Counterpart Originals. This instrument may
be executed in any number of counterparts or with
counterpart signatures, each of which as executed shall be
deemed to be an original, but all such counterparts shall
constitute one and the same instrument.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused
this First Supplemental Indenture to be duly executed and
attested, all as of the day and year first above written.
RESORTS INTERNATIONAL
HOTEL FINANCING, INC.
By: _____________________
Name:
Title:
(Corporate Seal)
Attest: _____________
RESORTS INTERNATIONAL
HOTEL, INC.
By: _____________________
Name:
Title:
(Corporate Seal)
Attest: ______________
U.S. TRUST COMPANY OF
CALIFORNIA, N.A.
By: _____________________
Name:
Title:
(Corporate Seal)
Attest: ________________
