EXHIBIT 4(X)
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CIRCUS CIRCUS ENTERPRISES, INC.
Issuer
And
FIRST INTERSTATE BANK OF NEVADA, N.A.,
Trustee
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Indenture
[Dated as of_________ __, ____]
[$______________]
[___% Senior Notes Due ____]
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CROSS-REFERENCE TABLE*
TIA
Section Indenture Section
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310(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . .7.10.
(b). . . . . . . . . . . . . . . . . . . . . .7.08; 7.10; 12.02
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.05
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . .12.03
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . .12.03
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c). . . . . . . . . . . . . . . . . . . . . . . . .7.06; 12.02
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . . . . . . . . . .4.07; 12.02
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . .12.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . .12.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e). . . . . . . . . . . . . . . . . . . . . . . . . . . .12.05
(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . .7.01(b)
(b). . . . . . . . . . . . . . . . . . . . . . . . .7.05; 12.02
(c). . . . . . . . . . . . . . . . . . . . . . . . . . .7.01(a)
(d). . . . . . . . . . . . . . . . . . . . . . . . . . .7.01(c)
(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316(a)(last sentence). . . . . . . . . . . . . . . . . . . .12.06
(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
317(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.04
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . .12.01
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . .10.01
N.A. means Not Applicable.
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*This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS. . . . . . . . . . . . . . . . 1
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST
INDENTURE ACT.. . . . . . . . . . . . . . . 6
SECTION 1.03. RULES OF CONSTRUCTION. . . . . . . . . . . 6
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. FORMS GENERALLY. . . . . . . . . . . . . . 7
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION. . . . . . . . . . . . . . . 7
ARTICLE THREE
THE SECURITIES
SECTION 3.01. AMOUNT UNLIMITED, ISSUABLE IN SERIES.. . . 8
SECTION 3.02. EXECUTION AND AUTHENTICATION;
DENOMINATIONS; DELIVERY AND DATING. . . . .10
SECTION 3.03. REGISTRAR AND PAYING AGENT.. . . . . . . . 11
SECTION 3.04. PAYING AGENT TO HOLD MONEY IN TRUST. . . . 11
SECTION 3.05. SECURITYHOLDER LISTS.. . . . . . . . . . . 11
SECTION 3.06. TRANSFER AND EXCHANGE. . . . . . . . . . . 12
SECTION 3.07. REPLACEMENT SECURITIES.. . . . . . . . . . 12
SECTION 3.08. OUTSTANDING SECURITIES.. . . . . . . . . . 12
SECTION 3.09. TEMPORARY SECURITIES.. . . . . . . . . . . 13
SECTION 3.10. CANCELLATION.. . . . . . . . . . . . . . . 13
SECTION 3.11. DEFAULTED INTEREST.. . . . . . . . . . . . 13
SECTION 3.12. MANDATORY DISPOSITION OF SECURITIES
PURSUANT TO GAMING LAWS . . . . . . . . . .13
ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES. . . . . . . . . . . 14
SECTION 4.02. CORPORATE EXISTENCE. . . . . . . . . . . . 14
SECTION 4.03. PAYMENT OF TAXES AND OTHER CLAIMS. . . . . 14
SECTION 4.04. MAINTENANCE OF PROPERTIES. . . . . . . . . 15
SECTION 4.05. MAINTENANCE OF OFFICE OR AGENCY. . . . . . 15
SECTION 4.06. COMPLIANCE CERTIFICATE.. . . . . . . . . . 15
i
PAGE
SECTION 4.07. REPORTS. . . . . . . . . . . . . . . . . . 16
SECTION 4.08. WAIVER OF STAY, EXTENSION OF USURY
LAWS. . . . . . . . . . . . . . . . . . . 16
SECTION 4.09. LIMITATION ON LIENS. . . . . . . . . . . . 16
SECTION 4.10. LIMITATION ON SALE AND LEASE-BACK
TRANSACTIONS. . . . . . . . . . . . . . . 18
SECTION 4.11. DEFEASANCE OF CERTAIN OBLIGATIONS. . . . . 19
ARTICLE FIVE
SUCCESSOR CORPORATION
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. . . . . . . . . . . . . 21
SECTION 6.02. ACCELERATION.. . . . . . . . . . . . . . . 22
SECTION 6.03. OTHER REMEDIES.. . . . . . . . . . . . . . 23
SECTION 6.04. WAIVER OF PAST DEFAULTS. . . . . . . . . . 23
SECTION 6.05. CONTROL BY MAJORITY. . . . . . . . . . . . 23
SECTION 6.06. LIMITATION ON SUITS. . . . . . . . . . . . 24
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.. . . 24
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.. . . . . . . . 24
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.. . . . . 25
SECTION 6.10. PRIORITIES.. . . . . . . . . . . . . . . . 25
SECTION 6.11. UNDERTAKING FOR COSTS. . . . . . . . . . . 25
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE. . . . . . . . . . . . . 26
SECTION 7.02. RIGHTS OF TRUSTEE. . . . . . . . . . . . . 27
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.. . . . . . . 27
SECTION 7.04. TRUSTEE'S DISCLAIMER.. . . . . . . . . . . 27
SECTION 7.05. NOTICE OF DEFAULTS.. . . . . . . . . . . . 27
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS. . . . . . . 27
SECTION 7.07. COMPENSATION AND INDEMNITY.. . . . . . . . 28
SECTION 7.08. REPLACEMENT OF TRUSTEE.. . . . . . . . . . 28
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.. . . . . 29
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. . . . . . . 30
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS
AGAINST COMPANY .. . . . . . . . . . . . . 30
SECTION 7.12. AUTHENTICATING AGENT.. . . . . . . . . . . 30
ii
PAGE
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. TERMINATION OF COMPANY'S OBLIGATIONS.. . . 32
SECTION 8.02. APPLICATION OF TRUST MONEY.. . . . . . . . 33
SECTION 8.03. REPAYMENT TO THE COMPANY.. . . . . . . . . 34
SECTION 8.04. REINSTATEMENT. . . . . . . . . . . . . . . 34
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.. . . . . . . . 34
SECTION 9.02. WITH CONSENT OF HOLDERS. . . . . . . . . . 35
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. . . . 36
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS. . . . . 36
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES. . . 37
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC. . . . . . 37
ARTICLE TEN
MEETINGS OF SECURITYHOLDERS
SECTION 10.01. PURPOSES FOR WHICH MEETINGS MAY BE
CALLED. . . . . . . . . . . . . . . . . . .37
SECTION 10.02. MANNER OF CALLING MEETINGS. . . . . . . . .38
SECTION 10.03. CALL OF MEETINGS BY COMPANY OR
HOLDERS.. . . . . . . . . . . . . . . . . .38
SECTION 10.04. WHO MAY ATTEND VOTE AT MEETINGS.. . . . . .38
SECTION 10.05. REGULATIONS MAY BE MADE BY TRUSTEE;
CONDUCT OF THE MEETING; VOTING RIGHTS;
ADJOURNMENT.. . . . . . . . . . . . . . . .39
SECTION 10.06. VOTING AT THE MEETING AND RECORD TO BE
KEPT. . . . . . . . . . . . . . . . . . . .39
SECTION 10.07. EXERCISE OF RIGHTS OF TRUSTEE OR
SECURITYHOLDERS MAY NOT BE HINDERED OR
DELAYED BY CALL OF MEETING. . . . . . . . .40
ARTICLE ELEVEN
REDEMPTION
SECTION 11.01. NOTICES TO TRUSTEE. . . . . . . . . . . . .40
SECTION 11.02. SELECTION OF SECURITIES TO BE REDEEMED. . .40
SECTION 11.03. NOTICE OF REDEMPTION. . . . . . . . . . . .41
SECTION 11.04. EFFECT OF NOTICE OF REDEMPTION. . . . . . .42
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE . . . . . . . .42
SECTION 11.06. SECURITIES REDEEMED IN PART . . . . . . . .42
iii
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS. . . . . . . 42
SECTION 12.02. NOTICES.. . . . . . . . . . . . . . . . . 43
SECTION 12.03. COMMUNICATION BY HOLDERS WITH OTHER
HOLDERS . . . . . . . . . . . . . . . . . 43
SECTION 12.04. CERTIFICATES AND OPINION AS TO
CONDITIONS PRECEDENT. . . . . . . . . . . 43
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR
OPINION . . . . . . . . . . . . . . . . . 44
SECTION 12.06. WHEN TREASURY SECURITIES DISREGARDED. . . 44
SECTION 12.07. RULES BY PAYING AGENT, REGISTRAR. . . . . 44
SECTION 12.08. LEGAL HOLIDAYS. . . . . . . . . . . . . . 44
SECTION 12.09. GOVERNING LAW . . . . . . . . . . . . . . 45
SECTION 12.10. NO ADVERSE INTERPRETATION OF OTHER
AGREEMENTS. . . . . . . . . . . . . . . . 45
SECTION 12.11. NO RECOURSE AGAINST OTHERS. . . . . . . . 45
SECTION 12.12. SUCCESSORS. . . . . . . . . . . . . . . . 45
SECTION 12.13. DUPLICATE ORIGINALS . . . . . . . . . . . 45
SECTION 12.14. SEVERABILITY. . . . . . . . . . . . . . . 46
SECTION 12.15. EFFECT OF HEADINGS, TABLE OF
CONTENTS, ETC. . . . . . . . . . . . . . 46
iv
INDENTURE, dated as of [________ __, ____,] between Circus
Circus Enterprises, Inc., a Nevada corporation ("Company"), and
First Interstate Bank of Nevada, N.A., a corporation organized
and existing as a national banking association under the laws of
the United States, as Trustee ("Trustee").
RECITALS
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time
of its Senior Notes to be issued in one or more series (the
"Securities''), as herein provided, up to such principal amount as
may from time to time be authorized in or pursuant to one or more
resolutions of the Board of Directors or by supplemental
indenture.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been
done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders (as hereinafter defined) thereof,
it is mutually covenanted and agreed, for the equal and
proportionate benefit of the Holders of each series of the
Securities, as follows:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Affiliate" means a person "affiliated" with the Company, as
that term is defined in Rule 405 promulgated under the Securities
Act of 1933, as amended.
"Authenticating Agent" shall have the meaning provided in
Section 7.12.
"Bankruptcy Law" shall have the meaning provided in
Section 6.01.
"Board of Directors" means the Board of Directors of the
Company or any committee of such Board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification and delivered
to the Trustee.
"Company" means the party named as such in this Indenture
until a successor replaces it pursuant to the applicable
provisions of this Indenture and thereafter means the successor.
1
"Consolidated Net Tangible Assets" means the total amount of
assets (less applicable reserves and other properly deductible
items) after deducting therefrom (i) all current liabilities
(excluding any thereof which are by their terms extendible or
renewable at the option of the obligor thereon to a time more
than 12 months after the time as of which the amount thereof is
being computed) and (ii) all goodwill, trade names, trademarks,
patents, purchased technology, unamortized debt discount and
other like intangible assets, all as set forth on the most recent
quarterly balance sheet of the Company and its consolidated
subsidiaries and computed in accordance with generally accepted
accounting principles.
"Consolidated Property" means any property of the Company or
any subsidiary of the Company.
"Custodian" shall have the meaning provided in Section 6.01.
"Default" means any event which is, or after notice or
passage of time would be, an Event of Default.
"Event of Default" shall have the meaning provided in
Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Existing Completion Guarantees and Make-Well Agreements"
means (i) that certain Make-Well Agreement by the Company in
favor of the Trustee dated as of May 30, 1995 relating to the
Circus and Eldorado Joint Venture, a Nevada general partnership,
(ii) that certain Circus Completion Guaranty by the Company in
favor of the Trustee dated as of May 30, 1995 relating to the
Circus and Eldorado Joint Venture, a Nevada general partnership,
and (iii) that certain Guaranty by the Company in favor of Bank
of America National Trust and Savings Association dated as of
July 12, 1995 relating to Victoria Partners, a Nevada general
partnership.
"Funded Debt" means all Indebtedness of the Company which
(i) matures by its terms, or is renewable at the option of any
obligor thereon to a date, more than one year after the date of
original issuance of such Indebtedness and (ii) ranks at least
PARI PASSU with the Securities.
"Gaming Authority" means the Nevada Gaming Commission, the
Nevada Gaming Control Board, the Ontario Gaming Control
Commission, the Mississippi Gaming Commission, the Illinois
Gaming Board or any similar commission or agency which has, or
may at any time after the date of this Indenture have,
jurisdiction over the gaming activities of the Company or a
subsidiary of the Company or any successor thereto.
"Gaming Laws" means the gaming laws of a jurisdiction or
jurisdictions to which the Company or a subsidiary of the Company
is, or may at any time after the date of this Indenture be,
subject.
"Global Security" shall mean a Security issued to evidence
all or a part of any series of Securities that is executed by the
Company and authenticated and delivered by the Trustee to a
2
depositary or pursuant to such depositary's instructions, all in
accordance with this Indenture and pursuant to an Officer's
Certificate, which shall be registered as to principal and
interest in the name of such depositary or its nominee.
"Holder" or "Securityholder" means the person in whose name
a Security is registered on the Registrar's books.
"Indebtedness" of any person means (a) any indebtedness of
such person, contingent or otherwise, in respect of borrowed
money (whether or not the recourse of the lender is to the whole
of the assets of such person or only to a portion thereof), or
evidenced by bonds, notes, debentures or similar instruments or
letters of credit, or representing the balance deferred and
unpaid of the purchase price of any property, including any such
indebtedness incurred in connection with the acquisition by such
person or any of its subsidiaries of any other business or
entity, if and to the extent such indebtedness would appear as a
Liability upon a balance sheet of such person prepared in
accordance with generally accepted accounting principles,
including for such purpose obligations under capitalized leases,
and (b) any guaranty, endorsement (other than for collection or
deposit in the ordinary course of business), discount with
recourse, agreement (contingent or otherwise) to purchase,
repurchase or otherwise acquire or to supply or advance funds
with respect to, or to become liable with respect to (directly or
indirectly) any indebtedness, obligation, liability or dividend
of any person, but shall not include indebtedness or amounts owed
(except to banks or other financial institutions) for
compensation to employees, or for goods or materials purchased,
or services utilized, in the ordinary course of business of such
person. Notwithstanding anything to the contrary in the
foregoing, "Indebtedness" shall not include (i) any contracts
providing for the completion of construction or other payment or
performance with respect to the construction, maintenance or
improvement of property or equipment of the Company or its
Affiliates or (ii) any contracts providing for the obligation to
advance funds, property or services on behalf of an Affiliate of
the Company in order to maintain the financial condition of such
Affiliate, in each case, including Existing Completion Guarantees
and Make-Well Agreements. For purposes hereof, a "capitalized
lease" shall be deemed to mean a lease of real or personal
property which, in accordance with generally accepted accounting
principles, is required to be capitalized.
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Joint Venture" means (i) with respect to properties located
in the United States, any partnership, corporation or other
entity, in which up to and including 50% of the partnership
interests, outstanding voting stock or other equity interests is
owned, directly or indirectly, by the Company and/or one or more
subsidiaries, and (ii) with respect to properties located outside
the United States, any partnership, corporation or other entity,
in which up to and including 60% of the partnership interests,
outstanding voting stock or other equity interests is owned,
directly or indirectly, by the Company and/or one or more
subsidiaries.
"Legal Holiday" shall have the meaning provided in
Section 12.08.
"Lien" means any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, security interest,
lien (statutory or other), or preference, priority or other
security or
3
similar agreement or preferential arrangement of any
kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing).
"Officer" means the Chairman of the Board, the President,
any Executive Vice President, any Vice President, the Chief
Financial Officer, the Treasurer, the Secretary or the Controller
of the Company.
"Officers' Certificate" means a certificate signed by two
Officers or by an Officer and an Assistant Treasurer, Assistant
Secretary or Assistant Controller of the Company. See
Sections 12.04 and 12.05.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an
employee of or counsel to the Company or the Trustee. See
Sections 12.04 and 12.05.
"Original Issue Discount Security" means any Security which
provides that an amount less than its principal amount is due and
payable upon acceleration after an Event of Default.
"Paying Agent" shall have the meaning provided in
Section 3.03.
"person" means any individual, corporation, partnership,
joint venture, association, joint stock company, trust,
unincorporated organization or government or other agency or
political subdivision thereof.
"Predecessor Securities" of any Security means every
previous Security evidencing all or a portion of the same debt as
that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered
under Section 3.07 in lieu of a lost, destroyed or stolen
Security shall be deemed to evidence the same debt as the lost,
destroyed or stolen Security.
"principal" of a debt security, including the Securities,
means the principal of the security plus, when appropriate, the
premium, if any, on the security.
"Project Cost" means, with respect to any Resort Property,
the aggregate costs required to complete such construction
project in accordance with the plans therefor and applicable
legal requirements, as set forth in an Officers' Certificate
submitted to the Trustee, setting forth in reasonable detail all
amounts theretofore expended and any anticipated costs and
expenses estimated to be incurred and reserves to be established
in connection with the construction and development of such
future addition or improvement, including direct costs related
thereto such as construction management, architectural
engineering and interior design fees, site work, utility
installations and hook-up fees, construction permits,
certificates and bonds, land acquisition costs and the cost of
furniture, fixtures, furnishings, machinery and equipment, but
excluding the following: principal or interest payments on any
Indebtedness (other than interest which is required to be
capitalized in accordance with generally accepted accounting
principal, which shall be included in determining
4
Project Cost), or costs related to the operation of the Resort Property
including, but not limited to, non-construction supplies and
pre-operating payroll.
"Registrar" shall have the meaning provided in Section 3.03.
"Resort Property" means any property owned or to be owned by
the Company or any of its subsidiaries that is, or will be upon
completion, a casino (including a riverboat casino),
casino-hotel, destination resort or a theme park.
"Sale and Lease-Back Transaction" means any arrangement with
any person (other than the Company or a subsidiary of the
Company), or to which any such person is a party, providing for
the leasing to the Company or a subsidiary of the Company for a
period of more than three years of any Consolidated Property
which has been or is to be sold or transferred by the Company or
such subsidiary to such person or to any other person (other than
the Company or a subsidiary of the Company), to which funds have
been or are to be advanced by such person on the security of the
leased property.
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning specified in the first recital
of this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture.
"subsidiary" of any person means (i) any corporation of
which at least a majority in interest of the outstanding stock
having by the terms thereof voting power under ordinary
circumstances to elect a majority of the directors of such
corporation, irrespective of whether or not at the time stock of
any other class or classes of such corporation shall have or
might have voting power by reason of the happening of any
contingency, is at the time, directly or indirectly, owned or
controlled by such person, or by one or more other corporations a
majority in interest of such stock of which is similarly owned or
controlled, or by such person and one or more other corporations
a majority in interest of such stock of which is similarly owned
or controlled and (ii) any other person (other than a corporation,
or a partnership, corporation or other entity described in
clause (ii) of the definition of Joint Venture) in which such
person or any subsidiary, directly or indirectly, has greater than
a 50% ownership interest.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) as in effect on the date of this Indenture.
"Trustee" means the party named as such in this Indenture
until a successor replaces it pursuant to the applicable
provisions of this Indenture and thereafter means the successor.
"Trust Officer" means the Chairman of the Board, the
President or any other officer or assistant officer of the
Trustee assigned by the Trustee to administer its corporate trust
matters.
"U.S. Government Obligations" means direct non-cancelable
obligations of the United States of America for the payment of
which the full faith and credit of the United States is pledged.
5
"Value" means, with respect to a Sale and Lease-Back
Transaction, as of any time, the amount equal to the greater of
(i) the net proceeds of the sale or transfer of property leased
pursuant to such Sale and Lease-Back Transaction or (ii) the fair
value, in the opinion of the Board of Directors as evidenced by a
board resolution, of such property at the time of entering into
such Sale and Lease Back Transaction.
Section 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA,
the provision is incorporated by reference in and made a part of
this Indenture. The following TIA terms used in this Indenture
have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder or
Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or
defined by SEC rule have the meanings assigned to them.
Section 1.03. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning as signed to it in accordance with generally
accepted accounting principles;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in
the plural include the singular; and
(5) provisions apply to successive events and transactions.
6
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. FORMS GENERALLY.
The Securities of each series shall be in such form as shall
be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such
appropriate provisions as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as
may be required by any Gaming Authority or as may be required to
comply with the rules of any securities exchange or depositary
therefor or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their
execution thereof. If the form of any series of Securities is
established by action taken pursuant to a Board Resolution, a
copy of an appropriate record of such action shall be certified
by the Secretary or any Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of a written
order signed by two Officers or by and Officer and an Assistant
Treasurer of the Company for the authentication and delivery of
such Securities.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
The terms and provisions in the Securities shall constitute,
and are hereby expressly made, a part of this Indenture.
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated
herein referred to in the within-mentioned Indenture.
---------------------------------
As Trustee
By
------------------------------
Authorized Signatory
7
ARTICLE THREE
THE SECURITIES
SECTION 3.01. AMOUNT UNLIMITED, ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and,
subject to Section 3.02, set forth, or determined in the manner
provided, in an Officers' Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of any
series of Securities:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from
Securities of any other series);
(2) any limit upon the aggregate principal amount of
the Securities of the series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
the series pursuant to Section 3.06, 3.07, 3.09 or 9.05 and
except for any Securities which, pursuant to Section 3.02,
are deemed never to have been authenticated and delivered
hereunder);
(3) the person to whom any interest on a Security of
the series shall be payable, if other than the person in
whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the
record date for such interest;
(4) the date or dates on which the principal of any
Securities of the series is payable;
(5) the rate or rates at which any Securities of the
series shall bear interest, if any, the date or dates from
which any such interest shall accrue, the dates on which any
such interest shall be payable and the record date for any
such interest payable on any such payment date;
(6) the place or places where the principal of and any
premium and interest on any Securities of the series shall
be payable;
(7) the period or periods within which, the price or
prices at which and the terms and conditions upon which any
Securities of the series may be redeemed, in whole or in
part, at the option of the Company and, if other than by a
Board Resolution, the manner in which any election by the
Company to redeem the Securities shall be evidenced;
8
(8) the obligation, if any, of the Company to redeem
or purchase any Securities of the series pursuant to any
sinking fund or analogous provisions or at the option of the
Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon
which any Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) if other than denomination of $1,000 and any
integral multiple thereof, the denominations in which any
Securities of the series shall be issuable;
(10) if the amount of principal of or any premium or
interest on any Securities of the series may be determined
with reference to an index or pursuant to a formula, the
manner in which such amounts shall be determined;
(11) if other than the currency of the United States of
America, the currency, currencies or currency units in which
the principal of or any premium or interest on any
Securities of the series shall be payable and the manner of
determining the equivalent thereof in the currency of the
United States of America for any purpose;
(12) if the principal of or any premium or interest on
any Securities of the series is to be payable, at the
election of the Company or the Holder thereof, in one or
more currencies or currency units other than that or those
in which such Securities are stated to be payable, the
currency, currencies or currency units in which the
principal of or any premium or interest on such Securities
as to which such election is made shall be payable, the
periods within which and the terms and conditions upon which
such election is to be made and the amount so payable (or
the manner in which such amount shall be determined);
(13) if other than the entire principal amount thereof
the portion of the principal amount of any Securities of the
series which shall be payable upon declaration of
acceleration of the maturity thereof pursuant to Section
6.02;
(14) if the principal amount payable at the maturity of
any Securities of the series will not be determinable as of
any one or more dates prior to maturity, the amount which
shall be deemed to be the principal amount of such
Securities as of any such date for any purpose thereunder or
hereunder, including the principal amount thereof which
shall be due and payable upon any maturity date other than
the stated maturity or which shall be deemed to be
outstanding as of any date prior to the stated maturity (or,
in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(15) if applicable, that the Securities of the series,
in whole or any specified part, shall be defeasible pursuant
to Section 4.11, and, if other than by a Board Resolution,
the manner in which any election by the Company to defease
such Securities shall be evidenced;
(16) any addition to or change in the Events of Default
which applies to any Securities of the series and any change
in the right of the Trustee or the requisite Holders of
9
such Securities to declare the principal amount thereof due and
payable pursuant to Section 6.02;
(17) any addition to or change in the covenants set
forth in Article Four which applies to Securities of the
series;
(18) whether the Securities of the series shall be
issued in whole or in part in the form of a Global Security
or Securities; the terms and conditions, if any, upon which
such Global Security or Securities may be exchanged in whole
or in part for other individual Securities, and the
depositary for such Global Security and Securities; and
(19) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture,
but which may modify or delete any provision of this
Indenture with respect to such series, provided that no such
term may modify or delete any provision hereof if imposed by
the Trust Indenture Act, and provided, further that any
modification or deletion of the rights, duties or immunities
of the Trustee hereunder shall have been consented to in
writing by the Trustee).
If any of the foregoing terms are not available at the time
such Board Resolution is adopted, or such officers' Certificate
or any supplemental indenture is executed, such resolutions,
Officers' Certificate or supplemental indenture may reference the
document or documents to be created in which such terms will be
set forth prior to the issuance of such Securities.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise
be provided in or pursuant to the Board Resolution referred to
above and (subject to Section 3.02) set forth, or determined in
the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting
forth the terms of the series.
SECTION 3.02. EXECUTION AND AUTHENTICATION; DENOMINATIONS;
DELIVERY AND DATING.
Two Officers shall sign the Securities for the Company by
facsimile signature. The Company's seal shall be reproduced on
the Securities.
If an Officer whose signature is on a Security no longer
holds that office at the time the Trustee authenticates the
Security, the Security shall be valid nevertheless.
A Security shall not be valid until the Trustee manually
signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
10
Upon a written order of the Company signed by two Officers
or by an Officer and an Assistant Treasurer of the Company, the
Trustee shall authenticate the Securities.
The Securities shall be issuable only in registered form
without coupons and only in minimum denominations of $100,000 and
in integral multiples of $1,000 in denominations above $100,000.
The Company and the Trustee, by their execution and
authentication, respectively, of the Securities, expressly agree
to the terms and conditions stated therein and to be bound
thereby.
SECTION 3.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where
Securities of a series may be presented for registration of
transfer or for exchange ("Registrar") and an office or agency
where Securities of that series may be presented for payment
("Paying Agent"). At all times the Registrar and the Paying
Agent shall each maintain an office or agency in the State of New
York where Securities of a series may be presented for the above
purposes. The Registrar shall keep a register of the Securities
of that series and of their registration of transfer and
exchange. The Company may have one or more co-registrars and one
or more additional paying agents for each series of Securities.
The term "Paying Agent" includes any additional paying agent.
The term "Registrar" includes any co-registrar.
The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-registrar not a party to
this Indenture. The agreement shall implement the provisions of
this Indenture that relate to such agent. The Company shall
notify the Trustee of the name and address of any such agent. If
the Company fails to maintain a Registrar or Paying Agent for any
series of Securities, the Trustee shall act as such.
The Company initially appoints the Trustee as Registrar and
Paying Agent.
SECTION 3.04. PAYING AGENT TO HOLD MONEY IN TRUST.
Subject to the provisions of Section 8.03 hereof, each
Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all money held by the Paying Agent
for the payment of principal of or interest on any series of
Securities, and shall notify the Trustee of any default by the
Company in making any such payment. If the Company or a
subsidiary of the Company acts as Paying Agent, it shall, on or
before each due date of principal of or interest on that series
of Securities, segregate the money and hold it as a separate
trust fund. The Company at any time may require a Paying Agent
to pay all money held by it to the Trustee. Upon doing so the
Paying Agent shall have no further liability for the money.
SECTION 3.05. SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of
the names and addresses of Securityholders, separately by series,
and shall otherwise comply with TIA Section 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee on or
before each interest payment date and at such other times as the
Trustee may
11
request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of
Securityholders, separately by series, relating to such interest
payment date or request, as the case may be.
SECTION 3.06. TRANSFER AND EXCHANGE.
Where a Security is presented to the Registrar or a
co-registrar with a request to register a transfer, the Registrar
shall register the transfer as requested if the requirements of
Section 8-401(1) of the Nevada Uniform Commercial Code are met.
Where Securities are presented to the Registrar or a co-registrar
with a request to exchange them for an equal principal amount of
Securities of other denominations, the Registrar shall make the
exchange as requested if the same requirements are met. To
permit registration of transfers and exchanges, the Trustee shall
authenticate Securities at the Registrar's request. The Company
may charge a reasonable fee for any transfer or exchange but not
for any exchange pursuant to Section 3.09 or 9.05.
The Company need not issue, and the Registrar or co-
Registrar need not register the transfer or exchange of, (i) any
Security of a series during a period beginning at the opening of
business 15 days before the day of any selection of Securities of
that series for redemption under Section 11.02 and ending at the
close of business on the day of selection, or (ii) any Security
so selected for redemption in whole or in part, except the
unredeemed portion of any Security of that series being redeemed
in part.
SECTION 3.07. REPLACEMENT SECURITIES.
If the Holder of a Security claims that the Security has
been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate and make available for
delivery a replacement Security of like series if the
requirements of Section 8-405 of the Nevada Uniform Commercial
Code are met. Before any Security is replaced, an indemnity bond
must be provided sufficient in the judgment of the Company and
the Trustee to protect the Company, the Trustee, the Paying
Agent, the Registrar or any co-registrar from any loss which any
of them may suffer if a Security is replaced. The Company may
charge for its expenses in replacing a Security. Every
replacement Security shall constitute a contractual obligation of
the Company and shall be entitled to all the benefits of this
Indenture equally with all other Securities of the same series
issued hereunder.
SECTION 3.08. OUTSTANDING SECURITIES.
The Securities of any series outstanding at any time are all
the Securities of that series authenticated by the Trustee except
for those canceled by it and those described in this Section.
Subject to the provisions of Section 12.06 hereof, a Security
does not cease to be outstanding because the Company or an
Affiliate holds the Security.
If a Security is replaced pursuant to Section 3.07, it
ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Security is held by a bona
fide purchaser.
12
If the Paying Agent holds on the maturity date money
sufficient to pay Securities payable on that date, then on and
after that date such Securities shall cease to be outstanding and
interest on them shall cease to accrue.
For each series of Original Issue Discount Securities, the
principal amount of such Securities that shall be deemed to be
outstanding and used to determine whether the necessary Holders
have given any request, demand, authorization, direction, notice,
consent or waiver shall be the principal amount of such
Securities that could be declared to be due and payable upon
acceleration upon an Event of Default as of the date of such
determination. When requested by the Trustee, the Company will
advise the Trustee of such amount, showing its computations in
reasonable detail.
SECTION 3.09. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary
Securities upon a written order of the Company signed by two
officers of the Company. Temporary Securities shall be
substantially in the form of definitive Securities, but may have
variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate definitive Securities
in exchange for temporary Securities.
SECTION 3.10. CANCELLATION.
The Company at any time may deliver Securities to the
Trustee for cancellation. The Registrar and the Paying Agent
shall cancel and destroy any Securities surrendered to them for
registration of transfer, exchange, payment or cancellation.
Certification of the destruction of all cancelled securities
shall be delivered to the Company. The Company may not issue new
Securities to replace Securities it has paid or delivered to the
Trustee for cancellation.
SECTION 3.11. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on any
series of Securities, it shall pay the defaulted interest to the
persons who are Securityholders of that series on a subsequent
special record date. After the deposit by the Company with the
Trustee of money sufficient to pay such defaulted interest, the
Trustee shall fix the record date and payment date. At least 15
days before the record date, the Company shall mail to each
Securityholder of that series a notice that states the record
date, the payment date, and the amount of defaulted interest to
be paid. The Company may pay defaulted interest in any other
lawful manner.
SECTION 3.12. MANDATORY DISPOSITION OF SECURITIES PURSUANT TO
GAMING LAWS
Each Holder, by accepting the Securities, shall be deemed to have agreed
that if the Gaming Authority of any jurisdiction in which the Company or any
of its subsidiaries conducts or proposes to conduct gaming requires that a
person who is a Holder must be licensed, qualified or found suitable under
the applicable Gaming Laws, such Holder shall apply for a license,
qualification or a finding of suitability within the required time period.
If such person fails to apply or become licensed or qualified or is found
unsuitable, the Company shall have the right, at its option, (i) to require
such person to dispose of its Securities or beneficial interest therein
within 30 days of receipt of notice of the Company's election or such earlier
date as may be requested or prescribed by such Gaming Authority or (ii) to
redeem such Securities at a redemption price equal to the lesser of (A) such
person's cost and (B) 100% of the principal amount thereof, plus accrued and
unpaid interest to the earlier of the redemption date and the date of the
finding of unsuitability, which may be less than 30 days following the notice
of redemption if so requested or prescribed by the Gaming Authority. The
Company shall notify the Trustee in writing of any such redemption as soon as
practicable. The Company shall not be responsible for any costs or expenses
any such Holder may incur in connection with its application for a license,
qualification or a finding of suitability.
13
ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest on the
Securities on the dates and in the manner provided in the
Securities. An installment of principal of or interest on the
Securities shall be considered paid on the date it is due if the
Trustee or Paying Agent holds on that date money designated for
and sufficient to pay the installment.
The Company shall pay interest on overdue principal at the
rate borne by the Securities; it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. CORPORATE EXISTENCE.
Subject to Article Five, the Company will do or cause to be
done all things necessary to preserve and keep in full force and
effect its corporate existence and the corporate, partnership or
other existence of each subsidiary in accordance with the
respective organizational documents of each subsidiary and the
rights (charter and statutory), licenses and franchises of the
Company and its subsidiaries; provided, however, that the Company
shall not be required to preserve, with respect to itself, any
right, license or franchise, and with respect to the
subsidiaries, any such existence, right, license or franchise, if
the Board of Directors, or the board of directors or managing
partners of the subsidiary concerned, shall determine that the
preservation thereof is no longer desirable in the conduct of the
business of the Company or any subsidiary and that the loss
thereof is not disadvantageous in any material respect to the
Holders.
SECTION 4.03. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all
taxes, assessments and governmental charges levied or imposed
upon the Company or any subsidiary or upon the income, profits or
property of the Company or any subsidiary, and (2) all lawful
claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Company or any
subsidiary; PROVIDED, HOWEVER, that the Company shall not be
required to pay or discharge or cause to be paid or discharged
any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by
appropriate proceedings; and PROVIDED, FURTHER, that the Company
shall not be required to cause to be paid or
14
discharged any such tax, assessment, charge or claim if the Board
of Directors, or the board of directors or managing partners of the
subsidiary concerned, shall determine that such payment is not
advantageous to the conduct of the business of the Company or any
subsidiary and that the failure so to pay or discharge is not
disadvantageous in any material respect to the Holders.
SECTION 4.04. MAINTENANCE OF PROPERTIES.
The Company will cause all properties used in the conduct of
its business or the business of any subsidiary to be maintained
and kept in such condition, repair and working order as in the
judgment of the Company may be necessary, so that the business
carried on in connection therewith may be properly and
advantageously conducted at all times; PROVIDED, HOWEVER, that
nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance
or disposal is, in the judgment of the Board of Directors or of
the board of directors or managing partners of the subsidiary
concerned, desirable in the conduct of the business of the
Company or any subsidiary and not disadvantageous in any material
respect to the Holders; and PROVIDED FURTHER, that property may
be disposed of in the ordinary course of the business of the
Company or its subsidiaries at the discretion of the appropriate
officers of the Company and its subsidiaries.
SECTION 4.05. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the Borough of Manhattan, The
City of New York, an office or agency where Securities may be
presented or surrendered for payment, where Securities may be
surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. Unless the Trustee
serves as Paying Agent or Registrar, the Company will give prompt
written notice to the Trustee of the location, and any change in
the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made
or served at the address of the Trustee set forth in
Section 12.02.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented
or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough
of Manhattan, The City of New York for such purposes.
SECTION 4.06. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee within 120 days
after the end of each fiscal year of the Company an Officers'
Certificate stating whether or not the signers know of any
default by the Company in performing its covenants in
Sections 4.02, 4.03, 4.04, 4.05, 4.09 and 4.10. If they do know
of such a default, the certificate shall describe the default in
detail.
15
SECTION 4.07. REPORTS.
The Company shall file with the Trustee within 15 days after
it files them with the SEC copies of the quarterly and annual
reports and of the information, documents, and other reports (or
copies of such portions of any of the foregoing as the SEC may by
rules and regulations prescribe) which the Company is required to
file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act. The Company also shall comply with the other provisions of
TIA Section 314(a).
So long as any of the Securities remain outstanding the
Company shall cause to be mailed to the Holders at their
addresses appearing in the register of Securities maintained by
the Registrar all annual, quarterly or other reports which the
Company mails or causes to be mailed to its stockholders
generally, concurrently with such mailing to stockholders, and
will cause to be disclosed in such annual reports as of the date
of the most recent financial statements in each such report the
amount available for dividends and other payments pursuant to the
most restrictive covenant therefor as of such date.
SECTION 4.08. WAIVER OF STAY, EXTENSION OF USURY LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in an
manner whatsoever claim, and will resist any and all efforts to
be compelled to take the benefit or advantage of, any stay or
extension law or any usury law or other law which would prohibit
or forgive the Company from paying all or any portion of the
interest on the Securities as contemplated herein, whenever
enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and
(to the extent that it may lawfully do so) the Company hereby
expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law
had been enacted.
SECTION 4.09. LIMITATION ON LIENS.
Nothing in this Indenture or in the Securities shall in any
way restrict or prevent the Company or any of its subsidiaries
from incurring any Indebtedness; PROVIDED, HOWEVER, that neither
the Company nor any of its subsidiaries may issue, assume or
guarantee any Indebtedness secured by a Lien upon any
Consolidated Property without effectively providing that the
Securities shall be secured equally and ratably with (or prior
to) such Indebtedness so long as such Indebtedness shall be so
secured, except that this restriction will not apply to:
(a) Liens existing on the date of original issuance of
the Securities;
(b) Liens affecting property of a corporation or other
entity existing at the time it becomes a subsidiary of the
Company or at the time it is merged into or consolidated
with the Company or a subsidiary of the Company;
16
(c) Liens on property existing at the time of
acquisition thereof or incurred to secure payment of all or
a part of the purchase price thereof or to secure
Indebtedness incurred prior to, at the time of, or within
24 months after the acquisition thereof for the purpose of
financing all or part of the purchase price thereof;
(d) Liens on any property to secure all or part of the
cost of improvements or construction thereon or Indebtedness
incurred to provide funds for such purpose in a principal
amount not exceeding the cost of such improvements or
construction;
(e) Liens which secure Indebtedness owing by a
subsidiary of the Company to the Company or to a subsidiary
of the Company;
(f) Liens securing Indebtedness of the Company the
proceeds of which are used substantially simultaneously with
the incurrence of such Indebtedness to retire Funded Debt;
(g) purchase money security Liens on personal
property;
(h) Liens securing Indebtedness of the Company the
proceeds of which are used within 24 months of the
incurrence of such Indebtedness for the Project Cost of the
construction and development or improvement of a Resort
Property;
(i) Liens on the stock, partnership or other equity
interest of the Company or any subsidiary in any Joint
Venture or any subsidiary which owns an equity interest in
such Joint Venture to secure Indebtedness, provided the
amount of such Indebtedness is contributed and/or advanced
solely to such Joint Venture;
(j) Liens securing any Indebtedness that ranks pari
passu with the Securities;
(k) Liens in favor of the United States or any state
thereof, or any department, agency, instrumentality, or
political subdivision of any such jurisdiction, to secure
partial, progress, advance or other payments pursuant to any
contract or statute or to secure any indebtedness incurred
for the purpose of financing all or any part of the purchase
price or cost of constructing or improving the property
subject thereto, including, without limitation, Liens to
secure Indebtedness of the pollution control or industrial
revenue bond type;
(l) Liens required by any contract or statute in order
to permit the Company or a subsidiary of the Company to
perform any contract or subcontract made by it with or at
the request of the United States of America, any state or
any department, agency or instrumentality or political
subdivision of either;
(m) mechanic's, materialman's, carrier's or other like
Liens, arising in the ordinary course of business;
17
(n) Liens for taxes or assessments and similar charges
other (x) not delinquent or (y) contested in good faith by
appropriate proceedings and as to which the Company or a
subsidiary of the Company shall have set aside on its books
adequate reserves;
(o) zoning restrictions, easements, licenses,
covenants, reservations, restrictions on the use of real
property and minor irregularities of title incident thereto
which do not in the aggregate materially detract from the
value of the property or assets of the Company and its
subsidiaries taken as a whole or impair the use of such
property in the operation of the Company's or any of its
subsidiary's business; and
(p) any extension, renewal, replacement or refinancing
of any Lien referred to in the foregoing clauses (a) through (j)
inclusive or of any Indebtedness secured thereby, PROVIDED, that
the principal amount of Indebtedness secured thereby shall not
exceed the principal amount of Indebtedness so secured at the
time of such extension, renewal, replacement or refinancing, and
that such extension, renewal, replacement or refinancing Lien
shall be limited to all or part of substantially the same property
which secured the Lien extended, renewed, replaced or refinanced
(plus improvements on such property).
Notwithstanding the foregoing provisions of this Section
4.09, the Company and any one or more of its subsidiaries may,
without securing the Securities, issue, assume or guarantee
Indebtedness which would otherwise be subject to the foregoing
restrictions in an aggregate principal amount which, together
with all other such Indebtedness of the Company and its
subsidiaries which would otherwise be subject to the foregoing
restrictions (not including Indebtedness permitted to be secured
under clauses (a) through (j) inclusive above) and the aggregate
Value of Sale and Lease-Back Transactions (other than those in
connection with which the Company has voluntarily retired Funded
Debt) does not at any one time exceed 15% of Consolidated Net
Tangible Assets of the Company and its consolidated
subsidiaries.
SECTION 4.10. LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS.
Neither the Company nor any of its subsidiaries shall enter
into any Sale and Lease-Back Transaction unless either (a) the
Company or such subsidiary would be entitled, pursuant to the
provisions of Section 4.09, to incur Indebtedness in a principal
amount equal to or exceeding the Value of such Sale and Lease-
Back Transaction, secured by a Lien on the property to be leased,
without equally and ratably securing the Securities or (b) the
Company (and in any such case the Company covenants and agrees
that it will do so) within 120 days after the effective date of
such Sale and Lease-Back Transaction (whether made by the Company
or a subsidiary of the Company) applies to the voluntary
retirement of its Funded Debt an amount equal to the Value of the
Sale and Lease-Back Transaction less the principal amount of
other Funded Debt voluntarily retired by the Company within four
months after the effective date of such arrangement, excluding
retirements of Funded Debt as a result of conversions or pursuant
to mandatory sinking fund or prepayment provisions or by payment
at maturity.
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SECTION 4.11. DEFEASANCE OF CERTAIN OBLIGATIONS.
The Company may omit to comply with any term, provision or
condition set forth in Sections 4.03, 4.04, 4.09 and 4.10 and
Article Five and Section 6.01(3) (with respect to Sections 4.03,
4.04, 4.09 and 4.10 and Article Five) and, in each case with
respect to any series of Securities, such omission shall be
deemed not to be an Event of Default, PROVIDED, that the
following conditions have been satisfied with respect to such
series:
(1) the Company has irrevocably deposited or caused to
be deposited with the Trustee, as trust funds in trust,
specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such series of Securities,
(A) money in an amount, or (B) U.S. Government Obligations
which through the payment of interest and principal in
respect thereof in accordance with their terms will, without
consideration of any reinvestment of such interest, provide
not later than the opening of business on the relevant due
date, money in an amount, or (C) a combination thereof, in
the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written
certification thereof delivered to the Trustee, sufficient
to pay and discharge the principal of, and each installment
of interest on, such series of Securities then outstanding
on the date of maturity of such principal or installment of
interest or on the redemption date, as the case may be;
(2) Such deposit shall not cause the Trustee with
respect to such series of Securities to have a conflicting
interest for purposes of the TIA with respect to such series
of Securities;
(3) Such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture;
(4) No Event of Default or event which with the giving
of notice or lapse of time, or both, would become an Event
of Default with respect to such series of Securities shall
have occurred and be continuing on the date of such deposit
and no Event of Default under Section 6.01(5) or
Section 6.01(6) or event which with the giving of notice or
lapse of time, or both, would become an Event of Default
under Section 6.01(5) or Section 6.01(6) shall have occurred
and be continuing at any time during the period ending on
the 91st day after such date or, if longer, ending on the
day following the expiration of the longest preference
period applicable to the Company in respect of such deposit
(it being understood that this condition shall not be deemed
satisfied until the expiration of such period);
(5) the deposit shall not result in the Company, the
Trustee or the trust becoming or being deemed to be an
"investment company" under the Investment Company Act of
1940;
(6) The Company has delivered to the Trustee an
Opinion of Counsel, reasonably satisfactory to the Trustee,
to the effect that (i) Holders of such series of Securities
will not recognize income, gain or loss for federal income
tax purposes as a result of such deposit and defeasance of
certain obligations and will be subject to federal income
tax on the same amount and in the same manner and at the
same times, as would have been the case if such deposit
19
and defeasance had not occurred and (ii) after the passage of 90
days following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting
creditors' rights generally, PROVIDED, that if a court were
to rule under any such law in any case or proceeding that
the trust funds remained property of the Company, no opinion
need be given as to the effect of such laws on the trust
funds except the following: assuming such trust funds
remained in the Trustee's possession prior to such court
ruling to the extent not paid to Holders of such series of
Securities, the Trustee will hold, for the benefit of the
Holders of such series of Securities, a valid and perfected
security interest in such trust funds that is not avoidable
in bankruptcy or otherwise; and
(7) The Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for herein
relating to the defeasance contemplated by this Section have
been complied with.
ARTICLE FIVE
SUCCESSOR CORPORATION
The Company shall not consolidate with or merge into any
other person or transfer its properties and assets substantially
as an entirety to any person unless:
(1) either the Company shall be the continuing
corporation, or the person (if other than the Company)
formed by such consolidation or into which the Company is
merged or to which the properties and assets of the Company
substantially as an entirety are transferred shall be a
corporation, partnership or trust organized and existing
under the laws of the United States of America or any State
thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of the Company under the
Securities and this Indenture;
(2) immediately after giving effect to such
transaction, no Default or Event of Default exists; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger or transfer and such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such
transaction have been complied with.
The successor corporation formed by such consolidation or
into which the Company is merged or to which such transfer is
made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with
the same effect as if such successor corporation had been named
as the Company herein, and thereafter the predecessor corporation
shall be relieved of all obligations and covenants under the
Indenture and the Securities, and in the event of such transfer
any such predecessor corporation may be dissolved and liquidated.
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ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "Event of Default" with respect to any series of
Securities occurs if:
(1) the Company defaults in the payment of interest on
such series of Securities when the same becomes due and
payable and the default continues for a period of 30 days;
or
(2) the Company defaults in the payment of principal
of such series of Securities when the same becomes due and
payable at maturity, upon redemption or otherwise; or
(3) the Company fails to comply with any of its other
agreements in such series of Securities or this Indenture,
and the default continues for the period and after the
notice specified below; or
(4) an event or events of default, as defined in any
one or more mortgages, indentures or instruments under which
there may be issued, or by which there may be secured or
evidenced, any Indebtedness of the Company or a subsidiary,
whether such Indebtedness now exists or shall hereafter be
created, shall happen and shall entitle the holders of such
Indebtedness to declare an aggregate principal amount of at
least $10,000,000 of such Indebtedness due and payable and
such event of default shall not have been cured or waived in
accordance with the provisions of such instrument, or such
Indebtedness shall not have been discharged, within a period
of 30 days after there shall have been given, by registered
or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in
principal amount of such series of Securities then
outstanding a written notice specifying such event or events
of default and requiring the Company to cause such event of
default to be cured or such Indebtedness to be discharged
and stating that such notice is a "Notice of Default"
hereunder, PROVIDED, HOWEVER, that the Company is not in
good faith contesting in appropriate proceedings the
occurrence of such an event of default; or
(5) a court of competent jurisdiction enters a
judgment, decree or order for relief in respect of the
Company or any subsidiary in an involuntary case or
proceeding under any Bankruptcy Law which shall (A) approve
as properly filed a petition seeking reorganization,
arrangement, adjustment or composition in respect of the
Company or any subsidiary, (B) appoint a Custodian of the
Company or any subsidiary or for any substantial part of its
property or (C) order the winding-up or liquidation of its
affairs; and such judgment, decree or order shall remain
unstayed and in effect for a period of 60 consecutive days;
or any bankruptcy or insolvency petition or application is
filed, or any bankruptcy or insolvency proceeding is
commenced, against the Company or any subsidiary and such
petition, application or proceeding is not dismissed within
60 days; or any warrant of attachment is
21
issued against any substantial portion of the property of the Company or
any subsidiary which is not released within 60 days of service; or
(6) the Company or any subsidiary shall (A) become
insolvent, (B) generally fail to pay its debts as they
become due, (C) make any general assignment for the benefit
of creditors, (D) admit in writing its inability to pay its
debts generally as they become due, (E) commence a voluntary
case or proceeding under any Bankruptcy Law, (F) consent to
the entry of a judgment, decree or order for relief in an
involuntary case or proceeding under any Bankruptcy Law,
(G) consent to the institution of bankruptcy or insolvency
against it, (H) apply for, consent to or acquiesce in the
appointment of or taking possession by a Custodian of the
Company or any subsidiary or for any substantial part of its
property or (I) take any corporate action in furtherance of
any of the foregoing.
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
A default under clause (3) (other than a Default under
Section 4.02 or Article Five which Default shall be an Event of
Default without the notice or passage of time specified in this
paragraph) is not an Event of Default with respect to a series of
Securities until the Trustee or the Holders of at least 25% in
principal amount of such series of Securities then outstanding
notify the Company of the default and the Company does not cure
the default within 30 days after receipt of the notice. The
notice must specify the default, demand that it be remedied and
state that the notice is a "Notice of Default."
SECTION 6.02. ACCELERATION.
If an Event of Default relating to any series of Securities
occurs and is continuing, the Trustee by notice in writing to the
Company, or the Holders of not less than 25% in principal amount
of such series of Securities then outstanding by notice in
writing to the Company and the Trustee, may declare the unpaid
principal (or, in the case of Original Issue Discount Securities,
such lesser amount as may be provided for in such Securities of
and any accrued interest on all such series of Securities, (but
in no event more than the maximum amount of principal and
interest thereon allowed by law) to be due and payable
immediately. Upon any such declaration such principal and
interest shall be payable immediately.
At any time after such a declaration of acceleration has
been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount
of such series of Securities then outstanding, by written notice
to the Company and the Trustee, may rescind and annul such
declaration as to such series of Securities, and its consequences
if:
(1) the Company has paid or deposited with the Trustee
a sum sufficient to pay
22
(A) the principal of such series of Securities
that has become due otherwise than by such declaration
of acceleration (together with interest, if any,
payable thereon); and
(B) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee and its
agents, attorneys and counsel; and
(2) all existing Events of Default relating to such
series of Securities have been cured or waived and the
rescission would not conflict with any judgment or decree.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default relating to any series of Securities
occurs and is continuing, the Trustee may pursue any available
remedy by proceeding at law or in equity to collect the payment
of principal of or interest on such series of Securities or to
enforce the performance of any provisions of such series of
Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the subject series of Securities or does not
produce any of them in the proceeding. A delay or omission by
the Trustee or any Securityholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the
right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy.
All available remedies are cumulative to the extent permitted by
law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Subject to Section 9.02, the Holders of a majority in
principal amount of any series of Securities then outstanding by
notice to the Trustee may waive an existing Default or Event of
Default with respect to such series of Securities, and its
consequences. When a Default or Event of Default is waived, it
is cured and stops continuing.
SECTION 6.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of any series
of Securities then outstanding may direct the time, method and
place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on it with
respect to any default under such series of Securities. However,
subject to Section 7.01, the Trustee may refuse to follow any
direction that conflicts with any rule of law or this Indenture,
that is unduly prejudicial to the rights of another Holder of
such series of Securities, or that would involve the Trustee in
personal liability.
23
SECTION 6.06. LIMITATION ON SUITS.
A Holder of any series of Securities may not pursue any
remedy with respect to this Indenture or any series of Securities
unless:
(1) the Holder gives to the Trustee written notice of
a continuing Event of Default with respect to such series;
(2) the Holders of at least 25% in principal amount of
such series of Securities then outstanding make a written
request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee
indemnity satisfactory to the Trustee against any loss,
liability or expense;
(4) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer of
indemnity; and
(5) during such 60-day period the Holders of a
majority of principal amount of such series of Securities
then outstanding do not give the Trustee a direction
inconsistent with the request.
A Holder of any series of Securities may not use this
Indenture to prejudice the rights of another Holder of such
series of Securities or to obtain a preference or priority over
another Holder of such series of Securities.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Security to receive payment of principal
of or interest on the Security on or after the respective due
dates expressed in the Security or to bring suit for the
enforcement of any such payment on or after such respective dates
shall not be impaired or affected without the consent of the
Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of interest or principal
specified in Section 6.01(1) or (2) occurs and is continuing with
respect to any series of Securities, the Trustee may recover
judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal (or such
portion of the principal as may be specified as due upon
acceleration at that time in the terms of that series of
Securities) and interest, if any, remaining unpaid on such series
of Securities then outstanding.
24
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have
the claims of the Trustee and the Securityholders allowed in any
judicial proceedings relative to the Company, its creditors or
its property.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article
with respect to any series of Securities, it shall pay out the
money in the following order:
First: to the Trustee for amounts due under Section
7.07;
Second: to Securityholders for amounts due and unpaid
on such series of Securities for principal and interest,
ratably, without preference or priority of any kind,
according to the amounts due and payable on such series of
Securities for principal and interest, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any
payment to Holders of any series of Securities pursuant to this
Section. The Trustee shall notify the Company in writing
reasonably in advance of any such record date and payment date.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action
taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07,
or a suit by Holders of more than 10% in principal amount of the
Securities then outstanding.
ARTICLE SEVEN
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
Indenture and covenants and agrees to perform the same, as herein
expressed.
25
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is known
to the Trustee (and is not cured), the Trustee shall
exercise its rights and powers and use the same degree of
care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of an Event of
Default:
(1) The Trustee need perform only those duties
that are specifically set forth in this Indenture or in
the TIA and no covenants or obligations shall be
implied in this Indenture which bind the Trustee.
(2) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee
shall examine the certificates and opinions which by
any provision of this Indenture are specifically
required to be furnished to the Trustee to determine
whether or not they conform in form to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section;
(2) The Trustee shall not be liable for any error
of judgment made in good faith by a Trust Officer,
unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) The Trustee shall not be liable with respect
to any action it takes or omits to take in good faith
in accordance with a direction received by it pursuant
to Section 6.05.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b) and
(c) of this Section.
(e) The Trustee may refuse to perform any duty or
exercise any right or power unless it receives security and
indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on
any money received by it except as the Trustee may agree
with the Company.
26
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may rely on any document believed by
it to be genuine and to have been signed or presented by the
proper person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains from acting,
it may require an Officer's Certificate or an Opinion of
Counsel. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys or
agents (which shall not include its employees) and shall not
be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be
authorized or within its rights or power.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may
become the owner or pledgee of Securities and may otherwise deal
with the Company or its subsidiaries or Affiliates with the same
rights it would have if it were not Trustee. Any Paying Agent,
Registrar or co-registrar may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities, it shall not be
accountable for the Company's use of the proceeds from the
Securities, and it shall not be responsible for any statement in
the Securities other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default occurs with respect to any series of Securities
and is continuing and if it is known to the Trustee, the Trustee
shall mail to each Holder of such series of Securities, notice of
the Default within 90 days after it occurs. Except in the case
of a default in the payment of principal of or interest on such
series of Securities, the Trustee may withhold the notice if and
so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interests of the
Holders of such series of Securities.
SECTION 7.06. REPORTS BY TRUSTEE.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, the Trustee shall mail to
each Securityholder a brief report dated as of such May 15 that
complies with TIA SECTION 313(a). The Trustee also shall comply with
TIA SECTION 313(b).
27
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock
exchange on which the Securities are listed. The Company shall
notify the Trustee when the Securities are listed on any stock
exchange.
To the extent requested by the Company, the Trustee shall
cooperate with the Gaming Authorities in order to provide such
Gaming Authorities with any information and documentation that
they may request and as otherwise required by law.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time
reasonable compensation for its services. The Company shall
reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred by it. Such expense may include
the reasonable compensation and expenses of the Trustee's agents
and counsel. The Company shall indemnify the Trustee against any
loss or liability incurred by it, without negligence or bad faith
on its part, arising out of or in connection with the acceptance
or administration of this trust. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity.
The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel
and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made
without its consent. The Company need not reimburse any expense
or indemnify against any loss or liability incurred by the
Trustee through negligence or bad faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all
money or property held or collected by the Trustee, except that
held in trust to pay principal and interest on particular
Securities.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company in writing.
The Holders of a majority in principal amount of any series of
Securities then outstanding may remove the Trustee with respect
to such series of Securities by so notifying the removed Trustee
and may appoint a successor Trustee with the Company's consent.
The Company may remove the Trustee with respect to one or more or
all series of Securities if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an
insolvent;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
28
If, as to any series of Securities, the Trustee resigns or
is removed or if a vacancy exists in the office of Trustee for
any reason, the Company shall promptly appoint a successor
Trustee for that series.
A successor Trustee as to any series of Securities shall
deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after that, the retiring
Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, the resignation or removal of
the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture as to such series. A successor
Trustee shall mail notice of its succession to the Holders of
such series of Securities.
If a successor Trustee as to any series of Securities does
not take office within 60 days after the retiring Trustee resigns
or is removed, then (i) the retiring Trustee or the Company may
petition any court of competent jurisdiction for the appointment
of a successor Trustee and (ii) the Holders of a majority in
principal amount of such series of Securities then outstanding
may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 with
respect to any series of Securities, any Holder of such series of
Securities who satisfies the requirements of TIA Section 310(b)
may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee for
such series.
In case of appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) shall contain
such provisions as shall be necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as
to which the retiring Trustee is not retiring shall continue to
be vested in the retiring Trustee, and (3) shall add to or change
any of the provisions of this Indenture as shall be necessary or
desirable to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee; provided, however,
that nothing herein or in such supplemental Indenture shall
constitute such Trustee co-trustees of the same trust and that
each such Trustee shall be a trustee of a trust hereunder
separate and apart from any trust hereunder and administered by
any other such Trustee.
Upon the execution and delivery of such supplemental
Indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of
such successor Trustee relates.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
29
If the Trustee as to any series of Securities consolidates
with, merges or converts into, or transfers all or substantially
all of its corporate trust assets to, another corporation, the
resulting, surviving or transferee corporation shall, if such
resulting, surviving or transferee corporation is otherwise
eligible hereunder, without any further act, be the successor
Trustee as to such series.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
Each series of Securities shall always have a Trustee who
satisfies the requirements of TIA SECTION 310(a). The Trustee as to
any series of Securities shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply
with TIA SECTION 310(b), including the optional provision permitted by
the second sentence of TIA SECTION 310(b)(9).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA SECTION 311(a), excluding any
creditor relationship listed in TIA SECTION 311(b). A Trustee who has
resigned or been removed shall be subject to TIA SECTION 311(a) to the
extent indicated.
SECTION 7.12. AUTHENTICATING AGENT.
If the Company so requests, there shall be an Authenticating
Agent appointed by the Trustee with power to act on its behalf
and subject to its direction in the authentication and delivery
of any series of Securities in connection with the exchange or
registration of transfer thereof as fully to all intents and
purposes as though the Authenticating Agent had been expressly
authorized by the relevant Sections hereof to authenticate and
deliver such series of Securities, and such series of Securities
so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as
though authenticated by the Trustee hereunder, and for all
purposes of this Indenture, the authentication and delivery of
such series of Securities by the Authenticating Agent pursuant to
this Section shall be deemed to be the authentication and
delivery of such series of Securities "by the Trustee."
Notwithstanding anything to the contrary contained in Section
3.02, or in any other Section hereof, all authentication in
connection with exchange or registration of transfer thereof
shall be effected either by the Trustee or an Authenticating
Agent and such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws of the
United States or of any State, with a combined capital and
surplus of at least $5,000,000 and authorized under such laws to
exercise corporate trust powers and subject to supervision or
examination by Federal or State authority. If at any time an
Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately
in the manner and with the effect herein specified in this
Section. If such corporation publishes reports of condition at
least annually pursuant to law or the requirements of such
authority, then for the purposes of this Section the combined
capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published.
Any corporation into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, consolidation or
30
conversion to which any Authenticating Agent shall be a party, or any
corporation succeeding to the corporate trust business of any Authenticating
Agent, shall be the successor of the Authenticating Agent hereunder, if such
successor corporation is otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the
parties hereto or the Authenticating Agent or such successor corporation.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and to the Company.
The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in
case at any time any Authenticating Agent shall cease to be
eligible under this Section, the Trustee shall promptly appoint a
successor Authenticating Agent, shall give written notice of such
appointment to the Company and shall mail notice of such
appointment to all Holders of the Securities as the names and
addresses of such Holders appear on the register of Securities,
and shall publish notices of such appointment at least once in a
newspaper of general circulation in the place where such
successor Authenticating Agent has its principal office.
Any Authenticating Agent by the acceptance of its
appointment shall be deemed to have agreed with the Trustee that:
it will perform and carry out the duties of an Authenticating
Agent as herein set forth, including, without limitation, the
duties to authenticate and deliver the Securities when presented
to it in connection with exchanges or registrations of transfer
thereof; it will furnish from time to time, as requested by the
Trustee, appropriate records of all transactions carried out by
it as Authenticating Agent and will furnish the Trustee such
other information and reports as the Trustee may reasonably
require; it is eligible for appointment as Authenticating Agent
under this Section and will notify the Trustee promptly if it
shall cease to be so qualified; and it will indemnify the Trustee
against any loss, liability or expense incurred by the Trustee
and will defend any claim asserted against the Trustee by reason
of any act or failure to act of the Authenticating Agent but it
shall have no liability for any action taken by it at the
specific written direction of the Trustee.
The Company agrees that it will pay to the Authenticating
Agent from time to time reasonable compensation for its services.
The provisions of Sections 7.02, 7.03 and 7.04 shall bind
and inure to the benefit of any Authenticating Agent to the same
extent that they bind and inure to the benefit of the Trustee.
If an appointment is made pursuant to this Section, the
Securities may have endorsed thereon, in addition to the
Trustee's certificate of authentication, an alternate certificate
of authentication in the following form:
31
This is one of the Securities referred to in the within
mentioned Indenture.
as Trustee
By
-------------------------------------
As Authenticating Agent
By
-------------------------------------
Authorized Signatory
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. TERMINATION OF COMPANY'S OBLIGATIONS.
The Company may terminate its obligations under any series
of Securities and this Indenture with respect to such series,
except those obligations referred to in the immediately
succeeding paragraph, if:
(a) all such series of Securities previously
authenticated and delivered (other than mutilated,
destroyed, lost or stolen Securities which have been
replaced or such series of Securities which are paid for
pursuant to Section 4.01 or such series of Securities for
whose payment money or securities have theretofore been held
in trust and thereafter repaid to the Company, as provided
in Section 8.03) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it
hereunder with respect to such series; or
(b)(1) the series of Securities mature within one
year or all of them are to be called for redemption within
one year after arrangements satisfactory to the Trustee for
giving the notice of redemption; and
(b)(2) the Company has irrevocably deposited or
caused to be deposited with the Trustee, during such one-
year period, as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the
Holders of such series of Securities, (A) money in an
amount, or (B) U.S. Government Obligations which through the
payment of interest and principal in respect thereof in
accordance with their terms will, without consideration of
any reinvestment of such interest, provide not later than
the opening of business on the relevant due date, money in
an amount, or (C) a combination thereof, in the opinion of a
nationally recognized firm of independent certified public
accountants expressed in a written certification thereof
delivered to the Trustee, sufficient to pay and discharge
the principal of, and each installment of interest on, such
series of Securities then outstanding on the date of
maturity of such principal or installment of interest or the
redemption date, as the case may be; or
32
(c)(1) the Company has irrevocably deposited or
caused to be deposited with the Trustee, as trust funds in
trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such series of
Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms
will, without consideration of any reinvestment of such
interest, provide not later than the opening of business on
the relevant due date, money in an amount, or (C) a
combination thereof, in the opinion of a nationally
recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to
the Trustee, sufficient to pay and discharge the principal
of and each installment of interest on such series of
Securities then outstanding on the date of maturity of such
principal or installment of interest, or, on the redemption
date, as the case may be; and
(c)(2) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all
conditions precedent provided for in clause (c) and in Section 4.11
relating to the satisfaction and discharge of this Indenture
with respect to such series of Securities have been complied
with.
Notwithstanding the foregoing clause (c), prior to the end
of the 90-day period referred to in clause (6)(ii) of Section
4.11, none of the Company's obligations under this Indenture
shall be discharged, and subsequent to the end of the 90-day
period only the Company's obligations in Sections 3.03, 3.04,
3.05, 3.06, 3.07, 4.01, 4.02, 7.07, 7.08, 8.03 and 8.04 shall
survive until such series of Securities are no longer
outstanding. Thereafter, the Company's obligations in Sections
7.07, 8.03 and 8.04 shall survive; PROVIDED, that the Company
shall pay any taxes or other costs and expenses incurred by any
trust created pursuant to this Article Eight.
After any such irrevocable deposit and after satisfaction of
all the conditions of this Section 8.01, the Trustee, upon the
Company's request, shall acknowledge in writing the discharge of
the Company's obligations under the subject Securities and this
Indenture, except for those surviving obligations specified
above. The Trustee shall not be responsible for any calculations
made by the Company in connection with the deposit of funds
pursuant to clauses (b)(2) or (c)(1) of this Section 8.01.
SECTION 8.02. APPLICATION OF TRUST MONEY.
The Trustee or Paying Agent shall, with respect to any
series of Securities, hold in trust any money or U.S. Government
Obligations deposited with it pursuant to Section 8.01, and shall
apply the deposited money and the money from U.S. Government
Obligations in accordance with this Indenture, to the payment of
principal of and interest on such series of Securities.
33
SECTION 8.03. REPAYMENT TO THE COMPANY.
Subject to Section 8.02, the Trustee and the Paying Agent
shall promptly pay to the Company upon request any excess money
or U.S. Government Obligations held by them at any time and
thereupon shall be relieved from all liability with respect to
such money. The Trustee and the Paying Agent shall pay to the
Company upon request any money held by them for the payment of
principal or interest that remains unclaimed for two years;
PROVIDED, HOWEVER, that the Company shall, if requested by the
Trustee or such Paying Agent, give the Trustee or such Paying
Agent satisfactory indemnification against any and all liability
which may be incurred by it by reason of such payment; and
PROVIDED, FURTHER, that the Trustee or such Paying Agent before
being required to make any payment shall at the expense of the
Company cause to be published once in a newspaper or newspapers
printed in the English language, customarily published at least
five days a week and of general circulation in the City of Las
Vegas, Nevada and in the Borough of Manhattan, The City of New
York and mail to each Securityholder entitled to such money
notice that such money remains unclaimed and that, after a date
specified therein which shall be at least 30 days from the date
of such publication or mailing, any unclaimed balance of such
money then remaining will be repaid to the Company. After
payment to the Company, Securityholders entitled to such money
must look to the Company for payment as general creditors unless
an applicable law designates another person.
SECTION 8.04. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money
or U.S. Government Obligations in accordance with Section 8.01 by
reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.01 until such time as the Trustee or Paying
Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 8.01; PROVIDED, HOWEVER,
that if the Company has made any payment of interest on or
principal of any series of Securities because of the
reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such series of Securities to
receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
The Company and the Trustee as to any series of Securities
may amend or supplement this Indenture or the Securities without
notice to or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article Five;
34
(3) to provide, to the extent permitted by law, that
all or a portion of the obligations of the Company hereunder
shall be represented only by appropriate records maintained
by the Company or the Trustee in addition to or in place of
the issue of Securities;
(4) to comply with any requirements of the SEC in
connection with the qualification of this Indenture under the
TIA;
(5) to add to, change or eliminate any of the
provisions of this Indenture in respect of one or more series of
Securities, provided, however, that any such addition, change or
elimination (A) shall neither (i) apply to any series of
Securities created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii)
modify the rights of the Holder of any such Security with respect
to such provision or (B) shall become effective only when there
is no outstanding Security of any series created prior to the
execution of such supplemental indenture and entitled to the
benefit of such provision;
(6) to make any change that does not adversely affect
the rights of any Securityholder of any series; or
(7) to establish additional series of Securities as
permitted by Section 3.01.
SECTION 9.02. WITH CONSENT OF HOLDERS
The Company and the Trustee as to any series of
Securities may amend or supplement this Indenture or such series
of Securities without notice to any Securityholder but with the
written consent of the Holders of at least a majority in
principal amount of the then outstanding Securities of each
series affected by such amendment or supplement, with each such
series voting as a separate class. The Holders of a majority in
principal amount of any series of Securities then outstanding may
also waive compliance in a particular instance by the Company
with any provision of this Indenture with respect to that series
of Securities; provided, however, that without the consent of
each Securityholder affected, an amendment, supplement or waiver,
including a waiver pursuant to Section 6.04, may not:
(1) reduce the amount of Securities whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the rate, or extend the time for payment of
interest on, any Security in a manner adverse to the Holders
thereof;
(3) reduce the principal of, or extend the fixed
maturity or fixed redemption date of any Securities, in a manner
adverse to the Holders thereof;
(4) waive a default in the payment of the principal
of, or interest on, any Security;
(5) make any Security payable in money other than that
stated in the Security; or
35
(6) make any changes in Section 6.04, 6.07 and 9.02
(second sentence).
An amendment or waiver under this Section which waives,
changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the
benefit of one or more series of Securities, or which modifies
the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not
to affect the rights under this Indenture of the Holders of
Securities of any other series.
It shall not be necessary for the consent of the
Holders under this Section to approve the particular form of any
proposed amendment or waiver, but it shall be sufficient if such
consent approves the substance thereof.
After an amendment or waiver under this Section becomes
effective, the Company shall mail to Holders of Securities of
each series affected thereby a notice briefly describing the
amendment or waiver.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective,
a consent to such amendment, supplement or waiver by a Holder of
a Security shall bind the Holder and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent
is not made on any Security. However, any such Holder or
subsequent Holder may revoke the consent as to his Security or
portion of a Security if the Trustee receives notice of
revocation before the date the amendment, supplement or waiver
becomes effective.
The Company may, but shall not be obligated to, set a record
date for the purpose of determining the identity of Holders
entitled to consent to any amendment, supplement or waiver
permitted by this Indenture. If a record date is fixed, the
Holders of Securities of that series outstanding on such record
date, and no other Holders, shall be entitled to consent to such
amendment, supplement or waiver or revoke any consent previously
given, whether or not such Holders remain Holders after such
record date. No consent shall be valid or effective for more
than 90 days after such record date unless consents from Holders
of the principal amount of Securities of that series required
hereunder for such amendment, supplement or waiver to be
effective shall have also been given and not revoked within such
90 day period.
After an amendment, supplement or waiver becomes effective,
it shall bind the Holder of every Security unless it makes a
change described in clause (1), (2), (3), (4), (5) or (6) of
Section 9.02. In that case the amendment, supplement or waiver
shall bind each Holder of a Security who
36
has consented to it and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's Security.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to
deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security about the changed terms and return it to
the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects
the changed terms.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article if the amendment, supplement
or waiver does not adversely affect the rights of the Trustee.
If it does, the Trustee may but need not sign it. The Company
may not sign an amendment or supplement until the Board of
Directors approves it. The Trustee, subject to Sections 7.01 and
7.02, shall be entitled to receive, and shall be fully protected
in relying upon an Opinion of Counsel stating that any amendment,
supplement or waiver is authorized by this Indenture and complies
with the provisions of this Article Nine.
ARTICLE TEN
MEETINGS OF SECURITYHOLDERS
SECTION 10.01. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of any series of Securities, either
separately or jointly, may be called at any time and from time to
time pursuant to the provisions of this Article Ten for any of
the following purposes:
(a) to give any notice to the Company or to the
Trustee, or to give any directions to the Trustee, or to
waive or to consent to the waiving of any Default or Event
of Default hereunder and its consequences, or to take any
other action authorized to be taken by Securityholders
pursuant to any of the provisions of Article Six;
(b) to remove the Trustee or appoint a successor
Trustee pursuant to the provisions of Article Seven;
(c) to consent to an amendment, supplement or waiver
pursuant to the provisions of Section 9.02; or
(d) to take any action (i) authorized to be taken by
or on behalf of the Holders of any specified aggregate
principal amount of such series of Securities under any
other
37
provision of this Indenture, or authorized or permitted by law or (ii)
which the Trustee deems necessary or appropriate in connection with the
administration of this Indenture.
SECTION 10.02. MANNER OF CALLING MEETINGS.
The Trustee may at any time call a meeting of Holders of any
series of Securities to take any action specified in Section
10.01, to be held at such time and at such place in the City of
Las Vegas, Nevada, as the Trustee shall determine. Notice of
every meeting of Holders of any series of Securities, setting
forth the time and place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be mailed by
the Trustee, first-class postage prepaid, to the Company, and to
the Holders of such series of Securities at their last addresses
as they shall appear on the registration books of the Registrar,
not less than ten nor more than 60 days prior to the date fixed
for the meeting.
Any meeting of Holders of the Securities shall be valid
without notice if (i) with respect to a meeting of any series of
Securities, all Holders of such series of Securities then
outstanding are present in person or by proxy, or if notice is
waived before or after the meeting by all Holders of such series
of Securities then outstanding and (ii) with respect to a meeting
of all Securityholders, all Holders of such Securities then
outstanding are present in person or by proxy, or if notice is
waived before or after the meeting by all Holders of such
Securities then outstanding, and, in each case, if the Company
and the Trustee are either present by duly authorized
representative or have, before or after the meeting waived
notice.
SECTION 10.03. CALL OF MEETINGS BY COMPANY OR HOLDERS.
In case at any time the Company, pursuant to resolution of
its Board of Directors, or the Holders of not less than 25% in
aggregate principal amount of any series of Securities then
outstanding shall have requested the Trustee to call a meeting of
Securityholders, either separately or jointly, to take any action
specified in Section 10.01, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting,
and the Trustee shall not have mailed the notice of such meeting
within 20 days for receipt of such request, then the Company or
the Holders of such series of Securities in the amount above
specified may determine the time and place in the City of Las
Vegas, Nevada, or in the Borough of Manhattan, The City of New
York, for such meeting and may call such meeting for the purpose
of taking such action, by mailing or causing to be mailed notice
thereof as provided in Section 10.02, or by causing notice
thereof to be published at least once in each of two successive
calendar weeks (on any day of the week) in a newspaper or
newspapers printed in the English language, customarily published
at least five days a week and of general circulation in the City
of Las Vegas, Nevada and in the Borough of Manhattan, The City of
New York, the first such publication to be not less than 10 nor
more than 60 days prior to the date fixed for the meeting.
SECTION 10.04. WHO MAY ATTEND VOTE AT MEETINGS.
To be entitled to vote at any meeting of Securityholders, a
person shall (a) be a registered Holder of one or more
Securities, or (b) be a person appointed by an instrument in
writing as proxy for the registered Holder or Holders of
Securities. The only persons who shall be entitled to be
38
present or to speak at any meeting of Securityholders shall be the persons
entitled to vote at such meeting and their counsel and any representative of
the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 10.05. REGULATIONS MAY BE MADE BY TRUSTEE; CONDUCT OF THE
MEETING; VOTING RIGHTS; ADJOURNMENT.
Notwithstanding any other provision of this Indenture, the
Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Securityholders, in regard to proof
of the holding of Securities and of the appointment of proxies,
and in regard to the appointment and duties of inspectors of
votes, and submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think
appropriate. Such regulations may fix a record date and time for
determining the Holders of record of Securities entitled to vote
at such meeting, in which case those and only those persons who
are Holders of Securities at the record date and time so fixed,
or their proxies, shall be entitled to vote at such meeting
whether or not they shall be such Holders at the time of the
meeting.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have
been called by the Company or by Securityholders as provided in
Section 10.03, in which case the Company or the Securityholders
calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of
the Holders of a majority in principal amount of the Securities
represented at the meeting and entitled to vote.
At any meeting each Securityholder or proxy shall be
entitled to one vote for each $1,000 principal amount of
Securities held or represented by him; PROVIDED, HOWEVER, that no
vote shall be cast or counted at any meeting in respect of any
Securities challenged as not outstanding and ruled by the
chairman of the meeting to be not outstanding. The chairman of
the meeting shall have no right to vote other than by virtue of
Securities held by him or instruments in writing as aforesaid
duly designating him as the person to vote on behalf of other
Securityholders. At any meeting of Securityholders, the presence
of persons holding or representing any number of Securities shall
be sufficient for a quorum. Any meeting of Securityholders duly
called pursuant to the provisions of Section 10.02 or Section
10.03 may be adjourned from time to time by vote of the Holders
of a majority in aggregate principal amount of the Securities
represented at the meeting and entitled to vote, and the meeting
may be held as so adjourned without further notice.
SECTION 10.06. VOTING AT THE MEETING AND RECORD TO BE KEPT.
The vote upon any resolution submitted to any meeting of
Securityholders shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities or of
their representatives by proxy and the principal amount of the
Securities voted by the ballot. The permanent chairman of the
meeting shall appoint two inspectors of votes, who shall count
all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each
meeting of Securityholders shall be prepared by the secretary
39
of the meeting and there shall be attached to such record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts, setting
forth a copy of the notice of the meeting and showing that such notice was
mailed as provided in Section 10.02 or published as provided in Section
10.03. The record shall be signed and verified by the affidavits of the
permanent chairman and the secretary of the meeting and one of the duplicates
shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
SECTION 10.07. EXERCISE OF RIGHTS OF TRUSTEE OR SECURITYHOLDERS MAY
NOT BE HINDERED OR DELAYED BY CALL OF MEETING.
Nothing in this Article Ten contained shall be deemed or
construed to authorize or permit, by reason of any call of a
meeting of Securityholders or any rights expressly or impliedly
conferred hereunder to make such call, any hindrance or delay in
the exercise of any right or rights conferred upon or reserved to
the Trustee or to the Securityholders under any of the provisions
of this Indenture or of the Securities.
ARTICLE ELEVEN
REDEMPTION
SECTION 11.01. NOTICES TO TRUSTEE.
If the Company elects to redeem any series of Securities
pursuant to any optional redemption provisions thereof, it shall
notify the Trustee of the redemption date and the principal
amount of Securities of that series to be redeemed.
The Company shall give each notice provided for in this
Section in an Officers' Certificate at least 45 days before the
redemption date (unless a shorter notice period shall be
satisfactory to the Trustee), which notice shall specify the
provisions of such Security pursuant to which the Company elects
to redeem such Securities.
If the Company elects to reduce the principal amount of
Securities of any series to be redeemed pursuant to mandatory
redemption provisions thereof, it shall notify the Trustee of the
amount of, and the basis for, any such reduction. If the Company
elects to credit against any such mandatory redemption Securities
it has not previously delivered to the Trustee for cancellation,
it shall deliver such Securities with such notice.
SECTION 11.02. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the Securities of a series are to be
redeemed, the Trustee shall select the Securities of that series
to be redeemed by a method that complies with the requirements of
any exchange on which the Securities of that series are listed,
or, if the Securities of that series are not
40
listed on an exchange, on a PRO RATA basis or by lot. The Trustee shall make
the selection not more than 75 days and not less than 30 days before the
redemption date from Securities of that series outstanding and not previously
called for redemption. Except as otherwise provided as to any series of
Securities, Securities and portions thereof that the Trustee selects shall be
in amounts equal to the minimum authorized denomination for Securities of the
series to be redeemed or any integral multiple thereof. Provisions of this
Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption. The Trustee shall notify the
Company promptly in writing of the Securities or portions of Securities to be
called for redemption.
SECTION 11.03. NOTICE OF REDEMPTION.
Except as otherwise provided as to any series of Securities,
at least 30 days but not more than 60 days before a redemption
date, the Company shall mail a notice of redemption to each
Holder whose Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price fixed in accordance with the
terms of the Securities of the series to be redeemed, plus
accrued interest, if any, to the date fixed for redemption
(the "redemption price");
(3) if any Security is being redeemed in part, the
portion of the principal amount of such Security to be
redeemed and that, after the redemption date, upon surrender
of such Security, a new Security or Securities in principal
amount equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption
price;
(6) that, unless the Company defaults in payment of
the redemption price, interest on Securities called for
redemption ceases to accrue on and after the redemption
date;
(7) The paragraph of the series of Securities and/or
Section of any supplemental indenture pursuant to which such
Securities called for redemption are being redeemed; and
(8) the CUSIP number, if any, of the Securities to be
redeemed.
At the Company's request, the Trustee shall give the notice
of redemption in the Company's name and at its expense; PROVIDED,
HOWEVER, that the Company shall have delivered to the Trustee, at
least 45 days prior to the redemption date, an Officers'
Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as
provided in the preceding
41
paragraph. The notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether or not the Holder
receives such notice. In any case, failure to give such notice by mail or any
defect in the notice of the Holder of any Security shall not affect the
validity of the proceeding for the redemption of any other Security.
SECTION 11.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with
Section 11.03 hereof, Securities called for redemption become due
and payable on the redemption date for the redemption price.
Upon surrender to the Paying Agent, such Securities will be paid
at the redemption price.
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE.
On or before the redemption date, the Company shall deposit
with the Paying Agent (or, if the Company or any subsidiary is
the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the redemption price of all Securities called
for redemption on that date other than Securities which have
previously been delivered by the Company to the Trustee for
cancellation. The Paying Agent shall return to the Company any
money not required for that purpose.
SECTION 11.06. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the
Company shall issue and the Trustee shall authenticate for the
Holder at the expense of the Company a new Security of like
series equal in principal amount to the unredeemed portion of the
Security surrendered.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies, or
conflicts with another provision which is required to be included
in this Indenture by the TIA or the TIA as amended after the date
hereof, the required provision shall control.
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SECTION 12.02. NOTICES.
Any notice or communication shall be sufficiently given if
in writing and delivered in person or mailed by first-class mail
postage prepaid, addressed as follows:
if to the Company:
Circus Circus Enterprises, Inc.
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: General Counsel
if to the Trustee:
First Interstate Bank of Nevada, N.A.
0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: Corporate Trust Department
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Securityholder shall
be mailed by first-class mail, postage prepaid, to such Holder at
such Holder's address as it appears on the register maintained by
the Registrar and shall be sufficiently given to such Holder if
so mailed within the time prescribed.
Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its
sufficiency with respect to other Securityholders. If a notice
or communication is mailed in the manner provided above, it shall
be deemed to have been duly given two days after the data of
mailing, whether or not the addressee receives it.
SECTION 12.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS
Securityholders may communicate pursuant to TIA SECTION 312(b)
with other Securityholders with respect to their rights under
this Indenture or the Securities. The Company, the Trustee, the
Registrar and anyone else shall have the protection of TIA SECTION
312(c).
SECTION 12.04. CERTIFICATES AND OPINION AS TO CONDITIONS
PRECEDENT.
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the
opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed
action have been complied with; and
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(2) an Opinion of Counsel stating that, in the opinion
of such counsel, all such conditions precedent have been
complied with.
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each Officers' Certificate or Opinion of Counsel with
respect to compliance with a condition or covenant provided for
in this Indenture shall include:
(1) a statement that the person making such Officers'
Certificate or Opinion of Counsel has read such covenant or
condition;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such Officers' Certificate of
Opinion of Counsel are based;
(3) a statement that, in the opinion of such person,
such person has made such examination or investigation as is
necessary to enable such person to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not in the opinion of
such person, such condition or covenant has been complied
with; PROVIDED, HOWEVER, that with respect to matters of
fact an Opinion of Counsel may rely on an Officers'
Certificate.
SECTION 12.06. WHEN TREASURY SECURITIES DISREGARDED.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver or
consent, Securities owned by the Company or by an Affiliate shall
be disregarded, except that for the purpose of determining
whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which the Trustee
knows are so owned shall be so disregarded.
SECTION 12.07. RULES BY PAYING AGENT, REGISTRAR.
The Paying Agent or Registrar each may make reasonable rules
for its functions.
SECTION 12.08. LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday, a legal holiday
or a day on which banking institutions are not required to be
open. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue for
the intervening period.
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SECTION 12.09. GOVERNING LAW.
This Indenture and the Securities shall be governed by and
construct in accordance with the laws of the State of Nevada.
SECTION 12.10. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or any
subsidiary. Any such indenture, loan or debt agreement may not
be used to interpret this Indenture.
SECTION 12.11. NO RECOURSE AGAINST OTHERS.
A past, present or future director, officer, employee,
stockholder or incorporator, as such, of the Company or any
successor corporation shall not have any liability for any
obligations of the Company under the Securities or the Indenture
or for any claim based on, in respect of, or by reason of such
obligations or their creation. Each Securityholder by accepting
a Security waives and releases all such liability. The waiver
and release are part of the consideration of issuance of the
Securities. The waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the SEC
that such a waiver is against public policy.
SECTION 12.12. SUCCESSORS.
All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 12.13. DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together
represent the same agreement.
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SECTION 12.14. SEVERABILITY.
In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
SECTION 12.15. EFFECT OF HEADINGS, TABLE OF CONTENTS, ETC.
The Article and Section headings herein and the table
of contents are for convenience only and shall not affect the
construction thereof.
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This Indenture has been delivered and adopted by the parties
hereto in the State of Nevada.
IN WITNESS WHEREOF, the Company and the Trustee have caused
their names to be signed hereto by their respective officers
thereunto duly authorized and their respective corporate seals,
duly attested, to be hereunto duly affixed, all as of the day and
year first above written.
SIGNATURES
CIRCUS CIRCUS ENTERPRISES, INC.
(SEAL)
BY:
--------------------------
Name:
Title:
FIRST INTERSTATE BANK OF
NEVADA, N.A.,
As Trustee
(SEAL) BY:
--------------------------
Name:
Title:
S-1
