1
EXHIBIT 4.44
HORSESHOE GAMING, L.L.C.,
Issuer,
THE GUARANTOR NAMED HEREIN
and
U.S. Trust Company of Texas, N.A.,
Trustee
INDENTURE
Dated as of June 15, 1997
UP TO
$160,000,000
9 3/8% Series A Senior Subordinated Notes Due 2007
and
UP TO
$160,000,000
9 3/8% Series B Senior Subordinated Notes Due 2007
2
HORSESHOE GAMING, L.L.C.
Reconciliation and tie between Trust Indenture Act of 1939 and Indenture, dated
as of June 15, 1997.
Trust Indenture Act Section Indenture Section
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 7.8, 7.10, 15.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.3
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.3
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6,15.2
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . 4.8,15.2
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . Article XIII
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.5
(f) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . 7.1(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . .7.5, 7.6, 13.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.12, 7.1(c)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
Section 316(a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . 2.9
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.12
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8
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Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 15.1
___________________
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
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CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2 Incorporation by Reference of TIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 1.3 Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE II
THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.1 Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.2 Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.3 Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.4 Paying Agent to Hold Assets in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.5 Holder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.6 Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 2.7 Replacement Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 2.8 Outstanding Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 2.9 Treasury Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 2.10 Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 2.11 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 2.12 Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE III
REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 3.1 Right of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 3.2 Regulatory Redemption Pursuant to Gaming Laws . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 3.3 Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 3.4 Selection of Notes to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 3.6 Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 3.7 Effect of Deposit by the Company with the Paying Agent . . . . . . . . . . . . . . . . . . . . 42
Section 3.8 Notes Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 3.9 Mandatory Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE IV
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 4.1 Payment of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 4.2 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 4.3 Limitation on Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 4.4 Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 4.5 Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 4.6 Maintenance of Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
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Section 4.7 Compliance Certificates; Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 4.8 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 4.9 Waiver of Stay, Extension or Usury Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 4.10 Limitation on Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 4.11 Limitation on Incurrence of Additional Indebtedness and Disqualified Capital . . . . . . . . . 50
Section 4.12 Limitation on Dividends and Other Payment Restrictions Affecting Subsidiaries . . . . . . . . . 52
Section 4.13 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 4.14 Limitation on Sale of Assets and Subsidiary Capital; Event of Loss . . . . . . . . . . . . . . 53
Section 4.15 Limitation on Lines of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 4.16 Limitation on Status as Investment Company . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 4.17 Additional Subsidiary Guarantors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 4.18 Limitation on Other Senior Subordinated Debt . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE V
SUCCESSOR CORPORATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 5.1 Limitation on Consolidation, Merger and Sale of Assets . . . . . . . . . . . . . . . . . . . . 58
Section 5.2 Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 6.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 6.2 Acceleration of Maturity Date, Rescission and Annulment . . . . . . . . . . . . . . . . . . . . 62
Section 6.3 Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . . 64
Section 6.4 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 6.5 Trustee May Enforce Claims Without Possession of Notes . . . . . . . . . . . . . . . . . . . . 65
Section 6.6 Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 6.7 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 6.8 Unconditional Right of Holders to Receive Principal, Premium and Interest . . . . . . . . . . . 67
Section 6.9 Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 6.10 Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 6.11 Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 6.12 Waiver of Past Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 6.13 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 6.14 Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE VII
TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 7.1 Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 7.3 Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
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Section 7.4 Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 7.5 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 7.6 Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 7.7 Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 7.8 Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 7.9 Successor Trustee by Merger, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 7.10 Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 7.11 Preferential Collection of Claims against Company . . . . . . . . . . . . . . . . . . . . . . . 74
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 8.1 Option to Effect Legal Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . 75
Section 8.2 Legal Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 8.3 Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 8.4 Conditions to Legal or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 8.5 Deposited U.S. Legal Tender and U.S. Government Obligations to be Held in Trust; Other
Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 8.6 Repayment to the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 8.7 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 8.8 Termination of Obligations Upon Cancellation of the Notes . . . . . . . . . . . . . . . . . . . 78
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 9.1 Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . 79
Section 9.2 Amendments, Supplemental Indentures and Waivers with Consent of Holders . . . . . . . . . . . . 80
Section 9.3 Compliance with TIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 9.4 Revocation and Effect of Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 9.5 Notation on or Exchange of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 9.6 Trustee to Sign Amendments, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
ARTICLE X
MEETINGS OF HOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 10.1 Purposes for Which Meeting May Be Called . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 10.2 Manner of Calling Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 10.3 Call of Meetings by Company or Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 10.4 Who May Attend and Vote at Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 10.5 Regulations May Be Made by Trustee; Conduct of the Meeting; Voting Rights; Adjournment . . . . 84
Section 10.6 Voting at the Meeting and Record to Be Kept . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 10.7 Exercise of Rights of Trustee or Holders May Not Be Hindered or Delayed by Call of Meeting . . 86
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ARTICLE XA
SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 10A.1 Agreement to Subordinate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 10A.2 Liquidation; Dissolution; Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 10A.3 Default on Designated Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 10A.4 Acceleration of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 10A.5 When Distribution Must be Paid Over . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 10A.6 Notice By the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 10A.7 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 10A.8 Relative Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 10A.9 Subordination May Not Be Impaired By the Company . . . . . . . . . . . . . . . . . . . . . . . 89
Section 10A.10 Distribution or Notice to Representative . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Section 10A.11 Rights of Trustee and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Section 10A.12 Authorization To Effect Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 10A.13 Legend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 10A.14 No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 10A.15 Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
ARTICLE XI
RIGHT TO REQUIRE REPURCHASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Section 11.1 Repurchase of Notes at the Option of the Holder Upon a Change of Control . . . . . . . . . . . 92
ARTICLE XII
GUARANTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Section 12.2 Execution and Delivery of Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Section 12.3 Certain Bankruptcy Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 12.4 Release of Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
ARTICLE XIII
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 13.1 TIA Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 13.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 13.3 Communications by Holders with Other Holder . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Section 13.4 Certificate and Opinion as to Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . 98
Section 13.5 Statements Required in Certificate or Opinion . . . . . . . . . . . . . . . . . . . . . . . . . 99
Section 13.6 Rules by Trustee, Paying Agent, Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Section 13.7 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Section 13.8 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Section 13.9 No Adverse Interpretation of Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . 100
Section 13.10 No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Section 13.11 Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Section 13.12 Duplicate Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Section 13.13 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
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Section 13.14 Table of Contents, Headings, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
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This INDENTURE, dated as of June 15, 1997, is by and among Horseshoe
Gaming, L.L.C., a Delaware limited liability company (the "Company"), the
Xxxxxxxx Property Group, Limited Partnership, a Mississippi limited partnership
("RPG" or the "Guarantor"), and U.S. Trust Company of Texas, N.A., as Trustee
(the "Trustee"). Each party hereto agrees as follows for the benefit of the
other parties hereto and for the equal and ratable benefit of the Holders of
the Company's 9 3/8% Senior Subordinated Notes Due 2007 (the "Series A Notes")
and the Company's 9 3/8% Senior Subordinated Notes Due 2007 to be issued in
exchange for the Series A Notes pursuant to the terms of the Registration
Rights Agreement (as hereafter defined) (the "Series B Notes" and, together
with the Series A Notes, the "Notes"):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
"Acceleration Notice" shall have the meaning specified in Section 6.2.
"Acceptance Amount" shall have the meaning specified in Section
4.14(f).
"Acquired Indebtedness" means, with respect to a person, Indebtedness
of another person existing at the time such person becomes a Subsidiary of the
subject person or is merged or consolidated into or with the subject person or
one of its Subsidiaries, and not incurred in connection with or in anticipation
of such merger or consolidation or such other person becoming a Subsidiary of
such subject person.
"Acquisition" means the purchase or other acquisition of any person or
substantially all the assets of any person by any other person, whether by
purchase of Capital or assets, merger, consolidation or other transfer, and
whether or not for consideration.
"Additional Guarantor" shall have the meaning specified in Section
4.17.
"Adjusted Consolidated EBITDA" means, with respect to the Company, for
any period, the Consolidated EBITDA of the Company, minus the product of (i)
the Consolidated EBITDA for such period of each Consolidated Subsidiary which
is not wholly- owned by the Company and (ii) the percentage of the Capital of
such Consolidated Subsidiary which, during such period, is not owned by the
Company.
"Adjusted Consolidated Net Income" means, with respect to any period,
Consolidated Net Income for such period, minus (i) 100% of the amount of any
writedowns, writeoffs or negative extraordinary charges not otherwise reflected
in Consolidated Net Income during such period and minus (ii) Permitted Tax
Distributions for such period.
"Affiliate" means (i) any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or
any of its Subsidiaries, including,
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without limitation, Xxxx Xxxxxx and Xxxxxxx Xxxx, (ii) any spouse, immediate
family member or other relative of any person described in clause (i) above,
(iii) any trust in which any person described in clause (i) or (ii) above has a
beneficial interest, and (iv) any trust established by any person described in
clause (i) or (ii) above, whether or not such person has a beneficial interest
in such trust. For purposes of this definition, the term "control" means (a)
the power to direct the management and policies of a person, directly or
through one or more intermediaries, whether through the ownership of voting
securities, by contract or otherwise, or (b) the beneficial ownership of 10% or
more of any class of voting Capital of a person, unless some other person
beneficially owns a greater percentage of any class of voting Capital of such
person.
"Affiliate Transaction" shall have the meaning specified in Section
4.10.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Applicable Capital Gains Tax Rate" in respect of each of the Company
or any of its Subsidiaries shall mean for each such entity calculated
separately an amount equal to the sum of (i) the highest marginal federal
capital gains tax rate applicable to any Equity Holder of the Company, plus
(ii) an amount equal to the sum of the highest marginal state and local capital
gains tax rates applicable to any Equity Holder of the Company, multiplied by a
factor equal to 1 minus such highest marginal federal capital gains tax rate.
"Applicable Income Tax Rate" in respect of each of the Company or any
of its Subsidiaries shall mean for each such entity calculated separately, an
amount equal to the sum of (i) the highest marginal federal income tax rate
applicable to any Equity Holder of the Company, plus (ii) an amount equal to
the sum of the highest marginal state and local income tax rates applicable to
any Equity Holder of the Company, multiplied by a factor equal to 1 minus such
highest marginal federal income tax rate.
"Asset Sale" shall have the meaning specified in Section 4.14(a).
"Asset Sale Event of Loss Offer" shall have the meaning specified in
Section 4.14(e).
"Asset Sale Event of Loss Offer Amount" shall have the meaning
specified in Section 4.14(c).
"Asset Sale Event of Loss Offer Price" shall have the meaning
specified in Section 4.14(e).
"Asset Sale Event of Loss Purchase Date" shall have the meaning
specified in Section 4.14(e).
"Asset Sale Event of Loss Put Date" shall have the meaning specified
in Section 4.14(e)(5).
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"Average Life" means, as of the date of determination, with respect to
any security or instrument, the quotient obtained by dividing (i) the sum of
the product of the number of years from the date of determination to the date
of each successive scheduled principal (or redemption) payment of such security
or instrument multiplied by the amount of each such respective principal (or
redemption) payment by (ii) the sum of all such principal (or redemption)
payments.
"B&O" means B&O Development Limited Partnership, a Nevada limited
partnership.
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal,
state or foreign law for the relief of debtors.
"Beneficial Owner" for purposes of the definition of Change of Control
has the meaning attributed to it in Rules 13d-3 and 13d-5 under the Exchange
Act, whether or not applicable, except that a "person" shall be deemed to have
"beneficial ownership" of all shares that any such person has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time.
"Board of Managers" means, with respect to any person that is a
limited liability company, either the sole Manager of such person or, if there
is more than one Manager, the Managers of such person, acting as a group, or
any committee of the Managers of such person authorized, with respect to any
particular matter, to exercise the power of the Managers.
"Board Resolution" means with respect to any person, a duly adopted
resolution of the Board of Managers, Board of Directors or general partner or
partners, as applicable, of such person.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in New York, New York or
Los Angeles, California are authorized or obligated by law or executive order
to close.
"Capital" means (i) with respect to any corporation, any and all
shares of stock issued by that corporation and (ii) with respect to any other
person, any partnership interest, joint venture interest, limited liability
company member interest or other form of equity sharing or participation
interest, as applicable and (iii) warrants, options, participations or other
equivalents of or interests (however designated) in any of the items described
in clause (i) or (ii) above.
"Capitalized Lease Obligation" means rental obligations under a lease
that are required to be capitalized for financial reporting purposes in
accordance with GAAP, and the amount of indebtedness represented by such
obligations shall be the capitalized amount of such obligations, as determined
in accordance with GAAP.
"Cash" means U.S. Legal Tender.
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"Cash Equivalent" means (i) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof), (ii) time deposits and
certificates of deposit having a maturity not greater than one year of any
domestic commercial bank, or U.S. branch of a foreign bank, of recognized
standing having capital and surplus in excess of five hundred million dollars
($500,000,000), and time deposits and certificates of deposit having a maturity
not greater than one year of other banks located in jurisdictions where the
Company and its Subsidiaries do business; provided, however, the aggregate
amount of all time deposits and certificates of deposit of such other banks may
not exceed five million dollars ($5,000,000), (iii) commercial paper rated at
the time of purchase at least A-2 or the equivalent thereof by Standard &
Poor's Corporation or at least P-2 or the equivalent thereof by Xxxxx'x
Investors Service, Inc. and maturing within one year after the date of
acquisition, (iv) repurchase obligations with a term of not more than ten (10)
days for underlying securities of the types described in clause (i) above
entered into with any bank meeting the qualifications specified in clause (ii)
above, (v) marketable obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing, or payable at the demand of the holder
thereof, within one year from the date of acquisition thereof and, at the time
of acquisition, having one of the three highest ratings obtainable from either
Standard & Poor's Corporation or Xxxxx'x Investors Service, Inc., (vi)
investments in money market funds substantially all of whose assets comprise
securities of the types described in clauses (i) through (v) above, including,
to the extent such funds meet the above criteria, funds for which the Trustee
acts as investment advisor, (vii) Credit Facility Notes, (viii) Senior Notes,
and (ix) Notes.
"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, marina vessel,
barge, ship and equipment.
"Change of Control" means (i) prior to the completion of a bona fide
underwritten initial public offering by the Company, the failure at any time of
Excluded Persons as a group to own and control at least 40% of the issued and
outstanding Capital of the Company; (ii) after the completion of a bona fide
underwritten initial public offering by the Company, the acquisition, in one or
more transactions, of beneficial ownership by (A) any person or entity (other
than an Excluded Person) or (B) any group of persons or entities (excluding any
group in which Excluded Persons beneficially own in the aggregate at least 75%
of the equity and voting interests beneficially owned by the group) who
constitute a group (within the meaning of Section 13(d)(3) of the Exchange
Act), in either case, of Capital of the Company such that, as a result of such
acquisition, such person, entity or group beneficially owns (within the meaning
of Rule 13d-3 under the Exchange Act), directly or indirectly, 30% or more of
the voting power of the Capital of the Company entitled to vote in the election
of directors, managers, general partners or other similar governing bodies of
the Company then outstanding; provided, however, that no Change of Control
shall be deemed to have occurred if (A) Excluded Persons beneficially own, in
the aggregate, at such time, a greater percentage of the total voting power of
the Capital of
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the Company entitled to vote in the election of directors, managers, general
partners or other similar governing bodies of the Company than such other
person, entity or group or (B) at the time of such acquisition, Excluded
Persons (or any of them) possess the ability (by contract or otherwise) to
elect, or cause the election, of a majority of the members of the Company's
Board of Managers; (iii) any merger or consolidation of the Company with or
into any person or any sale, transfer or other conveyance, whether direct or
indirect, of all or substantially all of the assets of the Company, on a
consolidated basis, in one transaction or a series of related transactions, if
immediately after giving effect to such transaction or transactions, any person
or group (other than Excluded Persons or groups including Excluded Persons to
the extent contemplated by clause (i) or (ii) above, whichever is then
applicable) is or becomes the Beneficial Owner, directly or indirectly, of more
than the percentage of the Capital of the Company contemplated by clause (i) or
(ii) above, whichever is then applicable; or (iv) during any period of 12
consecutive months after the Issue Date, individuals who at the beginning of
any such 12- month period constituted the Board of Managers of the Company
(together with any new Managers whose election by such Board or whose
nomination for election by the Members of the Company was approved by a vote of
a majority of the Managers then still in office who were either Managers at the
beginning of such period or whose election or nomination for election was
previously so approved), cease for any reason to constitute a majority of the
Managers of the Company then in office.
"Change of Control Offer" shall have the meaning specified in Section
11.1.
"Change of Control Offer Period" shall have the meaning specified in
Section 11.1.
"Change of Control Offer Price" shall have the meaning specified in
Section 11.1.
"Change of Control Payment Date" shall have the meaning specified in
Section 11.1.
"Change of Control Put Date" shall have the meaning specified in
Section 11.1.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor.
"Consolidated Coverage Ratio" of any person on any date of
determination (the "Transaction Date") means the ratio, on a pro forma basis,
of (a) the aggregate amount of Consolidated EBITDA of such person (in the case
of the Company, Adjusted Consolidated EBITDA) attributable to continuing
operations and businesses (exclusive of amounts attributable to operations and
businesses permanently discontinued or disposed of prior to the Transaction
Date) to (b) the aggregate Consolidated Fixed Charges of such person (exclusive
of amounts attributable to operations and businesses permanently discontinued
or disposed of prior to the Transaction Date but only to the extent that the
obligations giving rise to such Consolidated Fixed Charges would no longer be
obligations contributing to such person's Consolidated Fixed Charges subsequent
to the Transaction Date) during the Reference Period; provided, however, that
for purposes of such calculation, (i) Acquisitions which occurred during the
Reference
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Period or subsequent to the Reference Period and on or prior to the Transaction
Date shall be given pro forma effect as if they had occurred on the first day
of the Reference Period, (ii) transactions giving rise to the need to calculate
the Consolidated Coverage Ratio shall be given pro forma effect as if they had
occurred on the first day of the Reference Period, (iii) the incurrence of any
Indebtedness or issuance of any Disqualified Capital during the Reference
Period or subsequent to the Reference Period and on or prior to the Transaction
Date (and the application of the proceeds therefrom to the extent used to
refinance or retire other Indebtedness) shall be given pro forma effect as if
they had occurred on the first day of such Reference Period, and (iv) the
Consolidated Fixed Charges of such person attributable to any Indebtedness or
any Disqualified Capital bearing a floating interest (or dividend) rate shall
be computed on a pro forma basis as if the average rate in effect from the
beginning of the Reference Period to the Transaction Date had been the
applicable rate for the entire period, unless such person or any of its
Subsidiaries is a party to an Interest Swap and Hedging Obligation (which shall
remain in effect for the 12-month period immediately following the Transaction
Date) that has the effect of fixing the interest rate on the date of
computation, in which case such rate (whether higher or lower) shall be used.
"Consolidated Debt" means, with respect to any person, as of a
specific date, all Indebtedness of such person and its Consolidated
Subsidiaries as of such date, determined in accordance with GAAP.
"Consolidated Depreciation and Amortization" for any person for any
period means the total depreciation and amortization for such person and its
Consolidated Subsidiaries for such period, as determined in accordance with
GAAP.
"Consolidated EBITDA" means, with respect to any Person, for any
period, the Consolidated Net Income of such person for such period adjusted to
add thereto (to the extent deducted from net revenues in determining
Consolidated Net Income), without duplication, the sum of (i) Consolidated
Income Tax Expense, (ii) Consolidated Depreciation and Amortization Expense,
(iii) Consolidated Fixed Charges, (iv) Consolidated Preopening Expenses and (v)
the minority interest in income of Consolidated Subsidiaries and adjusted to
deduct therefrom the minority interest in the losses of Consolidated
Subsidiaries; provided that for purposes of this clause (v) there shall be
excluded from the definitions of income and loss (only to the extent included
in computing such net income (or loss) and without duplication) the items
described in clauses (a), (b), (c), (d) and (e) of the definition of
Consolidated Net Income.
"Consolidated Fixed Charges" of any person means, for any period, the
aggregate amount (without duplication and determined in each case in accordance
with GAAP) of (a) interest expense of such person for such period, whether
expensed or capitalized, paid or accrued (including, in accordance with the
following sentence, interest attributable to Capitalized Lease Obligations), of
such person and its Consolidated Subsidiaries during such period, including,
without limitation, to the extent such expense was deducted in computing
Consolidated Net Income for such period (i) amortization of original issue
discount and non-cash interest payments or accruals on any Indebtedness, (ii)
the interest portion of all deferred payment
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obligations that constitute Indebtedness and (iii) all commissions, discounts
and other fees and charges owed with respect to bankers' acceptances and letter
of credit financings and Interest Swap and Hedging Obligations, and (b) the
amount of dividends payable, whether expensed or capitalized, paid or accrued,
by such person or any of its Consolidated Subsidiaries in respect of
Disqualified Capital (other than by Subsidiaries of such person to such person
or such person's wholly-owned Subsidiaries). For purposes of this definition,
(x) interest on a Capitalized Lease Obligation shall be deemed to accrue at an
interest rate reasonably determined by the Company to be the rate of interest
implicit in such Capitalized Lease Obligation in accordance with GAAP and (y)
interest expense attributable to any Indebtedness represented by the guarantee
by such person or a Subsidiary of such person of an obligation of another
person shall be deemed to be the interest expense attributable to the
Indebtedness guaranteed.
"Consolidated Income Tax Expense" for any person for any period means
the total net income tax expense for such person and its Consolidated
Subsidiaries for such period, as determined in accordance with GAAP.
"Consolidated Net Income" means, with respect to any person for any
period, the net income (or loss) of such person and its Consolidated
Subsidiaries (determined in accordance with GAAP) for such period, adjusted to
exclude (only to the extent included in computing such net income (or loss) and
without duplication): (a) all gains and losses which are either extraordinary
(as determined in accordance with GAAP) or are either unusual or nonrecurring
(including, without limitation, from the sale of assets outside of the ordinary
course of business, from the issuance or sale of any Capital or from the
repayment, cancellation or redemption of Indebtedness), (b) the net income, if
positive, of any person, other than a Consolidated Subsidiary, in which such
person or any of its Consolidated Subsidiaries has an interest, except to the
extent of the amount of any dividends or distributions actually paid in cash to
such person or a Consolidated Subsidiary of such person during such period, but
not in excess of such person's pro rata share of such person's net income for
such period, (c) the net income (or loss), of any person acquired in a pooling
of interests transaction for any period prior to the date of such acquisition,
(d) the net income, if positive, of any of such person's Consolidated
Subsidiaries to the extent that the declaration or payment of dividends or
similar distributions is not at the time permitted by operation of the terms of
its charter or bylaws or any other agreement, instrument, judgment, decree,
order, law, statute, rule or governmental regulation (other than any Gaming Law
that is generally applicable to all persons operating Casinos through
Subsidiaries in any jurisdiction in which the Company or such Subsidiary is
conducting business so long as there is in effect no specific order, decree or
other prohibition pursuant to such Gaming Law in such jurisdiction limiting the
payment of a dividend or similar distribution by such a Consolidated
Subsidiary) applicable to such Consolidated Subsidiary and (e) the cumulative
effect of a change in accounting principles.
"Consolidated Net Worth" of any person at any date means the aggregate
of capital, surplus and retained earnings of such person and its Consolidated
Subsidiaries, as would be shown on the consolidated balance sheet of such
person prepared in accordance with GAAP, adjusted to exclude (to the extent
included in calculating such equity) and without duplication
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(a) the amount of capital, surplus and accrued but unpaid dividends
attributable to any Disqualified Capital or treasury Capital of such person or
any of its Consolidated Subsidiaries and (b) all upward reevaluations and other
write-ups in the book value of any asset of such person or a Consolidated
Subsidiary of such person subsequent to the Issue Date.
"Consolidated Preopening Expenses" means those costs incurred prior to
the commencement of a new operation, including payroll, consulting fees, legal
expenses, licensing, supplies, travel, printing, relocation expenses, temporary
housing and other similar expenses that are not required, in accordance with
GAAP, to be capitalized or expensed when incurred but are acceptable in
accordance with GAAP to be deferred until the new operation commences.
"Consolidated Subsidiary" means, for any person, each Subsidiary of
such person (whether now existing or hereafter created or acquired) the
financial statements of which shall be (or should have been) consolidated for
financial statement reporting purposes with the financial statements of such
person in accordance with GAAP.
"Covenant Defeasance" shall have the meaning specified in Section 8.3.
"Credit Facility" means the credit agreement, dated as of October 10,
1995 among the Company, RPG and the Credit Facility Purchasers, and any other
credit arrangements that are either Pari Passu with the Credit Facility or
subordinated to the Senior Notes that together (subject to the succeeding
sentence) provide for no greater than an aggregate principal balance of one
hundred fifty million dollars ($150,000,000) in Indebtedness or any substitute
therefor, including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith, as such Credit
Facility and/or related documents may be amended, restated, supplemented,
renewed, replaced or otherwise modified from time to time (subject, in the case
of any increase in the Indebtedness under the Credit Facility, to the proviso
in clause (iii) of the succeeding sentence) whether or not with the same agent,
trustee, representative lenders or holders, and, subject to the proviso to the
next succeeding sentence, irrespective of any changes in the terms and
conditions thereof (including without limitation any amendment thereof to
provide for a revolving loan facility); provided, however, that no entity shall
be admitted as the agent, manager or majority participant in respect of the
Credit Facility unless such entity is a bank, savings association or other
financial institution subject to regulation by federal or state regulatory
authorities, a foreign financial institution subject to equivalent regulation
by foreign regulatory authorities, or a foreign or domestic institutional
lender engaged in the ordinary course of its business in lending activities
similar to the Credit Facility and having assets of at least $500 million.
Without limiting the generality of the foregoing, the term "Credit Facility"
shall include agreements in respect of Interest Swap and Hedging Obligations
and Currency Exchange Protection Agreements with lenders party to the Credit
Facility and (subject, in the case of any increase in the Indebtedness under
the Credit Facility, to the proviso in clause (iii) below) shall also include
any amendment, amendment and restatement, renewal, extension, restructuring,
supplement or modification to the Credit Facility and all refundings,
refinancings and replacements of the Credit Facility, and all refundings,
refinancings and replacements thereafter, including any agreement (i) extending
the maturity of any Indebtedness
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incurred thereunder or contemplated thereby, (ii) adding or deleting borrowers,
issuers or guarantors thereunder, so long as such borrowers, issuers and
guarantors include one or more of the Company and its Subsidiaries and their
respective successors and assigns, (iii) increasing the amount of Indebtedness
incurred thereunder or available to be borrowed thereunder; provided, however,
that on the date such additional Indebtedness is incurred the incurrence
thereof is permitted pursuant to paragraph (a) of Section 4.11 hereof or (iv)
otherwise altering the terms and conditions thereof in a manner not prohibited
by the terms hereof.
"Credit Facility Notes" means the Credit Facility Notes issued in
accordance with the Credit Facility, as amended or modified from time to time
in accordance with the terms thereof.
"Credit Facility Purchasers" shall mean the purchasers of the Credit
Facility Notes issued by the Company pursuant to the Credit Facility.
"Currency Exchange Protection Agreement" means, in respect of a
Person, any foreign exchange contract, currency swap agreement, currency option
or other similar agreement or arrangement designed to protect such Person
against fluctuations in currency exchange rates.
"Current Market Price" on any date means the arithmetic mean of the
Quoted Price of the Notes for the twenty (20) consecutive trading days
commencing thirty (30) days before such date.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Defaulted Interest" shall have the meaning specified in Section 2.12.
"Definitive Notes" means Notes that are in the form of the Note
attached hereto as Exhibit A but without the paragraphs referred to in footnote
1 and footnote 2 and without the additional schedule referred to in footnote 3.
"Delayed Permitted Tax Distributions" shall have the meaning set forth
in Section 4.3(c)(i).
"Depositing Subsidiary" shall have the meaning set forth in Section
4.3(b)(ii).
"Depository" means, with respect to the Notes issuable or issued in
whole or in part in global form, the person specified in Section 2.3 as the
Depository with respect to the Notes, until the successor shall have been
appointed and becomes such pursuant to the applicable provisions of this
Indenture, and, thereafter, "Depository" shall mean or include such successor.
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"Designated Senior Debt" means (a) any Indebtedness under the Credit
Facility, (b) any Indebtedness under the Senior Indenture and (c) any other
Senior Debt permitted to be incurred pursuant to the Indenture the principal
amount of which is $25 million or more and which has been designated by the
Managers as "Designated Senior Debt."
"Disqualified Capital" means (a) except as provided in clause (b)
below, with respect to any person, Capital of such person that, by its terms or
by the terms of any security into which it is convertible, exercisable or
exchangeable, is, or upon the happening of an event or the passage of time
would be, required to be redeemed or repurchased (including at the option of
the holder thereof) by such person or any of its Subsidiaries, in whole or in
part, on or prior to the Stated Maturity of the Notes and (b) with respect to
any Subsidiary of such person (including any Subsidiary of the Company), any
Capital other than any common stock or other common equity interest with no
special rights and no preferences, privileges, or redemption or repayment
provisions; provided that a provision providing for a change of control
redemption at the option of the holder that is expressly subordinated to the
prior payment of the Notes shall not cause such Capital to be treated as
Disqualified Capital. For purposes of Section 4.11, the amount of Disqualified
Capital of any person shall be the sum of the liquidation payment or maximum
redemption price (whichever is higher at the time of measurement) of such
Disqualified Capital and, if there are any accrued and unpaid dividends at the
time of the measurement of the amount of Disqualified Capital which would be
required to be paid upon liquidation or redemption, (without duplication) such
accrued but unpaid dividends.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute.
"Equity Holder" means (a) with respect to a limited liability company,
each member of such limited liability company and (b) with respect to a
partnership, each partner of such partnership.
"Event of Default" shall have the meaning specified in Section 6.1.
"Event of Loss" means, with respect to any property or asset, any (i)
loss, destruction or damage of such property or asset; or (ii) any
condemnation, seizure or taking, by exercise of the power of eminent domain or
otherwise, of such property or asset, or confiscation or requisition of the use
of such property or asset.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"Exchange Offer" means the offer by the Company and the Guarantor to
exchange the Series A Notes and Guarantee thereof for the Series B Notes and
Guarantee thereof made pursuant to the Registration Rights Agreement.
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"Exchange Offer Registration Statement" shall mean the registration
statement filed by the Company and the Guarantor pursuant to the Registration
Rights Agreement with respect to the Exchange Offer.
"Excluded Person" means (a) the Company or any Subsidiary of the
Company, (b) any employee benefit plan of the Company or any trustee or similar
fiduciary holding Capital of the Company for or pursuant to the terms of any
such plan, (c) Xxxx Xxxxxx, (d) Xxxxxxx Xxxx and (e) members of the families
and Affiliates (where the determination of whether a person is an Affiliate is
made without reference to clause (b) of the definition of such term) of the
foregoing persons.
"GAAP" means United States generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession as 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
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 Mississippi Gaming
Control Act, The Louisiana Riverboat Economic Development and Gaming Control
Act and the Missouri Riverboat Gaming Act, Mo. Rev. Stat. Section 313.800 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 Licenses" means every material license, material franchise, or
other material authorization required to own, lease, operate or otherwise
conduct or manage riverboat, dockside or land based gaming in any state or
jurisdiction in which the Company or any Subsidiary conducts business now or in
the future and any applicable liquor licenses.
"Global Note" means a Note that contains the paragraphs referred to in
footnote 1 and the additional schedule referred to in footnote 3 to the form of
Note attached hereto as Exhibit A.
"Governmental Authority" means any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature whatsoever of
the United States or a foreign
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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" shall have the meaning provided in Section 12.1(a).
"Guarantor" shall mean RPG and any Additional Guarantor Subsidiary
pursuant to Section 4.17.
"HE" means Horseshoe Entertainment, a Louisiana Limited Partnership.
"Holder" means the person in whose name a Note is registered on the
Registrar's books.
"Horseshoe Casinos" means the casinos and their related facilities
owned and operated, directly or indirectly, by the Company and its Subsidiaries
and located in Tunica County, Mississippi or Bossier City, Louisiana.
"incur" shall have the meaning specified in Section 4.11.
"Incurrence Date" shall have the meaning specified in Section 4.11.
"Indebtedness" of any person means, without duplication, (a) all
liabilities and obligations, contingent or otherwise, of such person, (i) in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such person or only to a portion thereof), (ii)
evidenced by bonds, notes, debentures or similar instruments, (iii)
representing the balance deferred and unpaid of the purchase price of any
property or services, except (other than accounts payable or other obligations
to trade creditors that have remained unpaid for greater than ninety (90) days
past their original due date or that are being contested in good faith and for
which adequate reserves have been made) those incurred in the ordinary course
of its business that would constitute ordinarily a trade payable to trade
creditors, (iv) evidenced by bankers' acceptances or similar instruments issued
or adapted by banks, (v) for the payment of money relating to a Capitalized
Lease Obligation, or (vi) evidenced by a letter of credit or a reimbursement
obligation of such person with respect to any letter of credit; (b) all
obligations of such person under Interest Swap and Hedging Obligations; (c) all
liabilities of others of the kind described in the preceding clauses (a) or (b)
that such person has guaranteed or that is otherwise its legal liability (but
only to the extent of the amount actually guaranteed) and all obligations to
purchase, redeem or acquire any Capital; (d) all obligations secured by a Lien
to which the property or assets (including, without limitation, leasehold
interests and any other tangible or intangible property rights) of such person
are subject, whether or not the obligations secured thereby shall have been
assumed by or shall otherwise be such person's legal liability; provided,
however, that the amount of such obligations shall be limited to the lesser of
the fair market value of the assets or property to which such Lien attaches
and the amount of the obligation so secured; and (e) any and all deferrals,
renewals, extensions, refinancings and refundings (whether direct or indirect)
of, or amendments, modifications or supplements to, any
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liability of the kind described in any of the preceding clauses (a), (b), (c)
or (d), or this clause (e), whether or not between or among the same parties.
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
"Intercompany Note" means a note issued by a Subsidiary to the Company
or to another Subsidiary of the Company to evidence Indebtedness by such
Subsidiary to the Company or to such other Subsidiary; provided that if such
Intercompany Note is funded from the Indebtedness of the intercompany lender
under such note, the terms of such note shall be no less favorable to the
intercompany lender thereunder than the terms of the Indebtedness which the
intercompany lender used to fund such note.
"Interest Payment Date" means the stated due date of an installment of
interest on the Notes.
"Interest Swap and Hedging Obligation" means any obligation of any
person pursuant to any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate exchange agreement,
currency exchange agreement or any other agreement or arrangement designed to
protect against fluctuations in interest rates or currency values, including,
without limitation, any arrangement whereby, directly or indirectly, such
person is entitled to receive from time to time periodic payments calculated by
applying either a fixed or floating rate of interest on a stated notional
amount in exchange for periodic payments made by such person calculated by
applying a fixed or floating rate of interest on the same notional amount.
"Investment" by any person in any other person means (without
duplication) (a) the acquisition by such person (whether for cash, property,
services, securities or otherwise) of capital stock, bonds, notes, debentures,
partnership or other ownership interests or other securities, including any
options or warrants, of such other person or any agreement to make any such
acquisition; (b) the making by such person of any deposit with, or advance,
loan or other extension of credit to, such other person (including the purchase
of property from another person subject to an understanding or agreement,
contingent or otherwise, to resell such property to such other person) or any
commitment to make any such advance, loan or extension (but excluding accounts
receivable arising in the ordinary course of business); (c) other than the
Guarantee of the Notes and guarantees of other Indebtedness of the Company or
any Subsidiary to the extent permitted by Section 4.11, the entering into by
such person of any guarantee of, or other credit support or contingent
obligation with respect to, Indebtedness or other liability of such other
person; (d) the making of any capital contribution by such person to another
person; or (e) the designation by the Board of Managers of the Company of a
person to be an Unrestricted Subsidiary in accordance with the definition of
"Unrestricted Subsidiary"; provided that none of the foregoing if effected by
the Company with respect to a Subsidiary or by a Subsidiary with respect to the
Company or any other Subsidiary shall constitute an "Investment;" provided,
further, in the case of any loan from the Company to a Subsidiary or from a
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Subsidiary to another Subsidiary, such loan is evidenced by an Intercompany
Note. The Company shall be deemed to make an "Investment" in an amount equal
to the fair market value of the net assets of any person determined by the
Board of Managers of the Company in good faith at the time that such person is
designated an Unrestricted Subsidiary, and any property transferred to an
Unrestricted Subsidiary from the Company or one of its Subsidiaries, shall be
deemed an Investment valued at its fair market value, determined by the Board
of Managers of the Company in good faith at the time of such transfer.
"Investor Limited Partners" means Xxxxxxxxx Xxxxx, Xxxxxxx Xxxxx and
August Xxxxx, who collectively own 8.08% of the total partnership interests in
HE.
"Issue Date" means the date of first issuance of the Notes under this
Indenture.
"Legal Defeasance" shall have the meaning specified in Section 8.2.
"Legal Holiday" shall have the meaning specified in Section 13.7.
"Lien" means any mortgage, lien, pledge, charge, security interest, or
other encumbrance of any kind, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other title
retention agreement and any lease deemed to constitute a security interest, and
any option or other agreement to give any security interest).
"Liquidated Damages" means, collectively, damages jointly and
severally payable by the Company and the Guarantor to each Holder of the Notes
pursuant to the terms of the Registration Rights Agreement.
"Maturity Date" when used with respect to any Note, means the date on
which the principal of such Note becomes due and payable as therein or herein
provided, whether at Stated Maturity, a Change of Control Payment Date or an
Asset Sale Event of Loss Purchase Date or by declaration of acceleration, call
for redemption or otherwise.
"Minimum Accumulation Date" shall have the meaning specified in
Section 4.14.
"Net Cash Proceeds" means the aggregate amount of U.S. Legal Tender or
Cash Equivalents received by the Company, in the case of a sale of Qualified
Capital, and by the Company and its Subsidiaries in respect of an Asset Sale or
Event of Loss, plus, in the case of an issuance of Qualified Capital upon any
exercise, exchange or conversion of securities (including options, warrants,
rights and convertible or exchangeable debt) of the Company that were issued
for cash on or after the Issue Date, the amount of cash originally received by
the Company upon the issuance of such securities (including options, warrants,
rights and convertible or exchangeable debt), less, in each case, the sum of
all fees, commissions and other expenses incurred in connection with such sale
of Qualified Capital, Asset Sale or Event of Loss, and, in the case of an Asset
Sale or Event of Loss only, less (i) the amount (estimated reasonably and in
good faith by the Company) of income, franchise, sales and other applicable
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taxes required to be paid by the Company or any of its Subsidiaries in
connection with such Asset Sale or Event of Loss, (ii) the amount of any
liabilities relating to the assets sold or transferred that are retained by the
Company or its Subsidiaries, and (iii) an amount (estimated reasonably and in
good faith by the Company) of a reserve for indemnifications and warranties or
representations made in connection with such Asset Sale.
"New Projects" means any new Casino project, inclusive of the proposed
Missouri project, for which the Company or a Subsidiary has submitted or has
acquired the rights to submit and is pursuing a proposal to any Governmental
Authority to develop such Casino project which proposal has not been acted upon
by such Governmental Authority.
"Non-recourse Indebtedness" means Indebtedness of a person to the
extent that under the terms thereof (including any related instruments,
documents or filings) (i) no personal recourse shall be had against such person
for the payment of the principal of or interest or premium on such
Indebtedness, and (ii) enforcement of obligations on such Indebtedness is
limited only to recourse against interests in property and assets purchased
with the proceeds of the incurrence of such Indebtedness or the Indebtedness
refinanced by such Indebtedness and as to which neither the Company nor any
Subsidiary provides any guarantee, collateral or other credit support of any
kind whatsoever.
"Non-Tax Distribution Event" shall mean the occurrence of any one of
the following events: (i) a Default or Event of Default described in Section
6.1(1), (2), (4), (5), (6), (7), (8) or (9) shall have occurred or (ii) the
Notes shall have become or been declared immediately due and payable.
"Note Purchase Agreement" shall mean the Note Purchase Agreement,
dated as of June 18, 1997, among the Company, RPG and the purchaser named
therein, pursuant to which, together with this Indenture, Notes are being
issued.
"Notes" or "Securities" means, prior to the consummation of the
Exchange Offer, the 9 3/8% Series A Senior Subordinated Notes Due 2007 issued
in accordance with this Indenture, and after the consummation of the Exchange
Offer, such Series A Notes as remain outstanding (if any) and the Series B
Notes, in each case as amended or modified from time to time in accordance with
the terms hereof, issued under this Indenture.
"Notes Custodian" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"Obligation" means any principal, premium, interest, penalties, fees,
reimbursements, damages, indemnification and other liabilities, including costs
and expenses, relating to obligations of the Company or the Guarantor under the
Notes, the Guarantee, or this Indenture, including any Liquidated Damages
pursuant to the Registration Rights Agreement, in each case as such documents
may be amended from time to time in accordance with their respective terms.
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"Offer to Purchase" means any Change of Control Offer or Asset Sale
Event of Loss Offer.
"Offering Memorandum " means the offering memorandum of the Company,
dated June 18, 1997.
"Officer" means, with respect to an entity, the Chief Executive
Officer, the President, any Vice President, the Chief Financial Officer, the
Treasurer, the Controller, or the Secretary or Assistant Secretary of such
entity or its manager or general partner, as the case may be.
"Officers' Certificate" means with respect to the Company or the
Guarantor, a certificate signed by two Officers of the Company or the Guarantor
and otherwise complying with the requirements of Sections 13.4 and 13.5.
"Opinion of Counsel" means a written opinion from legal counsel to the
Company complying with the requirements of Sections 13.4 and 13.5. Unless
otherwise required by this Indenture, the counsel may be in-house counsel to
the Company.
"Pari Passu" as applied to the ranking of any Indebtedness of a person
in relation to other Indebtedness of such person, means that each such
Indebtedness either (i) is not subordinate or junior in right of payment or
upon liquidation to any Indebtedness or (ii) is subordinate or junior to the
same Indebtedness as is the other, and is so subordinate or junior to the same
extent, and is not subordinate or junior in right of payment or upon
liquidation to each other or to any Indebtedness as to which the other is not
so subordinate or junior.
"Paying Agent" means the Trustee or any successor as paying agent
under this Indenture and as more fully described in Section 2.3 hereto.
"Permitted Indebtedness" means any of the following:
(a) The Company and each of its Subsidiaries may incur
Indebtedness solely in respect of bankers acceptances, letters of credit and
performance bonds (to the extent that such incurrence does not result in the
incurrence of any obligation for the payment of borrowed money of any person
other than the Company or such Subsidiary), in the ordinary course of business,
in amounts and for the purposes customary in the Company's industry for gaming
operations similar to those of the Company and its Subsidiaries or pursuant to
self-insurance obligations; provided, however, that the aggregate principal
amount outstanding of such Indebtedness (including any Indebtedness issued to
refinance, refund or replace such Indebtedness) for the Company and its
Subsidiaries shall at no time exceed five million dollars ($5,000,000);
(b) The Company may incur Indebtedness to any Subsidiary, and any
Subsidiary may incur Indebtedness, or issue Disqualified Capital, to any other
Subsidiary or to the Company, including, without limitation, the Guarantee;
provided, however, that such obligations (other than
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guarantees with respect to which no payment has been made by the guarantor
thereunder) shall be evidenced by an Intercompany Note and, in any case where
the Company or the Guarantor is the obligor (other than the RPG Intercompany
Note), shall be subordinated in all respects to the Company's Obligations
pursuant to the Notes, the Guarantor's Obligations pursuant to the Guarantee of
the Company's Obligations under the Notes and the obligations of any Subsidiary
to the Company under any Intercompany Note issued pursuant to the Senior Notes
or the Credit Facility, as the case may be;
(c) The Company and any Subsidiary may post a bond or surety
obligation (or incur an indemnity or similar obligation) in order to prevent
the impairment or loss by the Company or any Subsidiary of or to obtain for the
Company or any Subsidiary a Gaming License, to the extent required by
applicable law and consistent in character and amount with customary industry
practice; and
(d) The Company and any Subsidiary may enter into Interest Swap
and Hedging Obligations for the purpose of limiting interest rate risks,
provided that the obligations under such agreements are related to payment
obligations on Indebtedness otherwise permitted by the Indenture, and may enter
into Currency Exchange Protection Agreements for the purpose of limiting
exchange rate risks in connection with a Related Business.
"Permitted Liens" means any of the following:
(a) Liens for taxes, assessments or other governmental charges not
yet delinquent or which are being contested in good faith and by appropriate
proceedings by the Company or one or more of its Subsidiaries if adequate
reserves with respect thereto are maintained on the books of the Company or
such Subsidiary or Subsidiaries, as the case may be, in accordance with GAAP;
(b) 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 (i) the underlying obligations are not overdue for a period of
more than sixty (60) days or (ii) such Liens are being contested in good faith
and by appropriate proceedings by the Company or one or more of its
Subsidiaries 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;
(c) 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 one or more of its Subsidiaries) or
interfere with the ordinary conduct of the business of the Company or such
Subsidiary; provided,
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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;
(d) Liens that secure Acquired Indebtedness of the Company or any
of its Subsidiaries; provided, however, in each case, that the incurrence of
such Acquired Indebtedness was permitted under Section 4.11 and such Liens do
not encumber any other property or assets other than the property and assets
acquired in such acquisition, merger or consolidation and were not put in place
in connection with or in anticipation of such acquisition, merger or
consolidation;
(e) 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 or to secure the performance of tenders, statutory
obligations, surety, indemnity and appeal bonds, bids, leases, government
contracts, trade contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed
money);
(f) any Liens with respect to judgments and attachments not giving
rise to an Event of Default;
(g) leases or subleases granted to others not interfering in any
material respect with the ordinary conduct of the business of the Company or of
any of its Subsidiaries or 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 one or more of its Subsidiaries);
(h) any (x) interest or title of a lessor or sublessor under any
lease, including under any Capital Lease Obligation, (y) restriction or
encumbrance that the interest or title of such lessor or sublessor may be
subject to, or (z) subordination of the interest of the lessee or sublessee
under such lease to any restriction or encumbrance referred to in subclause
(y);
(i) Liens arising from filing of precautionary UCC financing
statements relating solely to leases not prohibited by this Indenture;
(j) any Lien in favor of the Company or any Subsidiary thereof; and
(k) any Lien on any asset of an Unrestricted Subsidiary other than
any Capital owned by such Unrestricted Subsidiary in the Company or in any
Subsidiary or Unrestricted Subsidiary of the Company.
"Permitted Tax Distributions" shall have the meaning ascribed thereto
in Section 4.3(c).
"Person" or "person" means any individual, corporation, partnership,
association, limited liability company, limited liability partnership, trust,
estate or other entity.
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"Property" or "property" means any right or interest in or to property
or assets of any kind whatsoever, whether real, personal or mixed and whether
tangible, intangible, contingent, indirect or direct.
"Public Equity Offering" means an underwritten public offering of
common stock pursuant to an effective registration statement under the
Securities Act following which the common stock is listed on a national
securities exchange or quoted on the NASDAQ National Market.
"Purchase Money Indebtedness" means any Indebtedness of such person
owed to any seller or other person incurred to finance the acquisition of any
Related Business Assets and incurred substantially concurrently with or within
two hundred seventy (270) days following such acquisition.
"Purchase Price" means any Change of Control Offer Price or Asset Sale
Event of Loss Offer Price.
"Qualified Capital" means any Capital of the Company that is not
Disqualified Capital.
"Qualified Exchange" means any defeasance, redemption, repurchase or
other acquisition of Capital or Subordinated Indebtedness of the Company with
the Net Cash Proceeds received by the Company from the substantially concurrent
sale of Qualified Capital of the Company or in exchange for Qualified Capital
of the Company.
"Quoted Price" means for any day, the last reported sale price regular
way or, in case no such reported sale takes place on such day, the average of
the closing bid and asked prices regular way for such day, in either case on
the principal national securities exchange on which the Notes are listed or
admitted to trading, or if the Notes are not listed or admitted to trading on
any national securities exchange, but are traded in the over the counter
market, the closing sale price of the Notes or, in case no sale is publicly
reported, the average of the closing bid and asked prices, as furnished by two
members of the National Association of Securities Dealers, Inc. selected from
time to time by the Company for that purpose.
"RPG Intercompany Note" means, collectively, the notes issued by RPG
to the Company in the aggregate amount of one hundred fifty million
($150,000,000).
"Record Date" means a Record Date specified in the Notes whether or
not such Record Date is a Business Day.
"Redemption Date" when used with respect to any Note to be redeemed,
means the date fixed for such redemption pursuant to Article III of this
Indenture and Paragraph 5 in the form of Note attached hereto as Exhibit A.
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"Redemption Price" when used with respect to any Note to be redeemed
pursuant to Section 3.1(b), means the Redemption Price for such redemption set
forth in this Indenture, which shall include, if applicable, accrued and unpaid
interest.
"Reference Period" with regard to any person means the four full
fiscal quarters (or such lesser period during which such person has been in
existence) for which financial information is available ended immediately
preceding any date upon which any determination is to be made pursuant to the
terms of the Notes or this Indenture.
"Refinancing Indebtedness" means Indebtedness or Disqualified Capital
(a) issued in exchange for, or the proceeds from the issuance and sale of which
are used to repay, redeem, defease, refund, refinance, discharge or otherwise
retire for value, in whole or in part, or (b) constituting an amendment,
modification or supplement to, or a deferral or renewal of ((a) and (b) above
are, collectively, a "Refinancing"), any Indebtedness or Disqualified Capital
in a principal amount or, in the case of Disqualified Capital, the amount
described in the second sentence of the definition of Disqualified Capital, not
to exceed (after deduction of reasonable and customary fees and expenses
incurred in connection with the Refinancing) the lesser of (i) the principal
amount or, in the case of Disqualified Capital, the amount described in the
second sentence of the definition of Disqualified Capital, of the Indebtedness
or Disqualified Capital so refinanced and (ii) if such Indebtedness being
refinanced was issued with an original issue discount, the accreted value
thereof (as determined in accordance with GAAP) at the time of such
Refinancing; provided, however, that (a) Refinancing Indebtedness of the
Guarantor shall only be used to refinance outstanding Indebtedness or
Disqualified Capital of the Guarantor and (b) Refinancing Indebtedness shall
(x) not have an Average Life shorter than the Indebtedness or Disqualified
Capital to be so refinanced at the time of such Refinancing and (y) in all
respects, be no less subordinated, if applicable, to the rights of Holders of
the Notes than was the Indebtedness or Disqualified Capital to be refinanced.
"Registrar" shall have the meaning specified in Section 2.3.
"Registration Rights Agreement" means the Exchange and Registration
Rights Agreement by and among the Company, RPG and the purchaser named therein,
dated as of the Issue Date.
"Regulatory Redemption" means (i) the disposition by the Holder of any
Notes required by any Governmental Authority or the Board of Managers of the
Company or (ii) a redemption or repurchase by the Company of any of the Notes
required by any Governmental Authority or the Board of Managers of the Company
if, in either case, the ownership of any of the Notes 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 of burdensome terms or conditions on such license,
permit or approval, in accordance with Section 3.2.
"Related Business" means the gaming (including pari-mutuel betting)
business and any and all reasonably related businesses necessary for, in
support or anticipation of and ancillary
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to or in preparation for, the gaming business including, without limitation,
the development, expansion or operation of any Casino (including any
land-based, dockside, riverboat or other type of Casino) owned, or to be owned,
by the Company or one of its Subsidiaries.
"Related Business Asset" means property, goods or services pertaining
to a Related Business, other than debt or securities of any other person.
"Restricted Investment" means, in one or a series of related
transactions, any Investment other than in Cash Equivalents and in Investments
of the type set forth in clause (v) of the definition of Cash Equivalents that
have a maturity longer than one year so long as the Average Life of all such
Investments does not exceed fifteen (15) months; provided, however, that the
extension of credit to customers of Casinos consistent with industry practice
in the ordinary course of business shall not be a Restricted Investment.
"Restricted Payment" means, with respect to any person (a) the
declaration or payment of any dividend or other distribution in respect of
Capital of such person or any Subsidiary of such person, (b) any payment on
account of the repurchase, redemption, retirement or other acquisition for
value of Capital then outstanding of such person or any Subsidiary of such
person, (c) any repurchase, redemption, retirement or other acquisition for
value of, or any defeasance of, any Subordinated Indebtedness then outstanding,
directly or indirectly, by such person or a Subsidiary of such person, prior to
the scheduled maturity, any scheduled repayment of principal or any scheduled
sinking fund payment, as the case may be, of such Subordinated Indebtedness
(including any payment in respect of any amendment of the terms of any such
Subordinated Indebtedness, which amendment is sought in connection with any
such acquisition of such Indebtedness or seeks to shorten any such due date),
and (d) any Restricted Investment (including, in any case, the designation of a
person as an Unrestricted Subsidiary) by such person; provided, however, that
the term "Restricted Payment" does not include (i) (A) any dividend,
distribution or other payment on or with respect to Capital of an issuer or (B)
the acquisition by an issuer or a wholly-owned Subsidiary of such issuer of
Capital of another Subsidiary or an Unrestricted Subsidiary of such issuer, in
the case of each of (A) and (B) of this clause (i), to the extent payable
solely in shares of Qualified Capital of such issuer; (ii) any dividend,
distribution or other payment to the Company, or to any of its wholly-owned
Subsidiaries, by any of its Subsidiaries; (iii) loans or advances to officers
or employees of the Company or any of its Subsidiaries (other than Xxxx Xxxxxx,
Xxxxxxx Xxxx and members of the families of the foregoing persons) (a) to pay
business related expenses or relocation costs of such officers or employees in
connection with their employment by the Company or any of its Subsidiaries in
an aggregate amount outstanding at any time not exceeding five million dollars
($5,000,000) for all such officers and employees or (b) for the purchase price
of Capital of the Company or any Subsidiary (provided that the Capital
purchased with the proceeds of such loan or advance shall be pledged to the
Company or the Subsidiary, as applicable, as security for the repayment of such
loan or advance); (iv) any Investment received as consideration for any Asset
Sale to the extent that the Company or any of its Subsidiaries is permitted to
receive such Investment without violating the provisions of Section 4.14; and
(v) Investments received as part of the settlement of litigation or in
satisfaction of extensions of credit to any Person otherwise
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permitted under this Indenture pursuant to the reorganization, bankruptcy or
liquidation of such Person.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Senior Debt" means (i) any Indebtedness under the Credit Facility,
(ii) any Indebtedness under the Senior Indenture and (iii) any other
Indebtedness permitted to be incurred under the Indenture, unless the
instrument under which such Indebtedness is incurred expressly provides that it
is subordinated in right of payment to any Senior Debt of the Company.
Notwithstanding the foregoing, Senior Debt will not include (a) any liability
for federal, state, local or other taxes; (b) any Indebtedness of the Company
to any of its Affiliates, (c) any trade payables or (d) any Indebtedness that
is incurred in violation of the Indenture.
"Senior Indenture" means the indenture, dated as of October 10, 1995,
among the Company, RPG and the trustee thereunder, and any other credit
arrangements that are either Pari Passu with the notes issued pursuant to the
Senior Indenture that together (subject to the succeeding sentence) provide for
no greater than an aggregate of $150 million in Indebtedness or any substitute
therefor, including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith, as such Senior
Indenture and/or related documents may be amended, restated, supplemented,
renewed, replaced or otherwise modified from time to time, whether or not with
the same agent, trustee, representative lenders or holders, and irrespective of
any changes in the terms and conditions thereof. Without limiting the
generality of the foregoing, the term "Senior Indenture" shall include
agreements in respect of Interest Swap and Hedging Obligations and Currency
Exchange Protection Agreements with lenders party to the Senior Indenture and
shall also include any amendment, amendment and restatement, renewal,
extension, restructuring, supplement or modification to the Senior Indenture
and all refundings, refinancings and replacements of the Senior Indenture, and
all refundings, refinancings and replacements thereafter, including any
agreement (i) extending the maturity of any Indebtedness incurred thereunder or
contemplated thereby, (ii) adding or deleting borrowers, issuers or guarantors
thereunder, so long as such borrowers, issuers and guarantors include one or
more of the Company and its Subsidiaries and their respective successors and
assigns, or (iii) otherwise altering the terms and conditions thereof in a
manner not prohibited by the terms hereof.
"Senior Notes" means the 12.75% Senior Notes Due 2000 issued in
accordance with the Senior Indenture, as amended or modified from time to time
in accordance with the terms thereof.
"Series A Notes" has the meaning ascribed thereto in the preamble
hereof.
"Series B Notes" has the meaning ascribed thereto in the preamble
hereof.
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"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.
"Special Record Date" shall have the meaning specified in Section
2.12.
"Stated Maturity," when used with respect to the principal of any
Note, means June 15, 2007 and, with respect to interest on any Note, means the
scheduled date for payment of such interest.
"Subordinated Indebtedness" means Indebtedness of the Company or the
Guarantor, as applicable, that is subordinated by its express terms in right of
payment to the Notes or the Guarantee, as applicable, in all respects and has
no scheduled installment of principal due, by maturity, redemption, sinking
fund payment or otherwise, on or prior to the Stated Maturity of the Notes.
"Subsidiary" with respect to any person, means (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of Capital 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, by one or
more Subsidiaries of such person or by such person and one or more Subsidiaries
of such person 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 one or more
Subsidiaries of such person (or any combination thereof). When used with
respect to the Company, "Subsidiary" shall be deemed to include any direct
Subsidiary of the Company and each indirect Subsidiary that is a direct
Subsidiary of one or more of the Company's direct or indirect Subsidiaries.
Notwithstanding the foregoing, (i) no Unrestricted Subsidiary shall be a
Subsidiary of the Company or any of its Subsidiaries and (ii) the Capital of
any entity that is owned by an Unrestricted Subsidiary shall be disregarded in
determining whether such entity is a Subsidiary or an Unrestricted Subsidiary.
"Subsidiary Guarantor" shall have the meaning set forth in Section
12.1(a).
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Section
Section 77aaa-7bbbb) as in effect on the date of the execution of this
Indenture; except as otherwise provided in Section 9.3.
"Tax Loss Benefit Amount" as to any taxable year of the Company or any
of its Subsidiaries, shall mean the amount by which the Permitted Tax
Distributions would be reduced were a net operating loss or net capital loss
from a prior taxable year of such entity ending subsequent to the date hereof
carried forward to the applicable taxable year; provided, that for such purpose
the amount of any such net operating loss or net capital loss shall be utilized
only once and in each case shall be carried forward to the next succeeding
taxable year until so utilized.
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"Transfer Restricted Note" means Notes that bear or are required to
bear the legend set forth in Section 2.6.
"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.
"Trust Officer" means any officer within the corporate trust
department (or any successor group) of the Trustee including any vice
president, assistant vice president, secretary, 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 of the corporate trust department (or any successor
group) of the Trustee to whom such trust matter is referred because of his
knowledge of and familiarity with the particular subject.
"U.S. Government Obligations" means direct non-callable obligations
of, or non-callable obligations guaranteed by, the United States of America for
the payment of which obligation or guarantee 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 is legal tender for the payment of public
and private debts.
"Unrestricted Subsidiary" means any person that, at the time of
determination, shall be an Unrestricted Subsidiary as designated by the Board
of Managers of the Company (as provided below) provided that such person shall
not engage, to any substantial extent, in any line or lines of business
activity other than a Related Business. The Board of Managers of the Company
may designate any person (including any newly acquired or newly formed
Subsidiary at or prior to the time it is so formed or acquired but excluding
the Guarantor and HE) to be an Unrestricted Subsidiary if (a) such Restricted
Payment is not prohibited by Section 4.3; provided, however, that the
determination of whether a Restricted Payment is prohibited by Section 4.3 may
be made without reference to clause (3) of the first paragraph thereof in the
case of an Investment in any person that would be a Subsidiary but for the
designation as an Unrestricted Subsidiary (except that the definition of
"Subsidiary," solely for purposes of this proviso, shall be modified by
substituting "50% or more" for the words "more than 50 percent" in clause (i)
of such definition) engaged solely in, or being formed solely for the purposes
of engaging in, the business of developing, constructing, expanding or
acquiring (x) a Casino or Casinos and, if applicable, any Related Businesses
in connection with such Casino or Casinos or (y) a Related Business to be used
primarily in connection with an existing Casino or Casinos in each case
provided in clause (x) or (y) so long as the Company, directly or indirectly
through one or more of its Subsidiaries owns or controls at least fifty percent
(50%) of the total voting power of Capital entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers,
general partners, trustees or other similar governing body thereof if the
Consolidated Coverage Ratio of the Company for the Reference Period immediately
preceding the date of such designation (giving pro forma effect to the
designation of such Subsidiary as an Unrestricted Subsidiary as if such
designation had been made on the first day of the Reference
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Period) is not less than 2.0 to 1; provided, further, that the full amount of
any Restricted Payment pursuant to the foregoing proviso shall be deducted in
the calculation of the aggregate amount of Restricted Payments available to be
made pursuant to such clause (3) of Section 4.3(a); (b) such person does not
own any Capital of, or own or hold any Lien on any property of, or hold any
debt of, the Company or the Guarantor and (c) such person does not, at the time
of designation, and does not thereafter, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable with respect to any
Indebtedness pursuant to which the holder of such Indebtedness has recourse to
any of the assets of the Company or any of its Subsidiaries. Any such
designation also constitutes a Restricted Payment for purposes of Section 4.3
hereof. The Board of Managers of the Company may designate any Unrestricted
Subsidiary to be a Subsidiary, provided, however, that (i) no Default or Event
of Default is existing or will occur as a consequence thereof and (ii)
immediately after giving effect to such designation, on a pro forma basis, the
Company could incur at least one dollar ($1.00) of additional Indebtedness
pursuant to clause (ii) of paragraph (a) of Section 4.11. Each such
designation shall be evidenced by filing with the Trustee a certified copy of
the resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing conditions.
Notwithstanding anything herein to the contrary, the Guarantor may not be
designated an Unrestricted Subsidiary.
"wholly-owned" with respect to a Subsidiary of any person means (i)
with respect to a Subsidiary that is a partnership, limited liability company
or similar entity, a Subsidiary whose capital or other equity interest is 99%
or greater beneficially owned by such person, and (ii) with respect to a
Subsidiary that is other than a partnership, limited liability company or
similar entity, a Subsidiary whose capital stock or other equity interest is
100% beneficially owned by such person.
Section 1.2 Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
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 Notes.
"indenture securityholder" 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 and any other
obligor on the Notes.
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All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them thereby.
Section 1.3 Rules of Construction.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words
in the plural include the singular;
(v) provisions apply to successive events and
transactions;
(vi) the words "include" and "including" shall be deemed
to mean "include, without limitation," and "including, without
limitation";
(vii) "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; and
(viii) references to Sections or Articles means reference to
such Section or Article in this Indenture, unless stated otherwise.
ARTICLE II
THE SECURITIES
Section 2.1 Form and Dating.
The Notes and the Trustee's certificate of authentication in respect
thereof shall be substantially in the form of the Note and Trustee's
certificate contained in Exhibit A hereto, which Exhibit is part of this
Indenture. The Notes may have notations, legends or endorsements required by
law, stock exchange rule or usage. The Company shall approve the form of the
Notes and any notation, legend or endorsement on them. Any such notations,
legends or endorsements not contained in the form of Note attached as Exhibit A
hereto shall be delivered in writing to the Trustee. Each Note shall be dated
the date of its authentication.
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The terms and provisions contained in the form of Note shall
constitute, and are hereby expressly made, a part of this Indenture and, to the
extent applicable, 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.
Section 2.2 Execution and Authentication.
An Officer shall sign the Notes for the Company by manual or facsimile
signature. If an Officer whose signature is on a Note was an Officer at the
time of such execution but no longer holds that office at the time the Trustee
authenticates the Note, the Note shall be valid nevertheless and the Company
shall nevertheless be bound by the terms of the Note and this Indenture. A
Note shall not be valid until an authorized signatory of the Trustee manually
signs the certificate of authentication on the Note, but such signature shall
be conclusive evidence that the Note has been authenticated pursuant to the
terms of this Indenture. The Guarantor shall endorse all Notes issued by the
Company under this Indenture.
The Trustee shall authenticate Series A Notes for original issue in
the aggregate principal amount of up to one hundred sixty million dollars
($160,000,000) and shall authenticate Series B Notes for original issue in the
aggregate principal amount of up to one hundred sixty million dollars
($160,000,000), in each case upon a written order of the Company in the form of
an Officers' Certificate complying with TIA Section 313(c); provided, however,
that Series B Notes shall be issuable only upon the valid surrender for
cancellation of original Notes of a like aggregate principal amount in
accordance with the Registration Rights Agreement. The Officers' Certificate
shall specify the amount of Notes to be authenticated and the date on which the
Notes are to be authenticated. The aggregate principal amount of Notes
outstanding at any time may not exceed one hundred sixty million dollars
($160,000,000), except as provided in Section 2.7. Upon the written order of
the Company in the form of an Officers' Certificate, the Trustee shall
authenticate Notes in substitution of Notes originally issued to reflect any
name change of the Company.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. Unless otherwise provided in the appointment,
an authenticating agent may authenticate Notes 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 the Company, any Affiliate of the Company or any of their
respective Subsidiaries.
Notes shall be issuable only in registered form without coupons in
denominations of one thousand dollars ($1,000) and any integral multiple
thereof.
Section 2.3 Registrar and Paying Agent.
The Company shall maintain, or cause to be maintained, an office or
agency in the Borough of Manhattan, The City of New York, where Notes may be
presented for registration
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of transfer or for exchange ("Registrar") and an office or agency in the
Borough of Manhattan, The City of New York where Notes may be presented for
payment ("Paying Agent") and an office or agency where notices and demands to
or upon the Company in respect of the Notes may be served. The Company may act
as its own Registrar or Paying Agent, except that, for the purposes of Articles
III, VIII, XI and Section 4.14 neither the Company nor any Affiliate of the
Company shall act as Paying Agent. The Registrar shall keep a register of the
Notes and of their transfer and exchange. The Company may have one or more
co-Registrars and one or more additional Paying Agents. The term "Paying
Agent" includes any additional Paying Agent. The Company hereby initially
appoints the Trustee as Registrar and Paying Agent, and the Trustee hereby
initially agrees so to act.
The Company shall enter into an appropriate written agency agreement
with any Agent not a party to this Indenture, which agreement shall implement
the provisions of this Indenture that relate to such Agent. The Company shall
promptly notify the Trustee in writing of the name and address of any such
Agent. If the Company fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depository with respect to the Global Notes.
The Company initially appoints the Trustee to act as Notes Custodian
with respect to the Global Notes.
Section 2.4 Paying Agent to Hold Assets in Trust.
Not later than the date on which any payment of principal of, premium,
interest or Liquidated Damages, if any, is due on any of the Notes, or such
earlier day as the Trustee may reasonably request, the Company shall deposit
with the Paying Agent available funds sufficient to make such payments so
becoming due to Holders. The Company shall require the Paying Agent (if other
than the Trustee) to agree in writing that such Paying Agent shall hold in
trust for the benefit of Holders or the Trustee all assets (if any) held by the
Paying Agent for the payment of principal of, and interest and Liquidated
Damages, if any, on, the Notes (whether such assets have been distributed to it
by the Company or any other obligor on the Notes), and shall notify the Trustee
in writing of any Default by the Company (or any other obligor on the Notes) in
making any such payment. If the Company or a Subsidiary of the Company acts as
Paying Agent, it shall segregate such assets and hold them as a separate trust
fund for the benefit of the Holders or the Trustee. The Company at any time
may require a Paying Agent to distribute all assets held by it to the Trustee
and account for any assets disbursed and the Trustee may at any time during the
continuance of any payment Default, upon written request to a Paying Agent,
require such Paying Agent to distribute all assets held by it to the Trustee
and to account for any assets distributed. Upon distribution to the Trustee of
all assets that shall have been delivered by the Company to the Paying Agent,
the Paying Agent (if other than the Company) shall have no further liability
for such assets.
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Section 2.5 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
the Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee on or before the
third Business Day preceding 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 reasonably may require of the names and addresses of Holders
including the aggregate principal amount of Notes held by each Holder and the
Company shall otherwise comply with TIA Section 312(a). The Trustee, the
Registrar and the Company shall provide a current holder list to any Gaming
Authority upon demand.
Section 2.6 Transfer and Exchange.
(a) Transfer and Exchange of a Definitive Note for a Definitive
Note. When Definitive Notes are presented to the Registrar or a co-Registrar
with a request
(x) to register the transfer of such Definitive Notes or
(y) to exchange such Definitive Notes for an equal
principal amount of Definitive Notes of other
authorized denominations,
the Registrar or Co-Registrar shall register the transfer to make the exchange
as requested if its reasonable requirements for such transaction are met;
provided, however, that the Definitive Notes surrendered for transfer or
exchange:
(i) shall be duly endorsed or accompanied by a
written instrument of transfer in form reasonably satisfactory
to the Company and the Registrar, duly executed by the Holder
thereof or the Holder's attorney duly authorized in writing,
and
(ii) in the case of Transfer Restricted Notes that
are Definitive Notes, shall be accompanied by the following
additional information and documents, as applicable:
(A) if such Transfer Restricted Note is being delivered
to the Registrar by a Holder for registration in the name of
such Holder, without transfer, a certification from such
Holder to that effect (in substantially the form set forth on
the reverse of the Note); or
(B) if such Transfer Restricted Note is being transferred
(i) to a "qualified institutional buyer" (as defined in Rule
144A under the Securities Act) in accordance with Rule 144A
under the Securities Act, (ii) to an "accredited investor"
within the meaning of Rule 501(a) under the Securities Act
that is
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acquiring at least one hundred thousand dollars ($100,000)
aggregate principal amount of the Notes and that has delivered
to the Trustee and the Company a letter in the form of Exhibit
B hereto with respect to such transfer, (iii) pursuant to an
exemption from registration in accordance with Rule 144 or
Regulation S under the Securities Act, (iv) pursuant to an
effective registration statement under the Securities Act, or
(v) in reliance on another exemption from the registration
requirement of the Securities Act, a certification to that
effect (in substantially the form set forth on the reverse of
the Note); provided, that if such Transfer Restricted Note is
being transferred as provided in clauses (ii), (iii) or (v) of
this paragraph (B) then, in addition to the certification
referred to above, there shall also be delivered, upon
request, an Opinion of Counsel reasonably acceptable to the
Company, to the Trustee and to the Registrar to the effect
that such transfer is in compliance with the Securities Act.
(b) Restriction on Transfer of a Definitive Note for a Beneficial
Interest in a Global Note. A Definitive Note may not be exchanged for a
beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive
Note, duly endorsed or accompanied by appropriate instruments of transfer, in
form satisfactory to the Trustee, together with:
(i) if such Definitive Note is a Transfer Restricted
Note, certification, substantially in the form set forth on the
reverse of the Note, that such Definitive Note is being transferred to
(A) a "qualified institutional buyer" (as defined in Rule 144A under
the Securities Act) in accordance with Rule 144A under the Securities
Act, or (B) to an "accredited investor" within the meaning of Rule
501(a) under the Securities Act that is acquiring at least one hundred
thousand dollars ($100,000) aggregate principal amount of the Notes
and that has delivered to the Trustee and the Company a letter in the
form of Exhibit B hereto with respect to such transfer (C) in a
transaction meeting the requirements of Regulation S, (D) pursuant to
an effective registration statement under the Securities Act or (E) in
reliance on another exemption from the registration requirements of
the Securities Act or in a transaction exempt from the registration
requirements of the Securities Act, in either case based on an Opinion
of Counsel to the effect that such transfer does not require
registration under the Securities Act; and
(ii) whether or not such Definitive Note is a Transfer
Restricted Note, written instructions from the transferor directing
the Trustee to make, or to direct the Notes Custodian to make, an
endorsement on the Global Note to reflect an increase in the aggregate
principal amount of the Notes represented by the Global Note,
then the Trustee shall cancel such Definitive Note and cause, or direct the
Notes Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depository and the Notes Custodian, the
aggregate principal amount of Notes represented by the Global Note to be
increased accordingly. If no Global Notes are then outstanding, the Company
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shall issue, the Guarantor shall endorse and the Trustee shall authenticate a
new Global Note in the appropriate principal amount.
(c) Transfer and Exchange of Global Notes. The transfer and
exchange of Global Notes or beneficial interests therein shall be effected
through the Depository, in accordance with this Indenture (including the
restrictions on transfer set forth herein) and the procedures of the Depository
therefor.
(d) Transfer of a Beneficial Interest in a Global Note for a
Definitive Note.
(i) Any Person having a beneficial interest in a Global
Note may upon request exchange such beneficial interest for a
Definitive Note. Upon receipt by the Trustee of written instructions
or such other form of instructions as is customary for the Depository
from the Depository or its nominee on behalf of any Person having a
beneficial interest in a Global Note and upon receipt by the Trustee
of a written order or such other form of instructions as is customary
for the Depository or the Person designated by the Depository as
having such a beneficial interest in a Transfer Restricted Note only,
together with the following additional information and documents (all
of which may be submitted by facsimile):
(A) if such beneficial interest is being
transferred to the Person designated by the Depository as
being the beneficial owner, a certification from such person
to that effect (in substantially the form set forth on the
reverse of the Note); or
(B) if such beneficial interest is being
transferred (i) to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) in accordance
with Rule 144A under the Securities Act, (ii) to an
"accredited investor" within the meaning of Rule 501(a) under
the Securities Act that is acquiring at least one hundred
thousand dollars ($100,000) aggregate principal amount of the
Notes and that has delivered to the Trustee and the Company a
letter in the form of Exhibit B hereto with respect to such
transfer, (iii) pursuant to an exemption from registration in
accordance with Rule 144 or Regulation S under the Securities
Act, (iv) pursuant to an effective registration statement
under the Securities Act or (v) in reliance on another
exemption from the registration requirements of the Securities
Act, a certification to that effect (in substantially the form
set forth on the reverse of the Note); provided that, if such
beneficial interest is being transferred as provided in
clauses (ii), (iii) or (v) of this paragraph (B), then, in
addition to such certification required above, there shall
also be delivered, upon request, an Opinion of Counsel from
the transferee or transferor reasonably acceptable to the
Company, to the Trustee and to the Registrar to the effect
that such transfer is in compliance with the Securities Act,
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then the Trustee or the Notes Custodian, at the direction of
the Trustee, will cause, in accordance with the standing
instructions and procedures existing between the Depository
and the Notes Custodian, the aggregate principal amount of the
Global Note to be reduced and, following such reduction, the
Company will execute and, upon receipt of an authentication
order in the form of an Officers' Certificate, the Trustee
will authenticate and deliver to the transferee a Definitive
Note.
(ii) Definitive Notes issued in exchange for a beneficial
interest in a Global Note pursuant to this Section 2.6(d) shall be
registered in such names and in such authorized denominations as the
Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Definitive Notes to the persons in whose names such
Notes are so registered.
(e) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.6), a Global Note may
not be transferred as a whole except by the Depository to a nominee of the
Depository or by the nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(f) Authentication of Definitive Notes in Absence of Depository.
If at any time:
(i) the Depository for the Notes notifies the Company
that the Depository is unwilling or unable to continue as Depository
for the Global Notes and a successor Depository for the Global Notes
is not appointed by the Company within ninety (90) days after delivery
of such notice; or
(ii) the Company, in its sole discretion, notifies the
Trustee in writing that it elects to cause the issuance of Definitive
Notes under this Indenture,
then the Company will execute, and the Trustee, upon receipt of an Officers'
Certificate requesting the authentication and delivery of Definitive Notes,
will authenticate and deliver Definitive Notes in an aggregate principal amount
equal to the principal amount of the Global Notes, in exchange for such Global
Notes.
(g) Legends.
(i) Except as permitted by the following paragraphs (ii)
and (iii), each Note certificate evidencing the Global Notes and the Definitive
Notes (and all Notes issued in exchange therefor or substitution thereof) shall
bear a legend in substantially the following form:
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
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REGISTRATION UNDER SECTION 5 OF THE UNITED STATES 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. 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 (i)(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 FOREIGN
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 OR
THE TRUSTEE SO REQUESTS), (ii) TO THE COMPANY, OR (iii)
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. THE SECURITY
EVIDENCED HEREBY MAY BE HELD OR TRANSFERRED ONLY IN COMPLIANCE
WITH APPLICABLE GAMING LAWS.
THE SECURITY WAS ISSUED WITH "ORIGINAL ISSUE DISCOUNT." THE
TOTAL AMOUNT OF ORIGINAL ISSUE DISCOUNT WAS 0.111% OF ITS
PRINCIPAL AMOUNT, THE ISSUE DATE IS JUNE 25, 1997 AND THE
YIELD TO MATURITY ON THE ISSUE DATE IS 9.390% COMPOUNDED
SEMIANNUALLY.
(ii) Upon any sale or transfer of a Transfer Restricted
Note (including any Transfer Restricted Note represented by a Global
Note) pursuant to Rule 144 under the Act, an effective registration
statement under the Act or in connection with which the Trustee
receives an Opinion of Counsel to the effect that such Note will no
longer be subject to resale restrictions under federal and state
securities laws:
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(A) in the case of any Transfer
Restricted Note that is a Definitive Note, the
Registrar shall permit the Holder thereof to exchange
such Transfer Restricted Note for a Definitive Note
that does not bear the legend set forth above and
rescind any restriction on the transfer of such
Transfer Restricted Note; and
(B) in the case of any such Transfer
Restricted Note represented by a Global Note, such
Transfer Restricted Note shall not be subject to the
provisions set forth in (i) above (such sales or
transfers being subject only to the provisions of
Section 2.6(c) hereof); provided, however, that with
respect to any request for an exchange of a Transfer
Restricted Note that is represented by a Global Note
for a Definitive Note that does not bear a legend,
which request is made in reliance upon Rule 144, the
Holder thereof shall certify in writing to the
Registrar that such request is being made pursuant to
Rule 144 (such certification to be substantially in
the form set forth on the Note).
(iii) Notwithstanding the foregoing, upon consummation of
the Exchange Offer, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.2 hereof, the
Trustee shall authenticate Series B Notes in exchange for Series A
Notes accepted for exchange pursuant to the Registration Rights
Agreement, which Series B Notes shall not bear the legend set forth in
(i) above, and the Registrar shall rescind any restriction on the
transfer of such Notes, in each case unless the Holder of such Series
A Notes is (A) a broker-dealer who purchased such Series A Notes
directly from the Company to resell pursuant to Rule 144A or any other
available exemption under the Securities Act, (B) a Person
participating in the distribution (within the meaning of the
Securities Act) of the Series A Notes or (C) a Person who is an
affiliate (as defined in Rule 144 under the Securities Act) of the
Company.
(h) Cancellation and/or Adjustment of Global Note. At such time
as all beneficial interests in a Global Note have either been exchanged for
Definitive Notes, redeemed, repurchased or canceled or, with respect to Global
Note that is a Series A Note, exchanged for beneficial interests in a Series B
Note, such Global Note shall be returned to or retained and canceled by the
Trustee. At any time prior to such cancellation, if any beneficial interest in
a Global Note is exchanged for Definitive Notes, redeemed, repurchased or
canceled or, with respect to Global Note that is a Series A Note, exchanged for
beneficial interests in a Series B Note, the aggregate principal amount of
Notes represented by such Global Note shall be reduced and an endorsement shall
be made on such Global Note, by the Trustee or the Notes Custodian, at the
direction of the Trustee, to reflect such reduction.
(i) Obligations with respect to Transfers and Exchanges of
Definitive Notes.
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(i) To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate
Definitive Notes and Global Notes at the Registrar's or co-Registrar's
request.
(ii) No service charge shall be made for any registration
of transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessment or similar
governmental charge payable in connection therewith (other than any
such transfer tax, assessment or similar governmental charge payable
upon exchanges or transfers pursuant to Section 2.2, 2.10, 3.8, 4.14,
9.5 or 11.1).
(iii) Except for a Regulatory Redemption pursuant to
Section 3.2 or upon an order of any Gaming Authority, the Registrar or
co-Registrar shall not be required to register the transfer or
exchange of (a) any Definitive Note selected for redemption in whole
or in part pursuant to Article III, except the unredeemed portion of
any Definitive Note being redeemed in part, or (b) any Note for a
period beginning fifteen (15) Business Days before the mailing of a
notice of an offer to repurchase pursuant to Article XI or Section
4.14 hereof or a notice of the Company's intent to redeem Notes
pursuant to Article III hereof and ending at the close of business on
the day of such mailing.
(j) Requirement of Opinion with respect to Certain Transfers.
Prior to effectuating any transfer of Transfer Restricted Notes pursuant to
Section 2.6(a)(ii)(B)(ii), (iii) or (v) or Section 2.6(d)(i)(B)(ii), (iii) or
(v), the Trustee shall request and obtain an Opinion of Counsel from the
transferee or transferor reasonably acceptable to the Company, the Trustee and
the Registrar to the effect that such transfer is in compliance with the
Securities Act.
Section 2.7 Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the Holder of
a Note claims and submits an affidavit or other evidence, satisfactory to the
Trustee, to the effect that the Note has been lost, destroyed or wrongfully
taken, the Company shall issue, the Guarantor shall endorse and the Trustee
shall authenticate a replacement Note if the Trustee's requirements are met.
If required by the Trustee or the Company as a condition to receiving a
replacement Note, such Holder must provide an indemnity bond or other
indemnity, sufficient in the judgment of both the Company and the Trustee, to
protect the Company, the Trustee or any Agent from any loss that any of them
may suffer if a Note is replaced. The Company may charge such Holder for its
reasonable, out-of-pocket expenses in replacing a Note. Every replacement Note
shall be an additional obligation of the Company.
Section 2.8 Outstanding Notes.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those canceled by it, those delivered to it
for cancellation, those reductions in the interest in a Global Note effected by
the Trustee hereunder and those otherwise described in this
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Section 2.8 as not outstanding. A Note does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Note, except as
provided in Section 2.9.
If a Note is replaced pursuant to Section 2.7 (other than a mutilated
Note surrendered for replacement), it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a
bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender
of such Note and replacement thereof pursuant to Section 2.7.
If on a Redemption Date or the Maturity Date the Paying Agent (other
than the Company or an Affiliate of the Company) holds U.S. Legal Tender or
U.S. Government Obligations sufficient to pay all of the principal and interest
due on the Notes payable on that date and payment of the Notes called for
redemption is not otherwise prohibited, then on and after that date such Notes
(or portions thereof) shall cease to be outstanding and interest on them shall
cease to accrue.
Section 2.9 Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, amendment, supplement, waiver or
consent, Notes owned by the Company, any Guarantor and Affiliates of the
Company or of any Guarantor shall be disregarded, except that, for the purposes
of determining whether the Trustee shall be protected in relying on any such
direction, amendment, supplement, waiver or consent, only Notes that a Trust
Officer for the Trustee has actual knowledge are so owned shall be disregarded.
Section 2.10 Temporary Notes.
Until Definitive Notes are ready for delivery, the Company may
prepare, the Guarantor shall endorse and the Trustee shall authenticate
temporary Notes. Temporary Notes shall be substantially in the form of
Definitive Notes but may have variations that the Company reasonably and in
good faith considers appropriate for temporary Notes. Without unreasonable
delay, the Company shall prepare, the Guarantor shall endorse and the Trustee
shall authenticate Definitive Notes in exchange for temporary Notes. Until so
exchanged, the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as permanent Notes authenticated and delivered
hereunder.
Section 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee,
or at the direction of the Trustee, the Registrar or the Paying Agent (other
than the Company or an Affiliate of the Company), and no one else, shall cancel
and, at the written direction of the Company, shall destroy and return to the
Company all Notes surrendered for transfer, exchange, payment or cancellation.
Subject to Section 2.7, the Company may not issue new Notes to replace Notes it
has paid or delivered to
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the Trustee for cancellation. No Notes shall be authenticated in lieu of or in
exchange for any Notes canceled as provided in this Section 2.11, except as
expressly permitted in the form of Notes and as permitted by this Indenture.
Section 2.12 Defaulted Interest.
Any interest on any Notes which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes are registered at the close of
business on a special Record Date (a "Special Record Date") for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Note and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when deposited is
to be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as provided in this clause (a). Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall not
be more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder at the Holder's address as it appears in the Note register, not
less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and such Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Notes are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes 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 (b), such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
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ARTICLE III
REDEMPTION
Section 3.1 Right of Redemption.
Redemption of Notes shall be made only in accordance with this Article
III. At its election, the Company may redeem the Notes in whole or in part, as
follows:
(a) At any time, or from time to time, prior to June 15, 2000, the
Company shall have the option to redeem up to an aggregate of 30% of the
principal amount of the Notes originally issued pursuant to the terms hereof
with the Net Cash Proceeds of one or more Public Equity Offerings for Cash at a
Redemption Price equal to 110% of the principal amount thereof, together with
accrued and unpaid interest and Liquidated Damages, if any, to the Redemption
Date, which option shall be exercisable within ninety (90) days following the
consummation of any such Public Equity Offering.
(b) From time to time, on or after June 15, 2002, at the
redemption prices (expressed as a percentage of the principal amount thereof)
set forth below, plus accrued and unpaid interest and Liquidated Damages, if
any, to the Redemption Date, if redeemed during the 12-month period beginning
on June 15 of the years indicated:
Redemption
Year Price
--------- --------------
2002 104.688%
2003 103.125%
2004 101.563%
2005 and thereafter 100.000%
Except as provided in this Section and Section 3.2, the Notes may not otherwise
be redeemed at the option of the Company.
Section 3.2 Regulatory Redemption Pursuant to Gaming Laws.
(a) Subject to the provisions of subsection (b) below with regard
to the Mississippi Gaming Authority and notwithstanding any other provision of
this Indenture, if the ownership of any of the Notes by any person or entity
will (i) preclude the issuance, maintenance, existence or reinstatement of any
gaming or liquor license, or permit or approval of any Gaming Authority as
determined by any Governmental Authority as a result of such Holder failing to
qualify or to be found suitable under applicable Gaming Laws or failing to
apply for a finding of suitability after being notified to do so by the Company
or by the appropriate Governmental Authority, or (ii) preclude, interfere with,
threaten or delay the issuance or maintenance, existence or reinstatement of
any gaming or liquor license, or permit or approval of any Gaming Authority
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or result in the imposition of burdensome terms or conditions on such license,
permit or approval, as determined by the Board of Managers of the Company, such
Holder shall be obligated, at the request of the Company, to dispose of such
Holder's Notes (subject to any restrictions on the Transfer of the Notes set
forth herein, in the Offering Memorandum or otherwise provided by applicable
law and subject to any approvals by any Gaming Authority that may be required)
within ninety (90) days (or such longer time period permitted by the applicable
Gaming Authority or such shorter time period required by any Gaming Authority)
after receipt of notice of such determination by any Governmental Authority or
the Board of Managers, and if such Notes are not so disposed of within the
required period, the Company shall have the right to redeem such Holder's Notes
at a redemption price equal to (A) in the case of a Regulatory Redemption
pursuant to clause (i) above the lowest of (x) the price at which such Holder
or beneficial owner acquired such Notes, without accrued interest, if any, (y)
the principal amount of such Notes, without accrued and unpaid interest or
Liquidated Damages, if any, or (z) the Current Market Price of such Notes,
without accrued and unpaid interest or Liquidated Damages, if any (provided
that if a greater redemption price is permitted by the relevant Gaming
Authority, such higher redemption price shall apply), and (B) in the case of a
Regulatory Redemption pursuant to clause (ii) above, the Current Market Price,
with all accrued and unpaid interest, if any (or such higher or lower price
required by applicable law or as specifically determined by an order of the
relevant Governmental Authority). Any Holder or beneficial owner of a Note
required to qualify or be found suitable under applicable Gaming Laws must pay
all investigative fees and costs of the Gaming Authorities in connection with
such application therefor.
(b) Each Holder, by accepting the Notes, shall be deemed to have
agreed (to the extent permitted by applicable law) that if the Mississippi
Gaming Commission requires that a person who is a Holder or beneficial owner of
any of the Notes must be licensed or found suitable under applicable gaming
laws, such Holder or beneficial owner shall apply for a license or a finding of
suitability within the required time period. If such Person fails to apply or
become licensed or is not found suitable, such Holder shall be obligated, at
the Company's request, to dispose of its Notes or beneficial interest therein
within 10 days (or such longer time period permitted by the applicable Gaming
Authority or such shorter time period required by any Gaming Authority) of
receipt of notice from the Company or such time as may be ordered by the
Mississippi Gaming Commission, and if such Notes are not so disposed of within
the required period, the Company shall have the right to redeem such Notes at a
price equal to the lowest of (x) the price at which such Holder or beneficial
owner acquired such Notes, (y) the principal amount of such Notes and (z) the
Current Market Price of such Notes, in each case excluding accrued and unpaid
interest and Liquidated Damages, if any, from the date the Mississippi Gaming
Commission serves notice to the Company of a determination of unsuitability to
the redemption date, in accordance with applicable law.
Section 3.3 Notices to Trustee.
If the Company elects to redeem Notes pursuant to Section 3.1 or 3.2
above, it shall furnish written notice to the Trustee specifying (i) the date
on which the Notes are to be
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redeemed (the "Redemption Date"), (ii) the principal amount of Notes to be
redeemed, (iii) whether it wants the Trustee to give notice of redemption to
the Holders, (iv) the Section of this Indenture pursuant to which the
redemption shall occur, (v) the principal amount of Notes to be redeemed and
(vi) the redemption price.
If the Company elects to reduce the principal amount of Notes to be
redeemed pursuant to the optional redemption provisions of the Notes by
crediting against any such redemption Notes it has not previously delivered to
the Trustee for cancellation, it shall so notify the Trustee of the amount of
the reduction and deliver such Notes with such notice.
The Company shall give each notice to the Trustee provided for in this
Section 3.3 not less than thirty (30) nor more than sixty (60) days before the
Redemption Date (unless a shorter notice shall be required by applicable Gaming
Laws or by order of any Governmental Authority).
Section 3.4 Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed, the Trustee shall
select the Notes to be redeemed among the Holders (other than as provided in
Section 3.2 hereof), in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are listed or, if the
Notes are not so listed, on a pro rata basis, the particular Notes to be
redeemed shall be selected by the Trustee by lot or in accordance with any
other method the Trustee considers fair and appropriate. In the event of a
partial redemption by lot, the particular Notes to be redeemed shall be
selected, unless otherwise provided herein, not less than thirty (30) nor more
than 60 days prior to the Redemption Date.
The Trustee shall make the selection from the Notes outstanding and
not previously called for redemption and shall promptly notify the Company in
writing of the Notes selected for redemption and, in the case of any Note
selected for partial redemption, the principal amount thereof to be redeemed.
Notes in denominations of one thousand dollars ($1,000) may be redeemed only in
whole. The Trustee may select for redemption portions (equal to one thousand
dollars ($1,000) or any integral multiple thereof) of the principal of Notes
that have denominations larger than one thousand dollars ($1,000), except that
if all Notes of a Holder are to be redeemed, the entire outstanding amount of
Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed.
Provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
Section 3.5 Notice of Redemption.
At least thirty (30) days but not more than sixty (60) days before a
Redemption Date, the Company shall mail a notice of redemption by first class
mail, postage prepaid, to each Holder whose Notes are to be redeemed (unless a
shorter notice shall be required by any Governmental Authority) at such
Holder's last address as then shown upon the Company's registry books. At the
Company's request, the Trustee shall give the notice of redemption in the
Company's name
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and at the Company's expense. Each notice of redemption shall identify the
Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price, including the amount of
accrued and unpaid interest to be paid upon such redemption;
(3) the name and address of the Paying Agent;
(4) that Notes called for redemption must be
surrendered to the Paying Agent at the address specified in such
notice to collect the Redemption Price;
(5) that, unless (a) the Company defaults in its
obligation to deposit U.S. Legal Tender with the Paying Agent in
accordance with Section 3.7 hereof or (b) such redemption payment is
prevented for any reason, interest on Notes called for redemption
ceases to accrue on and after the Redemption Date and the only
remaining right of the Holders of such Notes is to receive payment of
the Redemption Price, including accrued and unpaid interest, upon
surrender to the Paying Agent of the Notes called for redemption and
to be redeemed;
(6) if any Note is being redeemed in part, the
portion of the principal amount, equal to one thousand dollars
($1,000) or any integral multiple thereof, of such senior Note to be
redeemed and that, after the Redemption Date, and upon surrender of
such Note, a new Note or Notes in aggregate principal amount equal to
the unredeemed portion thereof will be issued in the name of the
Holder thereof upon cancellation of the original Note;
(7) if less than all the Notes are to be
redeemed, the identification of the particular Notes (or portion
thereof) to be redeemed, as well as the aggregate principal amount of
such Notes to be redeemed and the aggregate principal amount of Notes
to be outstanding after such partial redemption;
(8) the CUSIP number of the Notes to be redeemed;
and
(9) that the notice is being sent pursuant to
this Section 3.5 and pursuant to the optional redemption provisions of
the Notes.
Section 3.6 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.5,
Notes called for redemption become irrevocably due and payable on the
Redemption Date and at the Redemption Price, including accrued and unpaid
interest and Liquidated Damages, if any. Upon surrender to the Trustee or
Paying Agent, such Notes called for redemption shall be paid at the
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Redemption Price, including interest and Liquidated Damages, if any, accrued to
and unpaid on the Redemption Date; provided, however, that if the Redemption
Date is after a regular Record Date and on or prior to the Interest Payment
Date, the accrued interest shall be payable to the Holder of the redeemed Notes
registered on the relevant Record Date; and provided, further, that if a
Redemption Date is a Legal Holiday, payment shall be made on the next
succeeding Business Day and no interest shall accrue for the period from such
Redemption Date to such succeeding Business Day.
Section 3.7 Effect of Deposit by the Company with the Paying Agent.
On or before the Redemption Date, the Company shall deposit with the
Paying Agent (other than the Company or an Affiliate of the Company) U.S. Legal
Tender sufficient to pay the Redemption Price of, including accrued and unpaid
interest and Liquidated Damages, if any, on, all Notes to be redeemed on such
Redemption Date (other than Notes or portions thereof called for redemption on
that date that have been delivered by the Company to the Trustee for
cancellation). The Paying Agent shall promptly return to the Company any U.S.
Legal Tender so deposited that is not required for that purpose upon the
written request of the Company.
If the Company complies with the preceding paragraph and the other
provisions of this Article III and payment of the Notes called for redemption
is not prevented for any reason, interest on the Notes (or the portion thereof)
to be redeemed will cease to accrue on the applicable Redemption Date, whether
or not such Notes are presented for payment. Notwithstanding anything herein to
the contrary, if any Note surrendered for redemption in the manner provided in
the Notes shall not be so paid upon surrender for redemption because of the
failure of the Company to comply with the preceding paragraph and the other
provisions of this Article III, interest shall continue to accrue and be paid
from the Redemption Date until such payment is made on the unpaid principal,
and, to the extent lawful, on any premium, interest and Liquidated Damages, if
any, not paid on such unpaid principal, in each case at the rate and in the
manner provided in Section 4.1 hereof and the Notes.
Section 3.8 Notes Redeemed in Part.
Upon surrender of a Note that is to be redeemed in part, the Company
shall execute, the Guarantor shall endorse and the Trustee shall authenticate
and deliver to the Holder, without service charge, a new Note or Notes equal in
principal amount to the unredeemed portion of the Note surrendered.
Section 3.9 Mandatory Redemption.
Except as set forth under Section 4.14 and Article XI hereof, the
Company shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
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ARTICLE IV
COVENANTS
Section 4.1 Payment of Notes.
The Company shall pay the principal of and premium, interest and
Liquidated Damages, if any, on the Notes on the dates and in the manner
provided in the Notes and this Indenture. Principal of and premium, interest
and Liquidated Damages, if any, on the Notes shall be considered paid on the
date it is due if the Trustee or Paying Agent (other than the Company or an
Affiliate of the Company) holds for the benefit of the Holders, on or before
10:00 a.m., New York City time on that date, in immediately payable funds
deposited and designated for and sufficient to pay all principal of, and
premium, interest and Liquidated Damages, if any, on the Notes then due. The
Company shall pay interest on overdue principal and on overdue installments of
interest, premium and Liquidated Damages, if any, at the rate specified in the
Notes compounded semi-annually, to the extent lawful.
Section 4.2 Maintenance of Office or Agency.
The Company and the Guarantor shall maintain in the Borough of
Manhattan, the City of New York, an office or agency where Notes may be
presented or surrendered for payment, where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company and the Guarantor in respect of the Notes and this Indenture may be
served. The Company and the Guarantor 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 and the Guarantor 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 serviced at the address of the Trustee set forth in Section 13.2.
The Company and the Guarantor may also from time to time designate one
or more other offices or agencies where the Notes may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company and the Guarantor of their obligation to
maintain an office or agency in the Borough of Manhattan, The City of New York,
for such purposes. The Company and the Guarantor 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. The Company and the
Guarantor hereby initially designate the Corporate Trust Office of the Trustee
set forth in Section 13.2 as such office.
Section 4.3 Limitation on Restricted Payments.
(a) The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, make any Restricted Payment, except as
set forth in paragraphs (b) and (c) below, if immediately prior thereto and
after giving effect thereto on a pro forma basis (1) a Default or an Event of
Default shall have occurred and be continuing, (2) the Company could not incur
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at least one dollar ($1.00) of additional Indebtedness pursuant to clause (ii)
of paragraph (a) of Section 4.11 hereof or (3) the aggregate amount of all
Restricted Payments made by the Company and its Subsidiaries, including after
giving pro forma effect to such proposed Restricted Payment, from and after
January 1, 1997, would exceed the sum of (a) 50% of the aggregate Adjusted
Consolidated Net Income of the Company for the period (taken as one accounting
period) commencing on January 1, 1997, to and including the last day of the
latest fiscal quarter ended immediately prior to the date of each such
calculation for which financial statements are available (or, in the event
Adjusted Consolidated Net Income for such period is a deficit, then minus 100%
of such deficit), plus (b) the aggregate Net Cash Proceeds received (or to be
received within one (1) Business Day upon the Closing of a Public Equity
Offering of Qualified Capital pursuant to a registration statement which prior
to such Restricted Payment, has been declared effective by the SEC; provided,
however, that if any such Public Equity Offering does not result in the Company
receiving such proceeds within one (1) Business Day, then any payment that
would be in contravention of this Section 4.3 but for this parenthetical clause
shall be deemed in contravention of this Section 4.3 unless cash equal to such
payment is repaid in full to the Company as an equity contribution to the
Company within one (1) Business Day of when such closing was scheduled to
occur) by the Company from the sale of the Company's Qualified Capital (other
than to a Subsidiary of the Company and other than in connection with a
Qualified Exchange) after the Issue Date, plus (c) the amount by which
Indebtedness of the Company or any Guarantor is reduced on the Company's
balance sheet upon the conversion or exchange (other than an issuance or sale
to a Subsidiary of the Company or an employee stock ownership plan or other
trust established by the Company or any of it Subsidiaries) subsequent to the
end of the most recent fiscal quarter ended immediately prior to the date of
the Indenture, of any Indebtedness of the Company or any Guarantor convertible
or exchangeable for Capital (other than Disqualified Capital) of the Company
(less the amount of any cash or other property distributed by the Company or
any Restricted Subsidiary upon such conversion or exchange), plus (d) the
amount equal to the net reduction in Investments resulting from (A) payments of
dividends, repayments of loans or advances or other transfers of assets to the
Company or any Guarantor or the satisfaction or reduction (other than by means
of payments by the Company or any Subsidiary) of obligations of other persons
which have been guaranteed by the Company or any Guarantor or (B) the
redesignation of Unrestricted Subsidiaries as Subsidiaries which execute
Guarantees, in the case of (d) such net reduction in Investments being (x)
valued as provided in the definition of "Investment," (y) in an amount not to
exceed the aggregate amount of Investments previously made by the Company or
any Guarantor which were treated as a Restricted Payment, and (z) included in
this clause (d) only to the extent not included in Consolidated Net Income. In
the event that the Company or a Subsidiary makes an Investment in a Subsidiary
pursuant to the proviso contained in the definition of Investments, and such
latter Subsidiary is subsequently designated an Unrestricted Subsidiary, such
Investment shall be deemed to be a Restricted Payment made at the time the
latter Subsidiary is designated an Unrestricted Subsidiary, and shall be
subject to the provisions of this Section 4.3(a).
(b) Notwithstanding anything in paragraph (a) to the contrary,
from and after the Issue Date, unless a Default or an Event of Default shall
have occurred and be continuing, the
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following Restricted Payments shall be permitted: (u) Investments in one or
more persons in an amount not in excess of fifty million dollars ($50,000,000)
in the aggregate at any one time outstanding for all such investments made in
any one or more persons in reliance upon this clause (u), for the purpose of
developing, constructing or acquiring (A) a Casino or Casinos or, if
applicable, any Related Business in connection with such Casino or Casinos, or
(B) a Related Business to be used primarily in connection with an existing
Casino or Casinos; provided that to the extent the Company or any Subsidiary
has received cash distributions from any such person, the amount thereof will
be deemed to reduce the amount of Investments (by fifty percent (50%) in the
case of returns in excess of capital and by one hundred percent (100%) in the
case of return of capital), then outstanding under this clause (u) for the
purposes of the fifty million dollar ($50,000,000) limit, (v) in the case of
any Subsidiary, pro rata distributions on its Capital, (w) the payment of any
dividend on or redemption of Qualified Capital within sixty (60) days after the
date of its declaration or authorization, respectively, if such dividend or
redemption could have been made on the date of such declaration or
authorization, respectively, in compliance with the foregoing provisions, (x)
the redemption or repurchase of any Capital or Indebtedness of the Company or
any of its Subsidiaries (other than any Capital or Indebtedness that is held or
beneficially owned by any Excluded Person) required by the Regulatory
Redemption provisions contained in Section 3.2 hereof (or any substantially
comparable provision governing other Indebtedness), (y) a Qualified Exchange or
(z) further Restricted Payments of any type which in the aggregate do not
exceed fifty million dollars ($50,000,000) for all such Restricted Payments
permitted by this clause (z) taken together; provided, however, that no part of
the Restricted Payment permitted by this clause (z) will be made for purposes
described in clause (u), it being the intention of the parties that the fifty
million dollar ($50,000,000) limit set forth therein, respectively, be the only
amounts available for the purposes specified in such clause (u) other than
amounts available under paragraph (a) above for Restricted Payments without
regard to the exceptions set forth in this paragraph (b); provided further,
however, that (i) no payment may be made pursuant to clause (z) to Xx. Xxxxxx,
Xxxxxxx Xxxx, or members of their families unless the Company could then incur
at least $1.00 of additional Indebtedness, after taking into account any
funding of such Restricted Payments, under clause (a) of Section 4.11 hereof,
and (ii) no payments may be made pursuant to this clause (z) to any of Xx.
Xxxxxx, Xxxxxxx Xxxx or members of their families until such time as the
expansion projects of the Horseshoe Casinos as described in the Summary section
of the Offering Memorandum are complete. The full amount of any Restricted
Payment made pursuant to clause (w) or (x), however, will be deducted in the
calculation of the aggregate amount of Restricted Payments available to be made
referred to in clause (3) of the immediately preceding paragraph.
(c) (i) Notwithstanding anything in paragraphs (a) and (b)
above to the contrary, from and after the Issue Date, prior to the occurrence
of a Non-Tax Distribution Event (and after such Non-Tax Distribution Event
shall have been cured and no longer be continuing), and without limiting the
payments that may be made to the Company, or to any of its Subsidiaries by any
of its Subsidiaries, each of the Company and its Subsidiaries may make
distributions to its Equity Holders in the amounts provided in clause (ii)
below (such distributions being referred to as "Permitted Tax Distributions").
From and after the occurrence of a Non-Tax Distribution
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Event (and during the entire time such Non-Tax Distribution Event shall be
continuing and shall not have been cured), no Permitted Tax Distributions shall
be made until such Non-Tax Distribution Event shall have been cured. In
addition, if the Company or any of its Subsidiaries was prohibited, as a result
of the occurrence of a Non-Tax Distribution Event, from making any
distributions which would otherwise have been Permitted Tax Distributions
(referred to herein as "Delayed Permitted Tax Distributions") the Company shall
be permitted to make such Delayed Permitted Tax Distributions after such
Non-Tax Distribution Event shall have been cured.
(ii) The amount of Permitted Tax Distributions by the
Company and each of its Subsidiaries shall be, with respect to any taxable
year, the sum of: (I) the product of (A) the excess of (i) all items of taxable
income or gain (other than capital gains) allocated by the Company and each of
its Subsidiaries to their respective Equity Holders for that year over (ii) all
items of taxable deduction or loss (other than capital loss) allocated to such
Equity Holders by the Company and each of its Subsidiaries, respectively, for
such year and (B) the Applicable Income Tax Rate; plus (II) the product of (A)
the net capital gain (i.e., net long-term capital gain over net short-term
capital loss), if any, allocated by the Company and each of its Subsidiaries to
their respective Equity Holders for such year, and (B) the Applicable Capital
Gains Tax Rate; plus (III) taking into account the capital gains and losses of
the Company and each of its Subsidiaries, respectively, the product of (A) the
net short-term capital gain (i.e., net short-term capital gains in excess of
net long-term capital losses), if any, allocated by the Company and each of its
Subsidiaries to their respective Equity Holders for such year and (B) the
Applicable Income Tax Rate; minus (IV) the aggregate Tax Loss Benefit Amounts
for the Company and each of its Subsidiaries, respectively, for such year.
Estimated Tax Distributions shall be made within twelve days following March
31, June 30, September 30 and December 31 based upon an estimate of the excess
of (x) the Tax Distributions that would be payable for the period beginning on
January 1 of such year and ending on March 31, June 30, September 30 and
December 31 were such period a taxable year (computed as provided above) over
(y) distributions attributable to all prior periods during such taxable year.
The Company shall give the Trustee written notice of each Permitted Tax
Distribution paid pursuant to this Section 4.3(c)(ii) within fifteen (15) days
after the payment thereof. Promptly after filing by the Company and each of its
Subsidiaries of their respective annual tax return, each Equity Holder shall
reimburse the Company or the applicable Subsidiary, as the case may be, to the
extent such estimated Tax Distributions made to such Equity Holder exceeded the
actual permissible Tax Distributions with respect to such taxable year for that
Equity Holder, and the Company or the applicable Subsidiary, as the case may
be, shall make a further payment to its respective Equity Holders to the extent
such estimated Tax Distributions were less than the Tax Distributions actually
payable to such Equity Holders with respect to such taxable year. To the
extent that any Tax Distribution would otherwise be made to any Equity Holder
at a time when an obligation of such Equity Holder to make a payment to the
Company or the applicable Subsidiary under this clause (ii) remains
outstanding, the amount of any Tax Distribution to be made will be reduced by
the amounts such Equity Holder is obligated to pay the Company or the
applicable Subsidiary. Notwithstanding the foregoing, with respect only to the
Investor Limited Partners' percentage allocable interest in income, gain,
deduction, loss, capital gain and
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capital loss of HE, the Applicable Income Tax Rate and the Applicable Capital
Gains Tax Rate for purposes of this Section 4.3(c)(ii) shall be deemed to be
100%; provided, however, that such payment of 100% of their allocable interest
in income, gain, deduction, capital gain or capital loss of HE to the Investor
Limited Partners with respect to each taxable year shall be limited solely to
cash distributions from HE for that taxable year.
Section 4.4 Existence.
Subject to Article V, the Company and the Guarantor shall do or cause
to be done all things necessary to preserve and keep in full force and effect
each of their existence and the existence of each of their Subsidiaries in
accordance with the respective organizational documents of each of them and the
rights (charter and statutory) and franchises of the Company and the Guarantor
and their Subsidiaries; provided, however, that neither the Company nor the
Guarantor shall be required to preserve, with respect to itself, any right or
franchise, and with respect to any of their Subsidiaries, any such existence,
right or franchise, if (a) the Board of Managers of the Company shall determine
reasonably and in good faith that the preservation thereof is no longer
desirable in the conduct of the business of the Company or the Guarantor, as
the case may be, and (b) the loss thereof is not adverse in any material
respect to the Holders.
Section 4.5 Payment of Taxes and Other Claims.
The Company and the Guarantor shall, and shall cause each of their
Subsidiaries to, pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (i) all taxes, assessments and governmental
charges (including withholding taxes and any penalties, interest and additions
to taxes) levied or imposed upon the Company, the Guarantor or any of their
Subsidiaries or properties and assets of the Company, the Guarantor or any of
their Subsidiaries and (ii) all lawful claims, whether for labor, materials,
supplies, services or anything else, that have become due and payable and that
by law have or may become a Lien upon the property and assets of the Company,
the Guarantor or any of their Subsidiaries; provided, however, that neither the
Company nor the Guarantor shall 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 disputed amounts adequate reserves have been
established in accordance with GAAP.
Section 4.6 Maintenance of Insurance.
From and at all times after the Issue Date, the Company and its
Subsidiaries shall have in effect customary property and comprehensive general
liability insurance coverage on terms and in an amount reasonably sufficient
(taking into account, among other factors, the creditworthiness of the insurer)
to avoid a material adverse change in the financial condition or results of
operation of the Company and its Subsidiaries, taken as a whole.
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Section 4.7 Compliance Certificates; Notice of Default.
(a) The Company shall deliver to the Trustee within ninety (90)
days after the end of each fiscal year an Officers' Certificate complying
(whether or not required) with Section 314(a)(4) of the TIA and stating that a
review of its activities and the activities of 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, whether or not the
signer knows of any failure by the Company, the Guarantor or any Subsidiary of
the Company or the Guarantor to comply with any conditions or covenants in this
Indenture and, if such signer does know of such a failure to comply, the
certificate shall describe such failure with particularity. The Officers'
Certificate shall also notify the Trustee should the relevant fiscal year end
on any date other than the current fiscal year-end date.
(b) So long as not contrary to the then current recommendation of
the American Institute of Certified Public Accountants, the Company shall
deliver to the Trustee within one hundred twenty (120) days after the end of
each of its fiscal years a written report of a firm of independent certified
public accountants with an established national reputation stating that in
conducting their audit for such fiscal year, nothing has come to their
attention that caused them to believe that the Company or any Subsidiary of the
Company was not in compliance with the provisions set forth in Section 4.3,
4.11 or 4.14 of this Indenture.
(c) The Company, so long as any of the Notes are outstanding,
shall deliver to the Trustee, promptly upon becoming aware of any Default or
Event of Default under this Indenture, an Officers' Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes
to take with respect thereto. The Trustee shall not be deemed to have
knowledge of a Default or an Event of Default unless one of its Trust Officers
receives written notice of the Default giving rise thereto from the Company or
any of the Holders.
Section 4.8 Reports.
(a) To the extent permitted by applicable law or regulation,
whether or not the Company is subject to the requirements of Section 13 or
15(d) of the Exchange Act, the Company shall file with the SEC all quarterly
and annual reports and such other information, documents or other reports (or
copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) required to be filed pursuant to such provisions of the
Exchange Act. The Company shall file with the Trustee, within 5 days after it
files the same with the SEC, copies of the quarterly and annual reports and the
information, documents, and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) that it is
required to file with the SEC pursuant to this Section 4.8. The Company shall
also comply with the other provisions of TIA Section 314(a). If the Company
is not permitted by applicable law or regulations to file the aforementioned
reports, the Company (at its own expense) shall file with the Trustee and mail,
or cause the Trustee to mail, to Holders
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at their addresses appearing in the register of Notes at the time of such
mailing within 5 days after it would have been required to file such
information with the SEC, all information and financial statements, including
any notes thereto and with respect to annual reports, an auditors' report by an
accounting firm of established national reputation, and a "Management's
Discussion and Analysis of Financial Condition and Results of Operations,"
comparable to the disclosure that the Company would have been required to
include in annual and quarterly reports, information, documents or other
reports, including, without limitation, reports on Forms 10-K, 10-Q and 8-K, if
the Company was subject to the requirements of such Section 13 or 15(d) of the
Exchange Act.
(b) At any time when the Company is not permitted by applicable
law or regulations to file the aforementioned reports, upon the request of a
Holder of a Note other than a Series B Note, the Company will promptly furnish
or cause to be furnished such information as is specified pursuant to Rule
144A(d)(4) under the Securities Act (or any successor provision thereto) to
such Holder or to a prospective purchaser of such Note designated by such
Holder, as the case may be, in order to permit compliance by such Holder with
Rule 144A under the Securities Act.
Section 4.9 Waiver of Stay, Extension or Usury Laws.
Each of the Company and the Guarantor covenant that they will 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 wherever enacted that would prohibit or forgive the Company or the
Guarantor from paying all or any portion of the principal of or interest on the
Notes as contemplated herein, wherever enacted, now or at any time hereafter in
force, or that may affect the covenants or the performance of this Indenture,
and each of the Company and the Guarantor hereby expressly waive all benefit
and advantage of any such law insofar as such law applies to the Notes and
covenant that it shall not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Section 4.10 Limitation on Transactions with Affiliates.
Neither the Company nor any of its Subsidiaries will be permitted
after the Issue Date to enter into any contract, arrangement, understanding or
transaction with an Affiliate (an "Affiliate Transaction") or series of related
Affiliate Transactions involving consideration to either party in excess of
five million dollars ($5,000,000) except for transactions (i) approved by a
majority of the disinterested (as to such transaction) members of the Board of
Managers of the Company and evidenced by an Officers' Certificate addressed and
delivered to the Trustee stating that such Affiliate Transaction has been so
approved and is made in good faith and that the terms of such Affiliate
Transaction are fair and reasonable to the Company and such Subsidiaries, as
the case may be, and (ii) regarding which the Company has obtained, prior to
the consummation thereof, a favorable written opinion as to the fairness of
such transaction to the Company and such Subsidiaries, as the case may be, from
a financial point of view from an
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independent investment banking firm of national reputation. Notwithstanding
the foregoing, "Affiliate Transaction" shall not include: (a) payments of
reasonable and customary compensation, Managers' fees and indemnities of
Managers, officers and employees, (b) Restricted Payments permitted under
Section 4.3 of this Indenture (including transactions which are permitted
because they are excluded from the definition of the term "Restricted Payment"
or the definitions of terms used in the definition of "Restricted Payment"),
(c) transactions solely between the Company and a Subsidiary Guarantor or among
any Subsidiary Guarantors, (d) the Intercompany Notes, (e) any employment
agreement entered into by the Company or any of its Subsidiaries in the
ordinary course of business and consistent with the usual and customary
practice of the gaming industry in the United States and (f) transactions
permitted pursuant to paragraph (b) or (c) of the definition of Permitted
Indebtedness.
Section 4.11 Limitation on Incurrence of Additional Indebtedness and
Disqualified Capital.
Except as set forth below, neither the Company nor any of its
Subsidiaries will, directly or indirectly, issue, assume, guarantee, incur,
become directly or indirectly liable with respect to, (including as a result of
an acquisition, merger or consolidation), extend the maturity of, or otherwise
become responsible for, contingently or otherwise (individually and
collectively, to "incur" or, as appropriate, an "incurrence"), any Indebtedness
or any Disqualified Capital from and after the Issue Date. Notwithstanding the
foregoing:
(a) The Company and the Guarantor may incur Indebtedness or
Disqualified Capital if (i) no Default or Event of Default shall have occurred
and be continuing at the time of, or would occur after giving effect on a pro
forma basis to, such incurrence of Indebtedness or Disqualified Capital and
(ii) on the date of such incurrence (the "Incurrence Date"), the Consolidated
Coverage Ratio of the Company for the Reference Period immediately preceding
the Incurrence Date, after giving effect on a pro forma basis to such
incurrence of such Indebtedness or Disqualified Capital, would be at least 2.0
to 1;
(b) The Company and the Guarantor may incur Indebtedness evidenced
by the Notes and represented by this Indenture and the Guarantee hereof;
(c) The Company and its Subsidiaries may incur Purchase Money
Indebtedness to finance the purchase of land, buildings, furniture, fixtures
and equipment for each Casino owned and operated by the Company or a
Subsidiary; provided, however, that such Purchase Money Indebtedness is either
(i) Non-recourse Indebtedness or (ii) limited in amount (including any
Indebtedness issued to refinance, replace or refund such Indebtedness) with
respect to any such Casino to the lesser of (A) the amount of Related Business
Assets used in such Casino and financed by such Purchase Money Indebtedness, or
(B) fifteen million dollars ($15,000,000) per Casino;
(d) The Company's Subsidiaries may each incur up to five million
dollars ($5,000,000) of working capital Indebtedness at any time outstanding;
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(e) The Company and the Guarantor may incur Refinancing
Indebtedness with respect to any Indebtedness or Disqualified Capital, as
applicable, described in clauses (a), (b), (g) and (h) of this Section 4.11 and
the Company and its Subsidiaries may incur Refinancing Indebtedness with
respect to any Indebtedness described in clause (c) of this Section 4.11;
(f) The Company and the Guarantor may incur Indebtedness (in
addition to any Indebtedness incurred in accordance with any other provision of
this Section 4.11) in an aggregate amount outstanding at any time (including
any Indebtedness issued to refinance, replace, or refund such Indebtedness) of
up to twenty million dollars ($20,000,000) for the Company and the Guarantor
taken together;
(g) The Company may incur Indebtedness pursuant to the Credit
Facility (and the Guarantor may guarantee such Indebtedness) on or after the
Issue Date up to an aggregate amount outstanding at any time equal to the sum
of (i) one hundred fifty million dollars ($150,000,000) minus the amount of any
Indebtedness incurred pursuant to this clause (g) which (A) is retired with the
Net Cash Proceeds from any Asset Sale, Event of Loss or assumed by a transferee
in an Asset Sale, (B) is retired, repaid, redeemed or otherwise defeased
through the incurrence of Refinancing Indebtedness, or (C) represents
repayments of amounts initially borrowed under the Credit Facility pursuant to
any mandatory redemption or mandatory principal amortization payment, plus (ii)
such additional amounts as may be deemed to be outstanding in the form of
Interest Swap and Hedging Obligations or Currency Exchange Protection
Agreements with lenders party to the Credit Facility; provided, however, that
the maximum aggregate amount permitted to be outstanding under this paragraph
(g) shall not be deemed to limit additional Indebtedness under the Credit
Facility to the extent such additional Indebtedness is permitted pursuant to
paragraph (a) hereof; and
(h) Permitted Indebtedness.
In the event that the Company incurs Indebtedness, or any Subsidiary
incurs Indebtedness or Disqualified Capital, to any Subsidiary pursuant to
clause (b) of the definition of Permitted Indebtedness, and such latter
Subsidiary thereafter ceases to remain a "Subsidiary" as defined herein, the
aggregate outstanding amount of such Indebtedness incurred by the Company, or
of such Indebtedness or Disqualified Capital incurred by such Subsidiary, to
the Subsidiary that ceases to so remain a "Subsidiary" shall be deemed to be
Indebtedness incurred by the Company or such Subsidiary at the time of such
change in Subsidiary status. Indebtedness and Disqualified Capital issued by
any person that is not a Subsidiary, which Indebtedness or Disqualified Capital
is outstanding at the time such person becomes a Subsidiary of the Company, or
is merged into or consolidated with the Company or a Subsidiary of the Company,
shall be deemed to have been incurred at the time such person becomes a
Subsidiary of the Company, or is merged into or consolidated with the Company
or a Subsidiary of the Company. A guarantee by the Company or a Subsidiary of
the Company of Indebtedness incurred by the Company or a Subsidiary is not
considered a separate incurrence for purposes of this Section 4.11(h).
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Section 4.12 Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries.
Neither the Company nor any of its Subsidiaries will, directly or
indirectly, create, assume or suffer to exist any consensual encumbrance or
restriction on the ability of any Subsidiary to pay dividends or make other
distributions to, or to pay any obligation (including, without limitation, in
respect of the Guarantee) to, or to otherwise transfer assets or make or pay
loans or advances to, the Company or any of its Subsidiaries, except (a)
reasonable and customary provisions restricting subletting or assignment of any
lease entered into in the ordinary course of business, consistent with industry
practices, (b) restrictions imposed by applicable law, (c) restrictions under
any Acquired Indebtedness or any agreement relating to any property, asset or
business acquired by the Company or any of its Subsidiaries, which restrictions
existed at the time of acquisition, were not put in place in connection with or
in anticipation of such acquisition and are not applicable to any person, other
than the person acquired or to any property, asset or business other than the
property, asset and business so acquired, (d) restrictions with respect solely
to a Subsidiary of the Company imposed pursuant to a binding agreement (subject
only to reasonable and customary closing conditions and termination provisions)
that has been entered into for the sale or disposition of all or substantially
all of the Capital or assets to be sold of such Subsidiary, provided such
restrictions apply solely to the Capital or assets to be sold of such
Subsidiary, and such sale or disposition is permitted under Section 4.14, (e)
reasonable and customary restrictions on transfers of all collateral imposed in
connection with Liens securing Indebtedness, to the extent such Liens are
permitted by Section 4.13 and to the extent such Indebtedness is permitted by
Section 4.11, and (f) replacements of restrictions imposed pursuant to clause
(c) and this clause (f) that are not more restrictive than those being replaced
and do not apply to any additional property or assets.
Section 4.13 Liens.
Neither the Company nor any of its Subsidiaries will, directly or
indirectly create, grant, assume, incur or suffer to exist any Lien upon any of
its property or assets, whether now owned or hereafter acquired, or any income
or profits therefrom, securing Indebtedness, other than (i) Permitted Liens;
(ii) Liens securing Indebtedness incurred in accordance with clause (c) of
Section 4.11; (iii) Liens securing Refinancing Indebtedness in accordance with
clause (e) of Section 4.11, but only if such Liens have the same relative
priority and do not extend to property and assets other than property or assets
permitted to be subject to the Liens securing the Indebtedness being
refinanced; (iv) Liens securing Indebtedness incurred in accordance with clause
(g) of Section 4.11 and Liens securing any increases in the amount of
Indebtedness under the Credit Facility above the amount of Indebtedness
permitted under such clause (g), but only to the extent that the increase in
such Indebtedness is permitted under clause (a) of Section 4.11 at the time of
the incurrence of such additional Indebtedness; (v) Liens in favor of the
Company; and (vi) Liens securing Indebtedness under the Senior Indenture.
Notwithstanding the foregoing, the Company may not and may not permit any
Subsidiary to, directly or indirectly, create, grant, assume, incur or suffer
to exist any Lien (other than Permitted Liens) upon any of its property or
assets, whether now owned or hereafter acquired, securing any Indebtedness
which is subordinated in right of payment or upon liquidation to the Notes.
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Section 4.14 Limitation on Sale of Assets and Subsidiary Capital; Event of
Loss.
(a) Other than upon an Event of Loss, neither the Company nor any
of its Subsidiaries will, in one or a series of related transactions, convey,
sell, transfer, assign or otherwise dispose of, directly or indirectly, any of
its property, business or assets, including, without limitation, upon any sale
or other transfer or issuance of any Capital of any Subsidiary or any sale and
leaseback transaction, whether by the Company or any such Subsidiary, or
through the issuance, sale or transfer of Capital by a Subsidiary (an "Asset
Sale"), unless (1) the Company complies with the provisions of Section 4.14(e)
regarding the proceeds of such Asset Sale, (2) at least eighty percent (80%) of
the consideration for such conveyance, sale, transfer or other disposition or
issuance (other than assumption of trade Indebtedness) consists of U.S. Legal
Tender or Cash Equivalents; provided, however, that for purposes of this clause
(2), the assumption of Indebtedness of the Company or a Subsidiary that is
senior to or Pari Passu with the Notes shall be deemed to be Cash Equivalents
if the Company, such Subsidiary and all other Subsidiaries of the Company, to
the extent any of the foregoing are liable with respect to such Indebtedness,
are expressly released from all liability for such Indebtedness by the holder
thereof in connection with such Asset Sale, and any securities or notes
received by the Company or such Subsidiary from such transferee that are
converted by the Company or such Subsidiary into U.S. Legal Tender or Cash
Equivalents within ten (10) Business Days of the date of such Asset Sale shall
be deemed to be Cash Equivalents, (3) no Default or Event of Default shall have
occurred and be continuing at the time of, or would occur after giving effect,
on a pro forma basis, to, such Asset Sale and (4) the Board of Managers of the
Company determines in good faith that the Company or such Subsidiary, as
applicable, receives not less than fair market value for such Asset Sale.
(b) Notwithstanding the provisions of Section 4.14(a):
(i) the Company and its Subsidiaries may in the
ordinary course of business, convey, sell, lease, transfer,
assign or otherwise dispose of assets acquired and held for
resale in the ordinary course of business;
(ii) the Company and its Subsidiaries may convey,
sell, lease, transfer or otherwise dispose of assets pursuant
to and in accordance with the provisions in Section 5.1;
(iii) the Company and its Subsidiaries may sell or
dispose of damaged, worn out or other obsolete property in the
ordinary course of business so long as such property is no
longer necessary for the proper conduct of the business of the
Company or such Subsidiary, as applicable; and
(iv) the Company and its Subsidiaries may convey,
sell, lease, transfer, assign or otherwise dispose of assets
to the Company or any of its Subsidiaries.
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Each of the transactions described in this paragraph (b) shall not be deemed an
Asset Sale for purposes of this Section 4.14.
(c) For the purposes of this Section 4.14, the "Asset Sale Event
of Loss Offer Amount" shall equal the cumulative total of:
(x) the product of (A)(1) the Net Cash Proceeds of all
Asset Sales that have occurred more than two hundred seventy (270) days prior
to the date of determination of such Asset Sale Event of Loss Offer Amount,
minus (2) the sum of the Net Cash Proceeds of any of such Asset Sales that,
within two hundred seventy (270) days of such Asset Sale, are (i) invested in
assets or property that is part of a Related Business of the Company or one of
its Subsidiaries, (ii) used to retire Indebtedness outstanding under the Credit
Facility if, concurrently therewith, the amount of such Indebtedness permitted
pursuant to paragraph (g) of Section 4.11 is permanently reduced by the amount
so retired (and any related revolving or multiple advance arrangement is
permanently reduced by a corresponding amount), (iii) used to retire
Indebtedness outstanding under the Senior Indenture, or (iv) used to retire
Indebtedness secured by the assets sold (if required by its terms as a result
of the applicable Asset Sale), and any related revolving or multiple advance
arrangement is permanently reduced by a corresponding amount, and pay related
fees and reasonable expenses, multiplied by (B) a fraction, the numerator of
which is the aggregate principal amount of the Notes outstanding on the date of
such Asset Sale and the denominator of which is the sum of (1) the aggregate
principal amount of the Notes outstanding on the date of such Asset Sale, plus
(2) the aggregate principal amount of any other Indebtedness of the Company or
its Subsidiaries existing on the date of such Asset Sale that (w) is not
retired under clause (A)(2)(ii) or (iii) of this sentence, (x) is Pari Passu
with the Senior Notes, (y) is not assumed by the transferee in such Asset Sale
with a concurrent release in full of the Company and its Subsidiaries
therefrom, and (z) pursuant to the instruments relating thereto, is required to
be repaid with the proceeds from such Asset Sale; plus
(y) the product of (A)(1) the Net Cash Proceeds from all
Events of Loss, the Net Cash Proceeds of which have been received more than two
hundred seventy (270) days prior to the date of determination of such Asset
Sale Event of Loss Offer Amount, minus (2) the sum of the amounts that, within
two hundred seventy (270) days after the receipt of the Net Cash Proceeds from
any such Event of Loss, are (i) invested in assets or property that is part of
a Related Business of the Company or one of its Subsidiaries, (ii) used to
retire Indebtedness outstanding under the Credit Facility if, concurrently
therewith, the amount of such Indebtedness permitted pursuant to paragraph (g)
of Section 4.11 is permanently reduced by the amount so retired (and any
related revolving or multiple advance arrangement is permanently reduced by a
corresponding amount), (iii) used to retire Indebtedness outstanding under the
Secured Indenture, or (iv) used to retire Indebtedness secured by the assets to
which such Event of Loss relates (if required by its terms as a result of the
applicable Event of Loss) and any related revolving or multiple advance
arrangement is permanently reduced by a corresponding amount, and pay related
fees and reasonable expenses, multiplied by (B) a fraction, the numerator of
which is the aggregate principal amount of the Notes outstanding on the date of
such Event of Loss and the denominator of which is the sum of (1) the aggregate
principal amount of the Notes
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outstanding on the date of such Event of Loss, plus (2) the aggregate principal
amount of any other Indebtedness of the Company or its Subsidiaries existing on
the date of such Event of Loss that (x) is not retired under clause (A)(2)(ii)
or (iii) of this sentence, (y) is Pari Passu with the Senior Notes, and (z)
pursuant to the instruments relating thereto, is required to be repaid with the
proceeds of such Event of Loss;
provided, however that with respect to any Asset Sale consisting of the
conveyance, sale, transfer, assignment or other disposition, directly or
indirectly, either (ii) by the Guarantor of its Casino or (iii) by the Company
or by any Subsidiary of the Company of Capital of the Guarantor, the term
"Asset Sale Event of Loss Offer Amount" relating to such Asset Sale shall mean
100% of the Net Cash Proceeds from such Asset Sale minus the sum of the amounts
that, within two hundred seventy (270) days of such Asset Sale, are used as
described in clause (A)(2)(ii), (A)(2)(iii) or (A)(2)(iv) of clause (y) above,
so that following any Asset Sale described in this proviso, the Net Cash
Proceeds resulting from such Asset Sale may be invested in assets or property
that is part of a Related Business of the Company or one of its Subsidiaries
only after the completion of an Asset Sale Event of Loss Offer for an Asset
Sale Event of Loss Offer Amount.
(d) For the purposes of this Section 4.14, "Minimum Accumulation
Date" means each date on which the accumulated Asset Sale Event of Loss Offer
Amount exceeds ten million dollars ($10,000,000).
(e) Not later than ten (10) Business Days after each Minimum
Accumulation Date, the Company shall commence an offer (an "Asset Sale Event of
Loss Offer") to the Holders to purchase on a pro rata basis, for Cash, Notes
having a principal amount equal to the accumulated Asset Sale Event of Loss
Offer Amount at a purchase price (the "Asset Sale Event of Loss Offer Price")
of one hundred percent (100%) of principal amount thereof, together with
accrued and unpaid interest and Liquidated Damages, if any, to the date of
payment (the "Asset Sale Event of Loss Purchase Date"). Notice of an Asset
Sale Event of Loss Offer shall be sent twenty (20) Business Days prior to the
close of business on the Asset Sale Event of Loss Put Date (as defined below),
by first-class mail, by the Company to each Holder at its registered address,
with a copy to the Trustee. Each Asset Sale Event of Loss Offer shall remain
open for twenty (20) Business Days following its commencement and no longer,
except to the extent that a longer period is required by applicable law. The
notice to the Holders shall contain all information, instructions and materials
required by applicable law or otherwise material to such Holders' decision to
tender Notes pursuant to the Asset Sale Event of Loss Offer. The notice,
which, to the extent consistent with this Indenture, shall govern the terms of
an Asset Sale Event of Loss Offer shall state that:
(1) the Asset Sale Event of Loss Offer is being made
pursuant to such notice and this Section 4.14;
(2) the Asset Sale Event of Loss Offer Amount, the Asset
Sale Event of Loss Offer Price (including the amount of accrued and
unpaid interest and Liquidated
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Damages, if any), the Asset Sale Event of Loss Put Date (which Asset
Sale Event of Loss Put Date shall be on or prior to thirty (30)
Business Days following the Minimum Accumulation Date);
(3) any Note or portion thereof not tendered or accepted
for payment will continue to accrue interest if interest is then
accruing;
(4) unless the Company defaults in depositing U.S. Legal
Tender with the Paying Agent (which may not for purposes of this
Section 4.14, notwithstanding anything in this Indenture to the
contrary, be the Company or any Affiliate of the Company) in
accordance with the last paragraph of this clause (e), any Note, or
portion thereof, accepted for payment pursuant to an Asset Sale Event
of Loss Offer shall cease to accrue interest after the Asset Sale
Event of Loss Purchase Date;
(5) Holders electing to have a Note, or portion thereof,
purchased pursuant to an Asset Sale Event of Loss Offer will be
required to surrender the Note, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Note completed, to the
Paying Agent (which may not for purposes of this Section 4.14,
notwithstanding any other provision of this Indenture, be the Company
or any Affiliate of the Company) at the address specified in the
notice prior to the close of business on the third Business Day prior
to the Asset Sale Event of Loss Purchase Date (the "Asset Sale Event
of Loss Put Date");
(6) Holders will be entitled to withdraw their elections,
in whole or in part, if the Paying Agent receives, up to the close of
business three Business Days prior to the Asset Sale Event of Loss Put
Date, as applicable, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the Note number, if in
definitive form, the principal amount of the Notes the Holder is
withdrawing and a statement containing a facsimile signature and
stating that such Holder is withdrawing such Holder's election to have
such principal amount of Notes purchased;
(7) if Notes in a principal amount in excess of the
principal amount of Notes to be acquired pursuant to the Asset Sale
Event of Loss Offer are tendered and not withdrawn, the Company shall
purchase Notes on a pro rata basis (with such adjustments as may be
deemed appropriate by the Company so that only Notes in denominations
of one thousand dollars ($1,000) or integral multiples of one thousand
dollars ($1,000) shall be acquired);
(8) Holders whose Notes were purchased only in part will
be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered; and
(9) the circumstances and relevant facts regarding such
Asset Sale or Event of Loss, as applicable.
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Any such Asset Sale Event of Loss Offer shall comply with all
applicable provisions of Federal and state laws, including those regulating
tender offers, if applicable, and any provisions of this Indenture that
conflict with such laws shall be deemed to be superseded by the provisions of
such laws.
On or before an Asset Sale Event of Loss Purchase Date, the
Company shall (i) accept for payment Notes or portions thereof properly
tendered pursuant to the Asset Sale Event of Loss Offer (on a pro rata basis if
required pursuant to paragraph (7) above), (ii) deposit with the Paying Agent
U.S. Legal Tender sufficient to pay the Asset Sale Event of Loss Offer Price
for all Notes or portions thereof so accepted and (iii) deliver to the Trustee
the Notes so accepted together with an Officers' Certificate setting forth the
Notes or portion thereof being purchased by the Company. The Paying Agent
shall promptly mail or deliver to Holders of Notes so accepted payment in an
amount equal to the Asset Sale Event of Loss Offer Price for such Notes, and
the Trustee shall promptly authenticate and mail or deliver to such Holders new
Notes equal in principal amount to any unpurchased portion of the Notes
surrendered. Any Notes not so accepted shall be promptly mailed or delivered
by the Company to the Holder thereof.
(f) If the amount required to acquire all Notes tendered by
Holders pursuant to an Asset Sale Event of Loss Offer (the "Acceptance
Amount"), shall be less than the Asset Sale Event of Loss Offer Amount for such
Asset Sale Event of Loss Offer, the excess of such Asset Sale Event of Loss
Offer Amount over the Acceptance Amount may be used by the Company for general
corporate purposes without restriction, unless otherwise restricted by the
other provisions of this Indenture. Upon consummation of any Asset Sale Event
of Loss Offer made in accordance with the terms of paragraph (e) above, the
accumulated Asset Sale Event of Loss Offer Amount as of the Minimum
Accumulation Date shall be reduced to zero and accumulations shall be deemed to
recommence from the day next following such Minimum Accumulation Date.
Section 4.15 Limitation on Lines of Business.
Neither the Company nor any of its Subsidiaries shall directly or
indirectly engage to any substantial extent in any line or lines of business
activity other than in a Related Business.
Section 4.16 Limitation on Status as Investment Company.
Neither the Company nor any of its Subsidiaries shall become an
"investment company" (as that term is defined in the Investment Company Act of
1940, as amended), or otherwise become subject to regulation under the
Investment Company Act.
Section 4.17 Additional Subsidiary Guarantors.
The Company must cause (i) each of its current Subsidiaries which
operates a Casino or a Related Business and which becomes a wholly-owned
Subsidiary after the Issue Date and any other wholly-owned Subsidiary created
or acquired after the Issue Date which operates a Casino
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or Related Business and (ii) each Subsidiary that executes a guarantee of
Indebtedness of the Company that is unsecured and Pari Passu or subordinate to
the Notes (each, an "Additional Guarantor") to execute a supplemental indenture
and guarantee providing that such Additional Guarantor guarantees the
obligations of the Company in accordance with the terms of Article XII and that
all the terms and conditions of Article XII and, to the extent applicable,
Article XIII, applying to the Guarantor shall apply with the same effect to
such Additional Guarantor or Additional Guarantors and to deliver copies of the
supplemental indenture and guarantee to the Trustee; provided, however, that a
Guarantee executed by a Subsidiary pursuant to clause (ii) hereof shall have
the same relative ranking with respect to the guarantee initially executed by
such Subsidiary as the Notes have to the Indebtedness initially guaranteed by
such Subsidiary. The obligations of any potential Additional Guarantor to
execute a Guarantee will be subject to the receipt of any approval required by
any Gaming Authority or any other Governmental Authority, which the Company and
its Subsidiaries shall use their best efforts to obtain.
Section 4.18 Limitation on Other Senior Subordinated Debt.
The Company will not incur, and will not permit any of its
Subsidiaries to, directly or indirectly, create, issue, assume, guarantee or
otherwise become directly or indirectly liable with respect to or become
responsible for any Indebtedness that is subordinate or junior in right of
payment to any Senior Debt (or in the case of a Guarantor, debt that is
subordinate or junior in right of payment to such Guarantor's Senior Debt) and
senior in any respect in right of payment to the Notes or in the case of a
Guarantor, senior to the Guarantee executed by the Guarantor.
ARTICLE V
SUCCESSOR CORPORATION
Section 5.1 Limitation on Consolidation, Merger and Sale of Assets.
Neither the Company nor any Subsidiary may consolidate with or merge
with or into another person or, directly or indirectly, sell, lease or convey
all or substantially all of its assets, whether in a single transaction or a
series of related transactions, to another Person or group of affiliated
Persons, unless:
(i) if the transaction involves the Company or the Guarantor,
either (a) the Company or the Guarantor, as the case may be,
is the continuing entity, and in the case of the Guarantor,
(1) the Guarantor remains a Subsidiary of the Company and (2)
the Guarantee remains in full force and effect and the rights
of the Holders thereunder and under the Notes and this
Indenture are not adversely affected as a result thereof, or
(b) the resulting, surviving or transferee entity is a person
organized under the laws of the United States, any state
thereof or the District of Columbia and expressly assumes by
supplemental indenture all of the
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Obligations of the Company or the Guarantor, as the case may
be, in connection with the Notes, this Indenture, if
applicable, and the Guarantee, and the rights of the Holders
under the Notes, this Indenture, if applicable, and the
Guarantee are not adversely affected as a result thereof;
(ii) no Default or Event of Default shall exist or shall occur
immediately after giving effect on a pro forma basis to such
transaction;
(iii) other than in the case of a transaction between the
Company and a wholly-owned Subsidiary or between wholly-owned
Subsidiaries of the Company, immediately after giving effect
to such transaction on a pro forma basis, the Consolidated Net
Worth of the consolidated surviving or transferee entity is at
least equal to the Consolidated Net Worth of the Company or
such Subsidiary, as the case may be, immediately prior to such
transaction;
(iv) other than in the case of a transaction solely between
the Company and any wholly-owned Subsidiary or between
wholly-owned Subsidiaries of the Company, the consolidated
surviving or transferee entity would, immediately after giving
effect to such transaction on a pro forma basis, be permitted
to incur at least one dollar ($1.00) of additional
Indebtedness pursuant to clause (ii) of paragraph (a) of
Section 4.11;
(v) such transaction will not result in the loss of any
material gaming license; and
(vi) the Company has delivered to the Trustee an opinion of
counsel reasonably satisfactory to the Trustee confirming that
the holders of the outstanding Notes will not recognize
income, gain or loss for federal income tax purposes as a
result of such transaction and will be subject to federal
income tax in the same manner and at the same times as would
have been the case if such transaction had not occurred.
Notwithstanding the foregoing, a Subsidiary shall not be subject to
the foregoing restrictions in circumstances involving the disposition by the
Company of such Subsidiary or a disposition of all or substantially all of the
assets of such Subsidiary in a transaction that is not prohibited by Section
4.14 herein, so long as such Subsidiary does not account for all or
substantially all the assets of the Company.
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Section 5.2 Successor Corporation Substituted.
Upon any consolidation or merger or any transfer of all or
substantially all of the assets of the Company or the Guarantor that is subject
to the foregoing restrictions contained in Section 5.1, the successor
corporation formed by such consolidation or into which the Company, or the
Guarantor, as the case may be, is merged or to which such transfer is made,
shall succeed to, and be substituted for, and may exercise every right and
power of, the Company, or the Guarantor, as the case may be, under this
Indenture and the Notes (including, without limitation, the Guarantee) with the
same effect as if such successor corporation had been named herein and therein
as the Company, or the Guarantor, as the case may be, and the Company, or the
Guarantor, as the case may be, will be released from its obligations under this
Indenture, the Notes and the Guarantee, as applicable, except as to any
obligations that arise from or as a result of such transaction.
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
Section 6.1 Events of Default.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be caused voluntarily or involuntarily or effected, without limitation,
by operation of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any Governmental Authority):
(1) the failure by the Company to pay any installment of interest
on the Notes or Liquidated Damages as and when due and payable and the
continuance of any such failure for thirty (30) days;
(2) the failure by the Company to pay all or any part of the
principal, or premium, if any, on the Notes when and as the same become due and
payable at maturity, redemption, by acceleration or otherwise, including,
without limitation, pursuant to any Offer to Purchase, or otherwise;
(3) the failure by the Company or the Guarantor to observe or
perform any other covenant or agreement contained in the Notes, this Indenture,
the Registration Rights Agreement (other than such failures as to which
Liquidated Damages shall accrue pursuant to the terms of the Registration
Rights Agreement) or the Guarantee and the continuance of such failure for a
period of thirty (30) days after written notice is given to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least
twenty-five percent (25%) in aggregate principal amount of the Notes
outstanding;
(4) the Guarantee or any guarantee of an Additional Guarantor or
Additional Guarantors which, individually or in the aggregate, constitute a
Significant Subsidiary shall be
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held in any judicial proceeding to be unenforceable or invalid in any material
respect or shall cease for any reason to be in full force and effect in any
material respect or the Guarantor or any Additional Guarantor or Additional
Guarantors, which individually or in the aggregate constitute a Significant
Subsidiary, or any Person acting by or on behalf of the Guarantor or any
Additional Guarantor or Additional Guarantors, which individually or in the
aggregate constitute a Significant Subsidiary, shall deny or disaffirm its or
their Obligations under the Guarantee and the Guarantor or any Additional
Guarantor shall not, in the case of a judgment, procure a stay of execution of
such judgment within sixty (60) days of the occurrence thereof and within such
sixty (60) day period, or such longer period during which execution of such
judgment shall have been stayed, appeal therefrom and cause the execution
thereof to be stayed during such appeal;
(5) a decree, judgment or order by a court of competent
jurisdiction shall have been entered adjudging the Company or any of its
Subsidiaries that individually or as a group constitute a Significant
Subsidiary, as bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization of the Company or such Significant Subsidiary under any
bankruptcy or similar law, and such decree or order shall have continued
undischarged and unstayed for a period of sixty (60) days; or a decree or order
of a court of competent jurisdiction for the appointment of a receiver,
liquidator, trustee or assignee in bankruptcy or insolvency of the Company or
such Significant Subsidiary, or of the property of any such person, or for the
winding up or liquidation of the affairs of any such person, shall have been
entered, and such decree, judgment or order shall have remained in force
undischarged and unstayed for a period of sixty (60) days;
(6) the Company or any of its Subsidiaries that individually or as
a group constitute a Significant Subsidiary, shall institute proceedings to be
adjudicated a voluntary bankrupt, or shall consent to the filing of a
bankruptcy proceeding against it, or shall file a petition or answer or consent
seeking reorganization under any bankruptcy or similar law or similar statute,
or shall consent to the filing of any such petition, or shall consent to the
appointment of a Custodian, receiver, liquidator, trustee or assignee in
bankruptcy or insolvency of it or any of its assets or property, or shall make
a general assignment for the benefit of creditors, or shall admit in writing
its inability to pay its debts generally as they become due, or shall, within
the meaning of any Bankruptcy Law, become insolvent or fail generally to pay
its debts as they become due;
(7) default in the payment of principal, premium or interest when
due that extends beyond any stated period of grace applicable thereto or an
acceleration for any other reason of the maturity of any Indebtedness of the
Company or any of its Subsidiaries with an aggregate principal amount in excess
of ten million dollars ($10,000,000) (other than Indebtedness of the Company to
a Subsidiary of the Company or of a Subsidiary of the Company to the Company or
another Subsidiary of the Company);
(8) final, non-appealable, unsatisfied judgments not covered by
insurance aggregating in excess of ten million dollars ($10,000,000), at any
one time being rendered against the Company or any of its Subsidiaries and not
stayed, bonded or discharged within sixty (60) days; and
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(9) the legal right of the Company or any of its Subsidiaries to
operate the gaming establishment included within any Casino is suspended or
lost and such suspension or loss shall continue for more than ninety (90)
consecutive days.
If a Default occurs and is continuing, the Trustee must, within ten
(10) days after the occurrence of such Default, give to the Holders notice of
such Default; provided, however, that except in the case of a Default in
payment of principal of or interest on any Note, the Trustee may withhold the
notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interest of the Holders.
Prior to the declaration of acceleration of the maturity of the Notes, the
Holders of a majority in aggregate principal amount of the Notes at the time
outstanding may waive on behalf of all the Holders any Default, except a
Default in the payment of principal of or interest on any Note not yet cured,
or a Default with respect to any covenant or provision that cannot be modified
or amended without the consent of the Holder of each outstanding Note affected.
Subject to the provisions of Article VII relating to the duties of the Trustee,
the Trustee will be under no obligation to exercise any of its rights or powers
under this Indenture at the request, order or direction of any of the Holders,
unless such Holders have offered to the Trustee reasonable security or
indemnity. Subject to all provisions of this Indenture and applicable law, the
Holders of a majority in aggregate principal amount of the Notes at the time
outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee.
The Company shall, within thirty (30) days following the end of each
of its fiscal years, file with the Trustee an Officers' Certificate certifying
that the Company and the Guarantor have performed all of their obligations
under this Indenture in all material respects and that no Event of Default has
occurred during the preceding fiscal year, or in the event any such Event of
Default has occurred, the facts and circumstances resulting in such Event of
Default. The Company shall promptly upon the occurrence thereof provide notice
to the Trustee of an Event of Default.
Section 6.2 Acceleration of Maturity Date, Rescission and Annulment.
(a) If an Event of Default occurs and is continuing, other than an
Event of Default specified in Section 6.1(5) or (6), then in every such case,
unless the principal of all of the Notes shall have already become due and
payable, either the Trustee or the Holders of not less than twenty five percent
(25%) in aggregate principal amount of the Notes then outstanding, by notice in
writing to the Company (and to the Trustee if given by Holders) (an
"Acceleration Notice"), may declare all principal and accrued interest and
Liquidated Damages thereon to be due and payable immediately. If an Event of
Default specified in Section 6.1(5) or (6) occurs, all principal and accrued
interest thereon will be immediately due and payable on all outstanding Notes
without any declaration or other act on the part of the Trustee or the Holders.
(b) In the case of any Event of Default occurring by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding
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payment of the premium that the Company would have had to pay if the Company
then had elected to redeem the Notes pursuant to Section 3.1(b) hereof, an
equivalent premium shall also become and be immediately due and payable to the
extent permitted by law upon the acceleration of the Notes. If an Event of
Default occurs prior to June 15, 2002 by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company with the
intention of avoiding the prohibition on redemption of the Notes prior to such
date, then, upon acceleration of the Notes, an additional premium shall also
become and be immediately due and payable in an amount, for each of the years
beginning on June 15, of the years set forth below, as set forth below:
Year Percentage
---- ----------
1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . 109.3750%
1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . 108.4375
1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . 107.5000
2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . 106.5625
2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . 105.6250
(c) At any time after such declaration of acceleration being made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter provided in this Article VI, the Holders of no
less than a majority in aggregate principal amount of the Notes then
outstanding, by written notice to the Company and the Trustee, may waive, on
behalf of all Holders, an Event of Default or an event that with notice or
lapse of time or both would become an Event of Default if:
(1) The Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) all overdue interest and Liquidated Damages
on all Notes,
(B) the principal of (and premium, if any)
applicable to any Notes that could become due otherwise than
by such declaration of acceleration, and interest thereon at
the rate borne by the Notes,
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest and Liquidated
Damages, if any, at the rate borne by the Notes, and
(D) all sums paid or advanced by the Trustee
hereunder and the compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and
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(2) All Events of Default, other than the non-payment of
amounts that have come due solely by such declaration of acceleration,
have been cured or waived as provided in Section 6.12.
Notwithstanding the previous sentence of this Section 6.2, no waiver shall be
effective for any Event of Default or event that with notice or lapse of time
or both would be an Event of Default with respect to any covenant or provision
that cannot be modified or amended without the consent of the Holder of each
outstanding Note, unless all such affected Holders agree, in writing, to waive
such Event of Default or event. No such waiver shall cure and waive any
subsequent default or impair any right consequent thereon.
Section 6.3 Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if an Event of Default in payment of
principal, premium or interest specified in Section 6.1(1) or (2) occurs and is
continuing, the Company shall, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Notes, the whole amount then due and payable on
such Notes for principal, premium (if any), interest and Liquidated Damages, if
any, and, to the extent that any interest shall be legally enforceable,
interest on any overdue principal and premium, if any, and on any overdue
interest and Liquidated Damages, if any, at the rate borne by the Notes, and,
in addition thereto, such further amount as shall be sufficient to cover the
reasonable costs and expenses of collection, including reasonable compensation
to, and expenses, disbursements and advances of, the Trustee and its agents and
counsel.
If the Company fails to pay such amounts promptly upon such demand,
the Trustee, in its own name and as trustee of an express trust in favor of the
Holders, may institute a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceedings to judgment or final decree and
may enforce the same against the Company or any other obligor upon the Notes
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon the Notes,
wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or the Notes or in
aid of the exercise of any power granted herein or therein, or to enforce any
other proper remedy.
Section 6.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the Notes
or the property of the Company or of such other
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obligor or their creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions under
the TIA, including
(i) to file and prove a claim for the whole amount of
principal (and premium, if any), interest and Liquidated
Damages owing and unpaid in respect of the Notes and to file
such 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, disbursements and advances of the Trustee, its agent
and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute
the same,
and any Custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents 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 Notes 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 6.5 Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture or the Notes may
be prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust in favor of the Holders and any recovery of
judgment shall, after provision for the payment of compensation to, and
expenses, disbursements and advances of the Trustee and its agents and counsel,
be for the ratable benefit of the Holders of the Notes in respect of which such
judgment has been recovered.
Section 6.6 Priorities.
Any money collected by the Trustee pursuant to this Article VI shall
be applied in the following order, at the date or dates fixed by the Trustee,
in case of the distribution of such money on account of principal, premium (if
any), interest or Liquidated Damages, upon presentation of the Notes and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
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FIRST: To the Trustee in payment of (i) all amounts due
pursuant to Section 7.7 and (ii) all costs and expenses (including reasonable
attorneys' fees and disbursements) incurred by the Trustee in collecting any
monies due hereunder;
SECOND: To the Holders in payment of the amount then due and
unpaid for principal of, premium, if any, interest and Liquidated Damages, if
any, on, the Notes, and related costs and expenses, in respect of which or for
the benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such Notes
for principal, premium, if any, and interest, respectively, and
THIRD: To whomsoever may be lawfully entitled thereto, the
remainder, if any.
Section 6.7 Limitation on Suits.
No Holder of any Note shall have any right to, or to order or direct
the Trustee to, pursue any remedy or institute any proceeding, judicial or
otherwise, with respect to this Indenture, the Notes or the Guarantee, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(A) such Holder has previously given written notice to
the Trustee of a continuing Event of Default;
(B) the Holders of not less than twenty five percent
(25%) in principal amount of then outstanding Notes shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(C) such Holder or Holders have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities to
be incurred or reasonably likely to be incurred in compliance with such
request;
(D) the Trustee for sixty (60) days after its receipt of
such notice, request and offer of indemnity has failed to institute any such
proceedings; and
(E) no direction inconsistent with such written request
has been given to the Trustee during such sixty (60)-day period by the Holders
of a majority in principal amount of the outstanding Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
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Section 6.8 Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision of this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of, and premium, if any, interest and Liquidated
Damages, if any, on such Note on the Maturity Dates or Interest Payment Dates,
as applicable, of such payments as are expressed in such Note (in the case of
redemption, the Redemption Price on the applicable Redemption Date, in the case
of a Change of Control, the Change of Control Offer Price on the applicable
Change of Control Payment Date and, in the case of an Asset Sale Event of Loss
Offer, the Asset Sale Event of Loss Offer Price on the Asset Sale Event of Loss
Purchase Date) and the Registration Rights Agreement and to institute suit for
the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
Section 6.9 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes in Section 2.7, no right
or remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 6.10 Delay or Omission Not Waiver.
No delay or omission by the Trustee or by any Holder of any Note to
exercise any right or remedy arising upon any Event of Default shall impair the
exercise of any such right or remedy or constitute a waiver of any such Event
of Default. Every right and remedy given by this Article VI or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.11 Control by Holders.
The Holder or Holders of a majority in aggregate principal amount of
then outstanding Notes shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred upon the Trustee; provided, however,
that
(1) such direction shall not be in conflict with any
applicable law or with this Indenture,
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(2) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Holders not
taking part in such direction, and
(3) the Trustee may take any other action deemed proper
by the Trustee that is not inconsistent with such direction.
Section 6.12 Waiver of Past Default.
Subject to Section 6.8, the Holder or Holders of not less than a
majority in aggregate principal amount of the outstanding Notes may, by written
notice to the Trustee on behalf of the Holders, prior to the acceleration of
the maturity of the Notes, waive any past Default hereunder and its
consequences, except a Default
(A) in the payment of the principal of, premium, if any,
interest or Liquidated Damages, if any, on, any Note as specified in clauses
(1) and (2) of Section 6.1, or
(B) in respect of a covenant or provision hereof which,
under Article IX, cannot be modified or amended without the consent of the
Holder of each outstanding Note affected.
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 the exercise of any right arising therefrom.
Section 6.13 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Note by
such Holder's acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, 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, suffered or omitted to be taken by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such
party litigant, but the provisions of this Section 6.13 shall not apply to any
suit instituted by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than ten percent (10%) in aggregate principal amount of the outstanding
Notes, or to any suit instituted by any Holder for enforcement of the payment
of principal of, or premium, if any, or interest on, any Note on or after the
Maturity Date of such Note.
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Section 6.14 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Company, the Guarantor, the Trustee and
the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
ARTICLE VII
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture
and covenants and agrees to perform the same, as herein expressed.
Section 7.1 Duties of Trustee.
(a) If a Default or 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 or an Event of
Default:
(1) The Trustee undertakes to perform only those duties
as are specifically set forth in this Indenture and no others,
and no covenants or obligations shall be implied in or read
into this Indenture that are adverse to the Trustee.
(2) In the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its negligent failure to act or its own willful misconduct,
except that:
(i) This clause does not limit the effect of paragraph
(b) of this Section 7.1;
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(ii) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
(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 6.11 or 6.12.
(d) The Trustee shall cooperate fully and completely with, provide
any information required by, and comply with any order or directive of a Gaming
Authority that the Trustee submit an application for any license, finding of
suitability or other approval pursuant to any Gaming Law.
(e) 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 to take or omit to take any
action under this Indenture or at the request, order or direction of the
Holders or in the exercise of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(f) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b), (c), (d) and (e) of this Section
7.1.
(g) The Trustee shall not be liable for interest on any assets
received by it except as the Trustee may agree in writing with the Company.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
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.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require an Officers' Certificate or an Opinion of
Counsel, which shall conform to Sections 13.4 and 13.5. 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 its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care.
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(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within its
rights or powers.
(e) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that may be incurred
therein or thereby.
(g) Except with respect to Section 4.1, the Trustee shall have no
duty to inquire as to the performance of the Company's covenants in Article IV
hereof. In addition, the Trustee shall not be deemed to have knowledge of any
Default or Event of Default except (i) any Event of Default occurring pursuant
to Sections 4.1, 6.1(1) and 6.1(2) (in each case so long as the Trustee is the
Paying Agent), or (ii) any Default or Event of Default of which a Trust Officer
of the Trustee shall have received written notification or obtained actual
knowledge.
Section 7.3 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company, the
Guarantor, any of their Subsidiaries or their respective 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 must comply with sections 7.10 and
7.11.
Section 7.4 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Notes, and it shall not be responsible for any statement
in the Notes, other than the Trustee's certificate of authentication, or the
use or application of any funds received by a Paying Agent other than the
Trustee.
Section 7.5 Notice of Default.
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
uncured Default or Event of Default immediately, but in no event later than ten
(10) days after such Default or Event of Default occurs. Except in the case of
a Default or an Event of Default in payment of principal (or premium, if any)
of, or interest or Liquidated Damages, if any, on, any Note (including the
payment of the Change of Control Offer Price on the Change of Control Payment
Date, the
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Redemption Price on the Redemption Date and the Asset Sale Event of Loss Offer
Price on the Asset Sale Event of Loss Purchase Date, as the case may be), the
Trustee may withhold the notice if and so long as a Trust Officer in good faith
determines that withholding the notice is in the interest of the Holders.
Section 7.6 Reports by Trustee to Holders.
If required by law, within sixty (60) days after each May 15 beginning
with the May 15 following the date of this Indenture, the Trustee shall mail to
each Holder a brief report dated as of such date that complies with TIA Section
313(a). If required by law, the Trustee also shall comply with TIA Section
Section 313(b) and 313(c). The Company shall promptly notify the Trustee in
writing if the Notes become listed on any stock exchange or automated quotation
system. A copy of each report at the time of its mailing to Holders shall be
mailed to the Company and filed with the SEC and each stock exchange, if any,
on which the Notes are listed.
Section 7.7 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation 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 incurred or made by it. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's agents,
accountants, experts and counsel.
The Company shall indemnify the Trustee (in its capacity as Trustee)
and each of its officers, directors, attorneys- in-fact and agents for, and
hold it harmless against, any claim, demand, expense (including reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel),
loss or liability incurred by them without negligence or bad faith on its part,
arising out of or in connection with the administration of this trust and their
rights or duties hereunder including the reasonable costs and expenses of
defending themselves against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The Trustee
shall notify the Company promptly of any claim asserted against the Trustee for
which it may seek indemnity. The Company shall defend the claim and the
Trustee shall provide reasonable cooperation at the Company's expense in the
defense. The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel; provided, however, that the
Company will not be required to pay such fees and expenses if it assumes the
Trustee's defense and there is no conflict of interest between the Company and
the Trustee in connection with such defense. The Company need not pay for any
settlement made without its written consent. The Company need not reimburse
any expense or indemnify against any loss or liability to the extent incurred
by the Trustee through its negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this Section 7.7, the
Trustee shall have a lien prior to the Notes on all assets held or collected by
the Trustee, in its capacity as Trustee,
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except assets held in trust to pay principal of, premium, if any, interest or
Liquidated Damages, if any, on particular Notes.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(5) or (6) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any applicable Bankruptcy Law.
The Company's obligations under this Section 7.7 and any lien arising
hereunder shall survive the resignation or removal of the Trustee, the
discharge of the Company's obligations pursuant to Article VIII of this
Indenture and any rejection or termination of this Indenture under any
applicable Bankruptcy Law.
Section 7.8 Replacement of Trustee.
The Trustee may resign by so notifying the Company in writing. The
Holder or Holders of a majority in principal amount of the outstanding Notes
may remove the Trustee by so notifying the Company and the Trustee 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 7.1 or 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver, Custodian or other public officer takes
charge of the Trustee or its property;
(4) the Trustee becomes incapable of acting; or
(5) the Trustee seeks an increase in its fee for
administering this Indenture which increase is not mutually agreed upon.
If the Trustee resigns or is removed or if a vacancy exists in the
office of the Trustee for any reason, the Company shall promptly appoint a
successor Trustee. The Holder or Holders of a majority in principal amount of
the Notes may appoint a successor Trustee to replace the successor Trustee
appointed by the Company in accordance with the foregoing provisions.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that
and provided that all sums owing to the Trustee provided for in Section 7.7
have been paid, the retiring Trustee shall transfer 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 all the rights, powers and duties of the
Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder.
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If a successor Trustee does not take office within sixty (60) days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holder or Holders of at least ten percent (10%) in principal
amount of the outstanding Notes 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 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.
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, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
The Trustee shall at all times satisfy the requirements of TIA Section
310(a)(1) and TIA Section 310(a)(5). The Trustee shall be a trust company or
commercial bank having trust powers and having a combined capital (exclusive of
borrowed capital) and surplus of at least twenty million dollars ($20,000,000)
(or in the case of a corporation included in a bank holding company system, the
related bank holding company shall have a reported capital and surplus of not
less than twenty million dollars ($20,000,000)), and subject to supervision or
examination by federal or state authority. If any bank or trust company
appointed as a successor publishes a report of condition at least annually,
pursuant to law or to the requirements of any supervising or examining
authority referred to, then for the purposes of this Section the combined
capital and surplus of such bank or trust company shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. The Trustee shall comply with TIA Section 310(b).
Section 7.11 Preferential Collection of Claims against Company.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or has been removed shall be subject to TIA Section 311(a) to the
extent indicated.
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ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1 Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may at its option at any time elect to have Section 8.2 or
Section 8.3 applied to all outstanding Notes upon compliance with the
conditions set forth below in this Article VIII.
Section 8.2 Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.1 of the option applicable
to this Section 8.2, the Company and the Guarantor shall be deemed to have been
discharged from their obligations with respect to all outstanding Notes on the
date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, such Legal Defeasance means that the Company
shall be deemed to have paid and discharged the entire Indebtedness represented
by the outstanding Notes, and this Indenture shall cease to be of further
effect as to all outstanding Notes and the Guarantee except as to rights of
Holders to receive payments which shall thereafter be deemed to be
"outstanding" only for the purposes of Section 8.5 and the other Sections of
this Indenture referred to in (a) and (b) below, and to have satisfied all its
other obligations under such Notes and this Indenture (and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Notes to receive solely from the trust fund described in Section
8.4, and as more fully set forth in such section, payments in respect of the
principal of, premium, if any, interest and Liquidated Damages, if any, on such
Notes when such payments are due, (b) the Company's obligations with respect to
such Notes under Sections 2.3, 2.6, 2.7, 2.10 and 5.2, (c) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and the Company's
obligations in connection therewith and (d) this Article VIII. Subject to
compliance with this Article VIII, the Company may exercise its option under
this Section 8.2 notwithstanding the prior exercise of its option under Section
8.3 with respect to the Notes.
Section 8.3 Covenant Defeasance.
Upon the Company's exercise under Section 8.1 of the option applicable
to this Section 8.3, the Company shall be released from its obligations under
the covenants contained in Sections 4.3, 4.6, 4.7, 4.8, 4.10, 4.11, 4.12, 4.13,
4.14, 4.15, 4.16, 4.17 and 4.18, Article V and Article XI with respect to the
outstanding Notes on and after the date the conditions set forth below are
satisfied (hereinafter "Covenant Defeasance"), and the Notes shall thereafter
be deemed not "outstanding" for the purposes of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder. For this purpose, such Covenant Defeasance
means that, with respect to the outstanding Notes, the Company need not comply
with and shall have no liability in respect of any term, condition or
limitation set
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forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference
in any such covenant to any other provision herein or in any other document,
but, except as specified above, the remainder of this Indenture and such Notes
shall be unaffected thereby. In addition, upon the Company's exercise under
Section 8.1 of the option applicable to this Section 8.3, Section 6.1(3) (to
the extent it relates to the foregoing listed covenants) and Sections 6.1(4)
through 6.1(9) shall not constitute Events of Default.
Section 8.4 Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.2 or Section 8.3 to the outstanding Notes:
(a) the Company shall irrevocably deposit or cause to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 7.10 who shall agree to comply with the provisions of this Article VIII
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Notes, (a) U.S. Legal Tender in an
amount, or (b) U.S. Government Obligations that through the scheduled payment
of principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment, U.S.
Legal Tender in an amount, or (c) a combination thereof, in such amounts, as in
each case will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge and which shall be applied by
the Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of, premium, interest and Liquidated Damages, if any, on the
outstanding Notes on the stated date for payment thereof or on the redemption
date, as the case may be, of such principal or installment of principal,
premium, if any, interest or Liquidated Damages, if any, on such Notes, and the
Trustee on behalf of the Holders must have a valid, perfected, exclusive
security interest in such trust; provided, however, that the Trustee shall have
been irrevocably instructed to apply such U.S. Legal Tender and the proceeds of
such U.S. Government Obligations to said payments with respect to the Notes;
(b) in the case of an election under Section 8.2, the
Company shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably satisfactory to the Trustee confirming that (i) the Company
has received from, or there has been published by, the Internal Revenue Service
a ruling or (ii) since the 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 shall confirm that, the Holders of the outstanding Notes
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 in
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 an election under Section 8.3, the
Company shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably satisfactory to
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the Trustee confirming that the Holders of the outstanding Notes 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 in 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 with respect to the
Notes shall have occurred and be continuing on the date of such deposit or,
insofar as Sections 6.1(5) and 6.1(6) are concerned, at any time in the period
ending on the ninety first (91st) day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period);
(e) such Legal Defeasance or Covenant Defeasance shall
not result in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument 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 shall 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 shall have delivered to the Trustee an
Officers' Certificate stating that the deposit made by the Company pursuant to
its election under Section 8.2 or 8.3 was not made with the intent of
preferring the Holders of such Notes over any other creditors of the Company or
with the intent of defeating, hindering, delaying or defrauding any other
creditors of the Company or others; and
(h) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel in the United States, each
stating that all conditions precedent provided for relating to either the Legal
Defeasance under Section 8.2 or the Covenant Defeasance under Section 8.3 (as
the case may be) have been complied with as contemplated by this Section 8.4.
Section 8.5 Deposited U.S. Legal Tender and U.S. Government Obligations to
be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.6, all U.S. Legal Tender and U.S. Government
Obligations, (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.5, the
"Trustee") pursuant to Section 8.4 in respect of the outstanding Notes shall be
held in trust and applied by the Trustee, in accordance with the provisions of
such Notes and this Indenture, to the payment, either directly or through any
Paying Agent as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium, if any,
and interest, but such money need not be segregated from other funds except to
the extent required by law. Anything in this
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Article VIII to the contrary notwithstanding, the Trustee shall deliver or pay
to the Company from time to time upon the request of the Company any U.S. Legal
Tender or U.S. Government Obligations held by it as provided in Section 8.4
that, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereto delivered to the
Trustee (which may be the opinion delivered under Section 8.4(a)), are in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.6 Repayment to the Company.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
interest or Liquidated Damages, if any, on any Note, either pursuant to this
Article VIII or otherwise, and remaining unclaimed for two (2) years after such
principal, and premium, if any, interest or Liquidated Damages, if any, has
become due and payable, shall be paid to the Company on its request, and the
Holder of such Note shall thereafter look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in the New York Times and
The Wall Street Journal (national edition), notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than thirty (30) days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
Section 8.7 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 8.2 or 8.3, as
the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.2 or 8.3 until such time as the Trustee or Paying Agent is permitted
to apply such money in accordance with Section 8.2 and 8.3, as the case may be;
provided, however, that, if the Company makes any payment of principal of,
premium, if any, or interest on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the Cash held by the Trustee or Paying
Agent.
Section 8.8 Termination of Obligations Upon Cancellation of the Notes.
In addition to the Company's rights under Sections 8.2 and 8.3, the
Company and the Guarantor may terminate all of their obligations under this
Indenture (subject to Section 8.7) when:
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(1) either (a) all such outstanding Notes theretofore
authenticated and delivered (other then Notes that have been
destroyed, lost or stolen and that have been replaced or paid as
provided in Section 2.7) have been delivered to the Trustee for
cancellation, or (b) all such Notes 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 Notes not theretofore delivered to the Trustee for
cancellation, for principal of, premium, if any, and interest to the
Stated Maturity of the Notes;
(2) the Company has paid all sums payable hereunder; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel (other than in-house counsel),
each stating that all conditions precedent specified herein relating
to the satisfaction and discharge of this Indenture have been complied
with, and that such satisfaction and discharge will not result in a
breach or violation of, or constitute a Default under, this Indenture
or any other instrument to which the Company, the Guarantor or any of
their Subsidiaries is a party or by which it or their property is
bound.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holder, the Company, when authorized by
Board Resolutions, and the Trustee, at any time and from time to time, may
amend or supplement the Indenture or the Notes for any of the following
purposes:
(1) to cure any ambiguity, defect, or inconsistency, or
to make any other provisions with respect to matters or questions arising under
this Indenture that shall not be inconsistent with the provisions of this
Indenture, provided such action pursuant to this clause (1) shall not adversely
affect the interests of any Holder in any respect;
(2) to add to the covenants of the Company for the
benefit of the Holders, or to surrender any right or power herein conferred
upon the Company, or to provide any additional rights or benefits to the
Holders, or to make any other change that does not materially adversely affect
the legal rights of any Holder under the Indenture;
(3) to provide for collateral or additional guarantees of
the Notes;
(4) to provide for uncertificated Notes in addition to or
in place of certificated Notes;
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(5) to evidence the succession of another person to the
Company, and the assumption by any such successor of the Obligations of the
Company herein and in the Notes in accordance with Article V;
(6) to release a Subsidiary Guarantor from its Guarantee
if such Subsidiary Guarantor is sold in accordance with Section 4.14;
(7) to comply with the TIA; or
(8) to set out the form of the Series B Notes and to set
forth such other matters as may be necessary or desirable in connection with
the Exchange Offer.
Section 9.2 Amendments, Supplemental Indentures and Waivers with Consent
of Holders.
Subject to Section 6.8 and the last sentence of this paragraph, with
the consent of the Holders of not less than a majority in aggregate principal
amount of the Notes then outstanding, by written act of said Holders delivered
to the Company and the Trustee (including consents obtained in connection with
a tender offer or exchange offer for the Notes), the Company and the Guarantor,
when authorized by Board Resolutions, and the Trustee, may amend or supplement
this Indenture or the Notes or enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or the Notes
or of modifying in any manner the rights of the Holders under this Indenture or
the Notes. Subject to Section 6.8 and the last sentence of this paragraph, the
Holder or Holders of a majority in principal amount of then outstanding Notes
may waive compliance by the Company or the Guarantor with any provision of this
Indenture or the Notes. Notwithstanding the foregoing provisions of this
Section 9.2, without the consent of the Holders of at least sixty six and
two-thirds percent (66-2/3%) of the aggregate principal amount of outstanding
Notes, no such amendment, supplemental indenture or waiver shall change any
provision of Article VI or Article XII or (except for the Stated Maturity which
is governed by clause (4) below) change any Maturity Date of any Note, and
without the consent of the Holder of each outstanding Note affected thereby, no
such amendment, supplemental indenture or waiver shall:
(1) reduce the percentage in principal amount of Notes,
the consent of whose Holders is required for any amendment, supplement or
waiver provided for in this Indenture or the Notes;
(2) reduce the rate or extend the time for payment of
interest on any Note;
(3) reduce the principal amount of any Note or reduce any
Purchase Price;
(4) change the Stated Maturity of any Note;
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(5) alter the redemption provisions of Article III in a
manner that adversely affects the rights of any Holder of Notes;
(6) make any changes in the provisions concerning waivers
of Defaults or Events of Default by Holders of the Notes or the rights of
Holders to recover the principal or premium of, interest or Liquidated Damages
on, or redemption payment with respect to, any Note or otherwise impair the
right to institute suit for enforcement of any such payment whether on or after
the Stated Maturity thereof, the Redemption Date thereof, or otherwise, in a
manner that adversely affects the rights of any Holder of Notes;
(7) make any changes in Section 6.4, 6.7 or this third
sentence of this Section 9.2 in a manner that adversely affects the rights of
any Holder of Notes;
(8) make the principal of, premium, if any, or the
interest or Liquidated Damages, if any, on, any Note payable with anything, at
any place of payment or in any manner other than as provided for in this
Indenture and the Notes as in effect on the date hereof;
(9) except as expressly permitted by this Indenture, make
the Notes subordinated in right of payment to any extent or under any
circumstances to any other Indebtedness;
(10) make any changes in the provisions of Article XI in a
manner that adversely affects the rights of any Holder of Notes, or
(11) make any changes in the provisions of Section 4.14
regarding an Asset Sale Event of Loss Offer in a manner that adversely affects
the rights of any Holder of Notes.
It shall not be necessary for the consent of the Holders under this
Section 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 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.
After an amendment, supplement or waiver under this Section 9.2 or 9.4
becomes effective, it shall bind each Holder.
In connection with any amendment, supplement or waiver under this
Article IX, the Company may, but shall not be obligated to, offer to any Holder
who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or
waiver.
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Section 9.3 Compliance with TIA.
Every amendment, waiver or supplement of this Indenture or the Notes
shall comply with the TIA as then in effect.
Section 9.4 Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Note or portion of a Note that evidences the same Indebtedness as
the consenting Holder's Note, even if notation of the consent is not made on
any Note. However, any such Holder or subsequent Holder that is not the Holder
of a Global Note may revoke the consent as to such Holder's Note or portion of
such Holder's Note by written notice to the Company or the person designated by
the Company as the person to whom consents should be sent if such revocation is
received by the Company or such person before the date on which the Trustee
receives an Officers' Certificate certifying that the Holders of the requisite
principal amount of Notes 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, which record date shall be the date so fixed by the
Company notwithstanding the provisions of the TIA. 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, and only those persons (or
their duly designated proxies), shall be entitled 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 ninety
(90) days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it makes a change described in any of clauses (1)
through (11), of Section 9.2, in which case, the amendment, supplement or
waiver shall bind only each Holder of a Note who has consented to it and every
subsequent Holder of a Note or portion of a Note that evidences the same
Indebtedness as the consenting Holder's Note; provided, however, that any such
waiver shall not impair or affect the right of any Holder to receive payment of
principal and premium of and interest on a Note, on or after the respective
dates set for such amounts to become due and payable expressed in such Note, or
to bring suit for the enforcement of any such payment on or after such
respective dates.
Section 9.5 Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note, the
Trustee may require the Holder of the Note to deliver it to the Trustee or
require the Holder to put an appropriate notation on the Note. The Trustee may
place an appropriate notation on the Note 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 Note shall issue, the Guarantor shall
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endorse and the Trustee shall authenticate a new Note that reflects the changed
terms. Any failure to make the proper notation or issue a new Note shall not
affect the validity of such amendment, supplement or waiver.
Section 9.6 Trustee to Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article IX; provided, however, that the Trustee
may, but shall not be obligated to, execute any such amendment, supplement or
waiver that affects the Trustee's own rights, duties or immunities under this
Indenture. 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 IX is
authorized or permitted by this Indenture.
ARTICLE X
MEETINGS OF HOLDERS
Section 10.1 Purposes for Which Meeting May Be Called.
A meeting of Holders may be called at any time and from time to time
pursuant to the provisions of this Article X for any of the following purposes:
(a) to give any notice to the Company, any Guarantor or
to the Trustee, or to give any directions to the Trustee, or to waive or to
consent to the waiving of any Default or Event of Default hereunder and its
consequences, or to take any other action authorized to be taken by Holders
pursuant to any of the provisions of Article VI;
(b) to remove the Trustee or appoint a successor Trustee
pursuant to the provisions of Article VII;
(c) to consent to any amendment, supplement or waiver
pursuant to the provisions of Section 9.2; or
(d) to take any other action (i) authorized to be taken
by or on behalf of the Holder or Holders of any specified aggregate principal
amount of the Notes under any other provision of this Indenture, or authorized
or permitted by law or (ii) that the Trustee deems necessary or appropriate in
connection with the administration of this Indenture.
Section 10.2 Manner of Calling Meetings.
The Trustee may at any time call a meeting of Holders to take any
action specified in Section 10.1, to be held at such time and at such place in
The City of New York, State of New York or elsewhere as the Trustee shall
determine. Notice of every meeting of Holders, setting
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forth the time and place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be mailed by the Trustee,
first-class postage prepaid, to the Company, the Guarantor and to the Holders
at their last addresses as they shall appear on the registration books of the
Registrar, not less than ten (10) nor more than sixty (60) days prior to the
date fixed for a meeting. The Company shall pay the reasonable costs and
expenses of preparing and mailing such notice.
Any meeting of Holders shall be valid without notice if the Holders of
all Notes then outstanding are present in person or by proxy, or if notice is
waived before or after the meeting by the Holders of all Notes outstanding, and
if the Company and the Trustee are either present by duly authorized
representatives or have, before or after the meeting, waived notice.
Section 10.3 Call of Meetings by Company or Holders.
In case at any time the Company, pursuant to a Board Resolution or the
Holders of not less than twenty five percent (25%) in aggregate principal
amount of the Notes then outstanding, shall have requested the Trustee to call
a meeting of Holders to take any action specified in Section 10.1, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have mailed the notice of such meeting
within twenty (20) days after receipt of such request, then the Company or the
Holders of Notes in the amount above specified may determine the time and place
in The City of New York, State of New York or elsewhere for such meeting and
may call such meeting for the purpose of taking such action, by mailing or
causing to be mailed notice thereof as provided in Section 10.2, or by causing
notice thereof to be published at least once in each of two (2) successive
calendar weeks (on any Business Day during such week) in a newspaper or
newspapers printed in the English language, customarily published at least five
(5) days a week of a general circulation in The City of New York, State of New
York, the first such publication to be not less than ten (10) nor more than
sixty (60) days prior to the date fixed for the meeting.
Section 10.4 Who May Attend and Vote at Meetings.
To be entitled to vote at any meeting of Holders, a person shall (a)
be a registered Holder of one or more Notes, or (b) be a person appointed by an
instrument in writing as proxy for the registered Holder or Holders of Notes.
The only person who shall be entitled to be present or to speak at any meeting
of Holders shall be the persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Company, the Guarantor and their respective counsel.
Section 10.5 Regulations May Be Made by Trustee; Conduct of the Meeting;
Voting Rights; Adjournment.
Notwithstanding any other provision of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any action by or
any meeting of Holders, in regard to proof of the holding of Notes and of the
appointment of proxies, and in regard to
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the appointment and duties of inspectors of votes, and submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall
determine to be appropriate. Such regulations may fix a record date and time
for determining the Holders of record of Notes entitled to vote at such
meeting, in which case those and only those persons who are Holders of Notes at
the record date and time so fixed, or their proxies, shall be entitled to vote
at such meeting whether or not they shall be such Holders at the time of the
meeting.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders as provided in Section 10.3, in which case the Company or
the Holders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary
of the meeting shall be elected by vote of the Holders of a majority in
principal amount of the Notes represented at the meeting and entitled to vote.
At any meeting each Holder or proxy shall be entitled to one vote for
each one thousand dollar ($1,000) principal amount of Notes held or represented
by such Holder; provided, however, that no vote shall be cast or counted at any
meeting in respect of any Notes challenged as not outstanding and ruled by the
chairman of the meeting to be not then outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of Notes held by him
or her or instruments in writing as aforesaid duly designating him or her as
the proxy to vote on behalf of other Holders. Any meeting of Holders duly
called pursuant to the provisions of Section 10.2 or Section 10.3 may be
adjourned from time to time by vote of the Holder or Holders of a majority in
aggregate principal amount of the Notes represented at the meeting and entitled
to vote, and the meeting may be held as so adjourned without further notice.
Section 10.6 Voting at the Meeting and Record to Be Kept.
The vote upon any resolution submitted to any meeting of Holders shall
be by written ballots on which shall be subscribed the signatures of the
Holders of Notes or of their representatives by proxy and the principal amount
of the Notes voted by the ballot. The permanent chairman of the meeting shall
appoint two inspectors of votes, who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all votes cast at
the meeting. A record in duplicate of the proceedings of each meeting of
Holders shall be prepared by the secretary of the meeting and there shall be
attached to such record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts, setting forth a copy of the notice of the meeting and
showing that such notice was mailed as provided in Section 10.2 or published as
provided in Section 10.3. The record shall be signed and verified by the
affidavits of the permanent chairman and the secretary of the meeting and one
of the duplicates shall be delivered to the Company and the other to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting.
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Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 10.7 Exercise of Rights of Trustee or Holders May Not Be Hindered
or Delayed by Call of Meeting.
Nothing contained in this Article X shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders or any
rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Holders under any of the provisions of this
Indenture or of the Notes.
ARTICLE XA
SUBORDINATION
Section 10A.1 Agreement to Subordinate.
The Company each agree for itself and for its successors, and each
Holder by accepting a Note agrees, that the payment of principal of, and
premium, interest, Liquidated Damages, if any, on and any other amount payable
by the Company with respect to, the Notes is subordinated in right of payment,
to the extent and in the manner provided in this Article 10A, to the prior
payment in full of all Senior Debt (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 Debt. This Article 10A shall
constitute a continuing offer to all persons or entities who become holders of,
or continue to hold, Senior Debt. Notwithstanding anything to the contrary in
this Indenture or the Notes, the provisions of this Article 10A are made for
the benefit of the holders of Senior Debt, 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 10A shall be effective against any
holder of Senior Debt unless expressly consented to in writing by such holder.
The provisions of this Article 10A apply notwithstanding anything to the
contrary contained in the Notes or this Indenture. Upon the maturity of any
Senior Debt 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 a manner
satisfactory to the holders of such Senior Debt, before any payment is made on
account of the Notes or this Indenture.
Section 10A.2 Liquidation; Dissolution; Bankruptcy.
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,
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receivership or similar proceeding relating to the Company or their respective
properties, an assignment for the benefit of creditors or any marshalling of
the Company's assets and liabilities:
(1) holders of Senior Debt 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 Debt (including interest after the commencement of any such
proceeding at the rate specified in the applicable Senior Debt) before
the Holders shall be entitled to receive any payment with respect to
the Notes (except that Holders may receive securities that are
subordinated at least to the same extent as the Notes to Senior Debt
and any securities issued in exchange for Senior Debt and payments
made from the trust described in Section 8.4 hereof); and
(2) until all principal, interest, fees, expenses and
other obligations with respect to Senior Debt of the Company are paid
in full, any distribution to which the Holders of Notes would be
entitled but for this Article 10A shall be made to the holders of such
Senior Debt (except that Holders may receive securities that are
subordinated at least to the same extent as the Notes to Senior Debt
and any securities issued in exchange for Senior Debt and payments
made from the trust described in Section 8.4 hereof).
Section 10A.3 Default on Designated Senior Debt.
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 Notes and may not offer to repurchase Notes (other than in the form of
securities that are subordinated to the same extent as the Notes to Senior Debt
and any securities issued in exchange for Senior Debt and payments made from
the trust described in Section 8.4 hereof) 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 Debt occurs and has not been cured or waived in
writing; or
(ii) any other default occurs and is continuing with
respect to Senior Debt that permits holders of the Senior Debt 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 Company or the holders of any Designated Senior Debt.
Payments on the Notes may and shall be resumed:
(a) in the case of default referred to in Section 10A.3(i) hereof,
upon the date on which such default is cured or waived in writing, and
(b) in case of a default referred to in Section 10A.3(ii) hereof,
the earlier of the date on which such nonpayment default is cured or waived in
writing or 179 days after the date on
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which the applicable Payment Blockage Notice is received, unless the maturity
of any Designated Senior Debt 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 10A.03(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 Debt and which
is known to the holders of such Designated Senior Debt, 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 10A.4 Acceleration of Notes.
The Company and the Trustee shall promptly notify holders of Senior
Debt 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 Senior Debt of such acceleration notice, provided that failure to
give such notice shall not affect the subordination of the Notes to the Senior
Debt as provided in this Article 10A.
Section 10A.5 When Distribution Must be Paid Over.
In the event that the Trustee or any Holder receives any payment with
respect to the Notes at a time when such receipt by the Trustee or such Holder,
as applicable, is in violation of this Article 10A, 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 Debt as their interests
may appear or their Representative under the Credit Facility, Senior Indenture
or other agreement (if any) pursuant to which Senior Debt may have been issued,
as their respective interests may appear, for application to the payment of all
obligations with respect to Senior Debt 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 Debt.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically
set forth in this Article 10A, and no implied covenants or obligations with
respect to the holders of Senior Debt 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 Debt, 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 Debt shall
be entitled by virtue of this Article 10A, except if such payment is made as a
result of the willful misconduct or gross negligence of the Trustee.
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Section 10A.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 any payment with respect to the
Notes to violate this Article 10A, but failure to give such notice shall not
affect the subordination of the Notes to the Senior Debt as provided in this
Article 10A.
Section 10A.7 Subrogation.
After all Senior Debt is irrevocably paid in full in cash or Cash
Equivalents satisfactory to the holders thereof and until the Notes are paid in
full, Holders shall be subrogated (equally and ratably with all other
Indebtedness Pari Passu with the Notes) to the rights of holders of Senior Debt
to receive distributions applicable to Senior Debt to the extent that
distributions otherwise payable to the Holders have been applied to the payment
of Senior Debt. A distribution made under this Article 10A to holders of
Senior Debt that otherwise would have been made to Holders is not, as between
the Company and Holders, a payment by the Company on the Notes.
Section 10A.8 Relative Rights.
This Article 10A defines the relative rights of Holders and holders of
Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and premium, if any, and interest on the Notes in
accordance with their terms;
(2) affect the relative rights of Holders and creditors
of the Company other than their rights in relation to holders of
Senior Debt; or
(3) 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 Debt to receive distributions
and payments otherwise payable to Holders.
If the Company fails because of this Article 10A to pay principal of
or interest on a Note on the due date, the failure is still a Default or Event
of Default.
Section 10A.9 Subordination May Not Be Impaired By the Company.
No right of any holder of Senior Debt to enforce the subordination of
the Indebtedness evidenced by the Notes 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.
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Section 10A.10 Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given under the
Indenture to holders of Senior Debt, 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 10A, 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 Persons 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 Debt 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
10A.
Section 10A.11 Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article 10A 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 Notes, unless the Trustee shall have received at its
address in accordance with Section 13.2 hereof, prior to the date of such
payment, written notice of facts that would cause the payment of any
obligations with respect to the Notes to violate this Article. Nothing in this
Article 10A shall impair the claims of, or payments to, the Trustee under or
pursuant to Section 7.7 hereof.
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 Debt
(or a Representative of such holder) to establish that such notice has been
given by a holder of Senior Debt (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 Debt to
participate in any payment or distribution pursuant to this Article 10A, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt 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 10A, 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
Debt with the same rights it would have if it were not Trustee. Any agent of
the Company may do the same with like rights.
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Section 10A.12 Authorization To Effect Subordination.
Each Holder of a Note 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 10A, 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 6.4 hereof at least 30 days before the expiration of the time to file
such claim, the Representatives of the holders of the Senior Debt are hereby
authorized to file an appropriate claim for and on behalf of the Holders of the
Notes.
Section 10A.13 Legend.
The Notes and any instrument evidencing any of the Indebtedness
arising under or with respect to this Indenture will, on the date issued, be
inscribed with a legend conspicuously indicating that the payment thereof is
subordinated to the Senior Debt pursuant to the terms of this Indenture.
Section 10A.14 No Waiver.
No right of any present or future holder of any Senior Debt 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 with. The holders of Senior Debt 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 Debt all without notice to the Noteholders 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 Notes which
adversely affects in any way the holders of Senior Debt shall be effective
against the holders of Senior Debt who have not consented thereto in writing.
Section 10A.15 Guarantees.
The Guarantee and each Additional Guarantee shall be subordinated to
the payment in full of all Obligations with respect to Senior Debt of the
Guarantor or such Additional Guarantor in the same manner and to the same
extent as the Notes are subordinated to the Senior Debt of the Company, as more
fully described in this Article XA.
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ARTICLE XI
RIGHT TO REQUIRE REPURCHASE
Section 11.1 Repurchase of Notes at the Option of the Holder Upon a Change
of Control.
(a) In the event that a Change of Control has occurred,
each Holder of Notes will have the right, at such Holder's option, pursuant to
an irrevocable and unconditional offer by the Company (the "Change of Control
Offer") to require the Company to repurchase all or any part of such Holder's
Notes on the date that is no later than thirty (30) Business Days after the
occurrence of such Change of Control (the "Change of Control Payment Date"), at
a Cash price equal to one hundred one percent (101%) of the principal amount
thereof (the "Change of Control Offer Price"), plus accrued and unpaid interest
and Liquidated Damages, if any, to and including the Change of Control Payment
Date. Upon expiration of the Change of Control Offer Period (as defined
below), the Company shall purchase all Notes tendered in response to the Change
of Control Offer.
(b) In the event that, pursuant to this Section 11.1, the
Company shall be required to commence a Change of Control Offer, the Company
shall follow the procedures set forth in this Section 11.1 as follows:
(1) the Change of Control Offer shall
commence within ten (10) Business Days following the
Change of Control;
(2) the Change of Control Offer shall
remain open for twenty (20) Business Days following
its commencement and no longer, except to the extent
that a longer period is required by applicable law
(the "Change of Control Offer Period");
(3) within five (5) Business Days
following the expiration of a Change of Control
Offer, the Company shall purchase all of the tendered
Notes at the Change of Control Offer Price, plus
accrued and unpaid interest and Liquidated Damages,
if any;
(4) if the Change of Control Payment
Date is on or after an interest payment record date
and on or before the related interest payment date,
any accrued interest will be paid to the person in
whose name a Note is registered at the close of
business on such record date, and no additional
interest will be payable to Holders who tender Notes
pursuant to the Change of Control Offer;
(5) the Company shall provide the
Trustee with notice of the Change of Control Offer at
least five (5) Business Days before the commencement
of any Change of Control Offer; and
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(6) on or before the commencement of any
Change of Control Offer, the Company or the Trustee
(upon the request and at the expense of the Company)
shall send, by first-class mail, a notice to each of
the Holders, which (to the extent consistent with
this Indenture) shall govern the terms of any Change
of Control Offer and shall state:
(i) that the Change of Control
Offer is being made pursuant to this
Section 11.1 and that all Notes or
portions thereof tendered will be
accepted for payment;
(ii) the Change of Control Offer
Price (including the amount of
accrued and unpaid interest and
Liquidated Damages, if any), the
Change of Control Payment Date and
the Change of Control Put Date (as
defined below);
(iii) that any Note, or portion
thereof, not tendered or accepted
for payment will continue to accrue
interest and Liquidated Damages, if
any;
(iv) that, unless the Company
defaults in depositing U.S. Legal
Tender with the Paying Agent in
accordance with the last paragraph
of this clause (b), or such payment
is prevented for any reason, any
Note, or portion thereof, accepted
for payment pursuant to the Change
of Control Offer shall cease to
accrue interest and Liquidated
Damages, if any, after the Change of
Control Payment Date;
(v) that Holders electing to have a
Note, or portion thereof, purchased
pursuant to a Change of Control
Offer will be required to surrender
the Note, with the form entitled
"Option of Holder to Elect Purchase"
on the reverse of the Note
completed, to the Paying Agent
(which may not for purposes of this
Section 11.1, notwithstanding
anything in this Indenture to the
contrary, be the Company or any
Affiliate of the Company) at the
address specified in the notice
prior to the close of business on
the earlier of (a) the fifth (5th)
Business Day prior to the Change of
Control Payment Date and (b) the
fifth (5th) Business Day following
the expiration of the Change of
Control Offer (such earlier date
being the "Change of Control Put
Date");
(vi) that Holders will be entitled
to withdraw their election, in whole
or in part, if the Paying Agent
receives,
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prior to the close of business on the
Change of Control Put Date, a
telegram, telex, facsimile
transmission or letter setting forth
the name of the Holder, the
principal amount of the Notes the
Holder is withdrawing and a
statement containing a facsimile
signature and stating that such
Holder is withdrawing his election
to have such principal amount of
Notes purchased; and
(vii) a brief description of the
events resulting in such Change of
Control.
Any such Change of Control Offer shall comply with all applicable
provisions of Federal and state laws, including those regulating tender offers,
if applicable, and any provisions of this Indenture that conflict with such
laws shall be deemed to be superseded by the provisions of such laws.
On or before the Change of Control Payment Date, the Company must (i)
accept for payment Notes or portions thereof properly tendered pursuant to the
Change of Control Offer prior to the close of business on the Change of Control
Put Date, (ii) deposit with the Paying Agent U.S. Legal Tender or Cash
Equivalents (other than Credit Facility Notes, Senior Notes or Notes)
sufficient to pay the Change of Control Offer Price (together with accrued and
unpaid interest or Liquidated Damages, if any) of all Notes so tendered and
(iii) deliver to the Trustee Notes so accepted together with an Officers'
Certificate listing the Notes or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail to the Holders of Notes so
accepted payment in an amount equal to the Change of Control Offer Price
(together with accrued and unpaid interest and Liquidated Damages, if any), the
Guarantor shall endorse and the Trustee shall promptly authenticate and mail or
deliver to such Holder a new Note equal in principal amount to any unpurchased
portion of the Note surrendered. Any Notes 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 Change of Control Offer on or as soon as
practicable after the Change of Control Offer Period expires, by causing notice
thereof to be published at least once in each of two (2) successive calendar
weeks (on any Business Day during such week) in a newspaper or newspapers
printed in the English language, customarily published at least five (5) days a
week of a general circulation in The City of New York, State of New York.
ARTICLE XII
GUARANTEE
Section 12.1 Guarantee.
(a) In consideration of good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, and subject to the
provisions of this Article XII
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the Guarantor, and each Additional Guarantor which in accordance with Section
4.17 hereof is required to execute a Guarantee, upon execution of a counterpart
of this Indenture (such Guarantor and Additional Guarantors are collectively
referred to herein as the "Subsidiary Guarantors"), hereby jointly and
severally irrevocably and unconditionally guarantees (the "Guarantee") to each
Holder of a Note authenticated and delivered by the Trustee and the Trustee and
its successors and assigns, irrespective of the validity and enforceability of
this Indenture, the Notes or the Obligations of the Company under this
Indenture or the Notes, that: (x) the principal and premium (if any) of and
interest and Liquidated Damages, if any, on the Notes and related costs and
expenses will be paid in full when due, whether at the maturity or interest
payment date, by acceleration, call for redemption, upon an Offer to Purchase,
or otherwise and interest on the overdue principal and premium (if any) of and
interest and Liquidated Damages, if any, on the Notes and all other obligations
of the Company to the Holders or the Trustee under this Indenture or the Notes
will be promptly paid in full or performed all in accordance with the terms of
this Indenture and the Notes; and (y) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, they will be
paid in full when due in accordance with the terms of the extension or renewal,
whether at maturity, by acceleration, call for redemption, upon an Offer to
Purchase or otherwise.
(b) Each Subsidiary Guarantor hereby jointly and
severally agrees that its obligations with regard to this Guarantee shall be
unconditional, irrespective of the validity, regularity or enforceability of
the Notes or this Indenture, the absence of any action to enforce the same, any
delays in obtaining or realizing upon or failures to obtain or realize upon
collateral, the recovery of any judgment against the Company, any action to
enforce the same or any other circumstances that might otherwise constitute a
legal or equitable discharge or defense of such Subsidiary Guarantor. Each
Subsidiary Guarantor hereby waives and relinquishes all claims, rights and
remedies accorded by applicable law to guarantors and agrees not to assert or
take advantage of any such claims, right or remedies, including but not limited
to diligence, presentment, demand of payment, filing of claims with a court in
the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company or right to require the prior disposition
of the assets of the Company to meet its obligations, protest, notice and all
demands whatsoever and covenants that this Guarantee will not be discharged
except by complete performance of the obligations contained in the Notes and
this Indenture. Notwithstanding the foregoing, neither the Trustee nor any
Holder may pursue any remedy under this Guarantee unless they comply with
Section 6.7.
(c) If any Holder or the Trustee is required by any court
or otherwise to return to either the Company or any Subsidiary Guarantor, or
any Custodian, Trustee or similar official acting in relation to either the
Company or any Subsidiary Guarantor, any amount paid by either the Company or
such Subsidiary Guarantor to the Trustee or such Holder, this Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each Subsidiary Guarantor agrees that it will not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each
Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor,
on the one hand, and the Holders and the Trustee, on the other hand, (i) the
maturity of the
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obligations guaranteed hereby may be accelerated as provided in Section 6.2 for
the purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration as to the Company of the obligations
guaranteed hereby, and (ii) in the event of any declaration of acceleration of
those obligations as provided in Section 6.2, those obligations (whether or not
due and payable) will forthwith become due and payable by such Subsidiary
Guarantor for the purpose of this Guarantee.
(d) It is the intention of the Subsidiary Guarantors and
the Company that the obligations of the Subsidiary Guarantors hereunder shall
be in, but not in excess of, the maximum amount permitted by applicable law.
Accordingly, if the obligations in respect of the Guarantee would be annulled,
avoided or subordinated to the creditors of a Subsidiary Guarantor by a court
of competent jurisdiction in a proceeding actually pending before such court as
a result of a determination both that such Guarantee was made before such court
as a consideration and, immediately after giving effect thereto, such
Subsidiary Guarantor was insolvent or unable to pay its debts as they mature or
left with an unreasonably small capital, then the obligations of such
Subsidiary Guarantor under such Guarantee shall be reduced by such court if and
to the extent such reduction would result in the avoidance of such annulment,
avoidance or subordination; provided, however, that any reduction pursuant to
this paragraph shall be made in the smallest amount as is strictly necessary to
reach such result. For purposes of this paragraph, "fair consideration,"
"insolvency," "unable to pay its debts as they mature," "unreasonably small
capital" and the effective times of reductions, if any, required by this
paragraph shall be determined in accordance with applicable law.
Section 12.2 Execution and Delivery of Guarantee.
To evidence its Guarantee set forth in Section 12.1, each Subsidiary
Guarantor agrees that a notation of such Guarantee substantially in the form
annexed hereto as contained in Exhibit A shall be endorsed on each Note
authenticated and delivered by the Trustee and that this Indenture shall be
executed on behalf of each Subsidiary Guarantor by two (2) Officers or an
Officer and an Assistant Secretary by manual or facsimile signature.
Each Subsidiary Guarantor agrees that its Guarantee set forth in
Section 12.1 shall remain in full force and effect and shall apply to all the
Notes notwithstanding any failure to endorse on each Note a notation of such
Guarantee.
If an Officer whose signature is on a Note no longer holds that office
at the time the Trustee authenticates the Note on which a Guarantee is
endorsed, the Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee set forth in
this Indenture on behalf of each Subsidiary Guarantor.
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Section 12.3 Certain Bankruptcy Events.
Each Subsidiary Guarantor hereby covenants and agrees that in the
event of the insolvency, bankruptcy, dissolution, liquidation or reorganization
of the Company, such Subsidiary Guarantor shall not file (or join in any filing
of), or otherwise seek to participate in the filing of, any motion or request
seeking to stay or to prohibit (even temporarily) execution on the Guarantee
and hereby waives and agrees not to take the benefit of any such stay of
execution, whether under Section 362 or 105 of the United States Bankruptcy
Code or otherwise.
Section 12.4 Release of Guarantor.
Concurrently with any sale or other disposition of all or
substantially all of the assets of any Subsidiary Guarantor by way of merger,
consolidation or otherwise, or a sale or other disposition by way of such a
merger, consolidation or otherwise of all the Capital of such Subsidiary
Guarantor, in each case where such sale, consolidation, merger or other
disposition is not prohibited by Section 4.14, then such Subsidiary Guarantor,
and the person acquiring the Capital or the assets of such Subsidiary
Guarantor, shall be automatically and unconditionally released and discharged
from all obligations under the Guarantee, this Article XII and this Indenture
without any further action required on the part of the Trustee or any Holder.
ARTICLE XIII
MISCELLANEOUS
Section 13.1 TIA Controls.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by operation of the TIA, the imposed duties, upon
qualification of this Indenture under the TIA, shall control.
Section 13.2 Notices.
Any notices or other communications to the Company, the Guarantor or
the Trustee required or permitted hereunder shall be in writing, and shall be
sufficiently given if made by hand delivery, by telex, by telecopier or
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
if to the Company or the Guarantor:
HORSESHOE GAMING, L.L.C.
0000 Xxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attn: Chief Financial Officer
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with a copy to:
XXXXXXX & XXXXXXXX
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxxx, Esq.
if to the Trustee:
U.S. TRUST COMPANY OF TEXAS, N.A.
000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx
The Company, the Guarantor or the Trustee by notice to each other
party may designate additional or different addresses as shall be furnished in
writing by such party. Any notice or communication to the Company, the
Guarantor or the Trustee shall be deemed to have been given or made as of the
date so delivered, if personally delivered; when answered by, if telexed; when
receipt is acknowledged, if telecopied; and five (5) Business Days after
mailing if sent by registered or certified mail, postage prepaid (except that a
notice of change of address shall not be deemed to have been given until
actually received by the addressees).
Any notice or communication mailed to a Holder shall be mailed to such
person by first class mail or other equivalent means at such person's address
as it appears on the registration books of the Registrar and shall be
sufficiently given to such person if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.
Section 13.3 Communications by Holders with Other Holder.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Guarantor, the Trustee, the Registrar and any other person shall
have the protection of TIA Section 312(c).
Section 13.4 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee, if
required by the Trustee:
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(1) an Officers' Certificate (in form and substance
reasonably 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 and substance
reasonably satisfactory to the Trustee) stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 13.5 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
or she has made such examination or investigation as is necessary to enable him
or her 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
each such person,such condition or covenant has been complied with; provided,
however, that with respect to matters of fact an opinion of counsel may rely on
an Officers' Certificate or certificates of public officials.
Section 13.6 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 13.7 Legal Holidays.
A "Legal Holiday" used with respect to a particular place of payment
is a Saturday, a Sunday or a day on which banking institutions in New York, New
York are not required to be open. If a payment date is a Legal Holiday in New
York, New York, payment may be made at such place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
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Section 13.8 Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. THE COMPANY AND THE GUARANTOR HEREBY IRREVOCABLY SUBMIT TO
THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH
OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE NOTES, AND
IRREVOCABLY ACCEPT FOR THEMSELVES AND IN RESPECT OF THEIR PROPERTY, GENERALLY
AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY AND THE
GUARANTOR IRREVOCABLY WAIVE, TO THE FULLEST EXTENT THEY MAY EFFECTIVELY DO SO
UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH THEY MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OR THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY HOLDER TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS
OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
Section 13.9 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of any of the Company, the Guarantor or any of their
Subsidiaries. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
Section 13.10 No Recourse Against Others.
No direct or indirect equityholder, incorporator, employee, manager,
officer or director, as such, past, present or future of the Company, the
Guarantor or any successor entity shall have any personal liability in respect
of the Obligations of the Company or the Guarantor under this Indenture or the
Notes by reason of his, her or its status as such equityholder, incorporator,
employee, manager, officer or director. Each Holder by accepting a Note waives
and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Notes.
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Section 13.11 Successors.
All agreements of the Company and the Guarantor in this Indenture, the
Notes and the Guarantee shall bind their respective successors. All agreements
of the Trustee in this Indenture shall bind its successor.
Section 13.12 Duplicate Originals.
All parties may sign any number of copies or counterparts of this
Indenture. Each signed copy or counterpart shall be an original, but all of
them together shall represent the same agreement.
Section 13.13 Severability.
In case any one or more of the provisions of this Indenture or in the
Notes shall be held invalid, illegal or unenforceable, in any respect for any
reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
Section 13.14 Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and headings of the
Articles and the Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
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SIGNATURE
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
HORSESHOE GAMING, L.L.C.
By: HORSESHOE GAMING, INC., its Manager
By: /s/ XXXX X. XXXXXX
------------------------------------
Xxxx Xxxxxx
President
XXXXXXXX PROPERTY GROUP LIMITED
PARTNERSHIP
By: HORSESHOE GP, INC., its
General partner
By: /s/ XXXX X. XXXXXX
-------------------------------------
Xxxx Xxxxxx
President
U.S. TRUST COMPANY OF TEXAS, N.A., as
Trustee
By: /s/ XXXXXX XXXXX
------------------------------------
Xxxxxx Xxxxx
Authorized Officer
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