Exhibit 4.5
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HARVEYS CASINO RESORTS,
Issuer
HARVEYS TAHOE MANAGEMENT COMPANY, INC.,
HARVEYS C.C. MANAGEMENT COMPANY, INC.,
HARVEYS IOWA MANAGEMENT COMPANY, INC. and
HARVEYS L.V. MANAGEMENT COMPANY, INC.,
as Guarantors
and
IBJ XXXXXXXX BANK & TRUST COMPANY,
Trustee
THIRD SUPPLEMENTAL INDENTURE
Dated as of December 24, 1998
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$150,000,000
10 5/8% SENIOR SUBORDINATED NOTES DUE 2006
Supplementing the Indenture Dated as of May 15, 1996 among Harveys Casino
Resorts, Issuer, Harveys C.C. Management Company, Inc., Harveys Wagon Wheel
Casino Limited Liability Company, Harveys Iowa Management Company, Inc. and
Harveys L.V. Management Company, Inc., as Guarantors, and IBJ Xxxxxxxx Bank &
Trust Company, Trustee, as amended and supplemented to date
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THIS THIRD SUPPLEMENTAL INDENTURE (the "Third Supplemental
Indenture"), dated as of December 24, 1998 among HARVEYS CASINO RESORTS, a
Nevada corporation (the "Issuer"), and HARVEYS TAHOE MANAGEMENT COMPANY, INC., a
Nevada corporation, HARVEYS C.C. MANAGEMENT COMPANY, INC., a Nevada corporation,
HARVEYS IOWA MANAGEMENT COMPANY, INC., a Nevada corporation and HARVEYS L.V.
MANAGEMENT COMPANY, INC., a Nevada corporation (the "Guarantors"), and IBJ
XXXXXXXX BANK & TRUST COMPANY, a New York banking corporation, as Trustee (the
"Trustee"), under the Indenture dated as of May 15, 1996 (the "Original
Indenture"), as amended and supplemented by a First Supplemental Indenture dated
as of June 5, 1996 (the "First Supplemental Indenture") and a Second
Supplemental Indenture dated as of May 22, 1997 (the "Second Supplemental
Indenture") (the Original Indenture as so amended and supplemented by the First
Supplemental Indenture and the Second Supplemental Indenture, the "Indenture").
W I T N E S S E T H :
WHEREAS, the Issuer has issued its 10 5/8% Senior Subordinated Notes
Due 2006 (the "Securities") pursuant to the Indenture;
WHEREAS, the Issuer has entered into an Agreement and Plan of Merger
dated as of February 1, 1998 with Harveys Acquisition Corporation, a Nevada
corporation ("HAC"), pursuant to which, subject to the terms and conditions
thereof, HAC would be merged with and into the Issuer, the Issuer to be the
surviving corporation (the "Merger");
WHEREAS, the Issuer has requested that the holders (the "Holders") of
the Securities waive one time the applicability to the Merger of section 8.1 of
the Indenture;
WHEREAS, the Issuer and the Guarantors wish to amend or waive certain
provision of the Indenture pursuant to section 7.2 thereof; and
WHEREAS, the Trustee has received evidence satisfactory to it of the
consent of the holders of not less than a majority of the aggregate principal
amount of the Securities outstanding to the waivers and amendments set forth
herein, pursuant to section 6.1 of the Indenture.
1
NOW, THEREFORE, intending to be legally bound hereby, the parties
agree as follows. Capitalized terms used herein and not otherwise defined shall
have the meanings assigned to them in the Indenture.
ARTICLE I
WAIVER
All Holders and every subsequent holder of the Securities shall be
bound by the following waiver of the Indenture and the Securities:
Such persons expressly waive the necessity of the compliance by
the Issuer with its obligations set forth in section 8.1 of the
Indenture in connection with, and solely for the facilitation of the
Merger of HAC, with and into the Issuer, the Issuer to be the
surviving corporation.
ARTICLE II
AMENDMENTS
The definition of "Consolidated Cash Flow" in Section 1.1 of the
Indenture is deleted in its entirety and replaced with the following:
"'Consolidated Cash Flow' means for any period, Consolidated Net
Income for such period after deducting therefrom an amount equal to
any extraordinary gain (to the extent such gain was included in
computing Consolidated Net Income) and after adding thereto (a) an
amount equal to any extraordinary loss plus any net loss realized in
connection with a sale, lease, conveyance, transfer or other
disposition of property or other assets (other than the disposition of
inventory in the ordinary course of business), to the extent such
losses were deducted in computing Consolidated Net Income, plus (b)
provision for taxes based on income or profits to the extent such
provision for taxes was included in computing Consolidated Net
Income, plus (c) consolidated interest expense of the Issuer and its
Restricted Subsidiaries for such period, whether paid or accrued
(including amortization of original
2
issue discount, non-cash interest payments, amortization of, deferred
financing charges and the interest component of capital lease
obligations), to the extent such expense was deducted in computing
Consolidated Net Income, plus (d) depreciation, amortization
(including amortization of goodwill and other intangibles) and other
non-cash charges (excluding any such non-cash charge that requires an
accrual of or reserve for cash charges for any future period and
excluding any such non-cash charge that is included in consolidated
interest expense or consolidated tax expense) of the Issuer and its
Restricted Subsidiaries for such period to the extent such
depreciation, amortization and other non-cash charges were deducted in
computing Consolidated Net Income, plus, (e) any capitalized
preopening expenses incurred in connection with the Harveys Kanesville
Queen Riverboat Gaming Facility and related landbased amenities which
were reflected in the Issuer's Consolidated Statement of Operations
for any period ending on or before December 31, 1996 to the extent
that any such expenses were deducted in computing Consolidated Net
Income, in each case, on a consolidated basis, determined in
accordance with GAAP, plus, (f) to the extent not included above (and
in any case without duplication), all charges and expenses (including,
without limitation, legal and investment banking fees and expenses and
severance and other payments to management and directors of Issuer)
incurred by Issuer in connection with the merger (the "Merger") of
Harveys Acquisition Corporation, a Nevada corporation ("HAC"), with
and into Issuer pursuant to the Agreement and Plan of Merger dated as
of February 1, 1998 by and between Issuer and HAC, the amendment and
restatement of the Credit Facility in connection with the Merger, any
issuance of preferred stock by Issuer for the purpose of providing
financing for the Merger, any offer to repurchase the Securities
required hereunder in connection with the Merger and any fees payable
to Holders in connection with the solicitation by Issuer of consents
of Holders pursuant to the Consent Solicitation Statement dated
November 16, 1998, as may be amended."
3
ARTICLE III
MISCELLANEOUS
Section 3.1 Except as amended hereby, all of the terms of the
Indenture shall remain and continue in full force and effect and are hereby
confirmed in all respects.
Section 3.2 This Third Supplemental Indenture and each and every
provision hereof shall be deemed to be a contract made under the laws of the
State of New York and for all purposes shall be construed in accordance with the
laws of such State.
Section 3.3 This Third 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 3.4 In entering into this Third Supplemental Indenture, the
Trustee shall be entitled to the benefit of every provision of the Indenture
relating to the conduct or affecting the liability of or affording protection to
the Trustee, whether or not elsewhere herein so provided.
[SIGNATURE PAGES FOLLOW]
4
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the date hereof.
HARVEYS CASINO RESORTS
By: /s/ Xxxx X. XxXxxxxxxx
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Name: Xxxx X. XxXxxxxxxx
Title: Sr. Vice President/CFO/Treasurer
IBJ XXXXXXXX BANK & TRUST COMPANY,
as Trustee
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
HARVEYS C.C. MANAGEMENT COMPANY, INC.
By: /s/ Xxxx X. XxXxxxxxxx
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Name: Xxxx X. XxXxxxxxxx
Title: Sr. Vice President/CFO/Treasurer
HARVEYS TAHOE MANAGEMENT COMPANY,
INC.
By: /s/ Xxxx X. XxXxxxxxxx
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Name: Xxxx X. XxXxxxxxxx
Title: Sr. Vice President/CFO/Treasurer
HARVEYS IOWA MANAGEMENT COMPANY, INC.
By: /s/ Xxxx X. XxXxxxxxxx
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Name: Xxxx X. XxXxxxxxxx
Title: Sr. Vice President/CFO/Treasurer
HARVEYS L.V. MANAGEMENT COMPANY, INC.
By: /s/ Xxxx X. XxXxxxxxxx
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Name: Xxxx X. XxXxxxxxxx
Title: Sr. Vice President/CFO/Treasurer
