EXHIBIT 10.30
FIRST AMENDMENT TO IN PARI PASSU ASSIGNMENT OF
LEASES AND RENTS
This First Amendment (the "First Amendment") to the In Pari
Passu Assignment of Leases and Rents (the "Assignment") is made
as of the 14th day of July, 1997 by and between ATLANTIC CITY
SHOWBOAT, INC., a New Jersey corporation ("Assignor"), and FLEET
BANK, N.A. (formerly known as NATWEST BANK, N.A.), a national
banking association ("Assignee"). Terms used herein not otherwise
defined herein shall have the meanings set forth in the
Assignment.
RECITALS
WHEREAS, Assignor and Assignee entered into an In Pari Passu
Assignment of Leases and Rents dated as of July 14, 1995,
recorded in the Clerk's Office of Atlantic County, New Jersey on
September 14, 1995 in Mortgage Book 5702, Page 253 (the
"Assignment");
WHEREAS, the Assignment was executed and delivered by
Assignor to Assignee to secure the payment of that certain
Revolving Note (herein the "Promissory Note"), dated July 14,
1995, executed and delivered by Showboat, Inc. to Assignee, in
the maximum aggregate amount of $25,000,000;
WHEREAS, the Assignor has requested that the Promissory Note
be amended to provide for a maximum aggregate amount of
$35,000,000; and
WHEREAS, Assignee is willing to permit such amendment of the
Promissory Note as requested by Showboat, Inc.
NOW, THEREFORE, in consideration of good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. The definition of "Promissory Note" is hereby amended
to increase the principal amount thereof from $25,000,000.00 to
$35,000,000.00.
2 The definition of the "SBI Loan" is hereby amended to
increase the principal amount thereof from $25,000,000.00 to
$35,000,000.00.
3. All other terms and conditions of the Assignment are
hereby ratified and confirmed.
IN WITNESS WHEREOF, the Assignor and Assignee have caused this
instrument to be duly executed as of the 14th day of July, 1997.
ATLANTIC CITY SHOWBOAT, INC.
By: /s/ Xxxxxxxx Xxxxxxxxxx
Xxxxxxxx Xxxxxxxxxx
Vice President - Finance, Treasurer
and Chief Financial Officer
FLEET BANK, N.A.
By: /s Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Vice President
STATE OF NEW JERSEY :
: ss.
COUNTY OF ATLANTIC :
Be it remembered that on this 23rd day of October, 1997,
before me, the subscriber, in and for said county, personally
appeared Xxxxxxxx Xxxxxxxxxx, Vice President - Finance,
Treasurer and Chief Financial Officer of Atlantic City
Showboat, Inc., who I am satisfied is the person who signed the
within instrument, and she acknowledged that she signed and
delivered the same as such officer aforesaid, and that the
within instrument is the voluntary act and deed of such
corporation made by virtue of a Resolution of its Board of
Directors. And said Xxxxxxxx Xxxxxxxxxx did further certify and
acknowledge that she received a true, correct and complete copy
of the within instrument.
Witnesseth my hand and seal.
/s/ Xxxxxxx X. XxXxxxx
Notary Public
My Commission Expires: 5/6/98
STATE OF NEW JERSEY :
: ss.
COUNTY OF ATLANTIC :
Be it remembered, that on this 27th day of October, 1997,
before me, the subscriber, a Notary Public, personally appeared
Xxxx X. Xxxxxxxx, Vice President of FLEET BANK, N.A., who, I am
satisfied is the person(s) named in and who executed the within
instrument and he did acknowledge that he signed, sealed and
delivered the same as his act and deed on behalf of the Bank
and for the uses and purposes therein expressed.
Witnesseth my hand and seal.
/s/ Xxxxxxxx X. Xxxxxxxx
Notary Public
My Commission Expires: 3/31/98
SECOND AMENDMENT TO LEASEHOLD IN PARI PASSU MORTGAGE,
ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
This Second Amendment (the "Second Amendment") to the
Leasehold in Pari Passu Mortgage, Assignment of Rents and
Security Agreement (the "Mortgage") is made as of the 14th day of
July, 1997 by and between ATLANTIC CITY SHOWBOAT, INC., a New
Jersey Corporation ("Mortgagor"), whose address is 000 Xxxxxxxxx,
Xxxxxxxx Xxxx, Xxx Xxxxxx, 00000, and FLEET BANK, N.A. (formerly
known as NATWEST BANK, N.A.), a national banking association with
a business office at 00 Xxxxxxxx Xxxxx, Xxxxxx Xxxx, Xxx Xxxxxx,
00000 ("Mortgagee"). Terms used herein not otherwise defined
herein shall have the meanings set forth in the Mortgage.
RECITALS
WHEREAS, Mortgagor and Mortgagee entered into a Leasehold in
Pari Passu Mortgage, Assignment of Rents and Security Agreement
dated as of July 14, 1995, recorded in the Clerk's Office of
Atlantic County, New Jersey on September 14, 1995 in Mortgage
Book 5702, Page 152 (the "Mortgage") pursuant to which Mortgagor
granted to Mortgagee a security interest in all of the Mortgaged
Property; and
WHEREAS, the Mortgage was executed and delivered by
Mortgagor to Mortgagee to secure the payment of that certain
Revolving Note (herein the "Promissory Note"), dated July 14,
1995, executed and delivered by Showboat, Inc. to Mortgagee, in
the maximum aggregate amount of $25,000,000.00; and
WHEREAS, Mortgagor, Mortgagee and others have entered into
an Amendment to the Loan and Guaranty Agreement providing for an
increase in the amount available under the Loan Agreement from
$25,000,000 to $35,000,000 (the "Amendment"), and making other
changes in the terms of the loan; and
WHEREAS, pursuant to the Amendment, Showboat, Inc. has
executed and delivered to Mortgagee an Amendment to the
Promissory Note to be secured hereby.
NOW, THEREFORE, in consideration of good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. The definition of "Promissory Note" in the Mortgage is
hereby amended to read as follows:
"Promissory Note" means that certain Revolving
Note, dated July 14, 1995, between Borrower
and Mortgagee as amended by that certain
Modification to Revolving Note, dated as of
July 14, 1997, and as may be further amended
pursuant to the Loan Agreement, in the maximum
aggregate amount of $35,000,000.
2. All other terms and conditions of the Mortgage are
hereby ratified and confirmed.
IN WITNESS WHEREOF, the Mortgagor and Mortgagee have caused
this instrument to be duly executed as of the 14th day of July,
1997.
ATLANTIC CITY SHOWBOAT, INC.
By: /s/ Xxxxxxxx Xxxxxxxxxx
Xxxxxxxx Xxxxxxxxxx
Vice President - Finance, Treasurer
and Chief Financial Officer
FLEET BANK, N.A.
By: /s Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Vice President
STATE OF NEW JERSEY :
: ss.
COUNTY OF ATLANTIC :
Be it remembered that on this 23rd day of October, 1997,
before me, the subscriber, in and for said county, personally
appeared Xxxxxxxx Xxxxxxxxxx, Vice President - Finance,
Treasurer and Chief Financial Officer of Atlantic City
Showboat, Inc., who I am satisfied is the person who signed the
within instrument, and she acknowledged that she signed and
delivered the same as such officer aforesaid, and that the
within instrument is the voluntary act and deed of such
corporation made by virtue of a Resolution of its Board of
Directors. And said Xxxxxxxx Xxxxxxxxxx did further certify and
acknowledge that she received a true, correct and complete copy
of the within instrument.
Witnesseth my hand and seal.
/s/ Xxxxxxx X. XxXxxxx
Notary Public
My Commission Expires: 5/6/98
STATE OF NEW JERSEY :
: ss.
COUNTY OF ATLANTIC :
Be it remembered, that on this 27th day of October, 1997,
before me, the subscriber, a Notary Public, personally appeared
Xxxx X. Xxxxxxxx, Vice President of FLEET BANK, N.A., who, I am
satisfied is the person(s) named in and who executed the within
instrument and he did acknowledge that he signed, sealed and
delivered the same as his act and deed on behalf of the Bank
and for the uses and purposes therein expressed.
/s/ Xxxxxxxx X. Xxxxxxxx
Notary Public
My Commission Expires: 3/31/98
MODIFICATION TO LOAN AND GUARANTY AGREEMENT
This Modification to Loan and Guaranty Agreement is entered
into as of the 14th day of July, 1997, between and among FLEET
BANK, N.A., formerly known as NATWEST BANK, N.A., a national
banking association (hereinafter called "Lender"), with a
business address at 00 Xxxxxxxx Xxxxx, Xxxxxx Xxxx, Xxx Xxxxxx
00000, and SHOWBOAT, INC., a Nevada corporation with a business
address at 0000 Xxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000
(thereinafter called "Borrower"), and SHOWBOAT OPERATING COMPANY,
a Nevada corporation, OCEAN SHOWBOAT, INC., a New Jersey
corporation, and ATLANTIC CITY SHOWBOAT, INC., a New Jersey
corporation (the "Guarantors") having the addresses set forth on
the signature pages hereof.
WITNESSETH
WHEREAS, NatWest Bank, N.A., Borrower and Guarantors entered
into that certain Loan and Guaranty Agreement dated July 14, 1995
(herein, the "Agreement"); and
WHEREAS, the parties have agreed to modify the Agreement in
order to increase the amount of the credit facility from
$25,000,000.00 to $35,000,000.00, to extend the term thereof and
to make other modifications to the terms and conditions thereof
as more fully set forth herein.
NOW THEREFORE, in consideration of the covenants and
agreements herein contained, the parties hereto agree as follows:
1. DEFINITIONS.
(a) All capitalized terms not otherwise defined herein
shall have the meaning set forth in the Agreement.
(b) Effective as of July 14,1997, the following
definitions contained in Section 1 of the Agreement shall be
modified to read as set forth below:
"CAPITAL FUNDS" means the Stockholders' Equity of
the Borrower less on a consolidated basis the value on
the Borrower's books of all intangible assets other
than those related to Non-Recourse Debt plus the
Borrower's Subordinated Debt.
"CONVERSION DATE" means September 14,1999.
"LENDER" means Fleet Bank, N.A. (formerly known as
NatWest Bank, N.A.), its successors and assigns.
(c) The following definition shall be added to Section
1 of the Agreement, effective July 14, 1997:
"STOCKHOLDERS' EQUITY" means as at any date of
determination Borrower's Stockholders' Equity
determined according to GAAP.
2. AMENDMENT TO REVOLVING NOTE. Upon execution of this
Agreement, the parties shall execute an amendment to the
Revolving Note to increase the face amount thereof to
$35,000,000.00 and to reflect the change in the Conversion Date
referred to in paragraph 1 above.
3. TERM NOTE. The last sentence of Section 2.04(b) of the
Agreement is hereby modified to read as follows:
The Term Note shall mature on September 14, 2002.
4. REPRESENTATIONS AND WARRANTIES. In order to induce the
Lender to enter into this Modification and to make the Loans
provided for herein, each and every of the representations and
warranties made by Lender set forth in Sections 3.01 through 3.20
of the Agreement are hereby reaffirmed by the Borrower as if made
as of the date hereof.
5. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THE
MODIFICATION. The effectiveness of this modification is subject
to the following conditions precedent:
(a) CORPORATE DOCUMENTS OF THE BORROWER. At the time
of the effective date hereof (the "Effective Date"), the
Lender shall have received:
(i) a copy of the Borrower's Certificate of
Incorporation, certified as of a recent date by the
Secretary of State of its state of incorporation;
(ii) certificates of such Secretary of State,
dated as of a recent date as to the good standing of
and payment of taxes by the Borrower which lists the
charter documents on file in the office of such
Secretary of State;
(iii) a certificate dated as of a recent date
as to the good standing of the Borrower issued by the
Secretary of State of each jurisdiction in which the
Borrower is qualified as a foreign corporation; and
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(iv) a certificate of the Secretary of the
Borrower dated the Effective Date and certifying (A)
that attached thereto is a true and complete copy of
the by-laws of the Borrower as in effect on the date of
such certification, (B) that attached thereto is a true
and complete copy of resolutions adopted by the Board
of Directors of the Borrower authorizing the execution,
delivery and performance in accordance with their
respective terms of this Agreement and any other
documents required or contemplated hereunder or
thereunder, (C) that the certificate of incorporation
of the Borrower has not been amended since the date of
the last amendment thereto indicated on the certificate
of the Secretary of State furnished pursuant to clause
(i) above and (D) as to the incumbency and specimen
signature of each officer of the Borrower executing
this Agreement or any other document delivered by it in
connection herewith or therewith (such certificate to
contain a certification by another officer of the
Borrower as to the incumbency and signature of the
officer signing the certificate referred to in this
clause (iv)).
(b) CORPORATE DOCUMENTS OF OBLIGORS (OTHER THAN THE
BORROWER). At the time of the Effective Date, the Lender
shall have received for each Obligor (other than the
Borrower):
(i) a copy of such entity's certificate of
incorporation, certified as of a recent date by the
Secretary of State of the state of incorporation;
(ii) a certificate of each such Secretary of
State, dated as of a recent date as to the good
standing of and payment of taxes by such entity which
lists the charter documents on file in the office of
such Secretary of State;
(iii) a certificate dated as of a recent date
as to the good standing of such entity issued by the
Secretary of State of each jurisdiction in which such
entity is qualified as a foreign corporation; and
(iv) a certificate of the Secretary of such entity
dated the Effective Date and certifying (A) that
attached thereto is a true and complete copy of the
by-laws of such entity as in effect on the date of such
certification, (B) that attached thereto is a true and
complete copy of resolutions adopted by the Board of
Directors of such entity authorizing the execution,
delivery and performance in accordance with their
respective terms of this Agreement, and any other
documents required or contemplated hereunder or
thereunder, (C) that the certificate of incorporation
of such entity has not been amended
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since the date of the last amendment thereto indicated
on the certificate of the Secretary of State furnished
pursuant to clause (i) above and (D) as to the
incumbency and specimen signature of each officer of
such entity executing this Agreement or any other
document delivered by it in connection herewith or
therewith (such certificate to contain a certification
by another officer of such entity as to the incumbency
and signature of the officer signing the certificate
referred to in this clause (iv)).
(c) REVOLVING NOTE. On or before the effective date
hereof, the Lender shall have received a modification to the
Revolving Note, executed on behalf of the Borrower, dated
the date thereof.
(d) OPINIONS OF COUNSEL. The Lender shall have
received the favorable written opinion, dated the Effective
Date and addressed to the Lender of (i) Kummer, Kaempfer,
Xxxxxx & Xxxxxxx, counsel to the Obligors, and (ii) such
local counsel as the Lender may request regarding perfection
of the security interests, validity of the mortgage
modification and other similar matters.
(e) ERISA. The Lender shall have received copies of
all Plans of the Borrower and its Subsidiaries that are in
existence on the date hereof, and confirmation satisfactory
to the Lender that (i) none of the Plans has incurred any
"accumulated funding deficiency" (as defined in Section 302
of ERISA and Section 412 of the Code), (ii) no Reportable
Event has occurred as to any Plan, and (iii) no termination
of, or withdrawal from, any of the Plans has occurred or is
contemplated that would result in any liability on the part
of the Borrower or any of its Subsidiaries, if the
occurrence of any of the foregoing events could reasonably
be expected to have a Material Adverse Effect.
(f) MORTGAGES. Appropriate modifications of the Deed
of Trust covering the Las Vegas Showboat and of the Mortgage
covering the Atlantic City Showboat shall be duly executed
and delivered to Lender.
(g) INTERCREDITOR AGREEMENT. A modification to the
Intercreditor Agreements executed in connection with closing
under the Agreement shall have been executed and delivered
by each of the Lender, Borrower and the Trustee as to the
Atlantic City Showboat and by the Trustee and the Lender as
to the Las Vegas Showboat in form acceptable to the Lender
and in accordance with the Bond Indenture.
(h) TITLE INSURANCE, ETC. The Lender shall have
received as to the Atlantic City Showboat and the Las Vegas
Showboat legal, valid and binding
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commitments from a title insurance company reasonably
acceptable to the Lender, to issue a mortgage title
insurance policy in form and substance reasonably
satisfactory to the Lender in respect of the Mortgages as
modified showing that such Mortgages are valid first liens
subject only to Permitted Liens and that such fee or
leasehold interest in real property subject to the Mortgages
is owned by the Borrower or ACSI, respectively, free of
encumbrances other than Permitted Liens.
(i) SURVEYS ETC. Lender shall have received an
updated survey (certified in form and by surveyors
reasonably acceptable to Lender) relating to the Las Vegas
Showboat and the Atlantic City Showboat prepared in
accordance with ALTA standards indicating the absence of any
encroachments or other title defects or an affidavit or
other document sufficient to induce the Borrower's title
insurance company to remove the survey exception.
(j) FEDERAL RESERVE REGULATIONS. The Lender shall be
reasonably satisfied that the provisions of Regulations G,
T, U and X of the Board of Governors of the Federal Reserve
System will not be violated by the transactions contemplated
hereby.
(k) NO MATERIAL ADVERSE CHANGE. No change shall have
occurred with respect to the Borrower or any of its
Subsidiaries since the date of the most recent audited
financial statement delivered to the Lender of each such
Person having or as could reasonably be expected to have a
Material Adverse Effect.
(l) INSURANCE. The Borrower shall have furnished the
Lender with a summary of all existing insurance coverage and
evidence reasonably acceptable to the Lender that the
insurance policies required by Section 5.03 (a) and (b) of
the Agreement have been obtained and are in full force and
effect.
(m) UCC FINANCING STATEMENTS AND UCC SEARCHES, ETC.
The Lender shall have received, if necessary, in each case
in form satisfactory to it, (i) UCC financing statements
executed on behalf of the Obligor for filing in all
jurisdictions in which it shall be necessary or desirable to
make a filing in order to provide the Lender with a
perfected security interest in the Collateral and (ii) UCC
searches satisfactory to the Lender indicating that no other
filings with regard to the Collateral are of record in any
of such jurisdictions except in connection with Permitted
Liens and existing Liens listed on Schedule 6.05.
(n) OFFICERS' CERTIFICATE. The Lender shall have
received an appropriate officers' certificate executed by
the Chief Executive Officer and
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Senior Financial Officer of the Borrower similar to that
executed at closing under the Agreement.
(o) LOAN FEE. Upon execution and delivery of this
Agreement, the Borrower shall have paid to the Lender a loan
fee of $125,000.
6. CONSOLIDATION, MERGER, SALE OR PURCHASE OF ASSETS ETC.
Section 6.04 of the Loan Agreement is amended to add the
following at the end thereof:
The Borrower shall be permitted to sell all of its
interest in the Las Vegas Showboat subject to the following
requirements:
(a) no Default or Event of Default shall exist or be
continuing immediately prior to and after giving effect to
such sale;
(b) after giving effect to such sale, the Borrower's
Leverage Ratio will not exceed the applicable minimum
Leverage Ratio set forth in Section 6.14; and
(c) such sale shall comply with the requirements of
Section 4.10(a) of the Bond Indenture, prior to giving
effect to any waiver or modification of the terms of such
Section 4.10(a).
7. MINIMUM CAPITAL FUNDS. Effective as of July 14, 1997,
Section 6.13 "Capital Funds" of the Agreement shall be amended to
read as follows:
(a) Permit Capital Funds at any time as of the dates
referenced below to fall below the amounts indicated below
for such date:
12/31/96 $270,000,000
12/31/97 $275,000,000
12/31/98 $280,000,000
12/31/99 $285,000,000
12/31/00 $290,000,000
12/31/01 $290,000,000
(b) Notwithstanding the foregoing, in the event of a
permitted sale of the Las Vegas Showboat which results in a
reduction in the Capital Funds of the Borrower, the required
minimum Capital Funds amounts set forth above shall each be
reduced effective as of the date of such sale and as to all
dates subsequent to the date of such sale. The amount of the
reduction in the required minimum Capital Funds amount set
forth above shall be a sum
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equal to the reduction in the Capital Funds of the Borrower
resulting from such sale, which reduction shall be net of
tax benefits arising out of losses realized upon such sale.
Any reduction in the required minimum Capital Funds amounts
set forth above shall be in addition to any reduction under
subsections 6.13(c) or (d).
(c) Notwithstanding the foregoing, in the event of a
repurchase by Borrower of any of its issued and outstanding
common stock, the required minimum Capital Funds amounts set
forth above shall each be reduced effective as of the date
of such repurchase and as to all dates subsequent to the
date of such repurchase up to an aggregate of $50,000,000 by
reason of such repurchases. The amount of the reduction in
the required minimum Capital Funds amounts set forth above
shall be equal to the reduction in the Capital Funds of the
Borrower resulting from such repurchase. Any reduction in
the required minimum Capital Funds amounts set forth above
shall be in addition to any reduction under subsections
6.13(b) or (c).
(d) Notwithstanding the foregoing, in the event of a
sale by the Borrower directly or through one of its
Subsidiaries of any of its interest in the Australian Joint
Venture and the immediate subsequent use of such funds by
the Borrower for reduction of Subordinated Debt, the
required minimum Capital Funds amounts set forth above shall
each be reduced effective as of the date of such sale and
reduction and as to all dates subsequent to the date of such
sale and reduction by a sum equal to the excess, if any, of
the said reduction in Subordinated Debt over any increase in
the Capital Funds of the Borrower resulting from such sale,
which increase shall be net of tax costs arising out of
gains realized upon such sale. Any reduction in the minimum
Capital Funds amounts set forth above shall be in addition
to any reduction under subsections 6.13(a) or (b).
8. LEVERAGE RATIO. Section 6.14 of the Agreement
("Leverage Ratio") shall be amended to read as follows:
At any time prior to the completion of both (a) a sale
of the Las Vegas Showboat and (b) a repurchase by the
Borrower of its common stock of at least $25,000,000, permit
the Leverage Ratio to exceed 1.7x, and at any time after the
completion of said sale and repurchase, permit the Leverage
Ratio to exceed 2.2x.
9. DEBT SERVICE COVERAGE RATIO. Section 6.15 of the
Agreement ("Debt Service Coverage Ratio") shall be amended to
read as follows:
Permit the Debt Service Coverage Ratio as of the last
day of any fiscal quarter of the Borrower measured as to the
period consisting of such fiscal
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quarter combined with the three previous fiscal quarters to
be less than the amount indicated below for the applicable
fiscal quarters indicated below:
4th Quarter 1994 - 3rd Quarter 1995 1.50x
4th Quarter 1995 - 3rd Quarter 1996 1.30x
4th Quarter 1996 - 3rd Quarter 1998 1.30x
4th Quarter 1998 and thereafter 1.50x
10. STOCK REPURCHASES. The Agreement is modified by adding
a new Section 6.18 as follows:
SECTION 6.18. STOCK REPURCHASES.
Repurchase any of its common stock unless at the time
of such repurchase (a) no Default or Event of Default shall
exist or be continuing immediately prior to and after giving
effect to such repurchase, (b) after giving effect to such
repurchase, the Borrower's Leverage Ratio will not exceed
the applicable minimum Leverage Ratio set forth in section
6.14 and (c) Borrower will have complied with and the
repurchase will have been permitted under Section 4.09 of
the Bond Indenture as same is presently in effect, and
without regard to any waiver or modification of the terms of
such Section 4.09.
11. MISCELLANEOUS. All expenses incurred by the Lender in
connection with the preparation, execution and delivery of this
Modification and such other documents as may be necessary to
consummate the transactions contemplated hereunder, including all
legal, filing and other fees and expenses, shall be paid by the
Borrower. The Borrower and the Guarantors hereby ratify, confirm
and approve all of the terms, conditions, and covenants of the
Loan Documents, as the same have been modified from time to time
and as modified hereby. Except as previously modified or
expressly modified hereby, the Loan Documents shall continue in
full force and effect in accordance with the provisions thereof.
The Borrower and the Guarantors further represent that there are
no, and hereby waive any and all, defenses, offsets or
counterclaims which they may have as to the Obligations. This
Agreement states the entire understanding of the parties with
reference to the subject matter hereof, and may not be modified
except in writing signed by both the Borrower and the Lender.
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IN WITNESS WHEREOF, the parties hereto have executed this
Modification to Loan and Guaranty Agreement as of the date and
year first above written.
LENDER:
FLEET BANK, N.A.
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Vice President
BORROWER:
SHOWBOAT, INC.
By: /s/ R. Xxxxx Xxxx
R. Xxxxx Xxxx
Executive Vice President - Financial
and Administration and Chief
Financial Officer
GUARANTORS:
SHOWBOAT OPERATING COMPANY
0000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
By: /s/ R. Xxxxx Xxxx
R. Xxxxx Xxxx
Executive Vice President,
Treasurer and Chief Financial
Officer
OCEAN SHOWBOAT, INC.
000 Xxxxxxxxx
Xxxxxxxx Xxxx, XX 00000
By: /s/ R. Xxxxx Xxxx
R. Xxxxx Xxxx
Vice President
Financial Administration
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ATLANTIC CITY SHOWBOAT, INC.
000 Xxxxxxxxx
Xxxxxxxx Xxxx, XX 00000
By: /s/ Xxxxxxxx Xxxxxxxxxx
Xxxxxxxx Xxxxxxxxxx
Vice President - Finance, Treasurer
and Chief Financial Officer
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MODIFICATION TO REVOLVING NOTE
This Modification to Revolving Note is made as of the 14th
day of July, 1997, by Showboat, Inc., ("Borrower"), a Nevada
Corporation.
WHEREAS, Borrower executed and delivered to NatWest
Bank, N.A. (now known as Fleet Bank, N.A.) ("Lender"), its
Revolving Note in the face amount of Twenty Five Million Dollars
($25,000,000.00) dated July 14, 1995 (the "Revolving Note")
pursuant to the terms of a Loan and Guaranty Agreement between
the Borrower, NatWest Bank, N.A. and the Guarantors (hereunder
the "Loan Agreement"); and
WHEREAS, the Borrower and the Lender have entered into
a Modification to Loan and Guaranty Agreement of even date
herewith providing for an increase in the amount of the Revolving
Loan Facility to the sum of $35,000,000.00 and providing for an
extension to the Conversion Date.
NOW THEREFORE, the undersigned Borrower hereby modifies the
Revolving Note as follow:
1. The face amount of the Note is changed from $25,000,000.00
to $35,000,000.00.
2. The Conversion Date referred to as July 14, 1997 in the
second paragraph of the Note is changed to September 14, 1999.
3. Capitalized terms used herein which are not otherwise
defined shall have the meaning set forth in the Revolving Note.
Except as herein modified, all of the terms and conditions of the
Revolving Note are hereby affirmed and ratified. This
modification shall be attached to and made a part of the
Revolving Note.
IN WITNESS WHEREOF, the Borrower has executed this
Modification to Revolving Note as of the date and year first
above written.
SHOWBOAT, INC.
By: /s/ R. Xxxxx Xxxx
R. Xxxxx Xxxx
Executive Vice President -
Financial and Administration
and Chief Financial Officer
FIRST AMENDMENT TO INTERCREDITOR AGREEMENT
FOR PARI PASSU INDEBTEDNESS RELATING TO
ATLANTIC CITY SHOWBOAT
This First Amendment (the "Amendment") to the Intercreditor
Agreement for Pari Passu Indebtedness Relating to ATLANTIC CITY
SHOWBOAT (the "Intercreditor Agreement") is made as of the 14th
day of July, 1997, by and among SHOWBOAT, INC., a Nevada
corporation (the "Company"), ATLANTIC CITY SHOWBOAT, INC., a New
Jersey corporation ("ACSI"), IBJ XXXXXXXX BANK & TRUST COMPANY
(the "Trustee") and FLEET BANK, N.A. (formerly known as NATWEST
BANK, N.A.) (the "Lender"). Terms used herein not otherwise
defined herein shall have the meanings set forth in the
Intercreditor Agreement.
RECITALS
WHEREAS, the Trustee, the Company, ACSI and the Lender
entered into the Intercreditor Agreement with respect to the
Mortgage held by Lender securing a loan to the Company in the
maximum sum of $25,000,000; and
WHEREAS, the loan secured by the Lender's Mortgage has been
increased to the maximum principal amount of $35,000,000, and
ACSI has executed and delivered to the Lender certain
modifications to the Lender's documents, including the Lender's
Mortgage, to reflect such increase; and
WHEREAS, the parties hereto desire to amend the
Intercreditor Agreement to reflect such increase in the Company's
indebtedness to the Lender:
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. The initial paragraph of page 3 of the Intercreditor
Agreement is hereby amended to read as follows:
WHEREAS, the maximum aggregate principal amount of
Indebtedness to be provided by Lender is $35,000,000.00.
2. Paragraph 2 (a) of the Intercreditor Agreement is
hereby amended to change the reference to $25,000,000.00 to
$35,000,000.00.
3. Paragraph 2 (b) of the Intercreditor Agreement is
hereby amended to change the reference to $25,000,000.00 to
$35,000,000.00.
4. Paragraph 2 (c) of the Intercreditor Agreement is
hereby amended to change the reference to $25,000,000.00 to
$35,000,000.00.
5. All other terms and conditions of the Intercreditor
Agreement are hereby ratified and confirmed.
IN W1INESS WHEREOF, the Trustee, the Company, the Lender and
ACSI have caused this instrument to be duly executed as of the
14th day of July, 1997.
SHOWBOAT, INC.
0000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
By: /s/ R. Xxxxx Xxxx
R. Xxxxx Xxxx
Executive Vice President - Financial
and Administration and Chief
Financial Officer
ATLANTIC CITY SHOWBOAT, INC.
000 Xxxxxxxxx
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
By: /s/ Xxxxxxxx Xxxxxxxxxx
Xxxxxxxx Xxxxxxxxxx
Vice President - Finance, Treasurer
and Chief Financial Officer
IBJ XXXXXXXX BANK & TRUST CO.
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
FLEET BANK, N.A
00 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000.
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Vice President
FIRST AMENDMENT TO INTERCREDITOR AGREEMENT
FOR PARI PASSU INDEBTEDNESS RELATING TO
LAS VEGAS SHOWBOAT
The First Amendment (the "Amendment") to the Intercreditor
Agreement for Pari Passu Indebtedness Relating to LAS VEGAS
SHOWBOAT (the "Intercreditor Agreement") is made as of the 14th
day of July, 1997, by and among IBJ XXXXXXXX BANK & TRUST
COMPANY (the "Trustee"), SHOWBOAT, INC., a Nevada corporation
(the "Company"), and FLEET BANK, N.A. (formerly known as NATWEST
BANK, N.A.) (the "Lender"). Terms used herein not otherwise
defined herein shall have the meanings set forth in the
Intercreditor Agreement.
RECITALS
WHEREAS, the Trustee, the Company and the Lender entered
into the Intercreditor Agreement with respect to the First
Mortgage Bonds and the Deed of Trust held by Lender securing a
loan in the maximum sum of $25,000,000; and
WHEREAS, the loan secured by the Lender's Deed of Trust has
been increased to the maximum principal amount of $35,000,000,
and the Company has executed and delivered to the Lender certain
modifications to the Lender's documents, including the Lender's
Deed of Trust, to reflect such increase; and
WHEREAS, the parties hereto desire to amend the
Intercreditor Agreement to reflect such increase in the Company's
indebtedness to the Lender:
NOW, THEREFORE, in consideration of good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Paragraph 2(a) of the Intercreditor Agreement is hereby
amended to change the reference to $25,000,000 to $35,000,000.
2. Paragraph 2(b) of the Intercreditor Agreement is hereby
amended to change the reference to $25,000,000 to $35,000,000.
3. All other terms and conditions of the Intercreditor
Agreement are hereby ratified and confirmed.
IN WITNESS WHEREOF, the Trustee, the Company and the Lender
have caused this instrument to be duly executed as of the 14th
day of July, 1997.
IBJ XXXXXXXX BANK & TRUST CO.
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
SHOWBOAT, INC.
0000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
By: /s/ R. Xxxxx Xxxx
R. Xxxxx Xxxx
Executive Vice President-Financial
and Administration and Chief
Financial Officer
FLEET BANK, N.A.
00 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Vice President
AMENDMENT TO DEED OF TRUST, ASSIGNMENT OF RENTS
AND SECURITY AGREEMENT
This First Amendment (the "Amendment") to the Deed of
Trust, Assignment of Rents and Security Agreement (hereinafter
called the "Deed of Trust") is made as of the 14th day of July,
1997 by and among SHOWBOAT, INC. a Nevada corporation, and
SHOWBOAT OPERATING COMPANY, a Nevada corporation (collectively
as "Trustor"), whose address is 0000 Xxxxxxx Xxxxxx, Xxx Xxxxx,
Xxxxxx, 00000, to NEVADA TITLE COMPANY, a Nevada Corporation,
whose address is 0000 Xxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx,
Xxxxxx, 00000-00000, as Trustee ("Trustee") for the benefit for
FLEET BANK, N.A. (formerly known as NatWest Bank, N.A.), a
national banking association ("Beneficiary"), as Lender under
that certain Loan and Guaranty Agreement, dated July 14, 1995,
and as amended as of even date herewith, among Beneficiary, as
Lender, Trustor, as borrower, and OCEAN SHOWBOAT, INC., a New
Jersey corporation, ATLANTIC CITY SHOWBOAT, Inc., a New Jersey
Corporation ("ACSI"), and SHOWBOAT OPERATING COMPANY, a Nevada
corporation as Guarantors. Terms used herein not otherwise
defined herein shall have the meanings set forth in the Deed of
Trust.
RECITALS
WHEREAS, Showboat, Inc. made, executed and delivered to
Lender a Revolving Note dated July 14, 1995, in the maximum
aggregate amount of $25,000,000, evidencing the extension of
credit by Lender to Showboat, Inc. in the maximum aggregate
amount of $25,000,000;
WHEREAS, Showboat, Inc. has requested that the Lender
increase the maximum aggregate amount under the Revolving Note
to $35,000,000;
WHEREAS, Trustor and Beneficiary have entered into a
Modification to Loan and Guaranty Agreement providing for an
increase in the amount available under the Loan Agreement from
$25,000,000 to $35,000,000 (the "Amendment"), and making other
changes in the terms of the loan; and
WHEREAS, pursuant to the Amendment, Trustor has executed
and delivered to Beneficiary an Amendment to the Promissory Note
to be secured hereby.
NOW, THEREFORE, in consideration of good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. The definition of "Promissory Note" in the Deed of Trust is
hereby amended to read as follows:
"Promissory Note" means that certain Revolving
Note between Trustor and Beneficiary dated July
14, 1995, as amended by that certain Modification
to Revolving Note, dated as of July 14, 1997, and
as may be further amended pursuant to the Loan
Agreement, in the maximum aggregate amount of
$35,000,000.
2. The definition of "Permitted Dispositions" in the Deed
of Trust is amended to read as follows:
"Permitted Dispositions" means (a) the sale, transfer or
other disposition of Collateral not to exceed an aggregate
value of $3,000,000.00 per annum and (b) the sale of the
Las Vegas Showboat, provided all of the applicable
conditions, agreements and covenants contained in Section
6.04 of the Loan Agreement are met and complied with.
3. All other terms and conditions of the Deed of Trust are
hereby ratified and confirmed.
IN WITNESS WHEREOF, the Trustor has caused this instrument
to be duly executed as of the 14th day of July, 1997.
SHOWBOAT, INC.
By: /s/ R. Xxxxx Xxxx
R. Xxxxx Xxxx
Executive Vice President - Financial
and Administration and Chief
Financial Officer
SHOWBOAT OPERATING COMPANY
By: /s/ R. Xxxxx Xxxx
R. Xxxxx Xxxx
Executive Vice President, Treasurer
and Chief Financial Officer
FLEET BANK, N.A.
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Vice President
ACKNOWLEDGMENT
STATE OF NEW JERSEY :
: ss.
COUNTY OF ATLANTIC :
Be it remembered that on this 23rd day of October, 1997,
before me, the subscriber, in and for said county, personally
appeared R. Xxxxx Xxxx, Executive Vice President - Financial
and Administration and Chief Financial Officer of Showboat,
Inc. who I am satisfied is the person who signed the within
instrument, and he acknowledged that he signed and delivered
the same as such officer aforesaid, and that the within
instrument is the voluntary act and deed of such corporation
made by virtue of a Resolution of its Board of Directors. And
said R. Xxxxx Xxxx did further certify and acknowledge that he
received a true, correct and complete copy of the within
instrument.
Witnesseth my hand and seal.
/s/ Xxxxx X. Berenette
Notary Public
My Commission Expires: 12/23/98
STATE OF NEW JERSEY :
: ss.
COUNTY OF ATLANTIC :
Be it remembered that on this 23rd day of October, 1997,
before me, the subscriber, in and for said county, personally
appeared R. Xxxxx Xxxx, Executive Vice President, Treasurer and
Chief Financial Officer of Showboat Operating Company, who I am
satisfied is the person who signed the within instrument, and
he acknowledged that he signed and delivered the same as such
officer aforesaid, and that the within instrument is the
voluntary act and deed of such corporation made by virtue of a
Resolution of its Board of Directors. And said R. Xxxxx Xxxx
did further certify and acknowledge that he received a true,
correct and complete copy of the within instrument.
Witnesseth my hand and seal.
/s/ Xxxxx X. Berenette
Notary Public
My Commission Expires: 12/23/98
ACKNOWLEDGMENT
STATE OF NEW JERSEY :
: ss.
COUNTY OF ATLANTIC :
Be it remembered, that on this 30th day of October, 1997,
before me, the subscriber, a Notary Public, personally appeared
Xxxx X. Xxxxxxxx, Vice President of FLEET BANK, N.A., who, I am
satisfied is the person(s) named in and who executed the within
instrument and he did acknowledge that he signed, sealed and
delivered the same as his act and deed on behalf of the Bank and
for the uses and purposes therein expressed.
/s/ Xxxxx Xxxxxxxxx
Notary Public
My Commission Expires: 9/11/00
