INDENTURE
Dated as of March 23, 1998
Between
HARD ROCK HOTEL, INC.
as Company,
and
FIRST TRUST NATIONAL ASSOCIATION, as Trustee
---------------
up to $120,000,000
9 1/4% Senior Subordinated Notes due 2005
TABLE OF CONTENTS
Page
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DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . . . . . . . . . . 1
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Other Definitions . . . . . . . . . . . . . . 26
SECTION 1.3 Incorporation by Reference of Trust
Indenture Act . . . . . . . . . . . . . . . . 27
SECTION 1.4 Rules of Construction . . . . . . . . . . . . 27
THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.1 Form and Dating . . . . . . . . . . . . . . . 28
SECTION 2.2 Execution and Authentication. . . . . . . . . 30
SECTION 2.3 Registrar and Paying Agent. . . . . . . . . . 31
SECTION 2.4 Agent to Hold Money in Trust. . . . . . . . . 31
SECTION 2.5 Holder Lists. . . . . . . . . . . . . . . . . 32
SECTION 2.6 Transfer and Exchange . . . . . . . . . . . . 32
SECTION 2.7 Replacement Securities. . . . . . . . . . . . 50
SECTION 2.8 Outstanding Securities. . . . . . . . . . . . 51
SECTION 2.9 Treasury Securities . . . . . . . . . . . . . 51
SECTION 2.10 Temporary Securities. . . . . . . . . . . . . 52
SECTION 2.11 Cancellation. . . . . . . . . . . . . . . . . 52
SECTION 2.12 Defaulted Interest. . . . . . . . . . . . . . 52
SECTION 2.13 CUSIP Numbers . . . . . . . . . . . . . . . . 53
SECTION 2.14 Record Date . . . . . . . . . . . . . . . . . 53
REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 3.1 Notices to Trustee. . . . . . . . . . . . . . 54
SECTION 3.2 Selection of Securities To Be Redeemed or
Repurchased . . . . . . . . . . . . . . . . . 54
SECTION 3.3 Notice of Redemption or Repurchase. . . . . . 54
SECTION 3.4 Effect of Notice of Redemption. . . . . . . . 55
SECTION 3.5 Deposit of Redemption Price . . . . . . . . . 56
SECTION 3.6 Securities Redeemed in Part . . . . . . . . . 56
SECTION 3.7 Optional and Regulatory Redemption. . . . . . 56
COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 4.1 Payment of Securities . . . . . . . . . . . . 57
SECTION 4.2 Maintenance of Office or Agency; Exchange
Listing . . . . . . . . . . . . . . . . . . . 57
SECTION 4.3 Limitation on Transactions with Affiliates. . 58
SECTION 4.4 Limitation on Incurrence of Additional
Indebtedness and Issuance of Disqualified
Stock . . . . . . . . . . . . . . . . . . . . 60
SECTION 4.5 Limitation on Asset Sales . . . . . . . . . . 63
SECTION 4.6 Limitation on Restricted Payments . . . . . . 66
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SECTION 4.7 Corporate Existence . . . . . . . . . . . . . 70
SECTION 4.8 Payment of Taxes and Other Claims . . . . . . 70
SECTION 4.9 Notice of Defaults. . . . . . . . . . . . . . 71
SECTION 4.10 Maintenance of Properties . . . . . . . . . . 71
SECTION 4.11 Compliance Certificate. . . . . . . . . . . . 71
SECTION 4.12 Provision of Financial Information. . . . . . 72
SECTION 4.13 Waiver of Stay, Extension or Usury Laws . . . 72
SECTION 4.14 Change of Control . . . . . . . . . . . . . . 73
SECTION 4.15 Limitation on other Senior Subordinated
Indebtedness. . . . . . . . . . . . . . . . . 74
SECTION 4.16 Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries . . . . . 75
SECTION 4.17 Limitation on Liens . . . . . . . . . . . . . 76
SECTION 4.18 Limitation on Business Activities . . . . . . 77
SECTION 4.19 Payments for Consent. . . . . . . . . . . . . 77
SECTION 4.21 Subsidiary Guarantees . . . . . . . . . . . . 77
SECTION 4.22 Completion Guaranty . . . . . . . . . . . . . 78
SECTION 4.23 Material Changes to the Expansion . . . . . . 78
MERGERS; SUCCESSOR CORPORATION . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 5.1 Restriction on Mergers, Consolidations and
Certain Sales of Assets . . . . . . . . . . . 79
SECTION 5.2 Successor Corporation Substituted . . . . . . 80
DEFAULT AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 6.1 Events of Default . . . . . . . . . . . . . . 81
SECTION 6.2 Acceleration. . . . . . . . . . . . . . . . . 83
SECTION 6.3 Other Remedies. . . . . . . . . . . . . . . . 84
SECTION 6.4 Waiver of Past Default. . . . . . . . . . . . 84
SECTION 6.5 Control by Majority . . . . . . . . . . . . . 85
SECTION 6.6 Limitation on Suits . . . . . . . . . . . . . 85
SECTION 6.7 Rights of Holders To Receive Payment. . . . . 86
SECTION 6.8 Collection Suit by Trustee. . . . . . . . . . 86
SECTION 6.9 Trustee May File Proofs of Claim. . . . . . . 86
SECTION 6.10 Priorities. . . . . . . . . . . . . . . . . . 87
SECTION 6.11 Undertaking for Costs . . . . . . . . . . . . 87
TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 7.1 Duties of Trustee . . . . . . . . . . . . . . 88
SECTION 7.2 Rights of Trustee . . . . . . . . . . . . . . 89
SECTION 7.3 Individual Rights of Trustee. . . . . . . . . 91
SECTION 7.4 Trustee's Disclaimer. . . . . . . . . . . . . 91
SECTION 7.5 Notice of Defaults. . . . . . . . . . . . . . 91
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SECTION 7.6 Reports by Trustee to Holders . . . . . . . . 91
SECTION 7.7 Compensation and Indemnity. . . . . . . . . . 92
SECTION 7.8 Replacement of Trustee. . . . . . . . . . . . 93
SECTION 7.9 Successor Trustee by Merger, etc. . . . . . . 94
SECTION 7.10 Eligibility; Disqualification . . . . . . . . 95
SECTION 7.11 Preferential Collection of Claims Against the
Company . . . . . . . . . . . . . . . . . . . 95
SECTION 7.12 Money Held In Trust . . . . . . . . . . . . . 95
SECTION 7.13 Completion Guaranty . . . . . . . . . . . . . 95
SUBORDINATION OF SECURITIES. . . . . . . . . . . . . . . . . . . . . . . . . 96
SECTION 8.1 Agreement to Subordinate. . . . . . . . . . . 96
SECTION 8.2 Liquidation, Dissolution, Bankruptcy. . . . . 96
SECTION 8.3 Default on Designated Senior Indebtedness . . 97
SECTION 8.4 Acceleration of Securities. . . . . . . . . . 99
SECTION 8.5 When Distribution Must Be Paid Over . . . . . 99
SECTION 8.6 Notice By The Company . . . . . . . . . . . . 99
SECTION 8.7 Subrogation . . . . . . . . . . . . . . . . . 100
SECTION 8.8 Relative Rights . . . . . . . . . . . . . . . 100
SECTION 8.9 Subordination May Not Be Impaired By the
Company . . . . . . . . . . . . . . . . . . . 100
SECTION 8.10 Distribution Or Notice To Representative. . . 101
SECTION 8.11 Rights Of Trustee And Paying Agent. . . . . . 101
SECTION 8.12 Authorization To Effect Subordination . . . . 102
SECTION 8.13 No Waiver . . . . . . . . . . . . . . . . . . 102
DISCHARGE OF INDENTURE; DEFEASANCE . . . . . . . . . . . . . . . . . . . . . 103
SECTION 9.1 Termination of Company's Obligations. . . . . 103
SECTION 9.2 Application of Trust Money. . . . . . . . . . 105
SECTION 9.3 Repayment to the Company. . . . . . . . . . . 106
SECTION 9.4 Reinstatement . . . . . . . . . . . . . . . . 106
AMENDMENTS, SUPPLEMENTS AND WAIVERS. . . . . . . . . . . . . . . . . . . . . 107
SECTION 10.1 Without Consent of Holders. . . . . . . . . . 107
SECTION 10.2 With Consent of Holders . . . . . . . . . . . 107
SECTION 10.3 Compliance with Trust Indenture Act . . . . . 109
SECTION 10.4 Revocation and Effect of Consents . . . . . . 109
SECTION 10.5 Notation on or Exchange of Securities . . . . 110
SECTION 10.6 Trustee To Sign Amendments, etc. . . . . . . 110
MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
SECTION 11.1 Trust Indenture Act Controls. . . . . . . . . 111
SECTION 11.2 Notices . . . . . . . . . . . . . . . . . . . 111
SECTION 11.3 Communications by Holders with Other Holders. 112
SECTION 11.4 Certificate and Opinion as to Conditions
Precedent . . . . . . . . . . . . . . . . . . 113
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SECTION 11.5 Statements Required in Certificate or
Opinion . . . . . . . . . . . . . . . . . . . 113
SECTION 11.6 Rules by Trustee, Paying Agent, Registrar . . 114
SECTION 11.7 Governing Law . . . . . . . . . . . . . . . . 114
SECTION 11.8 No Recourse Against Others. . . . . . . . . . 114
SECTION 11.9 Successors. . . . . . . . . . . . . . . . . . 114
SECTION 11.10 Counterpart Originals . . . . . . . . . . . . 114
SECTION 11.11 Severability. . . . . . . . . . . . . . . . . 114
SECTION 11.12 No Adverse Interpretation of Other
Agreements. . . . . . . . . . . . . . . . . . 115
SECTION 11.13 Legal Holidays. . . . . . . . . . . . . . . . 115
SECTION 11.14 Submission to Jurisdiction. . . . . . . . . . 115
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NOTE: This Table of Contents shall not, for any purpose, be deemed to be a
part of this Indenture.
iv
CROSS-REFERENCE TABLE
Indenture
Trust Indenture Act Section Section
---------
Section 310(a)(1). . . . . . . . . . . . . . . 7.10
(a)(2). . . . . . . . . . . . . . . . . . . 7.10
(a)(3). . . . . . . . . . . . . . . . . . . N.A.
(a)(4). . . . . . . . . . . . . . . . . . . N.A.
(a)(5). . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . . . . . 7.8; 7.10
(c) . . . . . . . . . . . . . . . . . . . . N.A.
Section 311(a) . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . N.A.
Section 312(a) . . . . . . . . . . . . . . . . 2.5
(b) . . . . . . . . . . . . . . . . . . . . 11.3
(c) . . . . . . . . . . . . . . . . . . . . 11.3
Section 313(a) . . . . . . . . . . . . . . . . 7.6
(b)(1). . . . . . . . . . . . . . . . . . . N.A.
(b)(2). . . . . . . . . . . . . . . . . . . 7.6
(c) . . . . . . . . . . . . . . . . . . . . 7.6; 11.2
(d) . . . . . . . . . . . . . . . . . . . . 7.6
Section 314(a) . . . . . . . . . . . . . . . . 4.11; 4.12
(b) . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1). . . . . . . . . . . . . . . . . . . 11.4
(c)(2). . . . . . . . . . . . . . . . . . . 11.4
(c)(3). . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . 11.5
(f) . . . . . . . . . . . . . . . . . . . . N.A.
Section 315(a) . . . . . . . . . . . . . . . . 7.1(b)
(b) . . . . . . . . . . . . . . . . . . . . 7.5; 11.2
(c) . . . . . . . . . . . . . . . . . . . . 7.1(a)
(d) . . . . . . . . . . . . . . . . . . . . 7.3(c)
(e) . . . . . . . . . . . . . . . . . . . . 6.11
Section 316(a)(last sentence). . . . . . . . . 2.9
(a)(1)(A) . . . . . . . . . . . . . . . . . 6.5
(a)(1)(B) . . . . . . . . . . . . . . . . . 6.4
(a)(2). . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . 6.7
(c) . . . . . . . . . . . . . . . . . . . . 10.4
Section 317(a)(1). . . . . . . . . . . . . . . 6.8
(a)(2). . . . . . . . . . . . . . . . . . . 6.9
(b) . . . . . . . . . . . . . . . . . . . . 2.4
Section 318(a) . . . . . . . . . . . . . . . . 11.1
(a) . . . . . . . . . . . . . . . . . . . . 11.1
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N.A. means Not Applicable.
v
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be
a part of this Indenture.
vi
INDENTURE dated as of March 23, 1998 between HARD ROCK HOTEL, INC.
(the "COMPANY," as more specifically defined herein) and First Trust National
Association, a national banking organization, as trustee (the "Trustee" as more
specifically defined herein).
The parties hereto hereby agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the Company's
9 1/4% Senior Subordinated Notes due 2005, Series A (the "INITIAL SECURITIES")
and the Company's 9 1/4% Senior Subordinated Notes due 2005, Series B (the
"EXCHANGE SECURITIES," as more specifically defined herein and, together with
the Initial Securities, the "SECURITIES"):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS.
"144A GLOBAL SECURITY" means the Global Security in the form of
EXHIBIT A hereto bearing the Global Security Legend and the Private Placement
Legend and deposited with or on behalf of and registered in the name of the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Securities sold in reliance on Rule 144A.
"ACQUIRED INDEBTEDNESS" means with respect to any specified Person,
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; PROVIDED that
beneficial ownership of 10% or more of the voting securities of a Person shall
be deemed to be control.
"AGENT" means any Registrar, Paying Agent or Co-Registrar.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Security, the rules and
procedures of the DTC, Euroclear or Cedel that apply to such transfer or
exchange.
"ASSET SALE" means (i) the sale, lease, conveyance or other
disposition of any assets or rights (including, without limitation, by way of a
sale and leaseback) other than in the ordinary course of business (provided that
the sale, lease, conveyance or other disposition of all or substantially all of
the assets of the Company and its Subsidiaries taken as a whole will be governed
by Section 4.14 and/or Article V and not by Section 4.5, and (ii) the issue or
sale by the Company or any of its Restricted Subsidiaries of Equity Interests of
any of the Company's Restricted Subsidiaries, in the case of either clause (i)
or (ii), whether in a single transaction or a series of related transactions
that have a fair market value (as determined in good faith by the Board of
Directors) in excess of $1.0 million or for net cash proceeds in excess of $1.0
million. Notwithstanding the foregoing: (i) a transfer of assets by the Company
to a Restricted Subsidiary or by a Restricted Subsidiary to the Company or to
another Restricted Subsidiary, (ii) an issuance of Equity Interests by a
Restricted Subsidiary to the Company or to another Restricted Subsidiary, (iii)
a Restricted Payment that is permitted by Section 4.6, (iv) a disposition of
cash or Cash Equivalents; (v) a disposition of either obsolete equipment or
equipment that is damaged, worn out or otherwise no longer useful in the
business; (vi) any sale of Equity Interests in, or Indebtedness or other
securities of, an Unrestricted Subsidiary; (vii) any sale and leaseback of an
asset within 90 days after the completion of construction or acquisition of such
asset; and (viii) any surrender or waiver of contract rights or a settlement,
release or surrender of contract, tort or other claims of any kind or a grant of
any Lien not prohibited by this Indenture shall not be considered an Asset Sale.
"BANKRUPTCY LAW" means (i) Title 11 of the U.S. Code or (ii) any other
law of the United States, any political subdivision thereof or any other
jurisdiction relating to bankruptcy, insolvency, winding up, liquidation,
reorganization or relief of debtors or composition with creditors.
"BOARD OF DIRECTORS" means, as to any Person, the board of directors
of such Person or any duly authorized committee thereof.
"BOARD RESOLUTION" means, with respect to any Person, a copy of a
resolution certified by the secretary, an assistant secretary or director of
such Person to
have been duly adopted by the Board of Directors of such Person
and to be in full force and effect on the date of such certification, and
delivered to the Trustee.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in New York, New York are
authorized or obligated by law or executive order to close.
"CALCULATION DATE" has the meaning given to such term in the
definition of "Fixed Charge Coverage Ratio" in this Indenture.
"CAPITAL LEASE OBLIGATION" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited) and (iv) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"CASH EQUIVALENTS" means (i) United States dollars, (ii) securities
issued or directly and fully guaranteed or insured by the full faith and credit
of the United States government or any agency or instrumentality thereof having
maturities of not more than six months from the date of acquisition, (iii)
certificates of deposit and eurodollar time deposits with maturities of six
months or less from the date of acquisition, bankers' acceptances with
maturities not exceeding six months and overnight bank deposits, in each case
with any lender party to the New Credit Facility or with any domestic commercial
bank having capital and surplus in excess of $500.0 million and a Xxxxx Bank
Watch Rating of "B" or better, (iv) repurchase obligations with a term of not
more than seven days for underlying securities of the types described in clauses
(ii) and (iii) above entered into with any financial institution meeting the
qualifications specified in clause (iii) above, (v) commercial paper having the
highest rating obtainable from Xxxxx'x or S&P and in each case maturing within
six months after the date of acquisition, (vi) investment funds investing
substantially all of their assets in securities of the types described in
clauses (i)-(v) above and (vii) readily marketable direct obligations issued by
any state of the United States of America or any political subdivision thereof
having one of the two highest rating categories obtainable from either Xxxxx'x
or S&P.
3
"CASINO" means any gaming establishment and other property or assets
directly ancillary thereto or used in connection therewith, including any
building, restaurant, hotel theater, parking facilities, retail shops, land,
golf courses and other recreation and entertainment facilities, vessel, barge,
ship and equipment.
"CEDEL" means Cedel Bank, sociedad anonyme.
"CHANGE OF CONTROL" means the occurrence of any of the following:
(i) the sale, lease, transfer, conveyance or other disposition (other
than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Company and
its Restricted Subsidiaries taken as a whole to any "person" (as such term
is used in Section 13(d)(3) of the Exchange Act), other than to the
Permitted Holders,
(ii) the adoption of a plan relating to the liquidation or dissolution
of the Company,
(iii) prior to the first Equity Offering, the Permitted Holders
cease to be the "beneficial owner" (as such term is defined in Rule 13d-3
and Rule 13d-5 under the Exchange Act), directly or indirectly, of a
majority of the Voting Stock of the Company (as measured by voting power
rather than number of shares),
(iv) after the first Equity Offering, (A) the consummation of any
transaction (including, without limitation, any merger or consolidation)
the result of which is that any "person" (as defined above), other than the
Permitted Holders, becomes the "beneficial owner" (as defined above),
directly or indirectly, of 35% or more of the Voting Stock of the Company
(measured by voting power rather than number of shares) and (B) the
Permitted Holders "beneficially own" (as defined in Rule 13d-3 and Rule
13d-5 under the Exchange Act), directly or indirectly, in the aggregate a
lesser percentage of the Voting Stock of the Company (measured by voting
power rather than number of shares) than such other person,
(v) after the first Equity Offering, Continuing Directors cease to
constitute a majority of the members of the Board of Directors of the
Company or
4
(vi) the Company consolidates with, or merges with or into, any
Person, other than the Permitted Holders, or any Person, other than the
Permitted Holders, consolidates with, or merges with or into, the Company,
in any such event pursuant to a transaction in which the outstanding Voting
Stock of the Company is converted into or exchanged for cash, securities or
other property, other than any such transaction where the Voting Stock of
the Company outstanding immediately prior to such transaction is converted
into or exchanged for Voting Stock (other than Disqualified Stock) of the
surviving or transferee Person constituting a majority of the outstanding
shares of such Voting Stock of such surviving or transferee person
(immediately after giving effect to such issuance).
"COMPANY" means the party named as the "Company" in the first
paragraph of this Indenture until a successor replaces such party pursuant to
the applicable provisions of Article V, and thereafter, "Company" shall mean
such successor.
"COMPLETION GUARANTY" means the completion guaranty by Xxxxx X.
Xxxxxx, dated as of the date hereof, as such agreement may be amended, modified
or supplemented in accordance with the terms thereof.
"CONSOLIDATED CASH FLOW" means, with respect to any Person for any
period, the sum of, without duplication, the Consolidated Net Income of such
Person for such period plus (i) provision for taxes based on income or profits
of such Person and its Subsidiaries for such period, to the extent that such
provision for taxes was included in computing such Consolidated Net Income, plus
(ii) consolidated interest expense of such Person and its Subsidiaries for such
period, whether paid or accrued and whether or not capitalized (including,
without limitation, amortization of original issue discount, amortization of
deferred financing fees, non-cash interest payments, the interest component of
any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, commissions, discounts and other fees
and charges incurred in respect of letter of credit or bankers' acceptance
financings, and net payments (if any) pursuant to Hedging Obligations), to the
extent that any such expense was deducted in computing such Consolidated Net
Income, plus (iii) the product of (a) all cash dividend payments, on any series
of preferred stock of such Person or any of its Restricted Subsidiaries, other
than dividend payments on Equity Interests payable solely in Equity Interests
(other than Disqualified Stock) of the Company, times (b) a fraction, the
numerator of which is one and the denominator of which is one minus the then
current combined federal, state and local effective tax rate of such Person,
expressed as
5
a decimal, in each case, on a consolidated basis and in accordance with GAAP,
plus (iv) consolidated depreciation, amortization and other non-cash charges
of the Person and its Subsidiaries required to be reflected as expenses on
the books and records of the Person, minus (v) cash payments with respect to
any non-cash charges previously added back pursuant to clause (iv), plus (vi)
preopening costs incurred in connection with the Expansion that are required
by GAAP to be charged as an expense prior to or upon opening, to the extent
that such preopening costs were deducted in computing such Consolidated Net
Income. Notwithstanding the foregoing, the provision for taxes on the income
or profits of, and the depreciation and amortization and other non-cash
charges of, a Subsidiary of the referent Person shall be added to
Consolidated Net Income to compute Consolidated Cash Flow only to the extent
(and in same proportion) that the Net Income of such Subsidiary was included
in calculating the Consolidated Net Income of such Person.
"CONSOLIDATED NET INCOME" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP;
PROVIDED that (i) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary that is accounted for by the equity method of accounting
shall be included only to the extent of the amount of dividends or distributions
paid in cash to the referent Person or a Restricted Subsidiary thereof, (ii) the
Net Income of any Subsidiary shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Subsidiary
of that Net Income is not at the date of determination permitted without any
prior government approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary or its stockholders, (iii) the Net Income of any
Person acquired in a pooling of interests transaction for any period prior to
the date of such acquisition shall be excluded, (iv) the cumulative effect of a
change in accounting principles shall be excluded, and (v) all other
extraordinary gains and extraordinary losses shall be excluded.
"CONTINUING DIRECTORS" means, as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the date hereof or (ii) was nominated for election or
elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election.
6
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address of the
Trustee specified in Section 11.2 or such other address as the Trustee may give
notice to the Company.
"DEFAULT" means an event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"DEFINITIVE SECURITY" means a certificated Security registered in the
name of the Holder thereof and issued in accordance with Section 2.6 hereof, in
the form of EXHIBIT A hereto except that such Security shall not bear the Global
Security Legend and shall not have the "Schedule of Exchanges of Interests in
the Global Security" attached thereto.
"DEPOSITARY" means, with respect to the Securities issuable or issued
in whole or in part in global form, the Person specified in Section 2.3 hereof
as the Depositary with respect to the Securities, and any and all successors
thereto appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"DESIGNATED SENIOR INDEBTEDNESS" means (i) Indebtedness outstanding
under the New Credit Facility and (ii) any other Senior Indebtedness permitted
under this Indenture the principal amount of which is $25 million or more and
that has been designated by the Company as "Designated Senior Indebtedness."
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or
by the terms of any security into which it is convertible or for which it is
exchangeable at the option of the holder thereof), or upon the happening of
any event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the Holder thereof,
in whole or in part, on or prior to the date that is 91 days after the date
on which the Securities mature, PROVIDED, HOWEVER, that any Capital Stock
that would constitute Disqualified Stock solely because the holders thereof
(or of any security into which it is convertible or for which it is
exchangeable) have the right to require the issuer to repurchase such Capital
Stock (or such security into which it is convertible or for which it is
exchangeable) upon the occurrence of any of the events constituting an Asset
Sale or a Change of Control shall not constitute Disqualified Stock if such
Capital Stock (and all such securities into which it is convertible or for
which it is exchangeable) provides that the issuer thereof will not
repurchase or redeem any such Capital Stock (or any such security into which
7
it is convertible or for which it is exchangeable) pursuant to such
provisions prior to compliance by the Company with Section 4.5 or Section
4.14, as the case may be.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"EQUITY OFFERING" means any bona fide underwritten public offering of
common stock by the Company other than (i) issuances of Disqualified Stock, (ii)
issuances in payment of or to finance the purchase price of an acquisition or
(iii) issuances of common stock pursuant to employee benefit plans of the
Company or otherwise as compensation to employees of the Company.
"EUROCLEAR" means Xxxxxx Guaranty Trust Company of New York (Brussels
Office) as operator of the Euroclear system.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
or any successor statute or statutes thereto.
"EXCHANGE OFFER" has the meaning set forth in the Registration Rights
Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" has the meaning set forth in
the Registration Rights Agreement.
"EXCHANGE SECURITIES" means the Securities issued in the Exchange
Offer pursuant to Section 2.6(f).
"EXCLUDED CONTRIBUTIONS" means the net cash proceeds received by the
Company from Permitted Holders after the Issue Date and until the completion of
the Expansion from contributions to the equity capital of the Company and cash
proceeds received as a result of payments under the Completion Guaranty.
"EXISTING INDEBTEDNESS" means Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the New Credit Facility) in
existence on the date hereof, until such amounts are repaid.
"EXPANSION" means the expansion of the Company's hotel casino in Las
Vegas, Nevada, including (i) the construction of a new hotel tower, (ii) the
addition of
8
new slot machines and table games, (iii) the construction of a new swimming
pool, (iv) the addition of new restaurant facilities, (v) an expansion of the
size of the retail store located in such hotel casino, (vi) the construction
of a new parking facility, (vii) the construction of a new health club and
spa and (viii) the construction of a new nightclub and warehouse facility.
"FAIR MARKET VALUE" means, unless otherwise specified, with respect to
any asset or property, the price which could be negotiated in an arm's-length,
free market transaction, for cash, between a willing seller and a willing and
able buyer, neither of whom is under pressure or compulsion to complete the
transactions. Fair market value shall be determined by the Board of Directors
of the Company acting reasonably and in good faith and shall be evidenced by a
Board Resolution.
"FIXED CHARGE COVERAGE RATIO" means with respect to any Person for any
period, the ratio of the Consolidated Cash Flow of such Person for such period
to the Fixed Charges of such Person for such period. In the event that the
Company or any of its Subsidiaries incurs, assumes, Guarantees, repays or
redeems any Indebtedness (other than revolving credit borrowings) or issues or
redeems preferred stock subsequent to the commencement of the period for which
the Fixed Charge Coverage Ratio is being calculated but prior to the date on
which the event for which the calculation of the Fixed Charge Coverage Ratio is
made (the "Calculation Date"), then the Fixed Charge Coverage Ratio shall be
calculated giving pro forma effect to such incurrence, assumption, Guarantee,
repayment or redemption of Indebtedness, or such issuance or redemption of
preferred stock, as if the same had occurred at the beginning of the applicable
four-quarter reference period and in the case of revolving credit borrowings,
the Fixed Charge Coverage Ratio shall be computed based upon the average daily
balance of such Indebtedness during the applicable reference period. In
addition, for purposes of making the computation referred to above, (i)
acquisitions that have been made by the Company or any of its Subsidiaries,
including through mergers or consolidations and including any related financing
transactions, during the four-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date shall be deemed to have
occurred on the first day of the four-quarter reference period and Consolidated
Cash Flow for such reference period shall be calculated without giving effect to
clause (iii) of the proviso set forth in the definition of Consolidated Net
Income, (ii) the Consolidated Cash Flow attributable to discontinued operations,
as determined in accordance with GAAP, and operations or businesses disposed of
prior to the Calculation Date, shall be excluded, (iii) the Fixed Charges
attributable to discontinued operations, as determined in accordance with GAAP,
and operations or businesses disposed of prior to the Calculation Date, shall be
excluded, but
9
only to the extent that the obligations giving rise to such Fixed Charges
will not be obligations of the referent Person or any of its Subsidiaries
following the Calculation Date, and (iv) in the case of Indebtedness bearing
interest at a floating rate which is being given pro forma effect, the
interest on such Indebtedness shall be calculated as if the rate in effect on
the Calculation Date had been the applicable rate for the entire period
(taking into account any Hedging Obligation applicable to such Indebtedness).
"FIXED CHARGES" means, with respect to any Person for any period, the
sum, without duplication, of (i) the consolidated interest expense of such
Person and its Restricted Subsidiaries for such period, whether paid or accrued
(including, without limitation, amortization of debt issuance costs (other than
amortization of debt issuance costs related to the Securities and the New Credit
Facility) and original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of all
payments associated with Capital Lease Obligations, commissions, discounts and
other fees and charges incurred in respect of letter of credit or banker's
acceptance financings, and net payments (if any) pursuant to Hedging
Obligations) and (ii) the consolidated interest expense of such Person and its
Restricted Subsidiaries that was capitalized during such period, and (iii) any
interest expense on Indebtedness of another Person that is Guaranteed by such
person or one of its Restricted Subsidiaries or secured by a Lien on assets of
such Person or one of its Restricted Subsidiaries (whether or not such Guarantee
or Lien is called upon) and (iv) the product of (a) all cash dividend payments,
on any series of preferred stock of such Person or any of its Restricted
Subsidiaries, other than dividend payments on Equity Interests payable solely in
Equity Interests (other than Disqualified Stock) of the Company, times (b) a
fraction, the numerator of which is one and the denominator of which is one
minus the then current combined federal, state and local effective tax rate of
such Person, expressed as a decimal, in each case, on a consolidated basis and
in accordance with GAAP.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accounts and statements and pronouncements of the
Financial Accounting Standards Board or in such other statements by such other
entity as have been approved by a significant segment of the accounting
profession, which are in effect on the Issue Date.
"GAMING AUTHORITY" means any Governmental Authority with the power to
regulate gaming in any Gaming Jurisdiction, and the corresponding Governmental
10
Authorities with the responsibility to interpret and enforce the laws and
regulations applicable to gaming in any Gaming Jurisdiction.
"GAMING JURISDICTION" means any Federal, state or local jurisdiction
in which any entity, in which the Company has a direct or indirect beneficial,
legal or voting interest, conducts casino gaming, now or in the future.
"GAMING LAW" means any law, rule, regulation or ordinance governing
gaming activities (including, without limitation, The Riverboat Gambling Act of
Illinois, The Louisiana Riverboat Economic Development and Gaming Control Act,
the Missouri Riverboat Gaming Act (Mo. Rev. Stat. Section 313.800 et seq.) and
the Nevada Gaming Control Act (Nev. Rev. Stat. Section 463.010 et. seq.), in
each case including all amendments or modifications thereof), any administrative
rules or regulations promulgated thereunder, and any of the corresponding
statutes, rules and regulations in each Gaming Jurisdiction.
"GAMING LICENSE" means every license, franchise or other authorization
required to own, lease, operate or otherwise conduct gaming activities of the
Company or any of its Subsidiaries, including without limitation, all such
licenses granted under the Nevada Gaming Control Act, and the regulations
promulgated pursuant thereto, and other applicable federal, state, foreign or
local laws.
"GLOBAL SECURITIES" means, individually and collectively, each of the
Restricted Global Securities and the Unrestricted Global Securities, in the form
of EXHIBIT A or EXHIBIT B hereto issued in accordance with Section 2.1, 2.6(b),
2.6(d) or 2.6(f) hereof.
"GLOBAL SECURITY LEGEND" means the legend set forth in Section
2.6(g)(ii), which is required to be placed on all Global Securities issued under
this Indenture.
"GOVERNMENTAL AUTHORITY" means any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature whatsoever of
the United States or foreign government, any state, any province or any city or
other political subdivision or otherwise and whether now or hereafter in
existence, or any officer or official thereof, and any maritime authority.
"GUARANTEE" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any
11
manner (including, without limitation, letters of credit and reimbursement
agreements in respect thereof), of all or any part of any Indebtedness.
"GUARANTOR" means each Restricted Subsidiary that has executed a
Subsidiary Guarantee, and their respective successors and assigns, unless and
until released therefrom, in each case in accordance with the applicable
provisions of the Indenture.
"HEDGING OBLIGATIONS" means with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements with respect to
Indebtedness that is permitted by the terms of this Indenture and (ii) other
agreements or arrangements designed to protect such Person against fluctuation
in interest rates or the value of foreign currencies purchased or received by
such Person in the ordinary course of business.
"HOLDER" means a Person in whose name a Security is registered on the
books of the Registrar or any co-Registrar.
"INDEBTEDNESS" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, (i) in respect of borrowed money, or
(ii) evidenced by bonds, notes, debentures or similar instruments or letters of
credit or reimbursement agreements in respect thereof (other than letters of
credit securing obligations not constituting Indebtedness that are issued in the
ordinary course of business by a Person to the extent not drawn upon or, if and
to the extent drawn upon, such drawing is reimbursed no later than the tenth
Business Day following receipt by such Person of a demand for reimbursement
following payment on the letter of credit) or bankers' acceptances, or (iii)
representing Capital Lease Obligations or the balance deferred and unpaid of the
purchase price of any property, except any such balance that constitutes an
accrued expense or trade payable, or (iv) representing any Hedging Obligations,
in each case if and to the extent any of the foregoing indebtedness (other than
letters of credit and Hedging Obligations) would appear as a liability upon a
balance sheet of such Person prepared in accordance with GAAP, as well as all
Indebtedness of others secured by a Lien on any asset of such Person (whether or
not such Indebtedness is assumed by such Person) and, to the extent not
otherwise included, the Guarantee by such Person of any Indebtedness of any
other Person.
"INDENTURE" means this Indenture as amended or supplemented from time
to time.
12
"INDIRECT PARTICIPANT" means a Person who holds a beneficial interest
in a Global Security through a Participant.
"INITIAL PURCHASERS" means Bear, Xxxxxxx & Co. Inc., BancAmerica
Xxxxxxxxx Xxxxxxxx and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation.
"INITIAL SECURITIES" has the meaning assigned to it in the preamble to
this Indenture.
"INTEREST PAYMENT DATE" means the stated maturity of an installment of
interest on the Securities.
"INVESTMENTS" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or such other
obligations), advances or capital contributions (excluding commission, travel
and similar advances to officers and employees made in the ordinary course of
business), purchases or other acquisitions for consideration of Indebtedness,
Equity Interests or other securities, together with all items that are or
would be classified as investments on a balance sheet prepared in accordance
with GAAP. If the Company or any Restricted Subsidiary of the Company sells
or otherwise disposes of any Equity Interests of any direct or indirect
Restricted Subsidiary of the Company such that, after giving effect to any
such sale or disposition, such Person is no longer a Restricted Subsidiary of
the Company, the Company shall be deemed to have made an Investment on the
date of any such sale or disposition equal to the fair market value of the
Equity Interests of such Restricted Subsidiary not sold or disposed of in an
amount determined as provided in Section 4.6(d).
"ISSUE DATE" means the date on which the Initial Securities are
originally issued.
"LETTER OF TRANSMITTAL" means the letter of transmittal to be prepared
by the Company and sent to all Holders for use by such Holders in connection
with the Exchange Offer.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or
13
agreement to give any financing statement under the Uniform Commercial Code
(or equivalent statutes) of any jurisdiction).
"LIQUIDATED DAMAGES" has the meaning given to such term in the
Registration Rights Agreement.
"MAKE-WELL AGREEMENT" means the make-well agreement by Xxxxx X.
Xxxxxx, dated as of the date hereof, as such agreement may be amended, modified
or supplemented in accordance with the terms thereof.
"MATURITY DATE" means the date, which is set forth on the face of the
Securities, on which the Securities will mature.
"MOODY'S" means Xxxxx'x Investors Service, Inc. and its successors.
"NET CASH PROCEEDS" with respect to any issuance or sale of Capital
Stock, means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"NET INCOME" means, with respect to any Person, the net income (loss)
of such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (i) any gain or loss,
together with any related provision for taxes on such gain or loss, realized in
connection with (a) any Asset Sale (including, without limitation, dispositions
pursuant to sale and leaseback transactions) or (b) the disposition of any
securities by such Person or any of its Subsidiaries or the extinguishment of
any Indebtedness of such Person or any of its Subsidiaries and (ii) any
extraordinary or nonrecurring gain or loss, together with any related provision
for taxes on such extraordinary or nonrecurring gain or loss.
"NET PROCEEDS" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
the direct costs relating to such Asset Sale (including, without limitation,
legal, accounting and investment banking fees, and sales commissions) and any
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), amounts required to be applied to
the
14
repayment of Indebtedness secured by a Lien on the asset or assets that were
the subject of such Asset Sale and any reserve for adjustment in respect of
the sale price of such asset or assets established in accordance with GAAP.
"NEW CREDIT FACILITY" means that certain credit agreement, dated as of
the date hereof, by and among the Company and Bank of America National Trust and
Savings Association as administrative agent and Bear, Xxxxxxx & Co. Inc. as
co-agent and the lenders parties thereto, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended, modified, renewed, refunded,
replaced, extended, restated or refinanced from time to time, whether by the
same or any other agent, lender or group of lenders; provided that the total
amount of Indebtedness is not thereby increased beyond the amount that may then
be incurred at such time pursuant to Section 4.4.
"NON-RECOURSE DEBT" means Indebtedness (i) as to which neither the
Company nor any of its Restricted Subsidiaries (a) provides credit support of
any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable (as a guarantor
or otherwise), as reflected in the express terms of the instrument governing
such Indebtedness, or (c) constitutes the lender; and (ii) no default with
respect to which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any Indebtedness (other than the
Securities being offered hereby) of the Company or any of its Restricted
Subsidiaries to declare a default on such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to its stated maturity.
"NON-U.S. PERSON" means a person who is not a U.S. Person.
"OBLIGATIONS" means any principal, interest, penalties, fees
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OFFICER" means with respect to the Company, the Chairman, any Vice
Chairman, the Chief Executive Officer, the President, any Vice President, the
Chief Financial Officer, the Treasurer, the Secretary or any director or manager
or similar position of the Company.
15
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers or
by an Officer and an Assistant Treasurer or Assistant Secretary of the Company
complying with Sections 11.4 and 11.5, to the extent applicable.
"OPINION OF COUNSEL" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"PARTICIPANT" means, with respect to DTC, Euroclear or Cedel, a Person
who has an account with DTC, Euroclear or Cedel, respectively (and, with respect
to DTC, shall include Euroclear and Cedel).
"PERMITTED BUSINESS" means the gaming business and other businesses
necessary for, incident to, connected with or arising out of the gaming business
(including developing and operating lodging, dining and nightclub facilities,
sports or entertainment facilities, transportation services, retail operations
and other related activities or enterprises and any additions or improvements
thereto) or any business that is reasonably similar thereto or a reasonable
extension, development or expansion thereof or ancillary thereto.
"PERMITTED DEBT" has the meaning assigned to it in Section 4.4.
"PERMITTED HOLDERS" means Xxxxx X. Xxxxxx and Lily Pond Investments,
Inc. and any of their respective Related Parties.
"PERMITTED INVESTMENTS" means
(a) any Investment in the Company or in a Restricted Subsidiary;
(b) any Investment in Cash Equivalents;
(c) any Investment by the Company or any Restricted Subsidiary
in a Person, if as a result of such Investment (i) such Person becomes a
Restricted Subsidiary or (ii) such Person is merged, consolidated or amalgamated
with or into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary;
16
(d) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in compliance
with Section 4.5;
(e) any acquisition of assets solely in exchange for the
issuance of Equity Interests (other than Disqualified Stock) of the Company;
(f) any Investment existing on the Issue Date;
(g) any Investment acquired by the Company or any of its
Restricted Subsidiaries (A) in exchange for any other Investment or accounts
receivable held by the Company or any such Restricted Subsidiary in connection
with or as a result of a bankruptcy, workout, reorganization or recapitalization
of the issuer of such other Investment or accounts receivable or (B) as a result
of the transfer of title with respect to any secured investment in default as a
result of a foreclosure by the Company or any of its Restricted Subsidiaries
with respect to such secured Investment;
(h) Hedging Obligations permitted under Section 4.4;
(i) loans and advances to officers, directors and employees for
business-related travel expenses, moving expenses and other similar expenses, in
each case, incurred in the ordinary course of business;
(j) other loans and advances to officers, directors and
employees in an aggregate amount not to exceed $250,000 outstanding at any time;
(k) any guarantees permitted to be made pursuant to Section 4.4;
(l) credit extensions to gaming customers in connection with
their gambling activities at facilities of the Company or its Subsidiaries; and
(m) other Investments in any Person primarily engaged in a
Permitted Business having an aggregate fair market value (measured on the date
each such Investment was made and without giving effect to subsequent changes in
value), when taken together with all other Investments made pursuant to this
clause (m) that are at the time outstanding, not to exceed $2.0 million.
"PERMITTED LIENS" means
17
(i) Liens on assets of the Company or any of its Subsidiaries
securing Senior Indebtedness that was permitted by the terms of this
Indenture to be incurred (including pursuant to the New Credit Facility);
(ii) Liens in favor of the Company;
(iii) Liens on property of a Person existing at the time such
Person is merged into or consolidated with the Company or any Subsidiary of
the Company; PROVIDED that such Liens were in existence prior to the
contemplation of such merger or consolidation and do not extend to any
assets other than those of the Person merged into or consolidated with the
Company;
(iv) Liens on property existing at the time of acquisition thereof
by the Company or any Subsidiary of the Company, PROVIDED that such Liens
were in existence prior to the contemplation of such acquisition;
(v) Liens to secure the performance of statutory or regulatory
obligations, leases, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business;
(vi) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by Section 4.4(d) covering only the assets acquired
with such Indebtedness;
(vii) Liens existing on the date hereof;
(viii) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good
faith by appropriate proceedings promptly instituted and diligently
concluded; PROVIDED that any reserve or other appropriate provision as
shall be required in conformity with GAAP shall have been made therefor;
(ix) Liens incurred in the ordinary course of business of the
Company or any Subsidiary of the Company with respect to obligations that
do not exceed $5.0 million at any one time outstanding and that (A) are not
incurred in connection with the borrowing of money or the obtaining of
advances or credit (other than trade credit in the ordinary course of
business) and (B) do not in the aggregate materially detract from the value
of the property or materially impair the use thereof in the operation of
business by the Company or such Subsidiary;
18
(x) Liens on assets of Unrestricted Subsidiaries that secure
Non-Recourse Debt of Unrestricted Subsidiaries;
(xi) Liens of carriers, warehousemen, mechanics, landlords,
materialmen, repairmen and for crew wages or salvage or other like Liens
arising by operation of law in the ordinary course of business and
consistent with industry practices and Liens on deposits made to obtain the
release of such Liens if (A) the underlying obligations are not overdue for
a period of more than 60 days or (B) such Liens are being contested in good
faith and by appropriate proceedings by the Company or its Subsidiary and
adequate reserves with respect thereto are maintained on the books of the
Company or such Subsidiary, as the case may be, in accordance with GAAP;
(xii) easements, rights-of-way, zoning and similar restrictions
and other similar encumbrances or title defects incurred or imposed, as
applicable, in the ordinary course of business and consistent with industry
practices which, in the aggregate, are not substantial in amount, and which
do not in any case materially detract from the value of the property
subject thereto (as such property is used by the Company or its Subsidiary)
or interfere with the ordinary conduct of the business of the Company or
such Subsidiary; provided, however, that any such Liens are not incurred in
connection with any borrowing of money or any commitment to loan any money
or to extend any credit; and
(xiii) customary Liens (other than any Lien imposed by ERISA)
incurred or deposits made in the ordinary course of business in connection
with worker's compensation, unemployment insurance and other types of
social security legislation.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund Indebtedness of the Company or any of its Restricted Subsidiaries;
PROVIDED that: (i) the principal amount (or accreted value, if applicable) of
such Permitted Refinancing Indebtedness does not exceed the principal amount of
(or accreted value, if applicable), plus accrued interest on, the Indebtedness
so extended, refinanced, renewed, replaced, defeased or refunded (plus the
amount of reasonable expenses incurred in connection therewith including
premiums paid, if any, to the holders thereof); (ii) such Permitted Refinancing
Indebtedness has a final maturity date at or later than the final maturity date
19
of, and has a Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; (iii) if the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Securities, such
Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and is subordinated in right of payment to, the
Securities on terms at least as favorable to the Holders of Securities as
those contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; and (iv) such
Indebtedness is incurred either by the Company or by the Restricted
Subsidiary who is the obligor on the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section
2.6(g)(i) to be placed on all Securities issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"REDEMPTION DATE" when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this Indenture.
"REDEMPTION PRICE" when used with respect to any Security to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
as set forth in the form of Security annexed as Exhibit A or B.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement dated the date hereof among the Company and the Initial Purchasers.
"REGULATION S" means Regulation S promulgated under the Securities Act
(including any successor regulation thereto) as in effect on the date hereof.
"REGULATION S GLOBAL SECURITY" means a Regulation S Temporary Global
Security or Regulation S Permanent Global Security, as appropriate.
20
"REGULATION S PERMANENT GLOBAL SECURITY" means a permanent global
Security in the form of EXHIBIT A hereto bearing the Global Security Legend
and the Private Placement Legend and deposited with or on behalf of and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Regulation S
Temporary Global Security upon expiration of the Restricted Period.
"REGULATION S TEMPORARY GLOBAL SECURITY" means a temporary global
Security in the form of EXHIBIT B hereto bearing the Global Security Legend,
the Private Placement Legend and the legend set forth in Section 2.6(g)(iii)
hereto, and deposited with or on behalf of and registered in the name of the
Depositary or its nominee, issued in a denomination equal to the outstanding
principal amount of the Securities initially sold in reliance on Rule 903 of
Regulation S.
"RELATED PARTY" with respect to any Person, means (i) any
Affiliate, or spouse or immediate family member (in the case of an
individual) of such Person, or (ii) any trust, corporation, partnership or
other entity, the beneficiaries, stockholders, partners, owners or Persons
beneficially holding a majority interest of which consist of such Person
and/or such other Person referred to in the immediately preceding clause (i),
or (iii) any trustee, executor or receiver appointed to manage or administer
the assets of a Person who is an individual following the death of such
individual.
"REPRESENTATIVE" means the indenture trustee or other trustee,
agent or representative in respect of any Designated Senior Indebtedness;
PROVIDED that if, and for so long as, any Designated Senior Indebtedness
lacks such a representative, then the Representative for such Designated
Senior Indebtedness shall be the holders of a majority in outstanding
principal amount of such Designated Senior Indebtedness in respect of any
Designated Senior Indebtedness.
"RESPONSIBLE OFFICER" means any officer within the corporate trust
department (or any successor group) of the Trustee including any vice
president, assistant vice president, senior trust officer, trust officer,
assistant secretary or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons
who at that time shall be such officers, and also means, with respect to a
particular corporate trust matter, any other officer to whom such trust
matter is referred because of his knowledge of and familiarity with the
particular subject.
"RESTRICTED BROKER-DEALER" has the meaning set forth in the
Registration Rights Agreement.
21
"RESTRICTED DEFINITIVE SECURITY" means a Definitive Security bearing
the Private Placement Legend.
"RESTRICTED GLOBAL SECURITY" means a Global Security bearing the
Private Placement Legend.
"RESTRICTED INVESTMENT" means an Investment other than a Permitted
Investment.
"RESTRICTED PERIOD" means the 40-day restricted period as defined in
Regulation S.
"RESTRICTED SUBSIDIARY" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"RULE 144" means Rule 144 promulgated under the Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"S&P" means Standard & Poor's Corporation and its successors.
"SEC" or "COMMISSION" means the Securities and Exchange Commission.
"SECURITIES" has the meaning assigned to it in the preamble to this
Indenture.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"SECURITY CUSTODIAN" means the Trustee, as custodian with respect to
the Securities in global form, or any successor entity thereto.
"SENIOR INDEBTEDNESS" means (i) the Indebtedness of the Company
under the New Credit Facility and (ii) any other Indebtedness of the Company
permitted to be incurred by it under the terms of this Indenture, unless the
instrument under which such Indebtedness is incurred expressly provides that
it is on a parity with or subordinated in right of payment to the Securities,
including, with respect to (i) and (ii), interest accruing subsequent to the
filing of, or which would have accrued but for the filing of, a petition
22
for bankruptcy, whether or not such interest is an allowable claim in such
bankruptcy proceeding. Notwithstanding anything to the contrary in the
foregoing, Senior Indebtedness will not include (1) any liability for
federal, state, local or other taxes owed or owing by the Company, (2) any
obligation of the Company to any of its Subsidiaries, (3) any accounts
payable or trade liabilities of the Company arising in the ordinary course of
business (including instruments evidencing such liabilities) other than
obligations in respect of bankers' acceptances and letters of credit under
the New Credit Facility, (4) any Indebtedness that is incurred in violation
of this Indenture, (5) Indebtedness which, when incurred and without respect
to any election under Section 1111 (b) of Xxxxx 00, Xxxxxx Xxxxxx Code, is
without recourse to the Company, (6) any Indebtedness, guarantee or
obligation of the Company which is subordinate or junior to any other
Indebtedness, guarantee or obligation of the Company, (7) Indebtedness
evidenced by the Securities and (8) Capital Stock of the Company.
"SHELF REGISTRATION STATEMENT" shall have the meaning set forth in
the Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation
S-X, promulgated pursuant to the Securities Act, as such Regulation is in
effect on the date hereof.
"STATED MATURITY" means, with respect to any installment of
interest or principal on any series of Indebtedness, the date on which such
payment of interest or principal was scheduled to be paid in the original
documentation governing such Indebtedness, and shall not include any
contingent obligations to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for the payment thereof.
"SUBORDINATED INDEBTEDNESS" means all Indebtedness of the Company
that is subordinated in right of payment to the Securities.
"SUBORDINATION AGREEMENT" means the Subordination Agreement dated
as of the date hereof between the Company and Xxxxx X. Xxxxxx, subordinating
payments from the Company to Xxxxx X. Xxxxxx due pursuant to the Supervisory
Agreement.
"SUBSIDIARY" means, with respect to any Person, (i) any
corporation, association or other business entity of which more than 50% of
the total voting power
23
of shares of Capital Stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a
combination thereof) and (ii) any partnership (a) the sole general partner or
the managing general partner of which is such Person or a Subsidiary of such
Person or (b) the only general partners of which are such Person or of one or
more Subsidiaries of such Person (or any combination thereof).
"SUPERVISORY AGREEMENT" means the Amended and Restated Supervisory
Agreement dated as of October 21, 1997 between the Company and Xxxxx X.
Xxxxxx providing for the payment by the Company of a management fee to Xxxxx
X. Xxxxxx in connection with the rendering of management services to or on
behalf of the Company, which obligation of the Company to pay such management
fee will be subordinated to the prior payment in full of all obligations with
respect to the Securities pursuant to the Subordination Agreement, and which
obligation is otherwise in lieu of the payment of any other compensation to
Xxxxx X. Xxxxxx in respect of services rendered to the Company.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of this Indenture, except as provided
in Section 10.3.
"TRUSTEE" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"UNRESTRICTED DEFINITIVE SECURITY" means one or more Definitive
Securities that do not bear and are not required to bear the Private
Placement Legend.
"UNRESTRICTED GLOBAL SECURITY" means a permanent Global Security in
the form of EXHIBIT A attached hereto that bears the Global Security Legend
and that has the "Schedule of Exchanges of Interests in the Global Security"
attached thereto, and that is deposited with or on behalf of and registered
in the name of the Depositary, but does not bear the Private Placement Legend.
"UNRESTRICTED SUBSIDIARY" means (i) any Subsidiary that is
designated by the Board of Directors as an Unrestricted Subsidiary pursuant
to a Board Resolution; but only to the extent that such Subsidiary: (a) has
no Indebtedness other than Non-Recourse Debt; (b) is not party to any
agreement, contract, arrangement or understanding with the
24
Company or any Restricted Subsidiary of the Company unless the terms of any
such agreement, contract, arrangement or understanding are no less favorable
to the Company or such Restricted Subsidiary than those that might be
obtained at the time from Persons who are not Affiliates of the Company; (c)
is a Person with respect to which neither the Company nor any of its
Restricted Subsidiaries has any direct or indirect obligation (x) to
subscribe for additional Equity Interests or (y) to maintain or preserve such
Person's financial condition or to cause such Person to achieve any specified
levels of operating results; and (d) has not guaranteed or otherwise directly
or indirectly provided credit support for any Indebtedness of the Company or
any of its Restricted Subsidiaries. Any such designation by the Board of
Directors shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board Resolution giving effect to such designation and
an Officers' Certificate certifying that such designation complied with the
foregoing conditions and was permitted by Section 4.6. If, at any time, any
Unrestricted Subsidiary would fail to meet the foregoing conditions as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness of such
Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date (and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.4, the Company shall be in default
of such covenant). The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; PROVIDED
that such designation shall be deemed to be an incurrence of Indebtedness by
a Restricted Subsidiary of the Company of any outstanding Indebtedness of
such Unrestricted Subsidiary and such designation shall only be permitted if
(i) such Indebtedness is permitted under Section 4.4 calculated on a pro
forma basis as if such designation had occurred at the beginning of the
four-quarter reference period, and (ii) no Default or Event of Default would
be in existence following such designation.
"U.S. GOVERNMENT OBLIGATIONS" means direct obligations of, and
obligations guaranteed by, the United States of America for the payment of
which the full faith and credit of the United States of America is pledged.
"U.S. LEGAL TENDER" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
"U.S. PERSON" means (i) any individual resident in the United
States, (ii) any partnership or corporation organized or incorporated under
the laws of the United States, (iii) any estate of which an executor or
administrator is a U.S. Person (other than an estate governed by foreign law
and of which at least one executor or administrator
25
is a non-U.S. Person who has sole or shared investment which at least one
executor or administrator is a non-U.S. Person who has sole or shared
investment discretion with respect to its assets), (iv) any trust of which
any trustee is a U.S. Person (other than a trust of which at least one
trustee is a non-U.S. Person who has sole or shared investment discretion
with respect to its assets and no beneficiary of the trust (and no settler,
if the trust is revocable) is a U.S. Person), (v) any agency or branch of a
foreign entity located in the United States, (vi) any non-discretionary or
similar account (other than an estate or trust) held by a dealer or other
fiduciary for the benefit or account of a U.S. person, (vii) any
discretionary or similar account (other than an estate or trust) held by a
dealer or other fiduciary organized, incorporated or (if an individual)
resident in the United States (other than such an account held for the
benefit or account of a non-U.S. Person), (viii) any partnership or
corporation organized or incorporated under the laws of a foreign
jurisdiction and formed by a U.S. Person principally for the purpose of
investing in securities not registered under the Securities Act (unless it is
organized or incorporated and owned, by "accredited investors" within the
meaning of Rule 501(a) under the Securities Act who are not natural persons,
estates or trusts); PROVIDED, HOWEVER, that the term "U.S. Person" shall not
include (A) a branch or agency of a U.S. Person that is located and operating
outside the United States for valid business purposes as a locally regulated
branch or agency engaged in the banking or insurance business, (B) any
employee benefit plan established and administered in accordance with the
law, customary practices and documentation of a foreign country and (C) the
international organizations set forth in Section 902(o)(7) of Regulation S
under the Securities Act and any other similar international organizations,
and their agencies, affiliates and pension plans.
"VOTING STOCK" of any Person as of any date means the Capital Stock
of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the
sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required
payments of principal, including payment at final maturity, in respect
thereof, by (b) the number of years (calculated to the nearest one-twelfth)
that will elapse between such date and the making of such payment, by (ii)
the then outstanding principal amount of such Indebtedness.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" of any Person means a
Restricted Subsidiary of such Person all of the outstanding Capital Stock or
other
26
ownership interests of which (other than directors' qualifying shares) shall
at the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person and one or more Wholly Owned Restricted
Subsidiaries of such Person.
"WHOLLY OWNED SUBSIDIARY" of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person.
SECTION 1.2 OTHER DEFINITIONS.
Term Defined in Section
---- ------------------
"Affiliate Transaction" 4.3(a)
"Asset Sale Offer" 4.5
"Change of Control Offer" 4.14(a)
"Change of Control Payment" 4.14(a)
"Change of Control Payment Date" 4.14(a)
"Covenant Defeasance" 9.1
"Custodian" 6.1
"DTC" 2.3
"Event of Default" 6.1
"Excess Proceeds" 4.5
"incur" 4.4
"Judgment Currency" 11.15
"Legal Defeasance" 9.1
"non-payment default" 8.3
"Offer Amount" 4.5
"Offer Period" 4.5
"Paying Agent" 2.3
"Payment Blockage Notice" 8.3
"Payment Default" 6.1
"Process Agent" 11.14
"Purchase Date" 4.5
"Registrar" 2.3
"Restricted Payments" 4.6
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
27
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:
"INDENTURE SECURITIES" means the Securities.
"INDENTURE SECURITY HOLDER" means a Holder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture securities means the Company or any
other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission
rule and not otherwise defined herein have the meanings assigned to them
therein.
SECTION 1.4 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 assigned to it in accordance with GAAP in effect on the date
hereof;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and
words in the plural include the singular;
(5) provisions apply to successive events and
transactions; and
28
(6) "herein," "hereof" and other words of similar
import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
ARTICLE II
THE SECURITIES
SECTION 2.1 FORM AND DATING.
The Securities and the Trustee's certificate of authentication
shall be substantially in the form set forth in EXHIBIT A or EXHIBIT B
hereto. The Securities may have notations, legends or endorsements required
by law (including, without limitation, Gaming Law), stock exchange rules,
agreements to which the Company is subject, or usage, as designated by the
Company. Each Security shall be dated the date of its authentication. The
Securities shall be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Securities shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company and the Trustee, by their execution and delivery of this Indenture
expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Security conflicts with the
express provisions of this Indenture, the provisions of this Indenture shall
govern and be controlling.
Securities issued in global form shall be substantially in the form
set forth in EXHIBITS A or B attached hereto (including the Global Security
Legend and the "Schedule of Exchanges in the Global Security" attached
thereto). Securities issued in definitive form shall be substantially in the
form of EXHIBIT A attached hereto (but without the Global Security Legend and
without the "Schedule of Exchanges of Interests in the Global Security"
attached thereto). Each Global Security shall represent such of the
outstanding Securities as shall be specified therein and each shall provide
that it shall represent the aggregate principal amount
29
of outstanding Securities from time to time endorsed thereon and that the
aggregate principal amount of outstanding Securities represented thereby may
from time to time be reduced or increased, as appropriate, to reflect
exchanges and redemptions. Any endorsement of a Global Security to reflect
the amount of any increase or decrease in the aggregate principal amount of
outstanding Securities represented thereby shall be made by the Trustee or
the Security Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.6 hereof.
Securities offered and sold to QIBs shall be issued initially in the form of
one or more Global Securities, which shall be deposited with the Trustee, as
custodian for DTC, in New York, New York, and registered in the name of DTC
or its nominee, in each case for credit to the accounts of DTC's participants.
Securities offered and sold in reliance on Regulation S shall be
issued initially in the form of the Regulation S Temporary Global Security,
which shall be deposited on behalf of the purchasers of the Securities
represented thereby with the Trustee, at its New York office, as custodian
for the Depositary, and registered in the name of the Depositary or the
nominee of the Depositary for the accounts of designated agents holding on
behalf of Euroclear or Cedel, duly executed by the Company and authenticated
by the Trustee as hereinafter provided. Within a reasonable time after
expiration of the Restricted Period the Regulation S Temporary Global
Securities will be exchanged for the Regulation S Permanent Global Securities
upon the receipt by the Trustee of (i) a written certificate from the
Depositary, together with copies of certificates from Euroclear and Cedel
certifying that they have received certification of non-United States
beneficial ownership of 100% of the aggregate principal amount of the
Regulation S Temporary Global Security (except to the extent of any
beneficial owners thereof who acquired an interest therein during the
Restricted Period pursuant to another exemption from registration under the
Securities Act and who will take delivery of a beneficial ownership interest
in a 144A Global Security or a Restricted Global Security bearing a Private
Placement Legend, all as contemplated by Section 2.6(a)(ii) hereof), and (ii)
an Officers' Certificate from the Company. Following such period, beneficial
interests in the Regulation S Temporary Global Security shall be exchanged
for beneficial interests in Regulation S Permanent Global Securities pursuant
to the Applicable Procedures. Simultaneously with the authentication of
Regulation S Permanent Global Securities, the Trustee shall cancel the
Regulation S Temporary Global Security. The aggregate principal amount of
the Regulation S Temporary Global Security and the Regulation S Permanent
Global Securities may from time to time be increased or decreased by
adjustments made on the records of the Trustee and the Depositary or its
nominee, as the case may be, in connection with transfers of interest as
hereinafter provided.
30
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Cedel Bank" and "Customer Handbook" of Cedel Bank shall be
applicable to transfers of beneficial interests in the Regulation S Temporary
Global Security and the Regulation S Permanent Global Security that are held by
the agent members through Euroclear or Cedel.
SECTION 1.6 EXECUTION AND AUTHENTICATION.
One Officer of the Company shall sign the Securities for the Company
by manual or facsimile signature, which signature shall be attested to by any
other person. Such signatures and attestation may be in counterparts, all of
which taken together shall constitute one and the same instrument.
If an Officer whose signature is on a Security no longer holds that
office at the time such Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by two
Officers, authenticate the Initial Securities for original issue up to
$120,000,000 in aggregate principal amount and shall authenticate the Exchange
Securities for original issue up to $120,000,000; PROVIDED that the Exchange
Securities shall be issuable only upon the valid surrender for cancellation of
Initial Securities of a like aggregate principal amount. The aggregate
principal amount of Securities outstanding at any time may not exceed
$120,000,000 except as provided in Section 2.7 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
31
Securities shall be issuable only in fully registered form, without
coupons, in denominations of $1,000 and integral multiples thereof.
SECTION 1.7 REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("REGISTRAR") and an
office or agency where Securities are to be presented for payment ("PAYING
AGENT"). The Registrar shall keep a register of the Securities and of their
transfer and exchange. The Company may appoint one or more co-registrars and
one or more additional Paying Agents. The term "Registrar" includes any
co-registrar and the term "Paying Agent" includes any additional paying agent.
The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company shall notify the Trustee in writing of the name and address
of any Agent not a party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act as
such. The Company may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Securities.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Security Custodian with respect to the Global
Securities, and by its signature hereto, the Trustee agrees to so act.
The Trustee is authorized to enter into a letter of representations
with DTC in the form provided to the Trustee by the Company and to act in
accordance with such letter.
SECTION 1.8 AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal of, premium, if any, Liquidated Damages, if any, or interest on the
Securities, and will notify the Trustee of any default by the Company in making
any such payment. While any such default continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee. The Company at any
time may require a Paying Agent to pay all money held by it to the Trustee.
Upon payment over to the Trustee,
32
the Paying Agent (if other than the Company) shall have no further liability
for the money. If the Company acts as Paying Agent, it shall segregate and
hold in a separate trust fund for the benefit of the Holders all money held
by it as Paying Agent. Upon any bankruptcy or reorganization proceedings
relating to the Company, the Trustee shall serve as Paying Agent for the
Securities.
SECTION 1.9 HOLDER 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
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least three
Business Days before each interest payment date and at such other times as the
Trustee may 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 the Holders of
Securities and the Company shall otherwise comply with TIA Section 312(a).
SECTION 1.10 TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL SECURITIES. A Global
Security may not be transferred as a whole except by the Depositary to a
nominee of the Depositary, by a nominee of the Depositary to the Depositary
or to another nominee of the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary. All Global Securities
will be exchanged by the Company for Definitive Securities if (i) the
Company delivers to the Trustee notice from the Depositary that it is
unwilling or unable to continue to act as Depositary or that it is no longer
a clearing agency registered under the Exchange Act and, in either case, a
successor Depositary is not appointed by the Company within 90 days after the
date of such notice from the Depositary, (ii) the Company in its sole
discretion determines that the Global Securities (in whole but not in part)
should be exchanged for Definitive Securities and delivers a written notice
to such effect to the Trustee or (iii) there shall have occurred and be
continuing an Event of Default with respect to the Securities and the Trustee
has received a request from the Depository to issue Definitive Securities;
PROVIDED that in no event shall the Regulation S Temporary Global Security be
exchanged by the Company for Definitive Securities prior to (x) the
expiration of the Restricted Period and (y) the receipt by the Registrar of
any certificates determined by the Company to be required pursuant to Rule
903 under the Securities Act. Upon the occurrence of either of the preceding
events in (i) or (ii) above, the Company will notify the Trustee in writing
that Definitive Securi-
33
ties shall be issued in such names as the Depositary and the participants
shall instruct the Trustee. Global Securities also may be exchanged or
replaced, in whole or in part, as provided in Sections 2.7 and 2.11 hereof.
Every Security authenticated and delivered in exchange for, or in lieu of, a
Global Security or any portion thereof, pursuant to Section 2.7 or 2.11
hereof, shall be authenticated and delivered in the form of, and shall be, a
Global Security. A Global Security may not be exchanged for another Security
other than as provided in this Section 2.6(a), however, beneficial interests
in a Global Security may be transferre d and exchanged as provided in Section
2.6(b), (c) or (f) hereof.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE
GLOBAL SECURITIES. The transfer and exchange of beneficial interests in the
Global Securities shall be effected through the Depositary, in accordance
with the provisions of this Indenture and the Applicable Procedures.
Beneficial interests in the Restricted Global Securities shall be subject to
restrictions on transfer comparable to those set forth herein to the extent
required by the Securities Act. Transfers of beneficial interests in the
Global Securities also shall require compliance with either subparagraph (i)
or (ii) below, as applicable, as well as subparagraph (iii) or (iv), as
applicable:
(i) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME GLOBAL SECURITY.
Beneficial interests in any Restricted Global Security may be transferred
to Persons who take delivery thereof in the form of a beneficial interest
in the same Restricted Global Security in accordance with the transfer
restrictions set forth in the Private Placement Legend; PROVIDED, HOWEVER,
that prior to the expiration of the Restricted Period transfers of
beneficial interests in the Regulation S Temporary Global Security may not
be made to a U.S. Person or for the account or benefit of a U.S. Person
(other than an Initial Purchaser). Beneficial interests in any
Unrestricted Global Security may be transferred only to Persons who take
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Security. No written orders or instructions shall be required to be
delivered to the Registrar to effect the transfers described in this
Section 2.6(b)(i).
(ii) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL INTERESTS IN
GLOBAL SECURITIES. In connection with all transfers and exchanges of
beneficial interests (other than a transfer of a beneficial interest in a
Global Security to a Person who takes delivery thereof in the form of a
beneficial interest in the same Global Security), the transferor of such
beneficial interest must
34
deliver to the Registrar either (1)(A) a written order from a Participant or
an Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be
credited a benefi cial interest in another Global Security in an amount equal
to the beneficial interest to be transferred or exchanged and (B)
instructions given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such
increase or (2)(A) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to cause to be issued a Definitive
Security in an amount equal to the beneficial interest to be transferred or
exchanged and (B) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such Definitive
Security shall be registered to effect the transfer or exchange referred to
in (1) above; PROVIDED that in no event shall Definitive Securities be issued
upon the transfer or exchange of beneficial interests in the Regulation S
Temporary Global Security prior to (x) the expiration of the Restricted
Period and (y) the receipt by the Registrar of any certificates determined by
the Company to be required pursuant to Rule 903 under the Securities Act;
PROVIDED, FURTHER, that in no event shall an Indirect Participant who holds a
beneficial interest in the Regulation S Temporary Global Security transfer or
exchange such interest to a U.S. Person who takes delivery in the form of an
interest in U.S. Global Securities prior to the satisfaction of clauses (x)
and (y) in the immediately preceding proviso. Upon an Exchange Offer by the
Company in accordance with Section 2.6(f) hereof, the requirements of this
Section 2.6(b)(ii) shall be deemed to have been satisfied upon receipt by the
Registrar of the instructions contained in the Letter of Transmittal
delivered by the Holder of such beneficial interests in the Restricted Global
Securities. Upon satisfaction of all of the requirements for transfer or
exchange of beneficial interests in Global Securities contained in this
Indenture, the Securities and otherwise applicable under the Securities Act,
the Trustee shall adjust the principal amount of the relevant Global Security
or Securities pursuant to Section 2.6(h) hereof.
(iii) TRANSFER OF BENEFICIAL INTERESTS TO ANOTHER RESTRICTED
GLOBAL SECURITY. A beneficial interest in any Restricted Global Security
may be transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Security if the transfer
complies with the requirements of clause (ii) above and the Registrar
receives the following:
35
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Security, then the transferor
must deliver a certificate in the form of EXHIBIT C hereto, including
the certifications in item 1 thereof;
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Temporary Global Security or
the Regulation S Global Security, then the transferor must deliver a
certificate in the form of EXHIBIT C hereto, including the
certifications in item 2 thereof; and
(C) if the transferee will take delivery in the form of a
beneficial interest in the Restricted Global Security, then the
transferor must deliver (x) a certificate in the form of EXHIBIT C
hereto, including the certifications required by item 3 thereof, if
applicable.
(iv) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A RESTRICTED
GLOBAL SECURITY FOR BENEFICIAL INTERESTS IN THE UNRESTRICTED GLOBAL
SECURITY. A beneficial interest in any Restricted Global Security may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Security or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Security if the exchange or transfer complies with the requirements of
clause (ii) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of the beneficial interest to be transferred, in the
case of an exchange, or the transferee, in the case of a transfer, is
not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Securities or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
36
(C) any such transfer is effected by a Restricted
Broker-Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Security proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global Security,
a certificate from such holder in the form of EXHIBIT D hereto,
including the certifications in item 1(a) thereof;
(2) if the holder of such beneficial interest in a
Restricted Global Security proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Security, a certificate
from such holder in the form of EXHIBIT C hereto, including the
certifications in item 4 thereof; and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are not
required in order to maintain compliance with the Securities Act or
any Gaming Law.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Security has not yet been issued,
the Company shall issue and, upon receipt of an authentication order in
accordance with Section 2.2 hereof, the Trustee shall authenticate one or more
Unrestricted Global Securities in an aggregate principal amount equal to the
principal amount of beneficial interests transferred pursuant to subparagraph
(B) or (D) above.
Beneficial interests in an Unrestricted Global Security cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Security.
37
(c) TRANSFER OR EXCHANGE OF BENEFICIAL INTERESTS FOR DEFINITIVE
SECURITIES.
(i) If any holder of a beneficial interest in a Restricted Global
Security proposes to exchange such beneficial interest for a Definitive
Security or to transfer such beneficial interest to a Person who takes
delivery thereof in the form of a Definitive Security, then, upon receipt
by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Security proposes to exchange such beneficial
interest for a Definitive Security, a certificate from such holder in
the form of EXHIBIT D hereto, including the certifications in item
2(a) thereof;
(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in EXHIBIT C hereto, including the
certifications in item 1 thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904 under the Securities Act, a certificate to the effect set
forth in EXHIBIT C hereto, including the certifications in item 2
thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in EXHIBIT C hereto, including the
certifications in item 3(a) thereof;
(E) if such beneficial interest is being transferred to
the Company or any of its Subsidiaries, a certificate to the effect
set forth in EXHIBIT C hereto, including the certifications in item
3(b) thereof; or
(F) if such beneficial interest is being transferred
pursuant to an effective registration statement under the Securities
38
Act, a certificate to the effect set forth in EXHIBIT C hereto,
including the certifications in item 3(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Security to be reduced accordingly pursuant to Section 2.6(h) hereof, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Security in the appropriate
principal amount. Any Definitive Security issued in exchange for a beneficial
interest in a Restricted Global Security pursuant to this Section 2.6(c) shall
be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Securities to
the Persons in whose names such Securities are so registered. Any Definitive
Security issued in exchange for a beneficial interest in a Restricted Global
Security pursuant to this Section 2.6(c)(i) shall bear the Private Placement
Legend and shall be subject to all restrictions on transfer contained therein.
(ii) Notwithstanding Sections 2.6(c)(i)(A) and (C) hereof, a
beneficial interest in the Regulation S Temporary Global Security may not
be (A) exchanged for a Definitive Security prior to (x) the expiration of
the Restricted Period and (y) the receipt by the Registrar of any
certificates determined by the Company to be required pursuant to Rule
903(c)(3)(B) under the Securities Act or (B) transferred to a Person who
takes delivery thereof in the form of a Definitive Security prior to the
conditions set forth in clause (A) above or unless the transfer is pursuant
to an exemption from the registration requirements of the Securities Act
other than Rule 903 or Rule 904.
(iii) Notwithstanding 2.6(c)(i) hereof, a holder of a beneficial
interest in a Restricted Global Security may exchange such beneficial
interest for an Unrestricted Definitive Security or may transfer such
beneficial interest to a Person who takes delivery thereof in the form of
an Unrestricted Definitive Security only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, is not (1) a
broker-dealer, (2) a Person participating in the distribution of the
39
Exchange Securities or (3) a Person who is an affiliate (as defined in
Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Restricted
Broker-Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Security proposes to exchange such beneficial
interest for a Definitive Security that does not bear the Private
Placement Legend, a certificate from such holder in the form of
EXHIBIT D hereto, including the certifications in item 1(b) thereof;
(2) if the holder of such beneficial interest in a
Restricted Global Security proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form of a
Definitive Security that does not bear the Private Placement Legend, a
certificate from such holder in the form of EXHIBIT C hereto,
including the certifications in item 4 thereof; and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form reasonably acceptable to
the Company, to the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are not required in order to
maintain compliance with the Securities Act or any Gaming
(iv) If any holder of a beneficial interest in an Unrestricted
Global Security proposes to exchange such beneficial interest for a
Definitive Security or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Definitive Security, then, upon
satisfaction of the conditions set forth in Section 2.6(b)(ii) hereof, the
Trustee shall cause the
40
aggregate principal amount of the applicable Global Security to be reduced
accordingly pursuant to Section 2.6(h) hereof, and the Company shall
execute and the Trustee shall authenticate and deliver to the Person
designated in the instructions a Definitive Security in the appropriate
principal amount. Any Definitive Security issued in exchange for a
beneficial interest pursuant to this Section 2.6(c)(iv) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Securities
to the Persons in whose names such Securities are so registered. Any
Definitive Security issued in exchange for a beneficial interest pursuant
to this Section 2.6(c)(iv) shall not bear the Private Placement Legend. A
beneficial interest in an Unrestricted Global Security cannot be exchanged
for a Definitive Security bearing the Private Placement Legend or
transferred to a Person who takes delivery thereof in the form of a
Definitive Security bearing the Private Placement Legend.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE SECURITIES FOR
BENEFICIAL INTERESTS.
(i) if any Holder of a Restricted Definitive Security proposes to
exchange such Security for a beneficial interest in a Restricted Global
Security or to transfer such Definitive Securities to a Person who takes
delivery thereof in the form of a beneficial interest in a Restricted
Global Security, then, upon receipt by the Registrar of the following
documentation:
(A) if the Holder of such Restricted Definitive Security
proposes to exchange such Security for a beneficial interest in a
Restricted Global Security, a certificate from such Holder in the form
of EXHIBIT D hereto, including the certifications in item 2(b)
thereof;
(B) if such Definitive Security is being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in EXHIBIT C hereto, including the
certifications in item 1 thereof;
(C) if such Definitive Security is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with
41
Rule 903 or Rule 904 under the Securities Act, a certificate to the
effect set forth in EXHIBIT C hereto, including the certifications in
item 2 thereof;
(D) if such Definitive Security is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in EXHIBIT C hereto, including the
certifications in item 3(a) thereof;
(E) if such Definitive Security is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set
forth in EXHIBIT C hereto, including the certifications in item 3(b)
thereof; or
(F) if such Definitive Security is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in EXHIBIT C hereto,
including the certifications in item 3(c) thereof,
the Trustee shall cancel the Definitive Security, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above,
the appropriate Restricted Global Security, in the case of clause (B) above, the
144A Global Security, in the case of clause (C) above, the Regulation S Global
Security, and in all other cases, the Restricted Global Security.
(ii) A Holder of a Restricted Definitive Security may exchange such
Security for a beneficial interest in an Unrestricted Global Security or
transfer such Restricted Definitive Security to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Security only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Securities or (3) a
Person who is an affiliate (as defined in Rule 144) of the Company;
42
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Restricted
Broker-Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Securities
proposes to exchange such Securities for a beneficial interest in the
Unrestricted Global Security, a certificate from such Holder in the
form of EXHIBIT D hereto, including the certifications in Item 1(c)
thereof;
(2) if the Holder of such Definitive Securities
proposes to transfer such Securities to a Person who shall take
delivery thereof in the form of a beneficial interest in the
Unrestricted Global Security, a certificate from such Holder in the
form of EXHIBIT C hereto, including the certifications in item 4
thereof, and
(3) in each such case set forth in this subparagraph
(D), an Opinion of Counsel in form reasonably acceptable to the
Company to the effect that such exchange or transfer is in compliance
with the Securities Act, that the restrictions on transfer contained
herein and in the Private Placement Legend are not required in order
to maintain compliance with the Securities Act, and such Definitive
Securities are being exchanged or transferred in compliance with any
applicable blue sky securities laws of any State of the United States
or any Gaming Law.
Upon satisfaction of the conditions of any of the subparagraphs in this Section
2.6(d)(ii), the Trustee shall cancel the Definitive Securities and increase or
cause to be increased the aggregate principal amount of the Unrestricted Global
Security.
(iii) A Holder of an Unrestricted Definitive Security may exchange
such Security for a beneficial interest in an Unrestricted Global Security
or transfer such Definitive Securities to a Person who takes delivery
thereof in
43
the form of a beneficial interest in an Unrestricted Global Security at
any time. Upon receipt of a request for such an exchange or transfer,
the Trustee shall cancel the applicable Unrestricted Definitive Security
and increase or cause to be increased the aggregate principal amount of
one of the Unrestricted Global Securities.
If any such exchange or transfer from a Definitive Security to a
beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or
(iii) above at a time when an Unrestricted Global Security has not yet been
issued, the Company shall issue and, upon receipt of an authentication order in
accordance with Section 2.2 hereof, the Trustee shall authenticate one or more
Unrestricted Global Securities in an aggregate principal amount equal to the
principal amount of beneficial interests transferred pursuant to subparagraphs
(ii)(B), (ii)(D) or (iii) above.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE SECURITIES FOR
DEFINITIVE SECURITIES. Upon request by a Holder of Definitive Securities and
such Holder's compliance with the provisions of this Section 2.6(e), the
Registrar shall register the transfer or exchange of Definitive Securities.
Prior to such registration of transfer or exchange, the requesting Holder shall
present on surrender to the Registrar the Definitive Securities duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his attorney, duly authorized in
writing. In addition, the requesting Holder shall provide any additional
certifications, documents and information, as applicable, pursuant to the
provisions of this Section 2.6(e).
(i) Restricted Definitive Securities may be transferred to and
registered in the name of Persons who take delivery thereof if the
Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A
under the Securities Act, then the transferor must deliver a
certificate in the form of EXHIBIT C hereto, including the
certifications in item 1 thereof;
(B) if the transfer will be made pursuant to Rule 903 or
Rule 904 under the Securities Act, then the transferor must deliver a
certificate in the form of EXHIBIT C hereto, including the
certifications in item 2 thereof; and
44
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities Act,
then the transferor must deliver a certificate in the form of EXHIBIT
C hereto, including the certifications, required by item 3 thereof.
(ii) Any Restricted Definitive Security may be exchanged by the Holder
thereof for an Unrestricted Definitive Security or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted
Definitive Security if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Securities or (3) a
Person who is an affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Restricted
Broker-Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive
Securities proposes to exchange such Securities for an Unrestricted
Definitive Security, a certificate from such Holder in the form of
EXHIBIT D hereto, including the certifications in item 1 (a) thereof,
(2) if the Holder of such Restricted Definitive
Securities proposes to transfer such Securities to a Person who shall
take delivery thereof in the form of an Unrestricted Definitive
Security, a certificate from such Holder in the form of EXHIBIT C
hereto, including the certifications in item 4 thereof, and
45
(3) in each such case set forth in this subparagraph
(D), an Opinion of Counsel in form reasonably acceptable to the
Company to the effect that such exchange or transfer is in compliance
with the Securities Act, that the restrictions on transfer contained
herein and in the Private Placement Legend are not required in order
to maintain compliance with the Securities Act, and such Restricted
Definitive Security is being exchanged or transferred in compliance
with any applicable blue sky securities laws of any State of the
United States or any Gaming Law.
(iii) A Holder of Unrestricted Definitive Securities may transfer
such Securities to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Security. Upon receipt of a request for such a
transfer, the Registrar shall register the Unrestricted Definitive
Securities pursuant to the instructions from the Holder thereof.
Unrestricted Definitive Securities cannot be exchanged for or transferred
to Persons who take delivery thereof in the form of a Restricted Definitive
Security.
(f) EXCHANGE OFFER. Upon the occurrence of the Exchange
Offer in accordance with the Registration Rights Agreement, the Company shall
issue and, upon receipt of an authentication order in accordance with Section
2.2 and an Officers' Certificate, the Trustee shall authenticate (i) one or
more Unrestricted Global Securities in an aggregate principal amount equal to
the principal amount of the beneficial interests in the Restricted Global
Securities tendered for acceptance by persons that are not (x) broker-dealers,
(y) Persons participating in the distribution of the Exchange Securities or
(z) Persons who are affiliates (as defined in Rule 144) of the Company and
accepted for exchange in the Exchange Offer and (ii) Definitive Securities in
an aggregate principal amount equal to the principal amount of the Restricted
Definitive Securities tendered for acceptance by persons that are not
(x) broker-dealers, (y) persons participating in the distribution of the
Exchange Securities or (z) Persons who are affiliates (as defined in Rule
144) of the Company and accepted for exchange in the Exchange Offer.
Concurrent with the issuance of such Securities, the Trustee shall cause the
aggregate principal amount of the applicable Restricted Global Securities to
be reduced accordingly, and the Company shall execute and the Trustee shall
authenticate and deliver to the Persons designated by the Holders of
Definitive Securities so accepted Definitive Securities in the appropriate
principal amount.
46
Concurrent with the issuance of the Exchange Securities in the Exchange
Offer, the Company shall deliver an Opinion of Counsel to the Trustee to the
effect that the Exchange Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of this
Indenture and delivered in exchange for Initial Securities in accordance with
this Indenture and the Exchange Offer, will be entitled to the benefits of
this Indenture and will be valid and binding obligations of the Company,
enforceable in accordance with their terms except as (x) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (y) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(g) LEGENDS. The following legends shall appear on the face of
all Global Securities and Definitive Securities issued under this Indenture
unless specifically stated otherwise in the applicable provisions of this
Indenture.
(i) PRIVATE PLACEMENT LEGEND.
(A) Except as permitted by subparagraph (B) below, each
Global Security and each Definitive Security (and all Securities
issued in exchange therefor or substitution thereof) shall bear the
legend in substantially the following form:
"THE SECURITY (OR ITS PREDECESSORS) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND THE SECURITY EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY
EVIDENCED
47
HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER. BY ITS ACQUISITION HEREOF,
THE HOLDER REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT), (B) IT IS NOT A U.S.
PERSON AND IS NOT ACQUIRING THIS SECURITY FOR THE
ACCOUNT OR BENEFIT OF A U.S. PERSON AND IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT). THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY (1)(a) TO
A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(b) IN A
48
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED
STATES TO A NON-U.S. PERSON IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE
COMPANY OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION
AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER
IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE."
(B) Notwithstanding the foregoing, any Global Security or
Definitive Security issued pursuant to subparagraphs (b)(iv),
(c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this
Section 2.6 (and all Securities issued in exchange therefor or
substitution thereof) shall not bear the Private Placement Legend.
49
(ii) GLOBAL SECURITY LEGEND. Each Global Security shall bear a legend
in substantially the following form:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR A SECURITY IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE
OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX)
("XXX"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(iii) REGULATION S TEMPORARY GLOBAL SECURITY LEGEND. The
Regulation S Temporary Global Security shall bear a legend in substantially
the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY,
AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
CERTIFICATED SECURITIES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED
HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS
REGULATION S TEMPORARY GLOBAL SECURITY SHALL BE ENTITLED TO RECEIVE
PAYMENT OF INTEREST HEREON."
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(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL SECURITIES. At
such time as all beneficial interests in a particular Global Security have been
exchanged for Definitive Securities or a particular Global Security has been
redeemed, repurchased or cancelled in whole and not in part, each such Global
Security shall be returned to or retained and cancelled by the Trustee in
accordance with Section 2.11 hereof. At any time prior to such cancellation, if
any beneficial interest in a Global Security is exchanged for or transferred to
a Person who will take delivery thereof in the form of a beneficial interest in
another Global Security or for Definitive Securities, the principal amount of
Securities represented by such Global Security shall be reduced accordingly and
an endorsement shall be made on such Global Security, by the Trustee or by the
Depositary at the direction of the Trustee, to reflect such reduction; and if
the beneficial interest is being exchanged for or transferred to a Person who
will take delivery thereof in the form of a beneficial interest in another
Global Security, such other Global Security shall be increased accordingly and
an endorsement shall be made on such Global Security, by the Trustee or by the
Depositary at the direction of the Trustee, to reflect such increase.
(i) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Securities and
Definitive Securities upon the Company's order or at the Registrar's
request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Security or to a Holder of a Definitive Security for
any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.10, 3.6, 4.5, 4.14 and 10.5 hereof).
(iii) The Registrar shall not be required (A) to register the
transfer of or to exchange Securities during a period beginning at the
opening of business 15 days before the day of mailing of notice of
redemption and ending at the close of business on the day of such mailing,
(B) to register the transfer of or to exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part
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or (C) to register the transfer of or to exchange a Security between a
record date and the next succeeding Interest Payment Date.
(iv) All Global Securities and Definitive Securities issued upon any
registration of transfer or exchange of Global Securities or Definitive
Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Global Securities or Definitive Securities surrendered upon such
registration of transfer or exchange.
(v) The Company shall not be required (1) to issue, to register
the transfer of or to exchange Securities during a period beginning at
the opening of business 15 days before the day of mailing of notice of
redemption and ending at the close of business on the day of such
mailing, (2) to register the transfer of or to exchange any Security so
selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part or (C) to register the
transfer of or to exchange a Security between a record date and the next
succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer of
any Security, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Security is registered as the absolute owner of
such Security for the purpose of receiving payment of principal of,
premium, if any, Liquidated Damages, if any, and interest on such
Securities and for all other purposes, and none of the Trustee, any Agent
or the Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Securities and
Definitive Securities in accordance with the provisions of Section 2.2
hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.6 to
effect a transfer or exchange may be submitted by facsimile, PROVIDED
original copies are promptly sent to the Registrar.
(ix) Each Holder of a Security agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange
or assignment of such Holder's Security in violation of any provision
52
of this Indenture and/or applicable United States federal or state
securities law.
(x) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers between
or among Depositary participants or beneficial owners of interests in any
Global Security) other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and to do so
if and when expressly required by the terms of, this Indenture, and to
examine the same to determine substantial compliance as to form with the
express requirements hereof.
SECTION 2.7 REPLACEMENT SECURITIES.
If any mutilated Security is surrendered to the Trustee or the Company
and the Trustee receives evidence to its satisfaction of the destruction, loss
or theft of any Security, the Company shall issue and the Trustee, upon the
written order of the Company signed by two Officers of the Company, shall
authenticate a replacement Security if the Trustee's requirements are met. An
indemnity bond must be supplied by the Holder that is sufficient in the judgment
of the Trustee and the Company to protect the Company, the Trustee, any Agent
and any authenticating agent from any loss that any of them may suffer if a
Security is replaced. The Company may charge for its expenses in replacing a
Security.
Every replacement Security is an additional obligation of the Company
and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Securities duly issued hereunder.
SECTION 2.8 OUTSTANDING SECURITIES.
The Securities outstanding at any time are all the Securities authenti
cated by the Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Security effected by
the Trustee in accordance with the provisions hereof, and those described in
this Section as not outstanding. Except as set forth in Section 2.9 hereof, a
Security does not cease to be outstanding because the Company or an Affiliate of
the Company holds such Security.
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If a Security is replaced pursuant to Section 2.7 hereof, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid under
Section 4.1 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate, of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay all of the principal, Liquidated Damages, if any, and interest
and premium, if any, due on the Securities payable on that date, then on and
after that date such Securities shall be deemed to be no longer outstanding and
shall cease to accrue interest.
SECTION 2.9 TREASURY SECURITIES.
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 any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company, shall be
considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities that a Responsible Officer of the
Trustee actually knows are so owned shall be so disregarded.
SECTION 2.10 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
and as shall be reasonably acceptable to the Trustee. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate definitive
Securities in exchange for temporary Securities.
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Holders of temporary Securities shall be entitled to all of the
benefits of this Indenture.
SECTION 2.11 CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Securities surrendered
for registration of transfer, exchange, payment, replacement or cancellation and
shall destroy cancelled Securities (subject to the record retention requirements
of the Exchange Act). Certification of the destruction of all Securities shall
be delivered to the Company. Subject to Section 2.7 hereof, the Company may not
issue new Securities to replace Securities that it has paid or that have been
delivered to the Trustee for cancellation.
SECTION 2.12 DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest in any lawful manner plus, to the extent lawful
under applicable law, interest payable on the defaulted interest, to the Persons
who are Holders on a subsequent special record date, in each case at the rate
provided in the Securities and in Section 4.1 hereof. Such defaulted interest,
and the interest thereon, may be paid by the Company, at its election in each
case, as provided in clause (i) or (ii) below.
(i) The Company shall notify the Trustee in writing of the amount of
defaulted interest, plus interest payable thereon, proposed to be paid on
each Security and the date of the proposed payment. The Company shall fix
or cause to be fixed each such special record date and payment date,
PROVIDED that no such special record date shall be less than 10 days prior
to the related payment date for such defaulted interest. At least 15 days
before the special record date, the Company (or, upon the written request
of the Company, the Trustee in the name and at the expense of the Company)
shall mail or cause to be mailed to Holders a notice that states the
special record date, the related payment date and the amount of such
interest to be paid, and, at the same time, the Company shall deposit with
the Trustee an amount of U.S. Legal Tender equal to the aggregate amount
proposed to be paid in respect of such defaulted interest and shall make
arrangements satisfactory to the Trustee for such deposit prior to the date
of the proposed payment. Such U.S. Legal
55
Tender shall be held in trust for the benefit of the Persons entitled to
such defaulted interest; or
(ii) The Company may make payment on any defaulted interest and on the
interest thereon in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this clause, such manner shall be deemed practicable by the Trustee.
SECTION 2.13 CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; PROVIDED that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
SECTION 2.14 RECORD DATE.
The record date for purposes of determining the identity of Holders of
Securities entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture shall be determined as provided for
in TIA Section 316(c).
ARTICLE III
REDEMPTION
SECTION 3.1 NOTICES TO TRUSTEE.
If the Company elects to redeem Securities pursuant to paragraph 5 or
6 of the Securities at the applicable redemption price set forth therein, it
shall notify
56
the Trustee and the Paying Agent in writing of the redemption date and the
principal amount of Securities to be redeemed.
The Company shall give the notice provided for in this Section 3.1 at
least 45 days before the redemption date (unless a shorter notice shall be
agreed to by the Trustee in writing), together with an Officers' Certificate
stating that such redemption will comply with the conditions contained herein.
SECTION 3.2 SELECTION OF SECURITIES TO BE REDEEMED OR REPURCHASED.
If less than all of the Securities are to be redeemed or repurchased
in an offer to purchase at any time, selection of Securities for redemption or
repurchase will be made by the Trustee in compliance with the requirements of
the principal national securities exchange, if any, on which the Securities are
listed, or, if the Securities are not so listed, on a PRO RATA basis, by lot or
by such method as the Trustee shall deem fair and appropriate; PROVIDED, that no
Securities of a principal amount of $1,000 or less shall be redeemed or
repurchased in part.
SECTION 3.3 NOTICE OF REDEMPTION OR REPURCHASE.
Subject to Section 11.2 hereof, at least 30 days but not more than 60
days before a redemption date or repurchase date, the Company shall mail or
cause to be mailed, by first-class mail a notice of redemption or repurchase to
each Holder whose Securities are to be redeemed or repurchased at its registered
address.
The notice shall identify the Securities to be redeemed or repurchased
and shall state:
(1) the redemption date or repurchase date, as the
case may be;
(2) the redemption price or repurchase price, as the
case may be;
(3) the CUSIP or CINS number, if any;
(4) the name and address of the Paying Agent to which
the Securities are to be surrendered for redemption or repurchase;
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(5) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption price or
repurchase price, as the case may be, and accrued interest, if any;
(6) that, unless the Company defaults in making the
redemption or repurchase payment, interest on Securities called for
redemption or repurchase ceases to accrue on and after the redemption
date or repurchase date, as the case may be, and the only remaining
right of the Holders is to receive payment of the redemption price or
repurchase price, as the case may be, upon surrender to the Paying
Agent;
(7) if any Security is being redeemed or repurchased
in part, the portion of the principal amount of such Security to be
redeemed or repurchased and that, after the redemption date or
repurchase date, as the case may be, upon surrender of such Security,
a new Security or Securities in principal amount equal to the
unredeemed or unrepurchased portion thereof will be issued.
On receipt of a request signed by an Officer of the Company, the
Trustee shall give the notice of redemption or repurchase on behalf of the
Company, in the name of the Company and at the Company's expense.
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION.
Once a notice of redemption is mailed, Securities called for
redemption become due and payable on the redemption date and at the redemption
price. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price, plus accrued and unpaid interest and Liquidated Damages, if
any, to the redemption date.
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE.
At least one Business Day before the redemption date, the Company
shall deposit with the Paying Agent money sufficient to pay the redemption price
of, Liquidated Damages, if any, and accrued interest on all Securities to be
redeemed on
58
that date other than Securities or portions thereof called for redemption on
that date which have been delivered by the Company to the Trustee for
cancellation.
If the Company complies with the provisions of the preceding paragraph
and payment of the Securities called for redemption is not otherwise prohibited
or prevented, on and after the redemption date, interest shall cease to accrue
on the Securities or the portions of Securities called for redemption. If a
Security is redeemed on or after an interest record date but on or prior to the
related interest payment date, then any accrued and unpaid interest shall be
paid to the Person in whose name such Security was registered at the close of
business on such record date. If any Security called for redemption shall not
be so paid upon surrender for redemption because of the failure of the Company
to comply with the preceding paragraph, interest shall be paid on the unpaid
principal, from the redemption date until such principal is paid, and to the
extent lawful on any interest or Liquidated Damages, if any, not paid on such
unpaid principal, in each case at the rate provided in the Securities and in
Section 4.1 hereof.
SECTION 3.6 SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed or repurchased in part,
the Company shall issue and, upon the Company's written request, the Trustee
shall authenticate for the Holder at the expense of the Company a new Security
equal in principal amount to the unredeemed or unrepurchased portion of the
Security surrendered.
SECTION 3.7 OPTIONAL AND REGULATORY REDEMPTION.
The Securities shall not be redeemable at the Company's option except
as set forth in the optional and regulatory redemption provisions set forth in
paragraphs 5 and 6 of Exhibits A and B attached hereto.
ARTICLE IV
COVENANTS
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SECTION 4.1 PAYMENT OF SECURITIES.
The Company shall pay the principal of, premium, if any, Liquidated
Damages, if any, and interest on the Securities in the manner provided in the
Securities. An installment of principal or interest or other amount shall be
considered paid on the date due if the Trustee or Paying Agent holds on that
date money designated for and sufficient to pay the installment in full and is
not prohibited from paying such money to the Holders of the Securities pursuant
to the terms of this Indenture. The Company shall pay all Liquidated Damages, if
any, in the same manner on the dates and in the amounts set forth in the
Registration Rights Agreement.
The Company shall pay interest on overdue principal at the same rate
PER ANNUM borne by the Securities. The Company shall pay interest on overdue
installments of interest and Liquidated Damages, if any, at the same rate PER
ANNUM borne by the Securities, to the extent lawful.
SECTION 4.2 MAINTENANCE OF OFFICE OR AGENCY; EXCHANGE LISTING.
The Company shall maintain in the Borough of Manhattan, The City of
New York, an office or agency where Securities may be surrendered for
registration of transfer or exchange or for presentation for payment and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company shall 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 11.2.
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 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. The Company shall give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
60
The Company hereby designates the Trustee as one such office or agency
of the Company.
SECTION 4.3 LIMITATION ON TRANSACTIONS WITH AFFILIATES.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, make any payment to or Investment in, or sell,
lease, transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any
transaction, contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate (each of the foregoing, an "AFFILIATE
TRANSACTION") unless:
(i) such Affiliate Transaction is on terms that are no less favorable
to the Company or the relevant Restricted Subsidiary than those that would
have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person; and
(ii) the Company delivers to the Trustee (x) with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $1 million, a resolution of the Board
of Directors set forth in an Officers' Certificate certifying that such
Affiliate Transaction complies with clause (i) above and that such
Affiliate Transaction has been approved by a majority of the disinterested
members of the Board of Directors and (y) with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving aggregate
consideration in excess of $5 million, an opinion as to the fairness to the
Holders of such Affiliate Transaction from a financial point of view issued
by an investment banking firm of national standing in the United States, or
in the event such transaction is a type that investment bankers do not
generally render fairness opinions, a valuation or appraisal firm of
national standing.
(b) The restrictions set forth in clause (a) shall not apply to:
(i) any employment agreement entered into by the Company or any of
its Restricted Subsidiaries in the ordinary course of business of the
Company or such Restricted Subsidiary;
(ii) transactions between or among the Company and/or its Restricted
Subsidiaries;
61
(iii) Restricted Payments that are permitted by Section 4.6;
(iv) (A) if no Default or Event of Default shall have occurred and be
continuing, the payment of a fee to Xxxxx X. Xxxxxx in connection with the
rendering of services to or on behalf of the Company pursuant to the
Supervisory Agreement and (B) the reimbursement of expenses (including,
without limitation, allocated salaries and overhead) incurred by entities
controlled by Xxxxx X. Xxxxxx in providing support and travel services to
the Company and its Restricted Subsidiaries in the ordinary course of
business consistent with past practices;
(v) the payment of reasonable and customary fees paid to, and
indemnity provided on behalf of, officers, directors or employees of the
Company or any Restricted Subsidiary;
(vi) transactions in which the Company or any of its Restricted
Subsidiaries, as the case may be, delivers to the Trustee a letter from an
investment banking firm or valuation or appraisal firm, as the case may be,
stating that such transaction meets the requirements of clause (i) of
subparagraph (a) of this Section;
(vii) loans to employees in the ordinary course of business of the
Company; PROVIDED that any such loan in excess of $200,000 must be approved
by a majority of the disinterested members of the Board of Directors of the
Company;
(viii) transactions contemplated by the Completion Guaranty and the
New Credit Facility; and
(ix) any agreement as in effect as of the Issue Date or any amendment
thereto (so long as any such amendment is no less favorable to the holders
of the Securities in any material respect than the original agreement as in
effect on the Issue Date) or any transaction contemplated thereby.
SECTION 4.4 LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS AND ISSUANCE
OF DISQUALIFIED STOCK.
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The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
Indebtedness) and that the Company shall not, and shall not permit any of its
Restricted Subsidiaries to issue any shares of Disqualified Stock and shall not
permit any of its Restricted Subsidiaries to issue preferred stock; PROVIDED,
HOWEVER, that the Company and any Guarantor may incur Indebtedness (including
Acquired Indebtedness) or issue shares of Disqualified Stock, and any Restricted
Subsidiary may incur Acquired Indebtedness if the Fixed Charge Coverage Ratio
for the Company's most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the date on
which such additional Indebtedness is incurred or such Disqualified Stock is
issued would have been at least 2 to 1, determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom), as if the
additional Indebtedness had been incurred, or the Disqualified Stock had been
issued, as the case may be, at the beginning of such four-quarter period.
The provisions of the first paragraph of this covenant will not apply
to the incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(a) Indebtedness of the Company under the New Credit Facility
with respect thereto in an aggregate principal amount outstanding at any time
not to exceed $77.0 million, less the aggregate amount of all proceeds from all
Asset Sales that have been applied since the Issue Date to permanently reduce
the outstanding amount of such Indebtedness pursuant to Section 4.5;
(b) the incurrence by the Company of Existing Indebtedness;
(c) the incurrence by the Company of Indebtedness represented by
the Securities;
(d) the incurrence by the Company or its Restricted Subsidiaries
of Indebtedness (including, without limitation, Indebtedness under the New
Credit Facility) represented by Capital Lease Obligations, mortgage financings
or purchase money obligations, in each case incurred for the purpose of
financing all or any part of the purchase price, lease or cost of construction
or improvement of
63
property, plant or equipment (including without limitation, slot machines and
other gaming equipment) used in a Permitted Business in an aggregate principal
amount not to exceed $15.0 million at any time outstanding;
(e) the incurrence by the Company or its Restricted Subsidiaries
of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of
which are used to refund, refinance or replace Indebtedness (other than
intercompany Indebtedness) that was permitted by this Indenture to be incurred;
(f) the incurrence by the Company or its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and
its Restricted Subsidiaries, PROVIDED, HOWEVER, that (i) if the Company is
the obligor on such Indebtedness, such Indebtedness is expressly subordinated
to the prior payment in full in cash of all Obligations with respect to the
Securities and (ii) (1) any subse quent issuance or transfer of Equity
Interests that results in any such Indebtedne ss being held by a Person other
than the Company or its Restricted Subsidiaries and (2) any sale or other
transfer of any such Indebtedne ss to a Person that is not the Company or a
Restricted Subsidiary shall be deemed, in each case, to constitute an
incurrence of such Indebtedne ss by the Company or such Restricted Subsidiary;
(g) the incurrence by the Company or its Restricted Subsidiaries
of Hedging Obligations that are incurred for the purpose of fixing or hedging
interest rate risk with respect to any floating or variable rate Indebtedness or
for the purpose of protecting against fluctuation in interest rates or the value
of foreign currencies purchased or received, in each case in respect of
Indebtedness that is permitted by the terms of this Indenture to be outstanding;
PROVIDED, HOWEVER, that in the case of Hedging Obligations that are incurred for
the purpose of fixing or hedging interest rate risks with respect to
Indebtedness, the notional principal amount of any such Hedging Obligation does
not exceed the principal amount of the Indebtedness to which such Hedging
Obligation relates and in the case of Hedging Obligations incurred for the
purpose of protecting against fluctuations in interest rates or the value of
foreign currencies purchased or received, such Hedging Obligations do not
increase the Indebtedness of the Company and its Restricted Subsidiaries
outstanding other than as a result of fluctuations in foreign currency exchange
rates or by reason of fees, indemnities and compensation payable thereunder;
(h) Indebtedness incurred solely in respect of performance,
surety and similar bonds or completion guarantees, to the extent that such
incurrence
64
does not result in the incurrence of any obligation for the payment
of borrowed money to others;
(i) Indebtedness arising in the ordinary course of business out
of standby letters of credit covering workers compensation, performance or
similar obligations;
(j) any guarantee of the Company of Indebtedness or other
obligations of any of its Restricted Subsidiaries so long as the incurrence of
such Indebtedness incurred by such Restricted Subsidiary is permitted under the
terms of this Indenture;
(k) the incurrence by the Company of Subordinated Indebtedness
payable to Permitted Holders in respect of payments made under the Completion
Guaranty or the Make-Well Agreement, which indebtedness shall have a stated
maturity not less than 91 days following the earlier of the maturity or
repayment of the Securities and accrue interest at a rate per annum not in
excess of the rate of interest payable on the Securities. Such Subordinated
Indebtedness may be incurred by the Company only if the Company is unable to
obtain approval from the appropriate Gaming Authorities for the issuance of
preferred stock to a Permitted Holder in respect of payments made under the
Completion Guaranty, which preferred stock shall have a redemption date not less
than 91 days following the earlier of the maturity or repayment of the
Securities and accrue dividends at a rate not in excess of the rate of interest
payable on the Securities; and
(l) the incurrence by the Company of additional Indebtedness
(including, without limitation, Indebtedness under the New Credit Facility) in
an aggregate principal amount (or accreted value, as applicable) at any time
outstanding not to exceed $5.0 million.
For purposes of determining compliance with this Section 4.4, in the
event that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (a) through (l) above or is
entitled to be incurred pursuant to the first paragraph of this Section 4.4, the
Company shall, in its sole discretion, classify such item of Indebtedness in any
manner that complies with this covenant and such item of Indebtedness will be
treated as having been incurred pursuant to only one of such clauses or pursuant
to the first paragraph hereof. Accrual of interest, the accretion of accreted
value and the payment of interest in the
65
form of additional Indebtedness will not be deemed to be an incurrence of
Indebtedness for purposes of this Section 4.4.
SECTION 4.5 LIMITATION ON ASSET SALES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the
Restricted Subsidiary, as the case may be) receives consideration at the time of
such Asset Sale at least equal to the fair market value (as determined in good
faith by the Board of Directors) of the assets or Equity Interests issued or
sold or otherwise disposed of and (ii) at least 80% of the consideration
therefor received by the Company or such Restricted Subsidiary is in the form of
cash or Cash Equivalents; PROVIDED that the amount of (x) any liabilities (as
shown on the Company's or such Restricted Subsidiary's most recent balance
sheet) of the Company or any Restricted Subsidiary (other than contingent
liabilities and liabilities that are by their terms subordinated to the
Securities or any guarantee thereof) that are assumed by the transferee of any
such assets pursuant to an agreement that releases the Company or such
Restricted Subsidiary from further liability and (y) any securities, notes or
other obligations received by the Company or any such Restricted Subsidiary from
such transferee that are promptly, but in no event more than 30 days after
receipt, converted by the Company or such Restricted Subsidiary into cash (to
the extent of the cash received), shall be deemed to be cash for purposes of
this provision.
Within 270 days after the receipt of any Net Proceeds from an Asset
Sale, the Company or such Restricted Subsidiary may apply such Net Proceeds, at
its option, (a) to permanently reduce Senior Indebtedness (and to
correspondingly permanently reduce commitments with respect thereto in the case
of revolving borrowings), or (b) to the making of a capital expenditure in a
Permitted Business or the acquisition of other assets to be used in a Permitted
Business. Pending the final application of any such Net Proceeds, the Company
may temporarily reduce Indebtedness under the New Credit Facility or invest such
Net Proceeds in any manner that is not prohibited by this Indenture. Any Net
Proceeds from Asset Sales that are not applied or invested as provided in the
first sentence of this paragraph will be deemed to constitute "EXCESS PROCEEDS."
When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company
will be required to make an offer to all Holders of Securities (an "ASSET SALE
OFFER") to purchase the maximum principal amount of Securities that may be
purchased out of the Excess Proceeds, at an offer price in cash in an amount
equal to 100% of the principal amount thereof plus accrued and unpaid interest
and Liquidated Damages thereon, if any, to the date of purchase, in accor-
66
dance with the procedures set forth in this Indenture. To the extent that the
aggregate amount of Securities tendered pursuant to an Asset Sale Offer is
less than the Excess Proceeds, the Company may use any remaining Excess
Proceeds for general corporate purposes. If the aggregate principal amount of
Securities surrendered by Holders thereof exceeds the amount of Excess
Proceeds, the Trustee shall select the Securities to be purchased on a pro
rata basis. Upon completion of such offer to purchase, the amount of Excess
Proceeds shall be reset at zero.
The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws or regulations are applicable in connection with the repurchase
of the Securities pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with this Section 4.5,
the Company will comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this Section 4.5.
In the event that, pursuant to this Section 4.5, the Company shall be
required to commence an Asset Sale Offer, it shall follow the procedures
specified below.
The Asset Sale Offer shall remain open for a period of 20 Business
Days following its commencement and no longer, except to the extent that a
longer period is required by applicable law (the "OFFER PERIOD"). No later than
five Business Days after the termination of the Offer Period (the "PURCHASE
DATE"), the Company shall purchase the principal amount of Securities required
to be purchased pursuant to this Section 4.5 (the "OFFER AMOUNT") or, if less
than the Offer Amount has been tendered, all Securities tendered in response to
the Asset Sale Offer. Payment for any Securities so purchased shall be made in
the same manner as interest payments are made.
If the Purchase Date is on or after an interest payment record date
and on or before the associated Interest Payment Date, any accrued and unpaid
interest (and Liquidated Damages, if any, due on such Interest Payment Date)
shall be paid to the Person in whose name a Security is registered at the close
of business on such record date, and such interest (or Liquidated Damages, if
applicable) shall not be payable to Holders who tender Securities pursuant to
the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company shall send,
by first class mail, a notice to the Trustee and each of the Holders, with a
copy
67
to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Securities pursuant to the Asset
Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice,
which shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this
Section 4.5 and the length of time the Asset Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Security not tendered or accepted for payment shall
continue to accrue interest;
(d) that, unless the Company defaults in making such payment,
any Security accepted for payment pursuant to the Asset Sale Offer shall cease
to accrue interest on or after the Purchase Date;
(e) that Holders electing to have a Security purchased pursuant
to an Asset Sale Offer may only elect to have all of such Security purchased and
may not elect to have only a portion of such Security purchased;
(f) that Holders electing to have a Security purchased pursuant
to any Asset Sale Offer shall be required to surrender the Security, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Security completed, or transfer by book-entry transfer, to the Company, a
depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice at least three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if
the Company, the Depositary or the Paying Agent, as the case may be, receives,
not later than the expiration of the Offer Period, a facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Security the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Security purchased;
(h) that, if the aggregate principal amount of Securities
surrendered by Holders exceeds the Offer Amount, the Trustee shall select the
Securities to be purchased on a PRO RATA basis (with such adjustments as may be
68
deemed appropriate by the Trustee so that only Securities in denominations of
$1,000, or integral multiples thereof, shall be purchased); and
(i) that Holders whose Securities were purchased only in part
shall be issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Company shall, to the extent
lawful, accept for payment, on a PRO RATA basis to the extent necessary, the
Offer Amount of Securities or portions thereof tendered pursuant to the Asset
Sale Offer, or if less than the Offer Amount has been tendered, all Securities
tendered, and shall deliver to the Trustee an Officers' Certificate stating that
such Securities or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 4.5. The Company, the Depositary or
the Paying Agent, as the case may be, shall promptly (but in any case not later
than five days after the Purchase Date) mail or deliver to each tendering Holder
an amount equal to the purchase price of the Securities tendered by such Holder
and accepted by the Company for purchase, and the Company shall promptly issue a
new Security and the Trustee, upon written request from the Company shall
authenticate and mail or deliver such new Security to such Holder, in a
principal amount equal to any unpurchased portion of the Security surrendered.
Any Security not so accepted shall be promptly mailed or delivered by the
Company to the Holder thereof. The Company shall publicly announce the results
of the Asset Sale Offer on the Purchase Date.
SECTION 4.6 LIMITATION ON RESTRICTED PAYMENTS.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly: (1) declare or pay any
dividend or make any other payment or distribution on account of the Company's
or any of its Restricted Subsidiaries' Equity Interests including, without
limitation, any dividend or distribution in connection with any merger or
consolidation involving the Company (other than dividends or distributions by a
Restricted Subsidiary so long as, in the case of any dividend or distribution
payable on or in respect of any class or series of securities issued by a
Restricted Subsidiary other than a Wholly Owned Restricted Subsidiary, the
Company or a Restricted Subsidiary receives at least its PRO RATA share of such
dividend or distribution in accordance with its Equity Interests in such class
or series of securities), or to the direct or indirect holders of the Company's
or any of its Restricted Subsidiaries' Equity Interests in their capacity as
such (other than dividends or distributions payable in Equity Interests (other
than Disqualified
69
Stock) of the Company); (2) purchase, redeem or otherwise acquire or retire
for value (including, without limitation, in connection with any merger or
consolidation involving the Company) any Equity Interests of the Company or
any direct or indirect parent of the Company; (3) make any principal payment
on or with respect to, or purchase, redeem, defease or otherwise acquire or
retire for value any Subordinated Indebtedness, except a scheduled repayment
of principal or a payment of principal at Stated Maturity; (3) make any
payment of interest on Subordinated Indebtedness issued pursuant to Section
4.4(k); or (5) make any Restricted Investment (all such payments and other
actions set forth in clauses (1) through (5) above being collectively
referred to as "RESTRICTED PAYMENTS"), unless, at the time of and after
giving effect to such Restricted Payment:
(i) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(ii) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable four-quarter period, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in the first paragraph of
Section 4.4; and
(iii) such Restricted Payment, together with the aggregate amount
of all other Restricted Payments made by the Company and its Restricted
Subsidiaries after the Issue Date (excluding Restricted Payments permitted
by clauses (ii), (iii), (iv), (vi), and (vii) of Section 4.6(b)) is less
than the sum (without duplication) of (1) 50% of the Consolidated Net
Income of the Company for the period (taken as one accounting period) from
the beginning of the first fiscal quarter commencing after the Issue Date
to the end of the Company's most recently ended fiscal quarter for which
internal financial statements are available at the time of such Restricted
Payment (or, if such Consolidated Net Income for such period is a deficit,
less 100% of such deficit), plus (2) 100% of the aggregate net cash
proceeds received by the Company from the issue or sale since the Issue
Date of Equity Interests of the Company (other than Disqualified
Stock) or of Disqualified Stock or debt securities of the Company
that have been converted into such Equity Interests (other than Equity
Interests (or Disqualified Stock or convertible debt securities) sold
to a Restricted Subsidiary of the Company), plus (3) 100% of the
aggregate net cash proceeds received by the Company as an equity
contribu-
70
tion from a holder or holders of Equity Interests of the Company
(other than Disqualified Stock) but excluding Excluded Contributions,
plus (4) to the extent that any Restricted Investment that was made
after the Issue Date is sold or otherwise liquidated or repaid, the
lesser of (x) the cash return of capital with respect to such Restricted
Investment (less the cost of disposition, if any) and (y) the initial
amount of such Restricted Investment, plus (5) the amount resulting from
redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries,
such amount not to exceed the amount of Investments made by the Company
or any Restricted Subsidiary in such Unrestricted Subsidiary since the
date hereof that was treated as a Restricted Payment under this
Indenture, plus (6) to the extent not otherwise included in Consolidated
Net Income, the amount of the net reduction in Investments in
Unrestricted Subsidiaries resulting from the payment of cash dividends
received by the Company or any Restricted Subsidiary of the Company from
such Unrestricted Subsidiaries, plus (7) $5.0 million.
(b) The foregoing provisions of this Section 4.6 will not
prohibit:
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment would have
complied with the provisions of this Indenture;
(ii) the redemption, repurchase, retirement, defeasance or other
acquisition of any Equity Interests of the Company in exchange for, or out
of the net cash proceeds of the substantially concurrent sale (other than
to a Restricted Subsidiary of the Company) of, other Equity Interests of
the Company (other than any Disqualified Stock); PROVIDED that the amount
of any such net cash proceeds that are utilized for any such redemption,
repurchase, retirement, defeasance or other acquisition shall be excluded
from clause (iii)(B) or (C) of Section 4.6(a);
(iii) the defeasance, redemption, repurchase or other acquisition
of Subordinated Indebtedness in exchange for or with the net cash proceeds
from an incurrence of Permitted Refinancing Indebtedness or of the
substantially concurrent sale (other than to a Restricted Subsidiary of the
Company) of Equity Interests in the Company (other than any Disqualified
Stock); PROVIDED that the amount of any such net cash proceeds that are
utilized for
71
any such defeasance, redemption, repurchase or other acquisition shall be
excluded from clause (iii)(B) or (C) of Section 4.6(a);
(iv) the repurchase, retirement or other acquisition or retirement
for value of common Equity Interests of the Company held by any future,
present or former employee or director of the Company or any of the
Company's Restricted Subsidiaries or the estate, heirs or legatees of,
or any entity controlled by, any such employee or director, pursuant to
any management equity plan or stock option plan or any other management
or employee benefit plan or agreement in connection with the termination
of such person's employment for any reason (including by reason of death
or disability); PROVIDED, HOWEVER, that the aggregate Restricted
Payments made under this clause (iv) does not exceed (A) in the
aggregate, the sum of $1.5 million plus $250,000 for each twelve month
period following the Issue Date and (B) $1.5 million in any calendar
year;
(v) the redemption or repurchase of any Capital Stock or
Indebtedness of the Company or any of its Subsidiaries (other than any
Capital Stock or Indebtedness that is held or beneficially owned by any
Permitted Holder) required by the Regulatory Redemption provisions of
this Indenture (or any substantially comparable provision governing
other Indebtedness), or by any Governmental Authority or by the Board of
Directors of the Company if, in any such case, the ownership of such
Capital Stock or Indebtedness by the holder thereof will preclude,
interfere with, threaten or delay the issuance, maintenance, existence
or reinstatement of any gaming or liquor license, permit or approval, or
result in the imposition or burdensome terms or conditions on such
license, permit or approval;
(vi) so long as no Default or Event of Default shall have occurred
and be continuing, the declaration and payment of dividends to holders
of any such class or series of Disqualified Stock of the Company issued
in accordance with Section 4.4; and
(vii) repurchases of Equity Interests deemed to occur upon exercise
of stock options if such Equity Interests represent a portion of the
exercise price of such options.
(c) The Board of Directors may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if such designation is permitted by
this
72
covenant and otherwise would not cause a Default. For purposes of making such
determination, all outstanding Investments by the Company and its Restricted
Subsidiaries (except to the extent repaid in cash) in the Subsidiary so
designated will be deemed to be Restricted Payments at the time of such
designation and will reduce the amount available for Restricted Payments
under Section 4.6(a). All such outstanding Investments will be deemed to
constitute Investments in an amount equal to the greatest of (x) the net book
value of such Investments at the time of such designation, (y) the fair
market value of such Investments at the time of such designation and (z) the
original fair market value of such Investments at the time they were made.
Such designation will only be permitted if such Restricted Payment would be
permitted at such time and if such Restricted Subsidiary otherwise meets the
definition of an Unrestricted Subsidiary.
(d) The amount of all Restricted Payments (other than cash)
shall be the fair market value on the date of the Restricted Payment of the
asset(s) or securities proposed to be transferred or issued by the Company or
such Subsidiary, as the case may be, pursuant to the Restricted Payment. The
fair market value of any non-cash Restricted Payment shall be based on the good
faith determination of the Board of Directors.
SECTION 4.7 CORPORATE EXISTENCE.
Except as provided in Article V, the Company shall do or shall 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 of the Restricted Subsidiaries in accordance with the respective
organizational documents of the Company and each such Restricted Subsidiary and
the rights (charter and statutory) and material franchises of the Company and
its Restricted Subsidiaries; PROVIDED, HOWEVER, that the Company shall not be
required to preserve any such right, or the corporate, partnership, limited
liability or other existence of any Restricted Subsidiary if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of such Restricted Subsidiary and each of its
respective Subsidiaries, taken as a whole, and that the loss thereof is not, and
will not be, adverse in any material respect to the Holders.
SECTION 4.8 PAYMENT OF TAXES AND OTHER CLAIMS.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all material taxes, assessments
73
and governmental charges levied or imposed upon it or any of its Subsidiaries
or upon the income, profits or property of it or any of its Subsidiaries and
(ii) all lawful claims for labor, materials and supplies which, in each case,
if unpaid, might by law become a material liability, or Lien upon the
property, of it or any of its Subsidiaries; 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 for which appropriate provision has been made.
SECTION 4.9 NOTICE OF DEFAULTS.
(a) In the event that $5.0 million or more of Indebtedness of
the Company or any of its Subsidiaries is declared due and payable before its
maturity because of the occurrence of any default under such Indebtedness, the
Company shall promptly give written notice to the Trustee of such declaration,
the status of such default and what action the Company is taking or proposes to
take with respect thereto.
(b) Upon becoming aware of any Event of Default, the Company
shall promptly deliver an Officers' Certificate to the Trustee specifying the
Event of Default.
SECTION 4.10 MAINTENANCE OF PROPERTIES.
The Company and each of its Restricted Subsidiaries shall cause all
material properties owned by or leased to it and used or useful in the conduct
of its business to be maintained and kept in normal condition, repair and
working order and supplied with all necessary equipment and shall cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company or such Restricted Subsidiary 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 4.10 shall prevent the Company or any of its Restricted
Subsidiaries from discontinuing the use, 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 of the Company or of the Board of
Directors of the Restricted Subsidiary concerned, or of an officer (or other
agent employed by the Company or of any of its Restricted
74
Subsidiaries) of the Company or such Restricted Subsidiary having managerial
responsibility for any such property, desirable in the conduct of the
business of the Company or any of its Restricted Subsidiaries, and if such
discontinuance or disposal is not adverse in any material respect to the
Holders.
SECTION 4.11 COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year, an Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
is not in default in the performance or observance of any of the terms,
provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action the Company is taking or
proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of, premium, if any, Liquidated Damages, if
any, or interest on the Securities is prohibited or if such event has occurred,
a description of the event and what action the Company is taking or proposes to
take with respect thereto.
SECTION 4.12 PROVISION OF FINANCIAL INFORMATION.
Whether or not required by the rules and regulations of the
Commission, so long as any Securities are outstanding, the Company will
furnish to the Holders of Securities (i) all quarterly and annual financial
information that would be required to be contained in a filing with the
Commission on Forms 10-Q and 10-K if the Company were required to file such
Forms, including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" that describes the financial condition
and results of operations of the Company and its consolidated Subsidiaries
and, with respect to the annual information only, a report thereon by the
Company's certified independent accountants and (ii) all current reports that
would be required to be filed with the Commission on Form 8-K if the Company
were required to file such reports, in each case within the time periods set
forth in the Commission's rules and regulations. In addition, whether or not
required by the rules and regulations of the Commission, the Company will
file a copy of such informa-
75
tion and report with the Commission for public availability within the time
periods set forth in the Commission's rules and regulations (unless the
Commission will not accept such a filing). In addition, until the
effectiveness of the registration statement relating to the Exchange Offer
pursuant to the Registration Rights Agreement, the Company will furnish to
the Holders and to prospective investors, upon their request, the information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
SECTION 4.13 WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Company covenants hereby (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or 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 principal of, premium, if any, Liquidated
Damages, if any, and interest on or with respect to the Securities as
contemplated herein, wherever 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 shall not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law
had been enacted.
SECTION 4.14 CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, the Company will
be required to make an offer to repurchase all or any part (equal to $1,000 or
an integral multiple thereof), of each Holder's Securities pursuant to the offer
described below (the "CHANGE OF CONTROL OFFER") at an offer price in cash equal
to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest and Liquidated Damages thereon, if any, to the date of repurchase (the
"CHANGE OF CONTROL PAYMENT"). Within 30 days following any Change of Control,
the Company will mail a notice to each Holder describing the transaction or
transactions that constitute the Change of Control and offering to repurchase
Securities on the date specified in such notice, which date shall be no earlier
than 30 days and no later than 60 days from the date such notice is mailed (the
"CHANGE OF CONTROL PAYMENT DATE"), pursuant to the procedures required by this
Indenture and described in such notice. The Company will comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws
76
and regulations are applicable in connection with the repurchase of the
Securities as a result of a Change of Control. To the extent that the
provisions of any securities laws or regulations conflict with the provisions
of this Indenture relating to a Change of Control Offer, the Company will
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations described under this Section 4.14 by
virtue thereof.
(b) On the Change of Control Payment Date, the Company will,
to the extent lawful, (A) accept for payment all Securities or portions
thereof properly tendered pursuant to the Change of Control Offer, (B)
deposit with the Paying Agent an amount equal to the Change of Control
Payment in respect of all Securities or portions thereof so tendered and (C)
deliver or cause to be delivered to the Trustee the Securities so accepted
together with an Officers' Certificate stating the aggregate principal amount
of Securities or portions thereof being purchased by the Company. The Paying
Agent will promptly mail to each Holder of Securities so tendered the Change
of Control Payment for such Securities, and the Trustee will promptly
authenticate and mail (or cause to be transferred by book-entry) to each
Holder a new Security equal in principal amount to the unpurchased portion of
the Securities surrendered, if any; PROVIDED that each such new Security will
be in a principal amount of $1,000 or an integral multiple thereof. The
Company will publicly announce the results of the Change of Control Offer on
or as soon as practicable after the Change of Control Payment Date.
(c) If the payment date in connection with a Change of Control
Offer hereunder is on or after an interest payment record date and on or before
the associated Interest Payment Date, any accrued and unpaid interest (and
Liquidated Damages, if any, due on such Interest Payment Date) will be paid to
the person in whose name a Security is registered at the close of business on
such record date, and such interest (or Liquidated Damages, if applicable) will
not be payable to Holders who tender Securities pursuant to such Change of
Control Offer.
(d) Except as described in this Section 4.14, this Indenture
does not contain provisions that permit the Holders of the Securities to require
that the Company repurchase or redeem the Securities in the event of a takeover,
recapitalization or similar transaction.
The Company shall not be required to make a Change of Control Offer
upon a Change of Control if a third party makes the Change of Control Offer in
the manner, at the times and otherwise in compliance with the requirements set
forth
77
in this Indenture applicable to a Change of Control Offer made by the
Company and purchases all Securities validly tendered and not withdrawn under
such Change of Control Offer.
The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws or regulations are applicable in connection with the repurchase
of the Securities pursuant to a Change of Control Offer. To the extent that the
provisions of any securities laws or regulations conflict with this Section
4.14, the Company will comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.14.
SECTION 4.15 LIMITATION ON OTHER SENIOR SUBORDINATED INDEBTEDNESS.
The Company shall not, directly or indirectly, incur any Indebtedness
(including Acquired Indebtedness) that is subordinate in right of payment to any
Indebtedness of the Company unless such Indebtedness is either (a) PARI PASSU in
right of payment with the Securities or (b) subordinate in right of payment to
the Securities.
SECTION 4.16 LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or consensual
restriction on the ability of any Restricted Subsidiary to:
(i) (1) pay dividends or make any other distributions to the Company
or any of its Restricted Subsidiaries (A) on its Capital Stock or (B) with
respect to any other interest or participation in, or measured by, its
profits, or of its Restricted Subsidiaries;
(ii) make loans or advances to the Company or any of its Restricted
Subsidiaries; or
78
(iii) transfer any of its properties or assets to the Company or any of
its Restricted Subsidiaries.
(b) The provision of Section 4.16(a) will not apply to
encumbrances or restrictions existing under or by reason of:
(i) Existing Indebtedness as in effect on the Issue Date;
(ii) the New Credit Facility as in effect as of the date hereof, and
any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings thereof, PROVIDED
that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacement or refinancings are no more
restrictive with respect to such dividend and other payment restrictions
than those contained in the New Credit Facility as in effect on the date
hereof;
(iii) this Indenture and the Securities;
(iv) applicable law, rules or regulations, or any order or ruling by
a Governmental Authority or a Gaming Authority;
(v) any instrument of a Person acquired by the Company or any of its
Restricted Subsidiaries as in effect at the time of such acquisition (but
not created in connection with or in contemplation of such acquisition),
which encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person, or the property
or assets of the Person, so acquired, PROVIDED that, in the case of
Indebtedness, such Indebtedness was permitted by the terms of this
Indenture to be incurred;
(vi) customary non-assignment provisions in leases, licenses,
encumbrances, contracts or similar agreements entered into or acquired in
the ordinary course of business;
(vii) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions of the nature described in
clause (iii) of Section 4.16(a) on the property so acquired;
79
(viii) contracts for the sale of assets, including, without
limitation, customary restrictions with respect to a Subsidiary pursuant to
an agreement that has been entered into for the sale or disposition of all
or substantially all of the Capital Stock or assets of such Subsidiary; and
(ix) Permitted Refinancing Indebtedness, PROVIDED that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive than those contained in
the agreements governing the Indebtedness being refinanced.
SECTION 4.17 LIMITATION ON LIENS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien securing Indebtedness or trade payables on any asset now owned or
hereafter acquired, or any income or profits therefrom or assign or convey any
right to receive income therefrom, except Permitted Liens, unless the Securities
are secured equally and ratably with (or prior to, in the case of Subordinated
Indebtedness) the obligation or liability secured by such Lien.
SECTION 4.18 LIMITATION ON BUSINESS ACTIVITIES.
The Company shall not, and shall not permit any Restricted Subsidiary
to, engage in any business other than Permitted Businesses, except to such
extent as would not be material to the Company and its Subsidiaries taken as a
whole. The Company or its Restricted Subsidiaries may not enter into any Gaming
Jurisdictions in which the Company or its Restricted Subsidiary is not presently
licensed if all of the Holders of the Securities will be required to be
licensed, PROVIDED that this sentence shall not prohibit the Company or its
Restricted Subsidiary from entering any jurisdiction that does not require the
licensing or qualification of all of the Holders of the Securities, but reserves
the discretionary right to license or qualify any Holder of Securities.
SECTION 4.19 PAYMENTS FOR CONSENT.
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Securities for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the
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Securities unless such consideration is offered to be paid or is paid to all
Holders of the Securities that consent, waive or agree to amend in the time
frame set forth in the solicitation documents relating to such consent,
waiver or agreement.
SECTION 4.20 DILIGENCE WITH RESPECT TO THE EXPANSION
Except during the pendency of any force majeure event or any other
event that makes completion of the Expansion physically impossible or unlawful,
the Company will cause the Expansion to be prosecuted with reasonable diligence
and continuity.
SECTION 4.21 SUBSIDIARY GUARANTEES
(a) Prior to incurring any Indebtedness (other than Acquired
Indebtedness), a Restricted Subsidiary shall execute a guarantee (a "Subsidiary
Guarantee") in substantially the form of Exhibit E attached hereto and deliver
an opinion of counsel relating to the enforceability and authorization of such
Subsidiary Guarantee in accordance with the terms of this Indenture, pursuant to
which such Subsidiary shall become a Guarantor, on a senior subordinated basis,
of the Company's payment obligations under the Securities and this Indenture.
(b) In the event of a sale or other disposition of all of the
assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale
or other disposition of all of the capital stock of any Guarantor, then such
Guarantor (in the event of a sale or other disposition, by way of such a merger,
consolidation or otherwise, of all of the capital stock of such Guarantor) or
the corporation acquiring the property (in the event of a sale or other
disposition of all of the assets of such Guarantor) shall be released and
relieved of any obligations under its Subsidiary Guarantee; provided that the
Net Proceeds of such sale or other disposition are applied in accordance with
the provisions of Section 4.5 hereof. In addition, in the event the Board of
Directors of the Company designates a Guarantor to be an Unrestricted
Subsidiary, then such Guarantor will be released and relieved of any obligations
under its Guarantee; provided that such designation is conducted in accordance
with the applicable provisions hereof.
SECTION 4.22 COMPLETION GUARANTY
The Company shall not implement a discretionary change to the plans
relating to the Expansion that would cause budgeted construction and development
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costs to exceed $87.0 million, unless Xxxxx X. Xxxxxx increases the maximum
amount available under the Completion Guaranty, in the amount of such budgeted
excess.
SECTION 4.23 MATERIAL CHANGES TO THE EXPANSION
Prior to making a discretionary change to the plans relating to the
Expansion that is materially different from minimum requirements listed on Sched
ule A hereto, the Company shall obtain the prior written consent of the Holders
of a majority in principal amount of the Securities then outstanding.
ARTICLE V
MERGERS; SUCCESSOR CORPORATION
SECTION 5.1 RESTRICTION ON MERGERS, CONSOLIDATIONS AND CERTAIN SALES OF
ASSETS.
The Company may not consolidate or merge with or into (whether or not
the Company is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions, to another corporation, Person or
entity unless:
(i) the Company is the surviving corporation or the entity or the
Person formed by or surviving any such consolidation or merger (if other
than the Company) or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made is a corporation
organized or existing under the laws of the United States, any state of the
United States or the District of Columbia;
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(ii) the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company) or the entity or
Person to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made assumes all the obligations of
the Company under the Securities and this Indenture pursuant to a
supplemental indenture in a form reasonably satisfactory to the Trustee;
(iii) immediately after such transaction no Default or Event of
Default exists;
(iv) except in the case of a merger of the Company with or into a
Wholly Owned Subsidiary of the Company,
(1) the Company or the entity or Person formed by or
surviving any such consolidation or merger (if other than the Company),
or to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made will, after giving pro forma effect
thereto as if such transaction had occurred at the beginning of the
applicable four-quarter period, be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test
set forth in the first paragraph of Section 4.4 or
(2) after giving pro forma effect thereto as if such
transaction had occurred at the beginning of the applicable four-quarter
period, the Fixed Charge Coverage Ratio of the Company or such Person,
as the case may be, shall be at least 1.75 to 1 and greater than the
consolidated Fixed Charge Coverage Ratio of the Company prior to giving
pro forma effect to such transaction;
(v) such transactions would not require any Holder of Securities
to obtain a Gaming License or be qualified under the laws of any
applicable Gaming Jurisdiction, PROVIDED that such Holder would not have
been required to obtain a Gaming License or be qualified under the laws
of any applicable Gaming Jurisdiction in the absence of such
transactions; and
(vi) such transactions would not result in a loss of any
qualification or any material license of the Company or its Restricted
Subsidiaries neces sary for any Permitted Business then operated by the
Company or its Restricted Subsidiaries.
Notwithstanding the foregoing clause (iv), (A) any Restricted
Subsidiary may consolidate with, merge into or transfer all or part of its
properties and assets to the Company and (B) the Company may merge with an
Affiliate incorpo-
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rated solely for the purpose of reincorporating the Company in another state
of the United States so long as the amount of Indebtedness of the Company and
its Restricted Subsidiaries is not increased thereby.
SECTION 5.2 SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all
of the assets of the Company in accordance with Section 5.1 hereof, the
successor corporation formed by such consolidation or into or with which the
Company is merged or to which such sale, assignment, transfer, lease,
conveyance or other disposition is made shall succeed to, and be substituted
for (so that from and after the date of such consolidation, merger, sale,
lease, conveyance or other disposition, the provisions of this Indenture
referring to the "Company" shall refer instead to the successor corporation
and not to the Company and may exercise every right and power of the Company
under this Indenture with the same effect as if such successor Person had
been named as the Company herein; PROVIDED, HOWEVER, that the predecessor
Company shall not be relieved from the obligation to pay the principal of,
premium, if any, Liquidated Damages, if any, and interest on the Securities
except in the case of a sale of all of the Company's assets that meets the
requirements of Section 5.1 hereof.
ARTICLE VI
DEFAULT AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT.
The following events are defined as "EVENTS OF DEFAULT":
(i) default for 30 days in the payment when due of interest on,
or Liquidated Damages, if any, with respect to, the Securities;
(ii) default in payment when due of the principal of or premium,
if any, on the Securities;
(iii) failure by the Company or any of its Restricted Subsidiaries
to comply with the provisions described under Sections 4.4, 4.5, 4.6, 4.14
or Article V;
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(iv) failure by the Company or any of its Restricted Subsidiaries
for 45 days after notice by the Trustee or by the Holders of at least
25% of Securities then outstanding to comply with any of its other
agreements in this Indenture or the Securities;
(v) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries), other than Indebtedness
owed to the Company or a Restricted Subsidiary, whether such
Indebtedness or guarantee now exists, or is created after the date
hereof, which default (a) is caused by a failure to pay at final
maturity (giving effect to any applicable grace periods and any
extensions thereof) the principal amount of such Indebtedness (a
"PAYMENT DEFAULT") or (b) results in the acceleration of such
Indebtedness, prior to its express maturity and, in each case, the
principal amount of any such Indebtedness, together with the principal
amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated,
aggregates $5.0 million or more;
(vi) failure by the Company or any of its Subsidiaries to pay a
final judgment or judgments aggregating in excess of $5.0 million, which
final judgments are not paid, discharged or stayed for a period of 60
days (net of applicable insurance coverage which is acknowledged in
writing by the insurer);
(vii) Xxxxx X. Xxxxxx purports to revoke or rescind the
Completion Guaranty or denies in writing his obligations thereunder;
(viii) the loss of the legal right to operate any Casino by the
Company or any of its Restricted Subsidiaries resulting in a cessation
of operations for a period of more than 90 days;
(ix) a failure by Xxxxx X. Xxxxxx to comply with any of his
payment obligations in the Completion Guaranty;
(x) the Company or any of the Company's Significant
Subsidiaries or any group of Subsidiaries that, taken as a whole, would
constitute a
85
Significant Subsidiary pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief against it
in an involuntary case or proceeding,
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) ceases or suspends generally payment of its debts or
announces an intention so to do or is (or is deemed for the purposes of
any law applicable to it to be) unable to pay its debts as they fall
due, commences negotiations with, or makes a proposal to, its creditors
generally with a view to a readjustment or rescheduling of its
indebtedness or makes a general assignment for the benefit of or a
composition with its creditors generally or a moratorium is declared in
respect of any of its indebtedness; and
(xi) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any of the Company's
Significant Subsidiaries or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary in an involuntary case
or proceeding;
(B) appoints a Custodian of the Company or any of the
Company's Significant Subsidiaries or any group of Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary or for all
or substantially all of its property;
(C) orders the liquidation of the Company or any of the
Company's Significant Subsidiaries or any group of Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary;
86
and, in each case, the order or decree remains unstayed and in effect
for 60 consecutive days; PROVIDED, HOWEVER, that if the entry of such
order or decree is appealed and dismissed on appeal then the Event of
Default hereunder by reason of the entry of such order or decree shall
be deemed to have been cured.
The term "CUSTODIAN" means any receiver, trustee, assignee,
liquidator, sequestrator or similar official under any Bankruptcy Law.
SECTION 6.2 ACCELERATION.
If an Event of Default (other than an Event of Default with respect
to the Company or any of the Company's Significant Subsidiaries or any group
of Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary, specified in clause (x) or (xi) of Section 6.1) shall occur and
be continuing, the Trustee or the Holders of at least 25% in principal amount
of the then outstanding Securities may declare all the Securities to be due
and payable immediately. Upon any such declaration, the Securities shall
become due and payable immediately. If an Event of Default specified in
clause (x) or (xi) of Section 6.1 shall occur and be continuing with respect
to the Company or any of the Company's Significant Subsidiaries or any group
of Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary, then all outstanding Securities shall become due and payable
immediately without further action or notice.
At any time after a declaration of acceleration with respect to the
Securities as described in the preceding paragraph, the Holders of a majority
in aggregate principal amount of the Securities then outstanding may rescind
and cancel such declaration and its consequences (i) if the rescission would
not conflict with any judgment or decree, (ii) if all existing Events of
Default have been cured or waived except nonpayment of principal, premium,
Liquidated Damages or interest that has become due solely because of the
acceleration, (iii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and Liquidated Damages, if any,
and overdue principal, which has become due otherwise than by such
declaration of acceleration, has been paid, (iv) if the Company has paid the
Trustee its reasonable compensation and reimbursed the Trustee for its
expenses, disbursements and advances and (v) in the event of the cure or
waiver of an Event of Default of the type described in clause (v) of Section
6.1, the Trustee shall have received an Officers' Certificate and an Opinion
of Counsel that such Event of Default has been
87
cured or waived. No such rescission shall affect any subsequent Default or
impair any right consequent thereto.
SECTION 6.3 OTHER REMEDIES.
If an Event of Default 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, premium, if any, Liquidated Damages, if any, or
interest on the Securities or to enforce the performance of any provision of
the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder in exercising any right or
remedy maturing 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 6.4 WAIVER OF PAST DEFAULT.
Holders of not less than a majority in aggregate principal amount
of the then outstanding Securities by notice to the Trustee may on behalf of
the Holders of all of the Securities waive an existing Default or Event of
Default and its consequences hereunder, except a continuing Default or Event
of Default in the payment of interest, Liquidated Damages, if any, premium,
if any, on, or principal of, the Securities (including in connection with an
offer to purchase) (PROVIDED, HOWEVER, that the Holders of a majority in
aggregate principal amount of the then outstanding Securities may rescind an
acceleration and its consequences, including any related payment default that
resulted from such acceleration). Upon any such waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereon.
SECTION 6.5 CONTROL BY MAJORITY.
Holders of the Securities may not enforce this Indenture or the
Securities except as provided in this Article VI and under the TIA. The Holders
of not less than a majority in principal amount of the outstanding Securities
may direct
88
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.
However, the Trustee may refuse to follow any direction that conflicts with
law or this Indenture, that the Trustee determines may be unduly prejudicial
to the rights of another Holder, or that may involve the Trustee in personal
liability; PROVIDED, HOWEVER, that the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction.
In the event the Trustee takes any action or follows any direction pursuant
to this Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against any loss, cost, expense or
liability caused by taking such action or following such direction.
SECTION 6.6 LIMITATION ON SUITS.
No Holder of any Securities may pursue any remedy with respect to
this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice of
a continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal
amount of the outstanding Securities make a written request to the
Trustee to pursue a remedy;
(3) such Holder or Holders offer and, if requested,
provide 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 notice, request and the offer and,
if requested, the provision of indemnity; and
(5) during such 60-day period the Holders of a
majority in principal amount of the outstanding Securities (excluding
the Company or Affiliates of the Company) do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with
the request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
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SECTION 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of, premium, if any, Liquidated
Damages, if any, or interest on the Security, on or after the respective due
dates expressed or provided for 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; PROVIDED, however,
that the rights of any Holder shall be subject to the regulatory redemption
provisions set forth in paragraph 6 of Exhibits A and B hereto.
SECTION 6.8 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.1(i) or (ii) occurs
and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company or any other obligor on the
Securities for the whole amount of principal of, premium, if any, Liquidated
Damages, if any, and interest remaining unpaid, together with interest
overdue on principal and to the extent that payment of such interest is
lawful, interest on overdue installments of interest and Liquidated Damages,
if any, in each case at the rate PER ANNUM borne by the Securities and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
SECTION 6.9 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 (including any claim for the reasonable compensation, expenses,
disburse ments and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to any of the Company
(or any other obligor upon the Securities), its creditors or its property and
shall be entitled and empowered to collect and receive any monies or other
securities or property payable or deliverable upon the conversion or exchange
of the securities or upon any such claims and to distribute the same, and any
Custodian in any such judicial proceedings is hereby authorized by each
Holder to make such payments to the Trustee and, in the event
90
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent
and counsel, and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10 PRIORITIES.
If the Trustee collects any money or property pursuant to this
Article VI, it shall pay out the money or property in the following order:
First: to the Trustee for amounts due under Section 7.7;
Second: to Holders for amounts due and unpaid on the Securities for
principal, premium, if any, Liquidated Damages, if any, and interest,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Securities for principal, premium, if any,
Liquidated Damages, if any, and interest, respectively; and
Third: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.10.
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 6.11 shall not apply to a suit by the Trustee, a
suit by a Holder or group of Holders of more than 10% in aggregate principal
amount of the outstanding Securities, or to any suit instituted by any Holder
91
for the enforcement or the payment of the principal of, premium, if any,
Liquidated Damages, if any, or interest on any Securities on or after the
respective due dates expressed or provided for in the Security.
ARTICLE VII
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct
of such person's own affairs.
(b) Except during the continuance of a Default:
(i) The Trustee will perform such duties and only such duties as are
specifically set forth herein and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(ii) 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 conforming to
the requirements of this Indenture; however, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee shall not be relieved from liability for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (b) of this
Section 7.1;
(ii) The Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts;
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(iii) 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 6.5; and
(iv) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder or in the exercise of
any of its rights or powers, if it shall have reasonable grounds to
believe that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(e) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(f) Every provision of this Indenture that in any way relates to
the Trustee is subject to the provisions of this Section 7.1 and to the
provisions of the TIA.
(g) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity satisfactory to it
against the losses, costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction.
SECTION 7.2 RIGHTS OF TRUSTEE.
Subject to Section 7.1:
(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.
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(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate and 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 certificate or opinion.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent (other than an agent
who is an employee of the Trustee) 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 reasonably believes to be authorized or
within its rights or powers provided that the Trustee's conduct does not
constitute bad faith, wilful misconduct or negligence.
(e) The Trustee shall not be charged with knowledge of any
Default or Event of Default unless either (i) a Responsible Officer shall have
actual knowledge thereof or (ii) the Trustee shall have received notice thereof
in accordance with Section 11.2 hereof from the Company or any Holder.
(f) The Trustee or Paying Agent shall not be liable for interest
on any money received by it except as the Trustee or Paying Agent may agree in
writing with the Company. Money held in trust by the Trustee or Paying Agent
need not be segregated from other funds except to the extent required by law and
except for money held in trust under Article IX of this Indenture.
(g) Except with respect to Section 4.1, the Trustee shall have
no duty to inquire as to the performance of the Company with respect to the
covenants contained in Article 4. In addition, the Trustee shall not be deemed
to have knowledge of an Event of Default except
(i) any Default or Event of Default occurring pursuant
to Sections 4.1, 6.1(i) or 6.1(ii) or
(ii) any Default or Event of Default of which the
Trustee shall have received written notifications or obtained actual
knowledge.
(h) Delivery of reports, information and documents to the
Trustee under Section 4.12 is for informational purposes only and the Trustee's
receipt of the foregoing shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of their covenants
hereunder (as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
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SECTION 7.3 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
Affiliates with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights. However, the Trustee is subject to
Sections 7.10 and 7.11.
SECTION 7.4 TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and 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 of the
Company in this Indenture or any document issued in connection with the sale
of Securities or any statement in the Securities other than the Trustee's
certificate of authentication. The Trustee shall not be responsible for
filing any notice in any public office at any time or times.
SECTION 7.5 NOTICE OF DEFAULTS.
If a Default or an Event of Default occurs and is continuing and if
it is known to the Trustee, the Trustee shall mail to each Holder notice of
the Default or Event of Default within 90 days after the occurrence thereof.
Except in the case of a Default or Event of Default in payment of principal
of, premium, if any, Liquidated Damages, if any, or interest on any Security,
the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is
in the interests of the Holders.
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS.
If required by TIA Section 313(a), within 60 days after each May 15
beginning with May 15, 1998, the Trustee shall mail to each Holder a report
dated as of such reporting date that complies with TIA Section 313(a). The
Trustee also shall comply with TIA Section 313(b), (c) and (d).
A copy of each such report at the time of its mailing to the
Holders shall be filed with the SEC and each stock exchange, if any, on which
the Securities are listed.
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The Company shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange or of any delisting thereof.
SECTION 7.7 COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from time to time agree in
writing for its services. The Trustee's compensation shall not be limited by
any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable disbursements, expenses
and advances (including reasonable fees, disbursements and expenses of its
agents and counsel) incurred or made by it in addition to the compensation
for its services except any such disbursements, expenses and advances as may
be attributable to the Trustee's negligence or bad faith. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents, accountants, experts and counsel and any taxes or other
expenses incurred by a trust created pursuant to Section 9.1 hereof.
The Company shall indemnify each of the Trustee, Paying Agent and
Registrant for, and hold it harmless against any and all loss, damage,
claims, liability or expense, including taxes (other than franchise taxes
imposed on the Trustee and taxes based upon, measured by or determined by the
income of the Trustee), arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the reasonable
costs and expenses of enforcing this Indenture against the Company (including
this Section 7.7) and of defending itself against any claim (whether asserted
by any Holder or the Company) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent
that such loss, damage, claim, liability or expense is due to its own
negligence, wilful misconduct or bad faith. The Trustee shall notify the
Company promptly of any claim asserted against the Trustee for which it may
seek indemnity. However, the failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee shall cooperate in the defense (and
may employ its own counsel) at the Company's expense; PROVIDED, HOWEVER, that
the Company's reimbursement obligation with respect to counsel employed by
the Trustee will be limited to the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its written
consent, which consent shall not be unreasonably withheld. The Company need
not reimburse any expense or indemnify against any
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loss or liability incurred by the Trustee as a result of the violation of
this Indenture by the Trustee caused by the Trustee's negligence or wilful
misconduct.
To secure the Company's payment obligations in this Section 7.7,
the Trustee shall have a Lien prior to the Securities against all money or
property held or collected by the Trustee, in its capacity as Trustee, except
money or property held in trust to pay principal of, premium, if any,
Liquidated Damages, if any, or interest on particular Securities. The
Trustee's right to receive payment of any amounts due under this Section 7.7
shall not be subordinated to any of the liabilities or indebtedness of the
Company (notwithstanding that the Securities may be subordinated).
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.1(x) or (xi) occurs, the expenses
(including the reasonable fees and expenses of its agents and counsel) and
the compensation for the services shall be preferred over the status of the
Holders in a proceeding under any Bankruptcy Law and (without prejudice to
any other rights available to the Trustee under applicable law) are intended
to constitute expenses of administration under any Bankruptcy Law. The
Company's obligations under this Section 7.7 and any claim arising hereunder
shall survive the resignation or removal of any Trustee, the termination of
this Indenture, the discharge of the Company's obligations pursuant to
Article IX and any rejection or termination under any Bankruptcy Law.
SECTION 7.8 REPLACEMENT OF TRUSTEE.
The Trustee may resign at any time by so notifying the Company in
writing. The Holders of a majority in principal amount of the outstanding
Securities may remove the Trustee by so notifying the Trustee and the Company
in writing and may appoint a successor Trustee with the Company's consent.
The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent
under any Bankruptcy Law;
(3) a custodian or other public officer takes charge
of the Trustee or its property;
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(4) the Trustee becomes incapable of acting; or
(5) the Trustee is unable or unwilling to secure any
approval required by a Gaming Authority.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the Securities may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. As promptly as
practicable thereafter, the retiring Trustee shall transfer, after payment of
all sums then owing to the Trustee pursuant to Section 7.7, all property held
by it as Trustee to the successor Trustee, subject to the Lien provided in
Section 7.7, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have the rights, powers and duties
of the Trustee under this Indenture. A successor Trustee shall mail notice
of its succession to each Holder. Once the resignation or removal of the
retiring Trustee has become effective, the retiring Trustee shall have no
further obligations under this Indenture and no liability in respect of acts
or omissions of the successor Trustee.
If a successor Trustee does not take office within 30 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company
or the Holders of at least 10% in principal amount of the outstanding
Securities may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder who
has been a bona fide holder of a Security for at least six months may
petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.8, the Company's obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.
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SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to,
another corporation or banking association, the resulting, surviving or
transferee corporation or banking association without any further act shall
be the successor Trustee.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee which shall be eligible
to act as Trustee under TIA Sections 310(a)(1), 310(a)(2) and 310(a)(5). The
Trustee shall have a combined capital and surplus of at least $50,000,000, or
be part of a bank holding company with a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of
condition. If the Trustee has or shall acquire any "conflicting interest"
within the meaning of TIA Section 310(b), the Trustee and the Company shall
comply with the provisions of TIA Section 310(b) (subject to the penultimate
paragraph thereof). If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect hereinbefore specified in this
Article Seven.
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE 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 therein.
SECTION 7.12 MONEY HELD IN TRUST.
The Trustee or Paying Agent shall not be liable for interest on any
money received by it except as the Trustee or Paying Agent may agree in
writing with the Company. Money held in trust by the Trustee or Paying Agent
need not be segregated from other funds except to the extent required by law
and except for money held in trust under Article IX of this Indenture.
SECTION 7.13 COMPLETION GUARANTY.
By accepting a Security, the Holder thereof hereby authorizes and
directs the Trustee to execute and deliver, on behalf of the Holder, the
Completion
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Guaranty. The Trustee shall, upon a breach by the Completion Guarantor of
the Completion Guaranty, enforce the rights of the Trustee and the Holders
thereunder as directed by the Holders of a majority in principal amount of
the Securities then outstanding.
ARTICLE VIII
SUBORDINATION OF SECURITIES
SECTION 8.1 AGREEMENT TO SUBORDINATE.
The Company agrees for itself and for its successors, and each
Holder by accepting a Security agrees, that the payment of principal of, and
premium, interest, Liquidated Damages, if any, on, and any other amounts
payable by the Company with respect to, the Securities is subordinated in
right of payment, to the extent and in the manner provided in this Article
VIII, to the prior payment in full of all Senior Indebtedness (whether
outstanding on the date hereof or hereafter created, incurred, assumed or
guaranteed), and that the subordination is for the benefit of the holders of
Senior Indebtedness. This Article VIII shall constitute a continuing offer
to all Persons or entities who become holders of, or continue to hold, Senior
Indebtedness. Notwithstanding anything to the contrary in this Indenture or
the Securities, the provisions of this Article VIII are made for the benefit
of the holders of Senior Indebtedness, each of whom is an obligee hereunder
and is entitled to enforce such holder's rights hereunder, without any act or
notice of acceptance hereof or reliance hereon. No amendment, modification
or discharge of any provision of this Article VIII shall be effective against
any holder of Senior Indebtedness unless expressly consented to in writing by
such holder. The provisions of this Article VIII apply notwithstanding
anything to the contrary contained in the Securities or this Indenture. Upon
the maturity of any Senior Indebtedness by lapse of time, acceleration or
otherwise, all principal thereof and interest thereon and other amounts due
in connection therewith shall first be paid in full, or such payment duly
provided for in cash or in manner satisfactory to the holders of such Senior
Indebtedness, before any payment is made on account of the Securities or this
Indenture.
SECTION 8.2 LIQUIDATION, DISSOLUTION, BANKRUPTCY.
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Upon any distribution to creditors of the Company in a liquidation
or dissolution of the Company or in a bankruptcy (whether voluntary or
involuntary), reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property, an assignment for the benefit of
creditors or any marshalling of the Company's assets and liabilities:
(a) holders of Senior Indebtedness of the Company shall be
entitled to receive payment in full and in cash of all principal, interest,
fees, expenses and other Obligations due in respect of such Senior
Indebtedness (including interest after the commencement of any such
proceeding at the rate specified in the applicable Senior Indebtedness)
before the Holders of Securities shall be entitled to receive any payment
with respect to the Securities (except that Holders of Securities may receive
securities that are subordinated at least to the same extent as the
Securities to Senior Indebtedness and any securities issued in exchange for
Senior Indebtedness and payments made from the trust described in Section 9.2
hereof); and
(b) until all principal, interest, fees, expenses and other
Obligations with respect to Senior Indebtedness of the Company are paid in
full, any distribution to which the Holders of Securities would be entitled
but for this Section 8.2 shall be made to the holders of such Senior
Indebtedness (except that Holders of Securities may receive Capital Stock or
any debt securities that are subordinated at least to the same extent as the
Securities to Senior Indebtedness and any securities issued in exchange for
Senior Indebtedness and payments made from the trust described in Section 9.2
hereof).
SECTION 8.3 DEFAULT ON DESIGNATED SENIOR INDEBTEDNESS.
The Company may not make, and no Holder shall ask for, demand, xxx
for or otherwise exercise remedies with respect to any payment upon or in
respect of the Securities, and may not offer to repurchase Securities (other
than in the form of Capital Stock or any debt securities that are
subordinated to the same extent as the Securities to Senior Indebtedness and
any securities issued in exchange for Senior Indebtedness and payments made
from the trust described in Section 9.2 hereof) and the Trustee and the
Holders shall not compel payment or exercise any other remedies with respect
to any payment under the Completion Guaranty if:
(i) a default in the payment of the principal of, or premium or
interest on, or fees or other amounts owing with respect to, Designated
Senior
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Indebtedness occurs and has not been cured or waived in writing (a
"PAYMENT DEFAULT"); or
(ii) any other default occurs and is continuing with respect to
Designated Senior Indebtedness that permits holders of the Designated
Senior Indebtedness as to which such default relates to accelerate its
maturity (a "NON-PAYMENT DEFAULT") and the Trustee receives a notice of
such default (a "PAYMENT BLOCKAGE NOTICE") from the Company or the holders
of any Designated Senior Indebtedness.
The Company may and shall resume payments on the Securities and the
Trustee and the Holders may compel payment with respect to any payment under
the Completion Guaranty:
(a) in the case of default referred to in Section 8.3(i)
hereof, upon the date on which such default is cured or waived by the holders
of Designated Senior Indebtedness in writing, and
(b) in case of a default referred to in Section 8.3(ii)
hereof, the earlier of the date on which such nonpayment default is cured or
waived by the holders of Designated Senior Indebtedness in writing or 179
days after the date on which the applicable Payment Blockage Notice is
received, unless the maturity of any Designated Senior Indebtedness has been
accelerated.
The Trustee, for the benefit of the Holders, may exercise other
remedies under the Completion Guaranty:
(x) in the case of default referred to in Section 8.3(i) hereof, only
upon the earlier of the date on which such payment default is cured or
waived by the holders of Designated Senior Indebtedness in writing or 179
days after the inception of such default, and
(y) in the case of a default referred to in Section 8.3(ii), only upon
the earlier of the date on which such default is cured or waived by the
holders of Designated Senior Indebtedness in writing or 179 days after the
date on which the applicable Payment Blockage Notice is received.
No new period of payment blockage or blockage of remedies under the
Completion Guaranty may be commenced unless and until 360 days have elapsed
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since the effectiveness of the immediately prior Payment Blockage Notice. No
nonpayment default referred to in Section 8.3(ii) hereof that existed or was
continuing on the date of delivery of any Payment Blockage Notice to the
Trustee by holders of Designated Senior Indebtedness and which is known to
the holders of such Designated Senior Indebtedness, shall be, or be made, the
basis for a subsequent Payment Blockage Notice (unless such nonpayment
default shall have been cured or waived for a period of not less than 181
days).
SECTION 8.4 ACCELERATION OF SECURITIES.
The Company and the Trustee shall promptly notify holders of Senior
Indebtedness of the issuance by the Trustee or the receipt of an acceleration
notice following an Event of Default, whereupon the Trustee shall promptly
notify the holders of Designated Senior Indebtedness of such acceleration
notice, provided that failure to give such notice shall not affect the
subordination of the Securities to the Senior Indebtedness as provided in
this Article VIII.
SECTION 8.5 WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Holder receives any payment of
any Obligations with respect to the Securities at a time when the Trustee or
such Holder, as applicable, in violation of this Article VIII, such payment
shall be held by the Trustee or such Holder, in trust for the benefit of and
shall be paid forthwith over and delivered to, the holders of Senior
Indebtedness as their interests may appear or their Representative under the
credit facility, indenture or other agreement (if any) pursuant to which
Senior Indebtedness may have been issued, as their respective interests may
appear, for application to the payment of all Obligations with respect to
Senior Indebtedness remaining unpaid to the extent necessary to pay such
obligations in full in accordance with their terms, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article VIII, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness, and shall not
be liable to any such holders if the Trustee shall pay over or distribute to
or on behalf of Holders or the Company or any other Person money or assets to
which any holders of Senior Indebtedness shall be
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entitled by virtue of this Article VIII, except if such payment is made as a
result of the willful misconduct or gross negligence of the Trustee.
SECTION 8.6 NOTICE BY THE COMPANY.
The Company shall promptly notify the Trustee and the Paying Agent
of any facts known to the Company that would cause a payment of any
Obligations with respect to the Securities to violate this Article VIII, but
failure to give such notice shall not affect the subordination of the
Securities to the Senior Indebtedness as provided in this Article VIII.
SECTION 8.7 SUBROGATION.
After all Senior Indebtedness is irrevocably paid in full in cash
or Cash Equivalents satisfactory to the holders thereof and until the
Securities are paid in full, Holders shall be subrogated (equally and ratably
with all other Indebtedness PARI PASSU with the Securities) to the rights of
holders of Senior Indebtedness to receive distributions applicable to Senior
Indebtedness to the extent that distributions otherwise payable to the
Holders have been applied to the payment of Senior Indebtedness. A
distribution made under this Article VIII to holders of Senior Indebtedness
that otherwise would have been made to Holders is not, as between the Company
and Holders, a payment by the Company on the Securities.
SECTION 8.8 RELATIVE RIGHTS.
This Article VIII defines the relative rights of Holders and
holders of Senior Indebtedness. Nothing in this Indenture shall:
(a) impair, as between the Company and Holders, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Securities in accordance with their terms;
(b) affect the relative rights of Holders and creditors of
the Company other than their rights in relation to holders of Senior
Indebtedness; or
(c) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the rights
of holders and owners of Senior Indebtedness to receive distributions and
payments otherwise payable to Holders.
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If the Company fails because of this Article VIII to pay principal
of or interest on a Security on the due date, the failure is still a Default
or Event of Default.
SECTION 8.9 SUBORDINATION MAY NOT BE IMPAIRED BY THE COMPANY.
No right of any holder of Senior Indebtedness to enforce the
subordination of the Indebtedness evidenced by the Securities shall be
impaired by any act or failure to act by the Company or any Holder or by the
failure of the Company or any Holder to comply with this Indenture.
SECTION 8.10 DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders
of Senior Indebtedness, the distribution may be made and the notice given to
their Representative.
Upon any payment or distribution of assets of the Company referred
to in this Article VIII, the Trustee and the Holders shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction or
upon any certificate of such Representative or of the liquidating trustee or
agent or other Person making any distribution to the Trustee or to the
Holders for the purpose of ascertaining the Persons entitled to participate
in such distribution, the holders of Senior Indebtedness and other
Indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article VIII.
SECTION 8.11 RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article VIII or any other
provision of this Indenture, the Trustee shall not be charged with knowledge
of the existence of any facts that would prohibit the making of any payment
or distribution by the Trustee, and the Trustee and the Paying Agent may
continue to make payments on the Securities, unless the Trustee shall have
received at its Trustee Office prior to the date of such payment written
notice of facts that would cause the payment of any obligations with respect
to the Securities to violate this Article VIII. Nothing in this Article VIII
shall impair the claims of, or payments to, the Trustee under or pursuant to
Section 7.7 hereof.
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The Trustee shall be entitled to rely on the delivery to it of a
written notice by a person representing himself to be a holder of Senior
Indebtedness (or a Representative of such holder) to establish that such
notice has been given by a holder of Senior Indebtedness (or a Representative
of any such holder). In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any Person as
a holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article VIII, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article VIII, and if such
evidence is not furnished, the Trustee may defer any payment which it may be
required to make for the benefit of such person pursuant to the terms of this
Indenture pending judicial determination as to the rights of such Person to
receive such payment.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights.
SECTION 8.12 AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Security by the Holder's acceptance thereof
authorizes and directs the Trustee on the Holder's behalf to take such action
as may be necessary or appropriate to effectuate the subordination as
provided in this Article VIII, and appoints the Trustee to act as the
Holder's attorney-in-fact for any and all such purposes. If the Trustee does
not file a proper proof of claim or proof of debt in the form required in any
proceeding referred to in Section 6.9 hereof at least 30 days before the
expiration of the time to file such claim, the agents of the lenders under
the New Credit Facility are hereby authorized to file an appropriate claim
for and on behalf of the Holders of the Securities.
SECTION 8.13 NO WAIVER.
No right of any present or future holder of any Senior Indebtedness
to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms and provisions and
covenants of this Indenture, regardless of any knowledge thereof which any
such holder may have or be otherwise charged
106
with. The holders of Senior Indebtedness or any security or guarantee
thereof, or therefor, may release, sell, exchange or enforce such security or
guarantee or elect any right or remedy, or delay in enforcing, or release any
right or remedy or otherwise deal freely with the Company and any security
for the Senior Indebtedness all without notice to the Holders and all without
affecting the liabilities and obligations of the parties to this Indenture,
even if any right or reimbursement or subrogation or other right or remedy of
the Holders is extinguished, affected or impaired thereby. No provision of
any supplement or amendment to this Indenture or the Securities which
adversely affects in any way the holders of Senior Indebtedness shall be
effective against the holders of Senior Indebtedness who have not consented
thereto in writing.
ARTICLE IX
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.1 TERMINATION OF COMPANY'S OBLIGATIONS.
This Indenture will be discharged and will cease to be of further
effect (except as to surviving rights of registration of transfer or exchange
of the Securities, as expressly provided for in this Indenture) as to all
outstanding Securities when (a) either (i) all the Securities, theretofore
authenticated and delivered (except lost, stolen or destroyed Securities
which have been replaced and Securities for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Company
pursuant to Section 9.3) have been delivered to the Trustee for cancellation
or (ii) all Securities not theretofore delivered to the Trustee for
cancellation have become due and payable and the Company has irrevocably
deposited or caused to be deposited with the Trustee funds in an amount
sufficient to pay and discharge the entire Indebtedness on the Securities not
theretofore delivered to the Trustee for cancellation, for principal of,
premium, if any, Liquidated Damages, if any, and interest on the Securities
to the date of deposit together with irrevocable instructions from the
Company directing the Trustee to apply such funds to the payment thereof at
maturity or redemption, as the case may be; (b) the Company has paid all
other sums payable by the Company under this Indenture; and (c) the Company
has delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel stating that all conditions precedent under this Indenture relating
to the satisfaction and discharge of this Indenture have been complied with.
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The Company may, at its option and at any time, elect to have all
of its obligations discharged with respect to the outstanding Securities
("LEGAL DEFEASANCE") except for (i) the rights of Holders of outstanding
Securities to receive payments in respect of the principal of, premium, if
any, and interest and Liquidated Damages, if any, on such Securities when
such payments are due from the trust referred to below, (ii) the Company's
obligations with respect to the Securities concerning issuing temporary
Securities, registration of Securities, mutilated, destroyed, lost or stolen
Securities and the maintenance of an office or agency for payment and money
for security payments held in trust, (iii) the rights, powers, trusts, duties
and immunities of the Trustee, and the Company's obligations in connection
therewith and (iv) this Section 9.1. In addition, the Company may, at its
option and at any time, elect to have the obligations of the Company released
with respect to Sections 4.3 through 4.6, Sections 4.10 through 4.12,
Sections 4.14 through Section 4.18, Sections 4.20 and 4.21 and Article V
("COVENANT DEFEASANCE") and thereafter any omission to comply with such
obligations shall not constitute a Default or Event of Default with respect
to the Securities. In the event Covenant Defeasance occurs, events described
under clauses (iii), (iv) (each to the extent relating to a default with
respect to any of Sections 4.3 through 4.6, Sections 4.10 through 4.12,
Sections 4.14 through 4.18, Sections 4.20 and 4.21 and Article V), (v) and
(vi) of Section 6.1 (not including non-payment, bankruptcy, receivership,
rehabilitation and insolvency events) will no longer constitute an Event of
Default with respect to the Securities.
In order to exercise either Legal Defeasance or Covenant
Defeasance,
(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders of the Securities, cash in United
States dollars, non-callable Government Securities, or a combination thereof,
in such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal of,
premium, if any, and interest and Liquidated Damages, if any, on the
outstanding Securities on the stated maturity or on the applicable redemption
date, as the case may be, and the Company must specify whether the Securities
are being defeased to maturity or to a particular redemption date;
(b) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the
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date hereof, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of the outstanding Securities will
not recognize income, gain or loss for federal income tax purposes as a
result of such Legal Defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Securities will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Covenant Defeasance had
not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such deposit)
or insofar as Events of Default from bankruptcy or insolvency events are
concerned, at any time in the period ending on the 91st day after the date of
deposit;
(e) such Legal Defeasance or Covenant Defeasance will not
result in a breach or violation of, or constitute a default under any
material agreement or instrument (other than this Indenture) to which the
Company or any of its Subsidiaries is a party or by which the Company or any
of its Subsidiaries is bound;
(f) the Company must have delivered to the Trustee an Opinion
of Counsel to the effect that after the 91st day 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;
(g) the Company must have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the Company
with the intent of preferring the Holders of Securities over the other
creditors of the Company with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others; and
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(h) the Company must have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for in this Indenture relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.
SECTION 9.2 APPLICATION OF TRUST MONEY.
The Trustee or Paying Agent shall hold in trust U.S. Legal Tender
or U.S. Government Obligations deposited with it pursuant to Section 9.1, and
shall apply the deposited U.S. Legal Tender and the money from U.S.
Government Obligations in accordance with this Indenture to the payment of
the principal of, premium, if any, Liquidated Damages, if any, and interest
on the Securities. The Trustee shall be under no obligation to invest said
U.S. Legal Tender or U.S. Government Obligations except as it may agree in
writing with the Company.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the Legal Tender or U.S.
Government Obligations deposited pursuant to Section 9.1 or the interest
received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of outstanding Securities.
SECTION 9.3 REPAYMENT TO THE COMPANY.
Subject to Section 9.1, the Trustee and the Paying Agent shall
promptly pay to the Company upon request any excess (as determined by the
Trustee) U.S. Legal Tender 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 of, premium, if
any, Liquidated Damages, if any, or interest on the Securities that remains
unclaimed for two years; PROVIDED, HOWEVER, that the Trustee or such Paying
Agent, before being required to make any payment, may at the expense of the
Company cause to be published once in a newspaper of general circulation in
the City of New York or mail to each Holder 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, Holders entitled to such money must
look to the Company for payment as general creditors unless an applicable law
designates another Person.
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SECTION 9.4 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any U.S. Legal
Tender or U.S. Government Obligations in accordance with Section 9.1 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 9.1 until such time as the Trustee or Paying
Agent is permitted to apply all such U.S. Legal Tender or U.S. Government
Obligations in accordance with Section 9.1; PROVIDED, HOWEVER, that if the
Company has made any payment of principal of, premium, if any, Liquidated
Damages, if any, or interest on any Securities because of the reinstatement
of its obligations, the Company shall be subrogated to the rights of the
Holders of such Securities to receive such payment from the U.S. Legal Tender
or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE X
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.1 WITHOUT CONSENT OF HOLDERS.
From time to time, the Company and the Trustee, without the consent
of the Holders, may amend or supplement this Indenture or the Securities for
certain specified purposes, including, without limitation:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to effect the assumption by a successor Person of all
obligations of the Company under the Securities and this Indenture in
connection with any transaction complying with Article V of this Indenture;
(iii) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(iv) to comply with any requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
111
(v) to make any change that would provide any additional benefit or
rights to the Holders;
(vi) to make any other change that does not adversely affect the
rights of any Holder under this Indenture in any material respects;
(vii) to add to the covenants of the Company and its Restricted
Subsidiaries for the benefit of the Holders, or to surrender any right or
power herein conferred upon the Company;
PROVIDED, HOWEVER, that the Company has delivered to the Trustee an Opinion
of Counsel stating that such amendment or supplement complies with the
provisions of this Section 10.1.
SECTION 10.2 WITH CONSENT OF HOLDERS.
Subject to Section 6.7, the Company and the Trustee may amend or
supplement this Indenture, the Securities and the Completion Guaranty with
the written consent of the Holders of a majority in principal amount of the
Securities then outstanding (including, without limitation, consents obtained
in connection with a purchase of, or tender offer or exchange offer for,
Securities). Subject to Section 6.7, the Holders of at least a majority in
principal amount of the outstanding Securities may waive (including by
consents obtained in connection with a tender offer or exchange offer for
Securities) any existing default or compliance by the Company with any
provision of this Indenture or the Securities. However, without the consent
of each affected Holder, an amendment, supplement or waiver, including a
waiver pursuant to Section 6.4, may not (with respect to any Securities held
by a non-consenting Holder):
(i) reduce the principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver;
(ii) reduce the principal of or change the fixed maturity of any
Security or alter the provisions with respect to the redemption price of
the Securities (other than provisions relating to Sections 4.5 or 4.14);
(iii) reduce the rate of or change the time for payment of
interest on or Liquidated Damages, if any, with respect to any Security;
112
(iv) waive a Default or Event of Default in the payment of principal
of, premium, if any, or interest or Liquidated Damages, if any, on the
Securities (except a rescission of acceleration of the Securities by the
Holders of at least a majority in aggregate principal amount of the
Securities and a waiver of the payment default that resulted from such
acceleration and other than a payment required pursuant to Section 4.5 or
4.14);
(v) make any Security payable in money other than that stated in the
Securities;
(vi) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Securities to receive
payments of principal of, premium, if any, or interest or Liquidated
Damages, if any, on the Securities (other than payments required pursuant
to Section 4.5 or Section 4.14); or
(vii) make any change in the foregoing amendment and waiver
provisions.
An amendment under this Section 10.2 may not make any change under
Article VIII, Article IX or Article XI or the definitions used therein that
adversely affects the rights of any holder of Senior Indebtedness then
outstanding unless the holders of such Senior Indebtedness (or any trustee or
representative thereof authorized to give a consent) shall have consented to
such change.
It shall not be necessary for the consent of the Holders under this
Section 10.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 10.2
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
SECTION 10.3 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.
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SECTION 10.4 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder of that
Security or portion of that Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on
such Security. Subject to the following paragraph, any such Holder or
subsequent Holder may revoke the consent as to such Holder's Security or portion
of such Security by notice to the Trustee or the Company received before the
date on which the Trustee receives an Officers' Certificate certifying that the
Holders of the requisite principal amount of Securities have consented (and not
theretofore revoked such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the last
sentence of the immediately preceding paragraph, those persons who were Holders
at such record date (or their duly designated proxies), and only those Persons,
shall be entitled to consent to such amendment, supplement or waiver or to
revoke any consent previously given, whether or not such persons continue to be
Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder.
SECTION 10.5 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.
Failure to make the appropriate notation or issue a new Security shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 10.6 TRUSTEE TO SIGN AMENDMENTS, ETC.
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The Trustee shall be entitled to receive, and shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of any
amendment, supplement or waiver authorized pursuant to this Article X is
authorized or permitted by this Indenture and that such amendment or supplement
constitutes the legal, valid and binding obligation of the Company, enforceable
in accordance with its terms. The Trustee may, but shall not be obligated to,
execute any such amendment, supplement or waiver which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise. In signing any
amendment, supplement or waiver, the Trustee shall be entitled to receive an
indemnity reasonably satisfactory to it.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 TRUST INDENTURE ACT CONTROLS.
This Indenture is subject to the provisions of the TIA that are
required to be a part of this Indenture, and shall, to the extent applicable, be
governed by such provisions. If any provision of this Indenture modifies any
TIA provision that may be so modified, such TIA provision shall be deemed to
apply to this Indenture as so modified. If any provision of this Indenture
excludes any TIA provision that may be so excluded, such TIA provision shall be
excluded from this Indenture.
The provisions of TIA Sections 310 through 317 that impose duties on
any Person (including the provisions automatically deemed included unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 11.2 NOTICES.
Any notice or communication by the Company or the Trustee to the
others is duly given if in writing and delivered in person, or mailed by
first-class mail
115
(registered or certified, return receipt requested), telecopier
or overnight courier guaranteeing next day delivery, to the other party's
address:
if to the Company:
Hard Rock Hotel, Inc.
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Trustee:
U.S. Bank Trust National Association
000 Xxxx 0xx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Department
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
The Company or the Trustee by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to the Trustee
or to Holders) shall be deemed to have been duly given: at the time delivered by
hand, if personally delivered; five Business Days after being deposited in the
mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied; and
the next business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
116
Any notice or communication to the Trustee shall be deemed to have
been duly given to the Trustee when received at the Corporate Trust Office of
the Trustee.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect the sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
SECTION 11.3 COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Securities.
The Company, the Trustee, the Registrar and any other person shall have the
protection of TIA Section 312(c).
SECTION 11.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee at the request of the Trustee:
(1) an Officers' Certificate in form satisfactory to the
Trustee 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
(2) an Opinion of Counsel in form satisfactory to the
Trustee stating that, in the opinion of such counsel, all such
conditions precedent have been complied with; PROVIDED, HOWEVER,
117
that with respect to matters of fact an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
SECTION 11.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or
opinion 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 certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has
made such examination or investigation as is necessary to enable him
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.
SECTION 11.6 RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Paying Agent or Registrar may make reasonable rules for its
functions.
SECTION 11.7 GOVERNING LAW.
The laws of the State of New York shall govern this Indenture and the
Securities without regard to the principles of conflicts of law to the extent
that the application of the law of another jurisdiction would be required
thereby.
SECTION 11.8 NO RECOURSE AGAINST OTHERS.
No director, officer, employee, incorporator or stockholder of the
Company shall have any liability for any obligations of the Company under the
118
Securities, this Indenture or for any claim based on, in respect of or by reason
of such obligations or their creation. Each Holder of Securities by accepting a
Security waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Securities.
SECTION 11.9 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 11.10 COUNTERPART 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.
SECTION 11.11 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,
and a Holder shall have no claim therefor against any party hereto.
SECTION 11.12 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 of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.13 LEGAL HOLIDAYS.
If a payment date is not a Business Day, payment may be made on the
next succeeding Business Day, and no interest shall accrue for the intervening
period.
SECTION 11.14 SUBMISSION TO JURISDICTION.
119
To the fullest extent permitted by applicable law, the Company
irrevocably submits to the jurisdiction of any Federal or State court in the
City, County and State of New York, United States of America, in any suit or
proceeding based on or arising under this Agreement (solely in connection with
any such suit or proceeding), and irrevocably agree that all claims in respect
of such suit or proceeding may be determined in any such court. The Company
irrevocably and fully waives the defense of an inconvenient forum to the
maintenance of such suit or proceeding. To the extent that the Company has or
hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service of note, attachment prior to judgment,
attachment in aid of execution, executor or otherwise) with respect to itself or
its property, the Company hereby irrevocably waives such immunity in respect of
its obligations under this Agreement, to the extent permitted by law.
120
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
HARD ROCK HOTEL, INC.
By: /s/ Xxxxx Xxxxxx
------------------------------
Name: Xxxxx Xxxxxx
Title: CEO
By: /s/ Xxxxx X. Xxxx
------------------------------
Name: Xxxxx X. Xxxx
Title: CFO
FIRST TRUST NATIONAL ASSOCIATION, as Trustee
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
121
SCHEDULE A
DESCRIPTION OF THE PLANNED EXPANSION OF THE HARD ROCK HOTEL, LAS VEGAS, NEVADA
1. Construction of a new hotel tower with not less than 290 rooms; provided,
that if the planned average size of the rooms or ratio of suites to regular
rooms is increased, the new hotel tower shall contain not less than 270
rooms.
2. Enlargement of the Beach Club to include a new swimming pool.
3. Addition of at least three new food services establishments.
4. Expansion of the Retail Store.
5. Construction of a new expandable parking facility that will initially
provide at least 400 net additional parking spaces.
6. Construction of a new meeting facility.
7. Construction of a new health club, or expansion and renovation of the
existing health club.
8. Construction of a new multi-functional warehouse, maintenance and back of
house facility.
9. Construction of a new nightclub or expansion and renovation of the existing
nightclub (i.e. The Joint).
10. Expansion of the casino through an enlargement of the sports book area
within the casino and the addition of at least thirty new slot machines and
at least five new table games.
122
EXHIBIT A
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR A SECURITY IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX,
XXX XXXX) ("XXX"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
THE SECURITY (OR ITS PREDECESSORS) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX
XXXXXX XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED
THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. BY ITS
ACQUISITION HEREOF, THE HOLDER REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B)
IT IS NOT A U.S. PERSON AND IS NOT ACQUIRING THIS SECURITY FOR THE ACCOUNT OR
BENEFIT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (C)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT). THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
A-1
ONLY (1)(a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE
THE UNITED STATES TO A NON-U.S. PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE
COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED
TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE
RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
HARD ROCK HOTEL, INC.
9 1/4% Senior Subordinated Notes due 2005
CUSIP ___________________
No. ______________ $________________________
Hard Rock Hotel, Inc., a Nevada corporation (the "COMPANY"), promises
to pay to Cede & Co. or registered assigns, the principal sum of
____________________________________ Dollars on April 1, 2005.
Interest Payment Dates: April 1 and October 1
Record Dates: March 15 and September 15
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Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
HARD ROCK HOTEL, INC.
By:
-----------------------------
Name:
Title:
By:
-----------------------------
Name:
Title:
Attest:
By:
-----------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
First Trust National Association, as Trustee certifies that this is
one of the 9 1/4% Senior Subordinated Notes due 2005 referred to in the within-
mentioned Indenture.
First Trust National Association, as Trustee
By: Dated:
-------------------------------- ------------------------------
Authorized Signatory
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[REVERSE OF SECURITY]
HARD ROCK HOTEL, INC.
9 1/4% Senior Subordinated Notes due 2005
1. INTEREST.
Hard Rock Hotel, Inc., a Nevada corporation (the "COMPANY"),
promises to pay interest at the rate of 9 1/4% PER ANNUM on the principal
amount of this Security semi-annually in arrears on each Interest Payment
Date referred to on the face hereof commencing on October 1, 1998, until the
principal hereof is paid or made available for payment. Interest on the
Securities will accrue from and including the most recent date to which
interest has been paid or duly provided for, or if no interest has been paid
or duly provided for, from and including March 23, 1998, through but
excluding the date on which the principal hereof is paid or made available
for payment. If an Interest Payment Date falls on a day that is not a
Business Day, the interest payment to be made on such Interest Payment Date
will be made on the next succeeding Business Day with the same force and
effect as if made on such Interest Payment Date, and no additional interest
will accrue as a result of such delayed payment. Interest will be computed on
the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT.
The Company will pay interest on the Securities (except defaulted
interest) and Liquidated Damages, if any, to the Persons who are registered
Holders of Securities at the close of business on the March 15 or September
15 next preceding the Interest Payment Date. The Securities will be payable
as to principal, premium, if any, Liquidated Damages, if any, and interest at
the office or agency of the Company maintained for such purpose within the
city and State of New York, or, at the option of the Company, payment of
interest and Liquidated Damages, if any, may be made by check mailed to the
Holders at their addresses set forth in the register of Holders; PROVIDED
that all payments with respect to Securities the Holders of which have given
wire transfer instructions to the Company shall be required to be made by
wire transfer of immediately available funds to the accounts specified by the
Holders thereof until the date the Exchange Offer is consummated.
Thereafter, such payments, except to DTC, will be made by check. Such
payment shall be in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private
debts.
3. PAYING AGENT.
Initially, First Trust National Association (the "Trustee") will
act as Paying Agent. The Company may change any Paying Agent, without notice
to the Holders of Securities.
A-5
4. INDENTURE.
This Security is one of a duly authorized issue of Securities of
the Company, designated as its 9 1/4% Senior Subordinated Notes due 2005 (the
"Securities"), limited in aggregate principal amount to $120,000,000 (except
for Securities issued in substitution for destroyed, lost or stolen
Securities) issuable under an indenture, dated as of March 23, 1998 (the
"Indenture"), between the Company and the Trustee. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by the Trust Indenture Act of 1939, as amended (the "Act") (15 U.S.
Code Sections 77aaa-77bbbb) as in effect on the date of the Indenture and the
date the Indenture is qualified under the Act. The Securities are subject to
all such terms, and Holders of Securities are referred to the Indenture and
the Securities Act for a statement of them. Each Holder, by accepting a
Security, agrees to be bound by all of the terms and provisions of the
Indenture, as the same may be amended from time to time.
The Securities are subordinated in right of payment to all Senior
Indebtedness of the Company to the extent and in the manner provided in the
Indenture.
5. OPTIONAL REDEMPTION.
a. The Securities will not be redeemable at the Company's option prior
to April 1, 2002. Thereafter, the Securities will be subject to redemption at
any time at the option of the Company, in whole or in part, upon not less
than 30 nor more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest and Liquidated Damages, if any, thereon to the applicable redemption
date, if redeemed during the twelve-month period beginning on April 1 of the
years indicated below:
YEAR PERCENTAGE
---- ----------
2002 . . . . . . . . . . . . . 104.625%
2003 . . . . . . . . . . . . . 102.313%
2004 and thereafter. . . . . . 100.000%
b. Notwithstanding the foregoing, at any time on or prior to April 1,
2001, the Company may (but shall not have the obligation to) redeem, on one
or more occasions, up to an aggregate of 35% of the aggregate principal
amount of Securities originally issued at a redemption price equal to
109 1/4% of the principal amount thereof, plus accrued and unpaid interest and
Liquidated Damages thereon, if any, to the redemption date, with the net cash
proceeds of one or more Equity Offerings; PROVIDED that at least 65% of the
aggregate principal amount of Securities originally issued remain outstanding
immediately after the occurrence of such redemption; and PROVIDED FURTHER,
that such redemption shall occur within 60 days of the date of the closing of
such Equity Offering.
A-6
6. REGULATORY REDEMPTION.
If any Gaming Authority requires that a Holder or beneficial owner
of Securities must be licensed, qualified or found suitable under any
applicable gaming law and such Holder or beneficial owner fails to apply for
a license, qualification or a finding of suitability within 30 days after
being requested to do so by the Gaming Authority (or such lesser period that
may be required by such Gaming Authority), or if such Holder or such
beneficial owner is not so licensed, qualified or found suitable, the Company
shall have the right, at its option, (i) to require such Holder or beneficial
owner to dispose of such Holder's or beneficial owner's Securities within 30
days of receipt of such notice of such finding by the applicable Gaming
Authority or such earlier date as may be ordered by such Gaming Authority or
(ii) to call for the redemption of the Securities of such Holder or
beneficial owner at the lesser of the principal amount thereof, the fair
market value of such Securities on the date of redemption or the price at
which such Holder or beneficial owner acquired the Securities, together with,
in either case, accrued and unpaid interest to the earlier of the date of
redemption or such earlier date as may be required by such Gaming Authority
or the date of the finding of unsuitability by such Gaming Authority, which
may be less than 30 days following the notice of redemption, if so ordered by
such Gaming Authority. The Company shall notify the Trustee in writing of
any such redemption as soon as practicable and the redemption price of each
Security to be redeemed. The Holder of Securities or beneficial owner
applying for a license, qualification or a finding of suitability must pay
all costs of the licensure and investigation for such qualification or
finding of suitability. The Company is not required to pay or reimburse any
Holder of the Securities or beneficial owner who is required to apply for
such license, qualification or finding of suitability for the costs of the
licensure or investigation for such qualification or finding of suitability.
Such expense will, therefore, be the obligation of such Holder or beneficial
owner.
7. PURCHASE UPON OCCURRENCE OF A CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, the Company will be
required to make an offer to repurchase all or any part (equal to $1,000 or
an integral multiple thereof), of each Holder's Securities pursuant to the
Company's "Change of Control Offer" as described in the Indenture, at an
offer price in cash equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest and Liquidated Damages thereon, if any, to
the date of purchase.
8. ASSET SALES.
In the event of certain Asset Sales, the Company may be required to
make an offer to purchase all or a portion of the Securities at a purchase
price equal to 100% of their principal amount plus accrued and unpaid
interest and Liquidated Damages, if any, to the date of purchase in
accordance with the procedures set forth in the Indenture.
A-7
9. DENOMINATIONS: TRANSFER; EXCHANGE.
The Securities are in registered form without coupons in
denominations of $1,000 and integral multiples of $1,000. The transfer of
Securities may be registered and Securities may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents, and
the Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Security or portion of a Security selected for redemption,
except for the unredeemed portion of any Security being redeemed in part.
Also, it need not exchange or register the transfer of any Securities for a
period of 15 days before the mailing of a notice of redemption or during the
period between a record date and the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS.
The Holder of this Security may be treated as the owner of this
Security for all purposes.
11. DISCHARGE PRIOR TO REDEMPTION OR MATURITY.
The Indenture will be discharged and cancelled except for certain
Sections thereof, subject to the terms of the Indenture, upon the payment of
all the Securities or upon the irrevocable deposit with the Trustee of funds
or U.S. Government Obligations sufficient for such payment or redemption.
12. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions, the Indenture or the Securities may
be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the outstanding Securities, and any past
default or compliance with any provision may be waived with the consent of
the Holders of at least a majority in principal amount of the outstanding
Securities. Without notice to or the consent of any Holder, the Company and
the Trustee may amend or supplement the Indenture or the Securities to cure
any ambiguity, defect or inconsistency, or to make any other change that does
not adversely affect the rights of any Holder of Securities.
13. DEFAULTS AND REMEDIES.
If an Event of Default shall occur and be continuing, the principal
of all of the outstanding Securities, plus all accrued and unpaid interest,
if any, and Liquidated Damages, if any, to the date the Securities become due
and payable, may be declared due and payable in the manner and with the
effect provided in the Indenture.
A-8
14. TRUSTEE DEALINGS WITH COMPANY AND ITS AFFILIATES.
The Trustee in its individual or any other capacity, may become the
owner or pledgee of Securities and make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal
with the Company or its Affiliates, as if it were not Trustee.
15. NO RECOURSE AGAINST OTHERS.
No director, officer, employee, incorporator or stockholder of the
Company shall have any liability for any obligations of the Company under the
Securities, the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder of Securities by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Securities.
16. AUTHENTICATION.
This Security shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Security.
17. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Securities and has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed
on the Securities or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed thereon.
18. REGISTRATION RIGHTS.
Pursuant to the Registration Rights Agreement among the Company,
Bear, Xxxxxxx & Co., Inc., Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation and BancAmerica Xxxxxxxxx Xxxxxxxx, as initial purchasers, the
Company will be obligated to consummate an exchange offer pursuant to which
the Holder of this Security shall have the right to exchange the Company's
9 1/4% Senior Subordinated Notes due 2005, Series A for the Company's 9 1/4%
Senior Subordinated Notes due 2005, Series B (the "Exchange Securities"), the
issuance of which shall have been registered under the Securities Act, in
like principal amount and having terms identical in all material respects as
the Securities. The Holders of the Securities shall be entitled to receive
certain additional interest payments in the event such Exchange Offer is not
consummated and upon certain other conditions, all pursuant to and in
accordance with the terms of the Registration Rights Agreement and the
Indenture. Each Holder of a Security, by his acceptance thereof,
acknowledges and agrees to the provisions of the Registration Rights
Agreement including without limitation the obligations of the
A-9
Holders with respect to a registration and the indemnification of the Company
to the extent provided therein.
19. GOVERNING LAW.
The laws of the State of New York shall govern the Indenture and
this Security without regard to the principles of conflicts of law to the
extent that the application of the law of another jurisdiction would be
required thereby.
The Company will furnish to any Holder of record of Securities upon
written request and without charge a copy of the Indenture.
20. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (=Custodian), and U/G/M/A/ (= Uniform Gifts to Minors
Act).
A-10
SCHEDULE OF EXCHANGES OF INTERESTS
IN THE GLOBAL SECURITY
The following exchanges of a part of this Global Security for an
interest in another Global Security or for a Definitive Security, or
exchanges of a part of another Global Security or Definitive Security for an
interest in this Global Security, have been made:
PRINCIPAL AMOUNT OF THIS
AMOUNT OF DECREASE AMOUNT OF INCREASE GLOBAL SECURITY FOLLOWING SIGNATURE OF AUTHORIZED
IN PRINCIPAL AMOUNT IN PRINCIPAL AMOUNT SUCH DECREASE SIGNATORY OF TRUSTEE OR
DATE OF EXCHANGE OF THIS GLOBAL SECURITY OF THIS GLOBAL SECURITY (OR INCREASE) SECURITY CUSTODIAN
---------------- ----------------------- ----------------------- ------------------------- -----------------------
A-11
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Security to
-----------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
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(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________________________
to transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Date: Your Signature:
--------- ------------------------------------------------
(Sign exactly as your name appears on the face
of this Security)
Signature Guarantee:
-------------------------------------------
A-12
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant to
Section 4.5 or 4.14 of the Indenture, check the box below:
/ / Section 4.5 / / Section 4.14
If you want to elect to have only part of the Security purchased by the Company
pursuant to Section 4.5 or Section 4.14 of the Indenture, state the amount you
elect to have purchased:
$
-----------------
Date:__________ Your signature:
---------------------------------------
(sign exactly as your name appears on the face of this
Security)
Tax Identification No.:
-------------------------------
Signature Guarantee:
----------------------------------
A-13
EXHIBIT B
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED SECURITIES,
ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR
THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL SECURITY SHALL BE
ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR A SECURITY IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX
XXXX) ("XXX"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE SECURITY (OR ITS PREDECESSORS) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. BY ITS ACQUISITION HEREOF, THE
HOLDER REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS NOT A U.S. PERSON AND IS NOT
ACQUIRING THIS SECURITY FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON AND IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION
S UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT). THE
HOLDER OF THE SECURITY EVIDENCED
B-1
HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1)(a) TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR
(d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER
IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY
OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
HARD ROCK HOTEL, INC.
9 1/4% Senior Subordinated Notes due 2005
CINS
---------------
$
-----------------
No.
-----------
Hard Rock Hotel, Inc., a Nevada corporation (the "Company"), promises
to pay to Cede & Co. or registered assigns, the principal sum of ____________
Dollars on April 1, 2005.
Interest Payment Dates: April 1 and October 1
Record Dates: March 15 and September 15
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
B-2
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
B-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
HARD ROCK HOTEL, INC.
By:
-----------------------------
Name:
Title:
By:
-----------------------------
Name:
Title:
Attest:
By:
-----------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
First Trust National Association, as Trustee, certifies that this is
one of the 9 1/4% Senior Subordinated Notes due 2005 referred to in the within-
mentioned Indenture.
First Trust National Association,
as Trustee
By: Dated:
----------------------------- -----------------------------
Authorized Signatory
B-4
[REVERSE OF SECURITY]
HARD ROCK HOTEL, INC.
9 1/4% Senior Subordinated Notes due 2005
1. INTEREST.
Hard Rock Hotel, Inc., a Nevada corporation (the "COMPANY"), promises
to pay interest at the rate of 9 1/4% PER ANNUM on the principal amount of this
Security semi-annually in arrears on each Interest Payment Date referred to on
the face hereof commencing on October 1, 1998, until the principal hereof is
paid or made available for payment. Interest on the Securities will accrue from
and including the most recent date to which interest has been paid or duly
provided for, or if no interest has been paid or duly provided for, from and
including March 23, 1998, through but excluding the date on which the principal
hereof is paid or made available for payment. If an Interest Payment Date falls
on a day that is not a Business Day, the interest payment to be made on such
Interest Payment Date will be made on the next succeeding Business Day with the
same force and effect as if made on such Interest Payment Date, and no
additional interest will accrue as a result of such delayed payment. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT.
The Company will pay interest on the Securities (except defaulted
interest) and Liquidated Damages, if any, to the Persons who are registered
Holders of Securities at the close of business on March 15 or September 15 next
preceding the Interest Payment Date. The Securities will be payable as to
principal, premium, if any, Liquidated Damages, if any, and interest at the
office or agency of the Company maintained for such purpose within the city and
State of New York, or, at the option of the Company, payment of interest and
Liquidated Damages, if any, may be made by check mailed to the Holders at their
addresses set forth in the register of Holders; PROVIDED that all payments with
respect to Securities the Holders of which have given wire transfer instructions
to the Company shall be required to be made by wire transfer of immediately
available funds to the accounts specified by the Holders thereof until the date
the Exchange Offer is consummated. Thereafter, such payments, except to DTC,
will be made by check. Such payment shall be in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts.
3. PAYING AGENT.
Initially, First Trust National Association (the "Trustee") will act
as Paying Agent. The Company may change any Paying Agent, without notice to the
Holders of Securities.
B-5
4. INDENTURE.
This Security is one of a duly authorized issue of Securities of the
Company, designated as its 9 1/4% Senior Subordinated Notes due 2005 (the
"Securities"), limited in aggregate principal amount to $120,000,000 (except for
Securities issued in substitution for destroyed, lost or stolen Securities)
issuable under an indenture, dated as of March 23, 1998 (the "Indenture"),
between the Company and the Trustee. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by the Trust
Indenture Act of 1939, as amended (the "Act") (15 U.S. Code Sections 77aaa-
77bbbb) as in effect on the date of the Indenture and the date the Indenture is
qualified under the Act. The Securities are subject to all such terms, and
Holders of Securities are referred to the Indenture and the Securities Act for a
statement of them. Each Holder, by accepting a Security, agrees to be bound by
all of the terms and provisions of the Indenture, as the same may be amended
from time to time.
The Securities are subordinated in right of payment to all Senior
Indebtedness of the Company to the extent and in the manner provided in the
Indenture.
5. OPTIONAL REDEMPTION.
a. The Securities will not be redeemable at the Company's option prior to
April 1, 2002. Thereafter, the Securities will be subject to redemption at any
time at the option of the Company, in whole or in part, upon not less than 30
nor more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest and Liquidated Damages, if any, thereon to the applicable redemption
date, if redeemed during the twelve-month period beginning on April 1 of the
years indicated below:
YEAR PERCENTAGE
---- ----------
2002 . . . . . . . . . . . . . . . . . 104.625%
2003 . . . . . . . . . . . . . . . . . 102.313%
2004 and thereafter. . . . . . . . . . 100.000%
b. Notwithstanding the foregoing, at any time on or prior to April 1,
2001, the Company may (but shall not have the obligation to) redeem, on one or
more occasions, up to an aggregate of 35% of the aggregate principal amount of
Securities originally issued at a redemption price equal to 109 1/4% of the
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages thereon, if any, to the redemption date, with the net cash proceeds of
one or more Equity Offerings; PROVIDED that at least 65% of the aggregate
principal amount of Securities originally issued remain outstanding immediately
after the occurrence of such redemption; and PROVIDED FURTHER, that such
redemption shall occur within 60 days of the date of the closing of such Equity
Offering.
6. REGULATORY REDEMPTION.
B-6
If any Gaming Authority requires that a Holder or beneficial owner of
Securities must be licensed, qualified or found suitable under any applicable
gaming law and such Holder or beneficial owner fails to apply for a license,
qualification or a finding of suitability within 30 days after being requested
to do so by the Gaming Authority (or such lesser period that may be required by
such Gaming Authority), or if such Holder or such beneficial owner is not so
licensed, qualified or found suitable, the Company shall have the right, at its
option, (i) to require such Holder or beneficial owner to dispose of such
Holder's or beneficial owner's Securities within 30 days of receipt of such
notice of such finding by the applicable Gaming Authority or such earlier date
as may be ordered by such Gaming Authority or (ii) to call for the redemption of
the Securities of such Holder or beneficial owner at the lesser of the principal
amount thereof, the fair market value of such Securities on the date of
redemption or the price at which such Holder or beneficial owner acquired the
Securities together with, in either case, accrued and unpaid interest and Holder
or beneficial owner acquired the Securities, together with, in either case,
accrued and unpaid interest to the earlier of the date of redemption or such
earlier date as may be required by such Gaming Authority or the date of the
finding of unsuitability by such Gaming Authority, which may be less than 30
days following the notice of redemption, if so ordered by such Gaming Authority.
The Company shall notify the Trustee in writing of any such redemption as soon
as practicable and the redemption price of each Security to be redeemed. The
Holder of Securities or beneficial owner applying for a license, qualification
or a finding of suitability must pay all costs of the licensure and
investigation for such qualification or finding of suitability. The Company is
not required to pay or reimburse any Holder of the Securities or beneficial
owner who is required to apply for such license, qualification or finding of
suitability for the costs of the licensure or investigation for such
qualification or finding of suitability. Such expense will, therefore, be the
obligation of such Holder or beneficial owner.
7. PURCHASE UPON OCCURRENCE OF A CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, the Company will be
required to make an offer to repurchase all or any part (equal to $1,000 or an
integral multiple thereof), of each Holder's Securities pursuant to the
Company's "Change of Control Offer" as described in the Indenture, at an offer
price in cash equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Liquidated Damages thereon, if any, to the date
of purchase.
8. ASSET SALES.
In the event of certain Asset Sales, the Company may be required to
make an offer to purchase all or a portion of the Securities at a purchase price
equal to 100% of their principal amount plus accrued and unpaid interest and
Liquidated Damages, if any, to the date of purchase in accordance with the
procedures set forth in the Indenture.
9. DENOMINATIONS: TRANSFER; EXCHANGE.
B-7
The Securities are in registered form without coupons in denominations
of $1,000 and integral multiples of $1,000. The transfer of Securities may be
registered and Securities may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents, and the Company may require a
Holder to pay any taxes and fees required by law or permitted by the Indenture.
The Company need not exchange or register the transfer of any Security or
portion of a Security selected for redemption, except for the unredeemed portion
of any Security being redeemed in part. Also, it need not exchange or register
the transfer of any Securities for a period of 15 days before the mailing of a
notice of redemption or during the period between a record date and the
corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS.
The Holder of this Security may be treated as the owner of this
Security for all purposes.
11. DISCHARGE PRIOR TO REDEMPTION OR MATURITY.
The Indenture will be discharged and cancelled except for certain
Sections thereof, subject to the terms of the Indenture, upon the payment of all
the Securities or upon the irrevocable deposit with the Trustee of funds or U.S.
Government Obligations sufficient for such payment or redemption.
12. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the outstanding Securities, and any past default or
compliance with any provision may be waived with the consent of the Holders of
at least a majority in principal amount of the outstanding Securities. Without
notice to or the consent of any Holder, the Company and the Trustee may amend or
supplement the Indenture or the Securities to cure any ambiguity, defect or
inconsistency, or to make any other change that does not adversely affect the
rights of any Holder of Securities.
13. DEFAULTS AND REMEDIES.
If an Event of Default shall occur and be continuing, the principal of
all of the outstanding Securities, plus all accrued and unpaid interest, if any,
and Liquidated Damages, if any, to the date the Securities become due and
payable, may be declared due and payable in the manner and with the effect
provided in the Indenture.
14. TRUSTEE DEALINGS WITH COMPANY AND ITS AFFILIATES.
B-8
The Trustee in its individual or any other capacity, may become the
owner or pledgee of Securities and make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not Trustee.
15. NO RECOURSE AGAINST OTHERS.
No director, officer, employee, incorporator or stockholder of the
Company shall have any liability for any obligations of the Company under the
Securities, the Indenture or for any claim based on, in respect of or by reason
of such obligations or their creation. Each Holder of Securities by accepting a
Security waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Securities.
16. AUTHENTICATION.
This Security shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Security.
17. CINS NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CINS numbers to be
printed on the Securities and has directed the Trustee to use CINS numbers in
notices of redemption as a convenience to Holders. No representation is made as
to the accuracy of such numbers either as printed on the Securities or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
18. REGISTRATION RIGHTS.
Pursuant to the Registration Rights Agreement among the Company, Bear,
Xxxxxxx & Co., Inc., BancAmerica Xxxxxxxxx Xxxxxxxx and Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation, as initial purchasers, the Company will be
obligated to consummate an Exchange Offer pursuant to which the Holder of this
Security shall have the right to exchange the Company's 9 1/4% Senior
Subordinated Notes due 2005, Series A for the Company's 9 1/4% Senior
Subordinated Securities due 2005, Series B (the "Exchange Securities"), the
issuance of which shall have been registered under the Securities Act, in like
principal amount and having terms identical in all material respects as the
Securities. The Holders of the Securities shall be entitled to receive certain
additional interest payments in the event such Exchange Offer is not consummated
and upon certain other conditions, all pursuant to and in accordance with the
terms of the Registration Rights Agreement and the Indenture. Each Holder of a
Security, by his acceptance thereof, acknowledges and agrees to the provisions
of the Registration Rights Agreement including without limitation the
obligations of the Holders with respect to a registration and the
indemnification of the Company to the extent provided therein.
B-9
19. GOVERNING LAW.
The laws of the State of New York shall govern the Indenture and this
Security without regard to the principles of conflicts of law to the extent that
the application of the law of another jurisdiction would be required thereby.
The Company will furnish to any Holder of record of Securities upon
written request and without charge a copy of the Indenture.
20. ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants
by the entireties), JT TEN (= joint tenants with right of survivorship and
not as tenants in common), CUST (=Custodian), and U/G/M/A/ (= Uniform Gifts
to Minors Act).
B-10
SCHEDULE OF EXCHANGES OF INTERESTS
IN THE GLOBAL SECURITY
The following exchanges of a part of this Global Security for an interest
in another Global Security or for a Definitive Security, or exchanges of a part
of another Global Security or Definitive Security for an interest in this Global
Security, have been made:
Principal Amount of this
Amount of decrease Amount of increase Global Security Signature of authorized
in Principal Amount in Principal Amount following such decrease signatory of Trustee or
Date of Exchange of this Global Security of this Global Security (or increase) Security Custodian
---------------- ----------------------- ----------------------- ----------------------- -------------------------
B-11
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Security to
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(Insert assignee's soc. sec. or tax I.D. no.)
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-----------------------------------------------------------------------------
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(Print or type assignee's name, address and zip code)
and irrevocably appoint _____________________________________________________
to transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Date: Your Signature:
--------------------------- -----------------------------
(Sign exactly as your name
appears on the face of
this Security)
Signature Guarantee:
-----------------------------
B-12
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant to
Section 4.5 or 4.14 of the Indenture, check the box below:
/ / Section 4.5 / / Section 4.14
If you want to elect to have only part of the Security purchased by the Company
pursuant to Section 4.5 or Section 4.14 of the Indenture, state the amount you
elect to have purchased:
$
------------------------
Date: Your Signature:
--------------------------- -----------------------------
(Sign exactly as your name
appears on the face of
this Security)
Tax Identification No.:
--------------------------
Signature Guarantee:
----------------------------
B-13
EXHIBIT C
FORM OF CERTIFICATE OF TRANSFER
Hard Rock Hotel, Inc.
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
First Trust National Association
000 Xxxx 0xx Xxxxxx, Xxxxx 000
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Division
Re: 9 1/4% SENIOR SUBORDINATED NOTES DUE 2005 OF HARD ROCK HOTEL, INC.
Reference is hereby made to the Indenture, dated as of March 23, 1998
(the "INDENTURE"), between Hard Rock Hotel, Inc., as issuer (the "COMPANY"), and
First Trust National Association, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
______________________ (the "TRANSFEROR") owns and proposes to
transfer the Security or Securities or interest in such Security or Securities
specified in Annex A hereto, in the principal amount of $_________ in such
Security or Securities or interests (the "TRANSFER"), to _________________ (the
"TRANSFEREE") as further specified in Annex A hereto. In connection with the
Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE 144A GLOBAL SECURITY OR A DEFINITIVE SECURITY PURSUANT TO
RULE 144A. The Transfer is being effected pursuant to and in accordance with
Rule 144A under the United States Securities Act of 1933, as amended (the
"SECURITIES ACT"), and, accordingly, the Transferor hereby further certifies
that the beneficial interest or Definitive Security is being transferred to a
Person that the Transferor reasonably believed and believes is purchasing the
beneficial interest or Definitive Security for its own account, or for one or
more accounts with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A in a transaction meeting
the requirements of Rule 144A and such Transfer is in compliance with any
applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Security will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Security and/or the Definitive Security and
in the Indenture and the Securities Act.
2. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE REGULATION S TEMPORARY GLOBAL SECURITY, THE REGULATION S
GLOBAL SECURITY OR A DEFINITIVE SECURITY PURSUANT TO REGULATION S. The
Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and, accordingly, the Transferor hereby
further certifies that (i) the transfer is not being made to a person in the
United States and
C-1
(x) at the time the buy order was originated, the transferee was outside the
United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities
of a designated offshore securities market and neither such Transferor nor
any person acting on its behalf knows that the transaction was prearranged
with a buyer in the United States, (ii) no directed selling efforts have been
made in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S under the Securities Act, (iii) the transaction is not part of a
plan or scheme to evade the registration requirements of the Securities Act,
and (iv) if the proposed transfer is being made prior to the expiration of
the Restricted Period, the transfer is not being made to a U.S. Person or for
the account or benefit of a U.S. Person (other than an Initial Purchaser).
Upon consummation of the proposed transfer in accordance with the terms of
the Indenture, the transferred beneficial interest or Definitive Security
will be subject to the restrictions on Transfer enumerated in the Private
Placement Legend printed on the Regulation S Global Security, the Temporary
Regulation S Global Security and/or the Definitive Security and in the
Indenture and the Securities Act.
3. / / CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE RESTRICTED GLOBAL SECURITY OR A DEFINITIVE
SECURITY PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A
OR REGULATION S. The Transfer is being effected in compliance with the
transfer restrictions applicable to beneficial interests in Restricted Global
Securities and Restricted Definitive Securities and pursuant to and in
accordance with the Securities Act and any applicable blue sky securities
laws of any state of the United States, and accordingly the Transferor hereby
further certifies that (check one):
(a) / / such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act; or
(b) / / such Transfer is being effected to the Company or a
subsidiary thereof; or
(c) / / such Transfer is being effect pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act.
4. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL SECURITY OR OF AN UNRESTRICTED DEFINITIVE
SECURITY.
(a) / / CHECK IF TRANSFER IF PURSUANT TO RULE 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Security will not longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Securities, on Restricted Definitive Securities and in the Indenture.
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(b) CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effect pursuant to and in accordance with Rule 903 or rule 904
under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indentures, the transferred
beneficial interest or Definitive Security will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Securities, on Restricted Definitive Securities and in the
Indenture.
(c) CHECK IF TRANSFER IF PURSUANT TO OTHER EXEMPTION. (i)
The Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule 144m,
Rule 903 or Rule 904 and in compliance with the transfer restrictions in the
Indenture and any applicable blue sky securities laws of any State of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Security will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Securities or Restricted Definitive Securities and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Trustee and the Company.
-----------------------------
[Insert Name of Transferor]
By:
------------------------------
Name:
Title:
Dated: ,
--------------------- -------
C-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ON OF (a) OR (b)]
(a) / / a beneficial interest in the:
(i) / / 144A Global Security (CUSIP _____), or
(ii) / / Regulation S Global Security (CUSIP _____), or
(iii) / / Restricted Global Security (CUSIP _____); or
(b) / / a Restricted Definitive Security.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) / / a beneficial interest in the:
(i) / / 144A Global Security (CUSIP _____), or
(ii) / / Regulation S Global Security (CUSIP _____), or
(iii) / / Restricted Global Security (CUSIP _____); or
(iv) / / (CUSIP _____), or Unrestricted Global Security (CUSIP ____);
or
(b) / / a Restricted Definitive Security; or
(c) / / an Unrestricted Definitive Security.
in accordance with the terms of the Indenture.
C-4
EXHIBIT D
FORM OF CERTIFICATE OF TRANSFER OR EXCHANGE
Hard Rock Hotel, Inc.
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
First Trust National Association
000 Xxxx 0xx Xxxxxx, Xxxxx 000
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Division
Re: 9 1/4% SENIOR SUBORDINATED NOTES DUE 2005 OF HARD ROCK HOTEL, INC.
Reference is hereby made to the Indenture, dated as of March 23, 1998 (the
"INDENTURE"), between Hard Rock Hotel, Inc., as issuer (the "COMPANY"), and
First Trust National Association, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
_________________ (the "OWNER") owns and proposed to exchange the Security
or Securities specified herein, in the principal amount of $______________ in
such Security or Securities or interests (the "EXCHANGE"). In connection with
the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL
INTERESTS IN A RESTRICTED GLOBAL SECURITY FOR UNRESTRICTED DEFINITIVE SECURITIES
OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL SECURITY
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL SECURITY TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL
SECURITY. In connection with he Exchange of the Owner's beneficial interest
in a Restricted Global Security for a beneficial interest in an Unrestricted
Global Security in an equal principal amount, the Owner hereby certifies (i)
the beneficial interest is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Global Securities and pursuant to and
in accordance with he United States Securities Act of 1933, as amended (the
"SECURITIES ACT"), (iii) the restriction on transfer contained in the
Indenture and the Private Placement Legend are not the restrictions on
transfer contained in the Indenture and the private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Security is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(b) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL SECURITY TO UNRESTRICTED DEFINITIVE SECURITY. In
connection with the Exchange of the Owner's beneficial interest in a
Restricted Global Security for an Unrestricted Definitive Security, the Owner
hereby certifies (i) the Definitive Security is being acquired for the
Owner's
D-1
own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted Global
Securities and pursuant to and in accordance with the Securities Act, (iii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Definitive Security is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(c) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SECURITY. In connection with
the Owner's Exchange of a Restricted Definitive Security for a beneficial
interest in an Unrestricted Global Security, the Owner hereby certifies (i)
the beneficial interest is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Securities and
pursuant to and in accordance with the Securities Act, (iii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are
not required in order to maintain compliance with the Securities Act, and
(iv) the beneficial interest is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(d) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY
TO UNRESTRICTED DEFINITIVE SECURITY. In connection with the Owner's Exchange
of a Restricted Definitive Security for n Unrestricted Definitive Security,
the Owner hereby certifies (i) the Unrestricted Definitive Security is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
restricted Definitive Securities and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted Definitive
Security is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL SECURITIES FOR RESTRICTED DEFINITIVE SECURITY OR
BENEFICIAL INTERESTS IN RESTRICTED GLOBAL SECURITY
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL SECURITY TO RESTRICTED DEFINITIVE SECURITY. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global
Security for a Restricted Definitive Security with an equal principal amount,
the Owner hereby certifies that the Restricted Definitive Security is being
acquired for the Owner's own account without transfer. Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture,the
restricted Definitive Security issued will continue to be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed
on the Restricted Definitive Security and in the Indenture and the Securities
Act.
(b) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY
TO BENEFICIAL INTEREST ON A RESTRICTED GLOBAL SECURITY. In connection with
the Exchange of the
D-2
Owner's Restricted Definitive Security for a beneficial interest in the
[CHECK ONE] / / 144A Global Security, / / Regulation S Global Security, / /
Restricted Global Security, with an equal principal amount, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner's own
account without transfer and (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted Global
Securities and pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the beneficial interest issued will be subject to
the restrictions on transfer enumerated in the Private Placement Legend
printed on the relevant Restricted Global Security and in the Indenture and
the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Trustee and the Company.
---------------------------------
[Insert Name of Owner]
By:
-------------------------------
Name:
Title:
Dated: ,
-------------------- ------
D-3
EXHIBIT E
Form of Subsidiary Guarantee
THIS GUARANTEE (as the same may be amended, modified or supplemented
from time to time, this "Guarantee"), dated as of ________, is made by
________________ (hereinafter referred to as the "Guarantor") in favor of [
], a national banking association, as trustee under the Indenture
hereinafter described (the "Trustee"), for the ratable benefit of the holders
from time to time (the "Holders") of the Securities (as hereinafter defined).
All terms not otherwise defined herein shall have for the purposes
hereof the meanings set forth in the Indenture (as hereinafter defined)
unless the context otherwise requires.
Recitals
A. Hard Rock Hotel, Inc. (the "Company") is a party to that
certain indenture dated as of March 23, 1998 (as amended, supplemented or
otherwise modified from time to time, the "Indenture") between the Company
and the Trustee, pursuant to which the Company issued $120.0 million
principal amount of their 9 1/4% Senior Subordinated Notes due 2005
(including all Initial Securities and Exchange Securities issued from time to
time pursuant to the Indenture, collectively, the "Securities"); and
B. The Guarantor is a direct or indirect Restricted Subsidiary of
the Company, and will derive both direct and indirect economic benefit from
the proceeds of the Securities and other financial accommodations made to the
Company under the Indenture.
C. The Indenture requires that the Guarantor, prior to incurring
any Indebtedness (other than Acquired Indebtedness), execute and deliver this
Guarantee to guarantee the payment and performance by the Company of all of
its obligations under the Indenture and the Securities, including, in each
case, all reasonable costs of collection and enforcement thereof and interest
thereon which would be owing by the Company or such Guarantor but for the
effect of the Bankruptcy Code, 11 U.S.C. (S) 101 et seq. (collectively, the
"Guaranteed Obligations").
NOW, THEREFORE, for and in consideration of the foregoing and of
any financial accommodations or extensions of credit (including, without
limitation, any loan or advance by renewal, refinancing or extension of the
Indenture or otherwise) heretofore, now or hereafter made to or for the
benefit of the Company pursuant to the Indenture or any other agreement,
instrument or document executed pursuant to or in connection therewith, and
for other good and valuable consideration, the receipt and sufficiency of
which are acknowledged, the Guarantor and the Trustee agree as follows:
1. THE GUARANTEE. The Guarantor hereby absolutely,
unconditionally and irrevocably guarantees the full and punctual payment
(whether at stated maturity, upon acceleration or otherwise) of the
Guaranteed Obligations; provided, however, the obligations of the Guarantor
hereunder shall be limited to the maximum amount which may be paid hereunder
without resulting in any payment hereunder being deemed to constitute a
fraudulent
E-1
conveyance. This Guarantee is a guarantee of payment and not of collection.
All payments made by the Guarantor under this Guarantee shall be paid at the
place and in the manner specified in the Indenture and the Securities.
2. AMENDMENTS, ETC. WITH RESPECT TO THE GUARANTEED OBLIGATIONS;
WAIVER OF RIGHTS. The Guarantor shall remain obligated hereunder
notwithstanding that without any reservation of rights against the Guarantor
and without notice to or further assent by the Guarantor any demand for
payment of any of the Guaranteed Obligations made by the Trustee or the
Holders may be rescinded by them and any of the Guaranteed Obligations
continued, and the Guaranteed Obligations, or the liability of any other
party upon or for any part thereof, or guarantee therefor or right of offset
with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Trustee or the Holders, and the Indenture and
any other documents executed and delivered in connection therewith may be
amended, modified, supplemented or terminated, in whole or in part, as the
Trustee or the Holders may deem advisable from time to time or as provided in
the Indenture, and any guarantee or right of offset at any time held by the
Trustee for the payment of the Guaranteed Obligations may be sold, exchanged,
waived, surrendered or released.
3. GUARANTEE ABSOLUTE AND UNCONDITIONAL. The Guarantor waives any
and all notice of the creation, renewal, extension or accrual of any of the
Guaranteed Obligations and notice of or proof of reliance by the Trustee or
the Holders upon this Guarantee, the Guaranteed Obligations, and any of them
shall conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon this Guarantee; and
all dealings between the Issuers and the Guarantor, on the one hand, and the
Trustee and the Holders, on the other hand, likewise shall be conclusively
presumed to have been had or consummated in reliance upon this Guarantee.
The Guarantor waives diligence, presentment, protest, demand for payment and
notice of default or nonpayment to or upon the Company or the Guarantor with
respect to the Guaranteed Obligations. The Guarantor understands and agrees
that this Guarantee shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the validity,
regularity or enforceability of the Indenture or any of the Securities, any
of the Guaranteed Obligations or guarantee or right of offset with respect
thereto at any time or from time to time held by the Trustee or the Holders,
(b) any defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by the
Company against the Trustee or the Holders, or (c) any other circumstances
whatsoever (with or without notice to or knowledge of the Company or such
Guarantor) which constitute, or might be construed to constitute, an
equitable or legal discharge of the Company for the Guaranteed Obligations,
or of the Guarantor under this Guarantee, in bankruptcy or in any other
instance. When pursuing its rights and remedies hereunder against the
Guarantor, the Trustee and/or the Holders may, but shall be under no
obligation to, pursue such rights and remedies as it or they may have against
the Company or any other Person or against any guarantee for the Guaranteed
Obligations or any right of offset with respect thereto, and any failure by
the Trustee or the Holders to pursue such other rights or remedies or to
collect any payments from the Company or any such other Person or to realize
upon any such guarantee or to exercise any such right of offset, or any
release of
E-2
the Company or any such other Person or any such guarantee or right of
offset, shall not relieve the Guarantor of any liability hereunder, and shall
not impair or affect the rights and remedies, whether express, implied or
available on a matter of law, of the Trustee and/or the Holders against the
Guarantor. This Guarantee shall remain in full force and effect and be
binding in accordance with and to the extent of its terms upon the Guarantor
and its successors and assigns thereof, and shall inure to the benefit of the
Trustee, and its successors, indorsees, transferees and assigns, and the
Holders from time to time of the Securities until all the Guaranteed
Obligations and the obligations of the Guarantor under this Guarantee shall
have been satisfied by payment in full, notwithstanding that from time to
time during the term of the Indenture the Company may be free from any
Guaranteed Obligations.
4. DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN CERTAIN
CIRCUMSTANCES. The Guarantor's obligations hereunder shall remain in full
force and effect until the Guaranteed Obligations shall have been paid in
full or released pursuant to Section 4.21 of the Indenture. If at any time
any payment of the Guaranteed Obligations is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy or reorganization of the
Company or otherwise, the Guarantor's obligations hereunder with respect to
such payment shall be reinstated at such time as though such payment had been
due but not made at such time.
5. WAIVER BY THE GUARANTOR. The Guarantor irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided
for herein, as well as any requirement that at any time any action be taken
by any Person against the Company or any other Person.
6. SUBROGATION. Notwithstanding any payments made by the
Guarantor under this Guarantee, the Guarantor shall not be entitled to be
subrogated to any of the rights of any other Guarantor, the Trustee or any
Holder against the Company until all amounts of principal of and interest and
premium on the Securities and all other amounts payable by the Company under
the Indenture and the Securities and by the Guarantor under its Guarantee
have been paid in full. If any amount shall be paid to the Guarantor on
account of such subrogation rights at any time when all of the Guaranteed
Obligations shall not have been paid in full, such amount shall be held by
the Guarantor in trust for the Trustee segregated from other funds of the
Guarantor, and shall, forthwith upon receipt by the Guarantor, be turned over
to the Trustee in the exact form received by the Guarantor (duly indorsed by
the Guarantor to the Trustee, if required), to be applied against the
Guaranteed Obligations, whether matured or unmatured, at such time and in
such order as the Trustee may determine.
7. STAY OF ACCELERATION. In the event that acceleration of the
time for payment of any of the Guaranteed Obligations is stayed upon
insolvency, bankruptcy or reorganization of the Company, all such amounts
otherwise subject to acceleration under the terms of the Indenture and the
Securities shall nonetheless be payable by the Guarantor forthwith on demand
by the Trustee.
8. SUBORDINATION.
E-3
a. DEFINITIONS. As used in this Section 8, the terms set forth
below shall have the following meanings:
"Designated Guarantor Senior Indebtedness" shall mean (i) the
guarantee, if any, by the Guarantor of Indebtedness under the New Credit
Facility and (ii) other Guarantor Senior Indebtedness permitted to be
incurred by the Guarantor under the terms of the Indenture the principal
amount of which is $25 million or more and that has been designated by the
Board of Directors as "Designated Guarantor Senior Indebtedness."
"Guarantor Senior Indebtedness" shall mean (i) the guarantee, if
any, by the Guarantor of Indebtedness under the New Credit Facility and (ii)
any other Indebtedness permitted to be incurred by the Guarantor under the
terms of the Indenture, unless the instrument under which such Indebtedness
is incurred expressly provides that it is subordinated in right of payment to
any Guarantor Senior Indebtedness. Notwithstanding anything to the contrary
in the foregoing, Guarantor Senior Indebtedness will not include (a) any
liability for federal, state, local or other taxes owed or owing by the
Guarantor, (b) any Indebtedness of the Guarantor to any of its Subsidiaries
or other Affiliates, (c) any trade payables or (d) any Indebtedness that is
incurred in violation of the Indenture.
b. AGREEMENT TO SUBORDINATE. The Guarantor agrees, and each
Holder by accepting a Security agrees, that the payment of the Guaranteed
Obligations is subordinated in right of payment, to the extent and in the
manner provided in this Section 8, to the prior payment in full of all
Guarantor Senior Indebtedness (whether outstanding on the date hereof or
hereafter created, incurred, assumed or guaranteed), and that the
subordination is for the benefit of the holders of Guarantor Senior
Indebtedness.
c. LIQUIDATION; DISSOLUTION; BANKRUPTCY. Upon any distribution to
creditors of the Guarantor in a liquidation or dissolution of the Guarantor
or in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Guarantor or its property, an assignment for the
benefit of creditors or any marshalling of the Guarantor's assets and
liabilities:
(i) holders of Guarantor Senior Indebtedness of the Guarantor shall
be entitled to receive payment in full of all Obligations due in respect of
such Guarantor Senior Indebtedness (including interest after the
commencement of any such proceeding at the rate specified in the applicable
Guarantor Senior Indebtedness) before the Holders shall be entitled to
receive any payment with respect to the Guarantee (except that Holders may
receive securities that are subordinated at least to the same extent as the
Guarantees to Guarantor Senior Indebtedness and any securities issued in
exchange for Guarantor Senior Indebtedness); and
(ii) until all Obligations with respect to Guarantor Senior
Indebtedness of the Guarantor are paid in full, any distributions to which
the Holders of Securities would be entitled but for this Section 8 shall be
made to the holders of such Guarantor Senior Indebtedness (except that
Holders may receive securities that are subordinated at least
E-4
to the same extent as the Guarantee to Guarantor Senior Indebtedness and
any securities issued in exchange for Guarantor Senior Indebtedness).
d. DEFAULT ON DESIGNATED GUARANTOR SENIOR INDEBTEDNESS. The
Guarantor may not make any payment upon or in respect of the Guarantee (except
that Holders may receive securities that are subordinated to the same extent as
the Securities to Guarantor Senior Indebtedness and any securities issued in
exchange for Guarantor Senior Indebtedness) if:
(i) a default in the payment of the principal of, or premium or
interest on, or fees or other amounts owing with respect to, Designated
Guarantor Senior Indebtedness occurs and has not been cured or waived in
writing; or
(ii) any other default occurs and is continuing with respect to
Designated Guarantor Senior Indebtedness that permits holders of the
Designated Guarantor Senior Indebtedness as to which such default relates
to accelerate its maturity and the Trustee receives a notice of such
default (a "Payment Blockage Notice") from the Guarantor or the holders of
any Designated Guarantor Senior Indebtedness.
Payments on the Guarantee may and shall be resumed:
(y) in the case of default referred to in Section 8(d)(i), upon the
date on which such default is cured or waived by the holders of Designated
Guarantor Senior Indebtedness, and
(z) in case of a default referred to in Section 8(d)(ii), the earlier
of the date on which such nonpayment default is cured or waived by the
holders of Designated Guarantor Senior Indebtedness or 179 days after the
date on which the applicable Payment Blockage Notice is received, unless
the maturity of any Designated Guarantor Senior Indebtedness has been
accelerated.
No new period of payment blockage may be commenced unless and until
360 days have elapsed since the effectiveness of the immediately prior
Payment Blockage Notice. No nonpayment default referred to in Section
8(d)(ii) hereof that existed or was continuing on the date of delivery of any
Payment Blockage Notice to the Trustee shall be, or be made, the basis for a
subsequent Payment Blockage Notice (unless such nonpayment default shall have
been cured or waived for a period of not less than 180 days).
e. ACCELERATION OF GUARANTEE. The Guarantor shall promptly notify
holders of Guarantor Senior Indebtedness of the receipt by the Company of an
acceleration notice following an Event of Default under the Indenture.
f. WHEN DISTRIBUTION MUST BE PAID OVER. In the event that the
Trustee or any Holder receives any payment of any Obligations with respect to
the Guarantee at a time when the Trustee or such Holder, as applicable, has
actual knowledge that such payment is prohibited by Section 8(d) hereof, such
payment shall be held by the Trustee or such Holder, in trust for
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the benefit of and, upon written request, shall be paid forthwith over and
delivered to, the holders of Guarantor Senior Indebtedness as their interests
may appear or their Representative under the indenture or other agreement (if
any) pursuant to which Guarantor Senior Indebtedness may have been issued, as
their respective interests may appear, for application to the payment of all
obligations with respect to Guarantor Senior Indebtedness remaining unpaid to
the extent necessary to pay such Obligations in full in accordance with their
terms, after giving effect to any concurrent payment or distribution to or
for the holders of Guarantor Senior Indebtedness.
With respect to the holders of Guarantor Senior Indebtedness, the
Trustee undertakes to perform only such obligations on the part of the
Trustee as are specifically set forth in this Section 8, and no implied
covenants or obligations with respect to the holders of Guarantor Senior
Indebtedness shall be read into this Guarantee against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of
Guarantor Senior Indebtedness, and shall not be liable to any such holders if
the Trustee shall pay over or distribute to or on behalf of Holders or the
Guarantor or any other Person money or assets to which any holders of
Guarantor Senior Indebtedness shall be entitled by virtue of this Section 8,
except if such payment is made as a result of the willful misconduct or gross
negligence of the Trustee.
g. NOTICE BY THE GUARANTOR. The Guarantor shall promptly notify
the Trustee and the Paying Agent of any facts known to the Guarantor that
would cause a payment of any obligations with respect to the Guarantee to
violate this Section 8, but failure to give such notice shall not affect the
subordination of the Guarantee to the Guarantor Senior Indebtedness as
provided in this Section 8.
h. SUBROGATION. After all Guarantor Senior Indebtedness is
irrevocably paid in full in cash or cash equivalents reasonably satisfactory
to the holders thereof and until the Guaranteed Obligations are paid in full,
Holders shall be subrogated (equally and ratably with all other Indebtedness
pari passu with the Guarantee) to the rights of holders of Guarantor Senior
Indebtedness to receive distributions applicable to Guarantor Senior
Indebtedness to the extent that distributions otherwise payable to the
Holders have been applied to the payment of Guarantor Senior Indebtedness. A
distribution made under this Section 8 to holders of Guarantor Senior
Indebtedness that otherwise would have been made to Holders is not, as
between the Guarantor and Holders, a payment by the Guarantor on the
Guarantee.
i. RELATIVE RIGHTS. This Section 8 defines the relative rights of
Holders and holders of Guarantor Senior Indebtedness. Nothing in this
Guarantee shall:
(i) impair, as between the Guarantor and Holders, the obligation of
the Guarantor, which is absolute and unconditional, to pay the Guaranteed
Obligations in accordance with the terms of this Guarantee;
(ii) affect the relative rights of Holders and creditors of the
Guarantor other than their rights in relation to holders of Guarantor
Senior Indebtedness; or
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(iii) prevent the Trustee or any Holder from exercising its available
remedies upon a Default or Event of Default, subject to the rights of
holders and owners of Guarantor Senior Indebtedness to receive
distributions and payments otherwise payable to Holders.
j. SUBORDINATION MAY NOT BE IMPAIRED BY THE GUARANTOR. No right
of any holder of Guarantor Senior Indebtedness to enforce the subordination
of the Indebtedness evidenced by the Guarantee shall be impaired by any act
or failure to act by the Guarantor or any Holder or by the failure of the
Guarantor or any Holder to comply with this Guarantee.
k. DISTRIBUTION OR NOTICE TO REPRESENTATIVE. Whenever a
distribution is to be made or a notice given to holders of Guarantor Senior
Indebtedness, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the Guarantor
referred to in this Section 8, the Trustee and the Holders shall be entitled
to rely upon any order or decree made by any court of competent jurisdiction
or upon any certificate of such Representative or of the liquidating trustee
or agent or other Person making any distribution to the Trustee or to the
Holders for the purpose or ascertaining the Persons entitled to participate
in such distribution, the holders of Guarantor Senior Indebtedness and other
Indebtedness of the Guarantor, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Section 8.
l. RIGHTS OF TRUSTEE AND PAYING AGENT. Notwithstanding the
provisions of this Section 8 or any other provision of the Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts
that would prohibit the making of any payment or distribution by the Trustee,
and the Trustee and the Paying Agent may continue to make payments on the
Guarantee, unless the Trustee shall have received at its Corporate Trust
Office at least five Business Days prior to the date of such payment written
notice of facts that would cause the payment of any Obligations with respect
to the Guarantee to violate this Section 8. Only the Guarantor or a
Representative may give the notice. Nothing in this Section 8 shall impair
the claims of, or payments to, the Trustee under or pursuant to Section 7.7
of the Indenture.
The Trustee shall be entitled to rely on the delivery to it of a
written notice by a person representing himself to be a holder of Guarantor
Senior Indebtedness (or a Representative of such holder) to establish that
such notice has been given by a holder of Guarantor Senior Indebtedness (or a
Representative of any such holder). In the event that the Trustee determines
in good faith that further evidence is required with respect to the right of
any person as a holder of Guarantor Senior Indebtedness to participate in any
payment or distribution pursuant to this Section 8, the Trustee may request
such person to furnish evidence to the reasonable satisfaction of the Trustee
as to the amount of Guarantor Senior Indebtedness held by such person, the
extent to which such person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such person under
this Section 8, and if such evidence is not furnished, the Trustee may defer
any payment which it may be required to make for the benefit
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of such person pursuant to the terms of this Guarantee pending judicial
determination as to the rights of such Person to receive such payment.
The Trustee in its individual or any other capacity may hold
Guarantor Senior Indebtedness with the same rights it would have if it were
not Trustee. Any Agent may do the same with like rights.
m. AUTHORIZATION TO EFFECT SUBORDINATION. Each Holder of a
Security by the Holder's acceptance thereof authorizes and directs the
Trustee on the Holder's behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Section 8,
and appoints the Trustee to act as the Holder's attorney-in-fact for any and
all such purposes. If the Trustee does not file a proper proof of claim or
proof of debt in the form required in any proceeding referred to in Section
6.9 of the Indenture at least 30 days before the expiration of the time to
file such claim, the holders of Guarantor Senior Indebtedness (or a
Representative of any such holder) are hereby authorized to file an
appropriate claim for and on behalf of the Holders.
n. AMENDMENTS. The provisions of this Section 8 shall not be
amended or modified without the written consent of the holders of all
Guarantor Senior Indebtedness.
9. MERGER, CONSOLIDATION OR SALE OF ASSETS.
a. The Guarantor may not, in a single transaction or series of
transactions, consolidate with or merge with or into (whether or not the
Guarantor is the surviving Person) another corporation, Person or entity,
whether or not affiliated with the Guarantor, unless (i) subject to the
provisions of Section 9(b), the Person formed by or surviving any such
consolidation or merger (if other than the Guarantor) assumes all the
obligations of the Guarantor, pursuant to a supplemental Guarantee in form
and substance reasonably satisfactory to the Trustee, under the Guarantee;
(ii) immediately after giving effect to such transaction, no Default or Event
of Default exists; (iii) except in the case of a merger of the Guarantor with
or into a Wholly Owned Subsidiary of the Guarantor, the Guarantor or the
entity or Person formed by or surviving any such consolidation or merger (if
other than the Guarantor), or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made will, after
giving pro forma effect thereto as if such transaction had occurred at the
beginning of the applicable four-quarter period, be permitted to incur at
least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in Section 4.4 of the Indenture or after giving pro
forma effect thereto as if such transaction had occurred at the beginning of
the applicable four-quarter period, the Fixed Charge Coverage Ratio of the
Guarantor or such Person, as the case may be, shall be at least 1.75 to 1 and
greater than the consolidated Fixed Charge Coverage Ratio of the Guarantor
prior to giving pro forma effect to such transaction.
b. In the event of a sale or other disposition of all of the
assets of the Guarantor, by way of merger, consolidation or otherwise, or a
sale or other disposition of all of the capital stock of the Guarantor, then
the Guarantor (in the event of a sale or other disposition, by way of such a
merger, consolidation or otherwise, of all of the capital stock of the
Guarantor) or the
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corporation acquiring the property (in the event of a sale or other
disposition of all of the assets of the Guarantor) will be released and
relieved of any obligations under this Guarantee; provided that the Net
Proceeds of such sale or other disposition are applied in accordance with
Section 4.5 of the Indenture. In addition, in the event the Board of
Directors of the Company designates the Guarantor to be an Unrestricted
Subsidiary, then the Guarantor shall be released and relieved of any
obligations under this Guarantee; provided that such designation is conducted
in accordance with the applicable provisions of the Indenture.
10. MISCELLANEOUS.
a. BENEFITS OF GUARANTEE; SUCCESSORS AND ASSIGNS. Nothing in this
Guarantee, expressed or implied, shall give to any person, other than
Trustee, the Holders and their respective successors, transferees and assigns
hereunder, any benefit or any legal or equitable rights, remedy or claim
under this Guarantee. This Guarantee shall be binding upon the Guarantor,
its successors and assigns, and inure, together with the rights and remedies
of Trustee hereunder, to the benefit of Trustee, the Holders and their
respective successors, transferees and assigns. The Guarantor shall not,
without the prior written consent of Trustee, assign any rights, duties or
obligations under this Guarantee.
b. NOTICES. All notices, demands and other communications
hereunder shall be given and shall be effective in accordance with the
Indenture, except that notices to the Guarantor shall be given to its address
set forth on the signature page hereof, or to such other address as the
Guarantor may specify in writing from time to time to the Trustee.
c. AMENDMENTS. Neither this Guarantee nor any provision hereof
may be amended, modified, waived, discharged or terminated other than
pursuant to the provisions of the Indenture.
d. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES,
PARTNERS AND STOCKHOLDERS. No past, present or future director, officer,
employee, incorporator, partner or stockholder of the Guarantor, as such,
shall have any liability for any obligations of the Guarantor under this
Guarantee or for any claim based on, in respect of, or by reason of, this
Guarantee. Each Holder by accepting a Security has waived and released all
such liability. The waiver and release are past of the consideration for
issuance of this Guarantee.
e. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS, SHALL GOVERN AND BE USED
TO CONSTRUE THIS GUARANTEE.
f. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. This Guarantee
may not be used to interpret any other guarantee, indenture, loan or debt
agreement of the Company, the Guarantor or their respective Subsidiaries or
of any other Person. Any such guarantee, indenture, loan or debt agreement
may not be used to interpret this Guarantee.
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g. SUCCESSORS. All agreements of the Guarantor in this Guarantee
shall bind its successors. All agreements of the Trustee in this Guarantee
shall bind its successors.
h. SEVERABILITY. In case any provision in this Guarantee 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.
i. COUNTERPART ORIGINALS. The parties may sign any number of
copies of this Guarantee. Each signed copy shall be an original, but all of
them together represent the same agreement.
j. HEADINGS, ETC. The headings of the sections of this Guarantee
have been inserted for convenience of reference only, are not to be
considered a part of this Guarantee and shall in no way modify or restrict
any of the terms or provisions hereof.
(Signature Pages Follow)
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IN WITNESS WHEREOF, the undersigned Guarantor has caused this
instrument to be duly executed and delivered to the Trustee as of the date
first above written.
[GUARANTOR]
[Address]
By:
--------------------------------
Name:
Title:
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