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CIRCUS CIRCUS ENTERPRISES, INC.,
as Issuer
AND
THE BANK OF NEW YORK,
as Trustee
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SUPPLEMENTAL INDENTURE
----------------------
DATED AS OF
NOVEMBER 20, 1998
$275,000,000
9 1/4% SENIOR SUBORDINATED NOTES DUE 2005
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Supplemental Indenture, dated as of November 20, 1998, between Circus
Circus Enterprises, Inc., a Nevada corporation (hereinafter sometimes referred
to as the "Company"), and The Bank of New York, a New York banking corporation,
as trustee (hereinafter sometimes referred to as the "Trustee") under the
Indenture (as hereinafter defined).
W I T N E S S E T H T H A T :
WHEREAS, the Company and the Trustee have entered into an Indenture
(the "Indenture") dated as of the date hereof, providing for the issuance of
debt securities in series; and
WHEREAS, for its lawful corporation purposes, the Company desires to
create and authorize the series of 9 1/4% Senior Subordinated Notes due 2005
(hereinafter referred to as the "Notes") in an aggregate principal amount of
$275,000,000, and, to provide the terms and conditions upon which the Notes are
to be executed, registered, authenticated, issued and delivered, the Company has
duly authorized the execution and delivery of this Supplemental Indenture; and
WHEREAS, the Notes are a series of Securities (as that term is defined
in the Indenture) and are being issued under the Indenture, as supplemented by
this Supplemental Indenture, and are subject to the terms contained therein and
herein; and
WHEREAS, the Notes and the certificates of authentication to be borne
by the Notes are to be substantially in the following forms, respectively:
REGISTERED CUSIP NO.
PRINCIPAL AMOUNT
$
NO.
CIRCUS CIRCUS ENTERPRISES, INC.
9 1/4% SENIOR SUBORDINATED
NOTE DUE 2005
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC"), 00 XXXXX XXXXXX, XXX XXXX, XXX XXXX TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH
NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER
NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE
OF SUCH SUCCESSOR.
CIRCUS CIRCUS ENTERPRISES, INC., a Nevada corporation (the "Company,"
which term shall include any successor under the Indenture hereinafter referred
to), for value received, hereby promises to pay to , or registered assigns, the
principal sum of on December 1, 2005, and to pay interest thereon at the rate of
9 1/4% per annum, until the entire principal amount hereof is paid or duly
provided for. This Note is one of a duly authorized series issued by the Company
designated as the "9 1/4% Senior Subordinated Notes due 2005" (herein called the
"Notes").
1. Interest.
The Company will pay interest semiannually on June 1 and December 1 of
each year (each, an "Interest Payment Date") commencing June 1, 1999. Interest
on the Notes will accrue from the most recent date to which interest has been
paid, unless the date hereof is a date to which interest has been paid, in which
case from the date of the Note, or, if no interest has
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been paid, from November 20, 1998. Notwithstanding the foregoing, when there is
no existing default in the payment of interest on the Notes, if the date hereof
is after a Record Date, as that term is defined below, and before the next
succeeding Interest Payment Date, this Note shall bear interest from such
Interest Payment Date; PROVIDED, HOWEVER, that if the Company shall default in
the payment of interest due on such Interest Payment Date, then this Note shall
bear interest from the next preceding Interest Payment Date to which interest
has been paid, or, if no interest has been paid on the Notes, from November 20,
1998. Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2. Method of Payment.
The Company will pay interest on the Notes (except defaulted interest)
to the persons who are registered Holders of Notes at the close of business on
the May 15 or November 15 preceding the June 1 or December 1, as the case may
be, on which the Interest Payment Date occurs (each, a "Record Date"). Holders
must surrender Notes to a Paying Agent to collect principal payments. The
Company will pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts.
However, the Company may pay principal and any interest by its check payable in
such money. It may mail an interest check to a holder's registered address.
3. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and Registrar. The
Company may change any Paying Agent, Registrar or co-registrar without notice.
The Company or any of its subsidiaries may act as Paying Agent, Registrar or
co-registrar.
4. Indenture.
The Company issued the Notes under an Indenture dated as of November
20, 1998 and a Supplemental Indenture dated as of November 20, 1998, each
between the Company and the Trustee (collectively, the "Indenture"). The terms
of the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code
77aaa-77bbbb), as amended, as in effect on the date of the Indenture. The Notes
are subject to all such terms and Holders are referred to the Indenture and such
Act for a statement of them. Terms used herein which are defined in the In-
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denture shall have the respective meanings assigned to them in the Indenture.
5. Redemption.
a. Optional Redemption. The Notes will be redeemable, at the option of
the Company, (i) in whole but not in part, at any time prior to December 1,
2002, at a redemption price equal to 100% of the principal amount thereof plus
the Make-Whole Premium, together with accrued and unpaid interest thereon to the
applicable redemption date, and (ii) in whole or in part at any time on or after
December 1, 2002 at the redemption prices (expressed as percentages of principal
amount) set forth below, plus accrued and unpaid interest thereon to the
applicable redemption date, if redeemed during the twelve-month period beginning
on December 1 of each of the years indicated below:
YEAR PERCENTAGE
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2002 ................................................... 104.625%
2003 ................................................... 102.313%
2004 and thereafter .................................... 100.000%
"Make-Whole-Premium" means, with respect to any Note at any redemption
date, the excess, if any, of (a) the aggregate present value of the sum of the
principal amount and premium that would be payable on December 1, 2002 of such
Note and all remaining interest payments to and including December 1, 2002,
discounted on a semi-annual bond equivalent basis from December 1, 2002 to the
redemption date at a per annum interest rate equal to the sum of the Treasury
Yield (determined on the Business Day immediately preceding the date of such
redemption), plus 50 basis points, over (b) the aggregate principal amount of
the Note being redeemed.
"Treasury Yield" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled by and published in the most recent Federal Reserve Statistical Release
H.15 (519) which has become publicly available at least two business days prior
to the date fixed for redemption (or, if such Statistical Release is no longer
published, any publicly available source of similar data)) most nearly equal to
the then remaining average life of the Notes, PROVIDED that if the average life
of the Notes is not equal to the constant maturity of a United States Treasury
security for which a weekly average yield is given, the Treasury yield shall be
obtained by linear interpolation (calculated
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to the nearest one-twelfth of a year) from the weekly average yields of United
States Treasury securities for which such yields are given, except that if the
average life of the Notes is less than one year, the weekly average yield on
actually traded United States Treasury securities adjusted to a constant
maturity of one year shall be used.
b. Optional Redemption upon Public Equity Offering. On or prior to
December 1, 2001, the Company may, at its option, use the net proceeds of a
Public Equity Offering to redeem up to 35% of the originally issued aggregate
principal amount of the Notes, at a redemption price in cash equal to 109.25% of
the principal amount thereof, plus accrued and unpaid interest thereon, if any,
to the date of redemption; PROVIDED that not less than $178.8 million in
aggregate principal amount of Notes is outstanding following such redemption.
Notice of any such redemption must be given not later than 60 days after the
consummation of the Public Equity Offering.
As used in the preceding paragraph, a "Public Equity Offering" means
an underwritten public offering of Capital Stock (other than Redeeemable Capital
Stock) of the Company made on a primary basis by the Company pursuant to a
registration statement filed with and declared effective by the Securities and
Exchange Commission in accordance with the Securities Act of 1933, as amended,
resulting in net cash proceeds to the Company (after deducting any underwriting
discounts and commissions) of at least $50 million. "Capital Stock" means with
respect to any person, any and all shares, interests, participations, rights in
or other equivalents (however designated) of such person's capital stock, and
any rights (other than debt securities convertible into capital stock), warrants
or options exchangeable for or convertible into such capital stock. "Redeemable
Capital Stock" means any class or series of Capital Stock that, either by its
terms, by the terms of any security into which it is convertible or exchangeable
or by contract or otherwise, is or upon the happening of an event or passage of
time would be, required to be redeemed prior to the stated maturity of the Notes
or is redeemable at the option of the holder thereof at any time prior to the
stated maturity of the Notes, or is convertible into or exchangeable for debt
securities at any time prior to the stated maturity of the Notes.
c. Mandatory Redemption. The Company will not be required to make any
mandatory sinking fund payments in respect of the Notes.
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6. Denominations, Transfer, Exchange.
The Notes are in registered form without coupons in denominations of
$1,000 and in integral multiples of $1,000. A Holder may transfer or exchange
Notes in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture.
7. Persons Deemed Owners.
The Holder of a Note may be treated as the owner of it for all
purposes.
8. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent will pay the money back to the
Company at its request. After that, Holders entitled to the money must look to
the Company for payment unless an abandoned property law designates another
person, and all liability of the Trustee and such Paying Agent with respect to
such money shall cease.
9. Discharge Prior to Maturity.
Subject to certain conditions, if the Company deposits with the
Trustee money or U.S. Government Obligations sufficient to pay principal of and
accrued interest on the Notes to maturity, the Company will be discharged (to
the extent provided in the Indenture) from the Indenture and the Notes.
10. Amendment, Supplement, Waiver.
Subject to certain exceptions requiring the consent of the Holders of
each of the affected Notes, the Indenture or the Notes may be amended or
supplemented with the consent of the Holders of at least a majority in principal
amount of the Notes then outstanding affected by such amendment, supplement or
waiver, and any past default or compliance with any provision as to the Notes
may be waived with the consent of the Holders of a majority in principal amount
of the Notes then outstanding. Without the consent of any Holder, the Company
and the Trustee may amend or supplement the Indenture of the Notes to, among
other things, cure any ambiguity, defect or inconsistency or to provide that the
obligations of the Company hereunder may be represented solely in the records of
the Com-
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pany in addition to or in place of the issue of Notes or to make any
change that does not materially adversely affect the rights of any Holder.
11. Restrictive Covenants.
The Notes are general unsecured obligations of the company limited to
the aggregate principal amount of $275,000,000. The Indenture does not limit the
Company from incurring unsecured Indebtedness other than the aggregate principal
amount of indebtedness to be issued pursuant to the Supplemental Indenture. It
does limit the ability of the Company and its subsidiaries to grant certain
security interests in their property without equally and ratably securing the
Notes and to engage in certain sales and leaseback transactions, subject to
certain important exceptions described therein. Once a year the Company must
report to the Trustee with respect to its compliance with such limitations.
12. Successor Corporation.
When a successor corporation assumes all the obligations of its
predecessor under the Notes and the Indenture, the predecessor corporation will
be released from those obligations.
13. Defaults and Remedies.
An Event of Default is anyone of the following: (i) failure of the
Company to pay (whether or not prohibited by the subordination provisions)
interest for 30 days on, or the principal when due of, the Notes; (ii) failure
to perform any other covenant contained in the Indenture for 30 days after
notice (other than a Default under Section 4.02 or Article Five which Default
shall be an Event of Default without the notice or passage of time specified in
this clause); (iii) the occurrence of an event of default under any instrument
evidencing Indebtedness of the Company or its subsidiaries entitling the holder
or holders thereof to accelerate the payment of an aggregate principal amount of
$10,000,000 or more of such Indebtedness, which event of default is not cured or
waived in accordance with the provisions of such instrument, or such
Indebtedness is not discharged, within 30 days after the receipt by the Company
of notice from the Trustee or the holders of 25% in principal amount of such
series of Debt Securities then outstanding of such event of default and
requiring the Company to cause such event of default to be cured or such
Indebtedness to be discharged; and (iv) certain events of bankruptcy, insolvency
or reorgani-
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If an Event of Default occurs and is continuing, the Trustee or the Holders
of not less than 25% in principal amount of the Notes then outstanding may
declare all the Notes to be due and payable immediately in accordance with
Section 6.02 of the Indenture. Holders may not enforce the Indenture or the
Notes except as provided in the Indenture. The Trustee may require security
and indemnity satisfactory to it before it enforces the Indenture or the
Notes. Subject to certain limitations, Holders of a majority in principal
amount of the Notes then outstanding may direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders notice of any
continuing default (except a default in payment of principal or interest) if
it determines that withholding notice is in their interests.
14. Trustee Dealings with Company.
The Bank of New York, the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its subsidiaries or Affiliates, and may
otherwise deal with the Company or its subsidiaries or Affiliates, as if it were
not Trustee.
15. No Recourse Against Others.
A past, present or future director, officer, employee, stockholder or
incorporator, as such, of the company or any successor corporation shall not
have any liability for any obligations of the Company under the Notes or the
Indenture or for any claim based on, in respect of, or by reason of such
obligations or their creation. Each Holder by accepting a Note waives and
released all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
16. Authentication.
This Note shall not be valid until the Trustee signs the certificate
of authentication at the end of this Note.
17. Copies of the Indenture.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
Circus Circus Enterprises, Inc.
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
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Xxx Xxxxx, Xxxxxx 00000
Attention: General Counsel
18. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Note
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties, ) JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
19. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
(Signature Page To Follow)
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal this th day of .
SIGNATURES
CIRCUS CIRCUS ENTERPRISES, INC.
By: Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: President, CFO, and Treasurer
By: Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title:
(SEAL)
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated "9 1/4% Senior
Subordinated Notes due 2005," pursuant to the Indenture.
THE BANK OF NEW YORK,
as Trustee
By: ___________________________________
Authorized Signatory
Date of Authentication:
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers to
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE: ____________________________________________________________
________________________________________________________________________________
(Please Print or Typewrite Name and Address
including Zip Code of Assignee)
________________________________________________________________________________
the within Note of ________________________ and ____________________ hereby does
irrevocably constitute and appoint
________________________________________________________________________________
Attorney to transfer said Note on the books of the within-named Company with
full power of substitution in the premises.
Dated: _________________________________________________________________________
________________________________________________________________________________
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Note in every particular, without
alteration or enlargement or any change whatever.
Signature Guaranteed:
__________________________________
Authorized Signature
Signature guarantee should be made by a guarantor institution participating in
the Securities Transfer Agents Medallion Program or in such guarantee program
acceptable to the Trustee.
AND WHEREAS, all acts and things necessary to make the Notes of this
series, when executed by the Company and authenticated and delivered by or on
behalf of the Trustee as in this Supplemental Indenture provided, the valid,
binding and legal obligations of the Company, and to constitute these presents a
valid indenture and agreement according to its terms, have been done and
performed;
NOW, THEREFORE, in order to declare the terms and conditions upon
which the Notes of this series are executed, registered, authenticated, issued
and delivered, and in consideration of the premises, of the purchase and
acceptance of such Notes by the holders thereof and of the sum of one dollar to
it duly paid by the Trustee at the execution of these presents, the receipt
whereof is hereby acknowledged, the Company covenants and agrees with the
Trustee, for the equal and proportionate benefit of the respective holders from
time to time of such Notes, as follows:
ARTICLE I
CREATION AND AUTHORIZATION OF SERIES
There is hereby created and authorized the series of Notes entitled
the "9 1/4% Senior Subordinated Notes due 2005," which shall be a closed series
limited to $275,000,000 aggregate principal amount (except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes of this series pursuant to Sections 3.06, 3.07,
3.09 or 11.06).
ARTICLE II
SPECIAL PROVISIONS APPLICABLE TO THIS SERIES
(a) Officers signing the Notes for the Company may do so by manual
signature. The Company's seal may be manually applied to the Notes.
(b) This Supplemental Indenture and each Note of this series shall be
governed by and construed in accordance with the laws of the State of Nevada,
except as otherwise required by mandatory provisions of law.
(Signature Page To Follow)
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IN WITNESS WHEREOF, the Company and the Trustee have caused their
names to be signed hereto by their respective officers hereunto duly authorized,
all as of the day and year first above written.
SIGNATURES
CIRCUS CIRCUS ENTERPRISES, INC.
By:
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THE BANK OF NEW YORK,
as Trustee
By:
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Name:
Title: