EXHIBIT 4.5
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (the "Supplemental Indenture") dated as of
January 23, 1998 by and between COLORADO GAMING & ENTERTAINMENT CO., a
Delaware corporation (the "Company"), and STATE STREET BANK AND TRUST
COMPANY, as successor in interest to Fleet National Bank, as Trustee (the
"Trustee").
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture dated as of June 7, 1996 (the "Indenture") providing
for the issuance of the Company's 12% Senior Secured Pay-In-Kind Notes due
2003 (the "Notes"); and
WHEREAS, Section 802 of the Indenture authorizes the Company and the
Trustee, with the written consent of the Holders of a majority in principal
amount of the Outstanding Notes, to, among other things, amend or waive
certain provisions of the Indenture by supplemental indenture; and
WHEREAS, all acts and proceedings required by law, by the Indenture and
by the Certificate of Incorporation of the Company to constitute this
Supplemental Indenture a valid and binding agreement for the uses and
purposes herein set forth, in accordance with its terms, have been done and
taken, and the execution and delivery of this Supplemental Indenture have
been in all respects duly authorized by the Company; and
WHEREAS, the Company has obtained the unrevoked consent of the Holders
of not less than a majority in aggregate principal amount of the Outstanding
Notes as of October 7, 1997, to the adoption of the Waivers and Amendments
provided for in Sections 1, 2, and 3 herein; and
WHEREAS, the foregoing recitals are made as representations or
statements of fact by the Company and not by the Trustee;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Company covenants and agrees with the Trustee, for the equal and
proportionate benefit of all present and future Holders of Notes, as follows:
SECTION 1. AMENDMENT TO DEFINITION OF "BANK FACILITY" IN SECTION 105.
The definition of the term "Bank Facility" defined in Section 105 of the
Indenture is hereby amended and restated in its entirety as follows:
"BANK FACILITY" means any revolving credit or term loan facility, any
facility providing purchase money financing for the acquisition of
equipment and any
facility providing for the creation of Capitalized Lease Obligations
entered into between the Company and/or any Company Subsidiary and
Ladbroke Racing Corporation or an Affiliate thereof, one or more financial
institutions, institutional lenders, financial companies, equipment
lessors or equipment manufacturers or vendors providing financing for
working capital or other corporate purposes on a secured or unsecured
basis, whether now existing or hereafter created and whether replacing or
refinancing any Bank Facility.
SECTION 2. PARTIAL WAIVER OF SECTION 913. Notwithstanding anything
contained in Section 913 of the Indenture to the contrary, the Company is
hereby expressly permitted to invest up to $3,500,000 in Colorado Charity
Gaming Inc. (hereinafter "Diamond Sub"), a wholly owned subsidiary of the
Company, and Diamond Sub is hereby expressly permitted to invest up to
$3,500,000 in Diamond Gaming of Ontario Inc. (hereinafter "Diamond Gaming"),
an Ontario corporation, and all such contrary provisions of Section 913 are
hereby waived to the extent necessary to permit the foregoing investments.
SECTION 3. PARTIAL WAIVER OF SECTION 919. The provisions of Section
919 of the Indenture are hereby waived to the extent necessary to permit the
Company and Diamond Sub to own, indirectly and directly, respectively less
than 100% of the outstanding capital stock of Diamond Gaming.
SECTION 4. For all other purposes of this Supplemental Indenture,
except as otherwise herein expressly provided or unless the context otherwise
requires: (i) the terms and expressions used herein shall have the same
meanings as corresponding terms and expressions used in the Indenture, and
(ii) the words "herein," "hereof" and "hereby" and other words of similar
import used in this Supplemental Indenture refer to the amendment of the
Indenture as a whole and not to any particular Section hereof.
SECTION 5. The Trustee accepts the waivers and amendment effected by
this Supplemental Indenture and agrees to execute the trust created by the
Indenture as hereby amended, but only upon the terms and conditions set forth
in the Indenture, including the terms and provisions defining and limiting
the liabilities and responsibilities of the Trustee, which terms and
provisions shall in like manner define and limit its liabilities and
responsibilities in the performance of the trust created by the Indenture as
hereby amended, and, without limiting the generality of the foregoing, the
Trustee has no responsibility for the correctness of the recitals of fact
herein contained which shall be taken as the statements of the Company, and
makes no representations as to the validity or sufficiency of this
Supplemental Indenture and shall incur no liability or responsibility in
respect of the validity thereof.
SECTION 6. Except as expressly amended, the Indenture and the Notes
issued thereunder are in all respects ratified and confirmed and all the
terms, conditions and provisions thereof shall remain in full force and
effect.
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SECTION 7. This Supplemental Indenture shall form a part of the
Indenture for all purposes, and every holder of Notes heretofore or hereafter
authenticated and delivered shall be bound hereby.
SECTION 8. This Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an
original, and all such counterparts shall together constitute one and the
same instrument.
SECTION 9. This Supplemental Indenture shall be construed in accordance
with and governed by the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the day and year first above written.
COLORADO GAMING & ENTERTAINMENT CO.
By: /s/ Stephen J. Szapor, Jr.
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Name: Stephen J. Szapor, Jr.
Title: President and Chief Executive Officer
STATE STREET BANK AND TRUST COMPANY, as Trustee
By: /s/ Steve Cimilori
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Name: Steve Cimilori
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Title: Vice President
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