EXHIBIT 4.6
SUPPLEMENTAL INDENTURE NO. 3
THIS SUPPLEMENTAL INDENTURE NO. 3 (the "Supplement") is dated as of April
29, 1998, 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"), Hammond Residential, L.L.C., an Indiana limited liability
company ("Hammond Residential"), LMC Leasing, Ltd., a Delaware corporation
("Hammond Leasing," and together with Empress, Empress Hammond and Hammond
Residential, collectively referred to herein as the "Guarantors"), U.S. Bank
Trust National Association, f/k/a/ First Trust National Association, a national
association, as Trustee, and New Empress Joliet, Inc., an Illinois corporation
("New Joliet"). 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, as supplemented by that certain
Supplemental Indenture dated as of November 6, 1997 and that certain
Supplemental Indenture No. 2 dated as of February 23, 1998 (as so supplemented,
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 Joliet 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
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Indenture 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. CHANGE OF CONTROL. Clauses (i) and (ii) in the definition of "Change of
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Control" in Section 1.1 of the Indenture are hereby deleted in their entirety
and replaced with the following:
"(i) any merger or consolidation of, or any sale, transfer or other
conveyance, whether direct or indirect, of all or substantially all of the
assets of, Empress (or, if applicable, the Parent Guarantor) in each case
on a consolidated basis, in one transaction or a series of related
transactions, if, immediately after giving effect to such transaction, any
"person" or "group" (as such terms are used for purposes of Sections 13(d)
and 14(d) of the Exchange Act, whether or not applicable), other than
Excluded Persons or any entity of which a majority of the aggregate voting
power of all classes of Capital Stock then outstanding of such entity is
owned by the Excluded Persons, is or becomes the "beneficial owner,"
directly or indirectly, of more than 40% of the aggregate voting power
normally entitled to vote in the election of directors of the transferee;
(ii) the time that any "person" or "group" (as such terms are used for
purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not
applicable), other than Excluded Persons or any entity of which a majority
of the aggregate voting power of all classes of Capital Stock then
outstanding of such entity is owned by the Excluded Persons, is or becomes
the "beneficial owner," directly or indirectly, of more than 40% of the
aggregate voting power of all classes of Capital Stock then outstanding of
Empress (or, if applicable, the Parent Guarantor) normally entitled to vote
in elections of directors;"
3. GUARANTY. New Joliet 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 Joliet 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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4. 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/ John Costello By: /s/ John Costello
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Name: John Costello Name: John Costello
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Title: Vice President & Chief Financial Title: Vice President & Chief
Office Financial Officer
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EMPRESS CASINO HAMMOND LMC LEASING, LTD.
CORPORATION (f/k/a Lake Michigan
Charters, Ltd.)
By: /s/ John Costello By: /s/ John Costello
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Name: John Costello Name: John Costello
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Title: Vice President & Chief Financial Title: Vice President & Chief
Officer Financial Officer
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U.S. BANK TRUST NATIONAL NEW EMPRESS JOLIET, INC.
ASSOCIATION (f/k/a/ First Trust National
Association)
By: /s/ Richard H. Prokosch By: /s/ John Costello
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Name: Richard H. Prokosch Name: John Costello
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Title: Vice President & Chief
Title: Assistant Vice President Financial Officer
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HAMMOND RESIDENTIAL, L.L.C.
By: /s/ John Costello
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Name: John Costello
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Title: Vice President & Chief
Financial 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:____________________________