CIRCUS CIRCUS ENTERPRISES, INC.
Issuer
And
FIRST INTERSTATE BANK OF NEVADA, N.A.,
Trustee
Indenture
Dated as of February 1, 1996
CROSS-REFERENCE TABLE*
TIA
Section Indenture Section
-----------------
310(a)(1). . . . . . . . . . . . . 7.10
(a)(2). . . . . . . . . . . . . 7.10
(a)(3). . . . . . . . . . . . . N.A.
(a)(4). . . . . . . . . . . . . N.A.
(a)(5). . . . . . . . . . . . .7.10.
(b) . . . . . . . .7.08; 7.10; 12.02
(c) . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . 3.05
(b) . . . . . . . . . . . . . .12.03
(c) . . . . . . . . . . . . . .12.03
313(a) . . . . . . . . . . . . . . 7.06
(b) . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . .7.06; 12.02
(d) . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . .4.07; 12.02
(b) . . . . . . . . . . . . . . N.A.
(c)(1). . . . . . . . . . . . .12.04
(c)(2). . . . . . . . . . . . .12.04
(c)(3). . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . .12.05
(f) . . . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . .7.01(b)
(b) . . . . . . . . . . .7.05; 12.02
(c) . . . . . . . . . . . . .7.01(a)
(d) . . . . . . . . . . . . .7.01(c)
(e) . . . . . . . . . . . . . . 6.11
316(a)(last sentence). . . . . . .12.06
(a)(1)(A) . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . 6.04
(a)(2). . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . 6.07
317(a)(1). . . . . . . . . . . . . 6.08
(a)(2). . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . 3.04
318(a) . . . . . . . . . . . . . .12.01
(b) . . . . . . . . . . . . . . N.A.
(c) . . . . . . . . . . . . . .10.01
N.A. means Not Applicable.
---------------
*This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
Article One - Definitions And Incorporation By
Reference. . . . . . . . . . . . . . 1
Section 1.01. Definitions . 1
Section 1.02. Incorporation By
Reference Of Trust Indenture Act 6
Section 1.03. Rules Of Construction 6
Article Two - Security Forms . . . . 7
Section 2.01. Forms Generally 7
Section 2.02. Form Of Trustee's
Certificate Of Authentication 7
Article Three - The Securities . . . 8
Section 3.01. Amount Unlimited,
Issuable In Series 8
Section 3.02. Execution And
Authentication;
Denominations;
Delivery And Dating 10
Section 3.03. Registrar And Paying
Agent . . . . . . 11
Section 3.04. Paying Agent To Hold
Money In Trust. . 11
Section 3.05. Securityholder Lists 12
Section 3.06. Transfer And Exchange 12
Section 3.07. Replacement Securities 12
Section 3.08. Outstanding Securities 13
Section 3.09. Temporary Securities 13
Section 3.10. Cancellation. 13
Section 3.11. Defaulted Interest 13
Section 3.12. Mandatory Disposition
Of Securities Pursuant
To Gaming Laws 14
Article Four - Covenants . . . . . . 14
Section 4.01. Payment Of Securities 14
Section 4.02. Corporate Existence 15
Section 4.03. Payment Of Taxes And
Other Claims. . . 15
Section 4.04. Maintenance Of
Properties. . . . 15
Section 4.05. Maintenance Of Office
Or Agency . . . . 16
Section 4.06. Compliance Certificate 16
Section 4.07. Reports . . . 16
Section 4.08. Waiver Of Stay;
Extension Of Usury Laws 17
Section 4.09. Limitation On Liens 17
Section 4.10. Limitation On Sale And
Lease-back Transactions 19
Section 4.11. Defeasance Of Certain
Obligations . . . 19
Article Five - Successor Corporation 21
Article Six - Defaults And Remedies. 21
Section 6.01. Events Of Default 21
Section 6.02. Acceleration. 23
Section 6.03. Other Remedies 24
Section 6.04. Waiver Of Past Defaults 24
Section 6.05. Control By Majority 24
Section 6.06. Limitation On Suits 24
Section 6.07. Rights Of Holders To
Receive Payment . 25
Section 6.08. Collection Suit By
Trustee . . . . . 25
Section 6.09. Trustee May File Proofs
Of Claim. . . . . 25
Section 6.10. Priorities. . 25
Section 6.11. Undertaking For Costs 26
Article Seven - Trustee. . . . . . . 26
Section 7.01. Duties Of Trustee 26
Section 7.02. Rights Of Trustee 27
Section 7.03. Individual Rights Of
Trustee . . . . . 28
Section 7.04. Trustee's Disclaimer 28
Section 7.05. Notice Of Defaults 28
Section 7.06. Reports By Trustee 28
Section 7.07. Compensation And
Indemnity . . . . 28
Section 7.08. Replacement Of Trustee 29
Section 7.09. Successor Trustee By
Xxxxxx, Etc.. . . 30
Section 7.10. Eligibility;
Disqualification. 30
Section 7.11. Preferential Collection
Of Claims Against Company 31
Section 7.12. Authenticating Agent 31
Article Eight - Discharge Of Indenture 33
Section 8.01. Termination Of
Company's Obligations 33
Section 8.02. Application Of Trust
Money . . . . . . 34
Section 8.03. Repayment To The
Company . . . . . 34
Section 8.04. Reinstatement 35
Article Nine - Amendments, Supplements And Waivers 35
Section 9.01. Without Consent Of
Holders . . . . . 35
Section 9.02. With Consent Of
Holders . . . . . 36
Section 9.03. Compliance With Trust
Indenture Act . . 37
Section 9.04. Revocation And Effect
Of Consents . . . 37
Section 9.05. Notation On Or
Exchange Of Securities 37
Section 9.06. Trustee To Sign
Amendments, Etc.. 38
Article Ten - Meetings Of Securityholders 38
Section 10.01. Purposes For Which
Meetings May Be Called 38
Section 10.02. Manner Of Calling
Meetings. . . . . 38
Section 10.03. Call Of Meetings By
Company Or Holders 39
Section 10.04. Who May Attend Vote
At Meetings . . . 39
Section 10.05. Regulations May Be
Made By Trustee; Conduct Of The
Meeting; Voting Rights;
Adjournment. . . . . . . . . . . . . 40
Section 10.06. Voting At The Meeting
And Record To Be Kept 40
Section 10.07. Exercise Of Rights Of
Trustee Or
Securityholders
May Not Be Hindered Or
Delayed By Call Of Meeting . . . . . 41
Article Eleven - Redemption. . . . . 41
Section 11.01. Notices To Trustee 41
Section 11.02. Selection Of Securities To
Be Redeemed . . . 41
Section 11.03. Notice Of Redemption 42
Section 11.04. Effect Of Notice Of
Redemption. . . . 43
Section 11.05. Deposit Of Redemption
Price . . . . . . 43
Section 11.06. Securities Redeemed In
Part. . . . . . . 43
Article Twelve - Miscellaneous . . . 43
Section 12.01. Trust Indenture Act
Controls. . . . . 43
Section 12.02. Notices . . . 44
Section 12.03. Communication By
Holders With Other Holders 44
Section 12.04. Certificates And
Opinion As To Conditions Precedent 44
Section 12.05. Statements Required In
Certificate Or Opinion 45
Section 12.06. When Treasury
Securities Disregarded 45
Section 12.07. Rules By Paying Agent,
Registrar . . . . 45
Section 12.08. Legal Holidays 45
Section 12.09. Governing Law 46
Section 12.10. No Adverse
Interpretation Of Other Agreements 46
Section 12.11. No Recourse Against
Others. . . . . . 46
Section 12.12. Successors. . 46
Section 12.13. Duplicate Originals 46
Section 12.14. Severability. 46
Section 12.15. Effect Of Headings,
Table Of Contents, Etc. 46
INDENTURE, dated as of February 1, 1996
between Circus Circus Enterprises, Inc., a Nevada
corporation ("Company"), and First Interstate Bank of
Nevada, N.A., a corporation organized and existing as a
national banking association under the laws of the United
States, as Trustee ("Trustee").
RECITALS
The Company has duly authorized the
execution and delivery of this Indenture to provide for
the issuance from time to time of its Senior Notes to be
issued in one or more series (the "Securities"), as herein
provided, up to such principal amount as may from time
to time be authorized in or pursuant to one or more
resolutions of the Board of Directors or by supplemental
indenture.
All things necessary to make this Indenture a
valid agreement of the Company, in accordance with its
terms, have been done.
NOW, THEREFORE, THIS INDENTURE
WITNESSETH:
For and in consideration of the premises and
the purchase of the Securities by the Holders (as
hereinafter defined) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of the
Holders of each series of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY
REFERENCE
SECTION 1.01. DEFINITIONS.
"Affiliate" means a person "affiliated" with
the Company, as that term is defined in Rule 405
promulgated under the Securities Act of 1933, as
amended.
"Authenticating Agent" shall have the meaning
provided in Section 7.12.
"Bankruptcy Law" shall have the meaning
provided in Section 6.01.
"Board of Directors" means the Board of
Directors of the Company or any committee of such
Board.
"Board Resolution" means a copy of a
resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full
force and effect on the date of such certification
and
delivered to the Trustee.
"Company" means the party named as such in
this Indenture until a successor replaces it pursuant
to the applicable provisions of this Indenture and
thereafter means the successor.
"Consolidated Net Tangible Assets" means the
total amount of assets (less applicable reserves and
other properly deductible items) after deducting
therefrom (i) all current liabilities (excluding any
thereof which are by their terms extendible or
renewable at the option of the obligor thereon to a
time more than 12 months after the time as of
which the amount thereof is being computed) and
(ii) all goodwill, trade names, trademarks, patents,
purchased technology, unamortized debt discount
and other like intangible assets, all as set forth on
the most recent quarterly balance sheet of the
Company and its consolidated subsidiaries and
computed in accordance with generally accepted
accounting principles.
"Consolidated Property" means any property
of the Company or any subsidiary of the Company.
"Custodian" shall have the meaning provided
in Section 6.01.
"Default" means any event which is, or after
notice or passage of time would be, an Event of
Default.
"Event of Default" shall have the meaning
provided in Section 6.01.
"Exchange Act" means the Securities
Exchange Act of 1934, as amended.
"Existing Completion Guarantees and
Make-Well Agreements" means (i) that certain
Make-Well Agreement by the Company in favor of
the Trustee dated as of May 30, 1995 relating to the
Circus and Eldorado Joint Venture, a Nevada
general partnership, (ii) that certain Circus
Completion Guaranty by the Company in favor of
the Trustee dated as of May 30, 1995 relating to the
Circus and Eldorado Joint Venture, a Nevada
general partnership, and (iii) that certain Guaranty
by the Company in favor of Bank of America
National Trust and Savings Association dated as of
July 12, 1995 relating to Victoria Partners, a
Nevada general partnership.
"Funded Debt" means all Indebtedness of the
Company which (i) matures by its terms, or is
renewable at the option of any obligor thereon to a
date, more than one year after the date of original
issuance of such Indebtedness and (ii) ranks at least
PARI PASSU with the Securities.
"Gaming Authority" means the Nevada
Gaming Commission, the Nevada Gaming Control
Board, the Ontario Gaming Control Commission,
the Mississippi Gaming Commission, the Illinois
Gaming Board or any similar commission or agency
which has, or may at any time after the date of this
Indenture have, jurisdiction over the gaming
activities of the Company or a subsidiary of the
Company or any successor thereto.
"Gaming Laws" means the gaming laws of a
jurisdiction or jurisdictions to which the Company
or a subsidiary of the Company is, or may at any
time after the date of this Indenture be, subject.
"Global Security" shall mean a Security issued
to evidence all or a part of any series of Securities
that is executed by the Company and authenticated
and delivered by the Trustee to a depositary or
pursuant to such depositary's instructions, all in
accordance with this Indenture and pursuant to an
Officer's Certificate, which shall be registered
as to
principal and interest in the name of such depositary
or its nominee.
"Holder" or "Securityholder" means the
person in whose name a Security is registered on
the Registrar's books.
"Indebtedness" of any person means (a) any
indebtedness of such person, contingent or
otherwise, in respect of borrowed money (whether
or not the recourse of the lender is to the whole of
the assets of such person or only to a portion
thereof), or evidenced by bonds, notes, debentures
or similar instruments or letters of credit, or
representing the balance deferred and unpaid of the
purchase price of any property, including any such
indebtedness incurred in connection with the
acquisition by such person or any of its subsidiaries
of any other business or entity, if and to the extent
such indebtedness would appear as a Liability upon
a balance sheet of such person prepared in
accordance with generally accepted accounting
principles, including for such purpose obligations
under capitalized leases, and (b) any guaranty,
endorsement (other than for collection or deposit in
the ordinary course of business), discount with
recourse, agreement (contingent or otherwise) to
purchase, repurchase or otherwise acquire or to
supply or advance funds with respect to, or to
become liable with respect to (directly or
indirectly)
any indebtedness, obligation, liability or
dividend of
any person, but shall not include indebtedness or
amounts owed (except to banks or other financial
institutions) for compensation to employees, or for
goods or materials purchased, or services utilized,
in the ordinary course of business of such person.
Notwithstanding anything to the contrary in the
foregoing, "Indebtedness" shall not include (i) any
contracts providing for the completion of
construction or other payment or performance with
respect to the construction, maintenance or
improvement of property or equipment of the
Company or its Affiliates or (ii) any contracts
providing for the obligation to advance funds,
property or services on behalf of an Affiliate of the
Company in order to maintain the financial
condition of such Affiliate, in each case, including
Existing Completion Guarantees and Make-Well
Agreements. For purposes hereof, a "capitalized
lease" shall be deemed to mean a lease of real or
personal property which, in accordance with
generally accepted accounting principles, is required
to be capitalized.
"Indenture" means this Indenture as amended
or supplemented from time to time.
"Joint Venture" means (i) with respect to
properties located in the United States, any partnership,
corporation or other entity, in which up to and including
50% of the partnership interests, outstanding voting stock
or other equity interests is owned, directly or indirectly,
by the Company and/or one or more subsidiaries, and (ii)
with respect to properties located outside the United
States, any partnership, corporation or other entity, in
which up to and including 60% of the partnership
interests, outstanding voting stock or other equity
interests is owned, directly or indirectly, by the
Company and/or one or more subsidiaries.
"Legal Holiday" shall have the meaning
provided in Section 12.08.
"Lien" means any mortgage, pledge,
hypothecation, assignment, deposit arrangement,
encumbrance, security interest, lien (statutory or
other), or preference, priority or other security or
similar agreement or preferential arrangement of
any kind or nature whatsoever (including, without
limitation, any conditional sale or other title
retention agreement having substantially the same
economic effect as any of the foregoing).
"Officer" means the Chairman of the Board,
the President, any Executive Vice President, any
Vice President, the Chief Financial Officer, the
Treasurer, the Secretary or the Controller of the
Company.
"Officers' Certificate" means a certificate
signed by two Officers or by an Officer and an
Assistant Treasurer, Assistant Secretary or Assistant
Controller of the Company. See Sections 12.04 and
12.05.
"Opinion of Counsel" means a written opinion
from legal counsel who is acceptable to the Trustee.
The counsel may be an employee of or counsel to
the Company or the Trustee. See Sections 12.04
and 12.05.
"Original Issue Discount Security" means any
Security which provides that an amount less than its
principal amount is due and payable upon
acceleration after an Event of Default.
"Paying Agent" shall have the meaning
provided in Section 3.03.
"person" means any individual, corporation,
partnership, joint venture, association, joint stock
company, trust, unincorporated organization or
government or other agency or political subdivision
thereof.
"Predecessor Securities" of any Security
means every previous Security evidencing all or a
portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this
definition, any Security authenticated and delivered
under Section 3.07 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the
same debt as the lost, destroyed or stolen Security.
"principal" of a debt security, including the
Securities, means the principal of the security plus, when
appropriate, the premium, if any, on the security.
"Project Cost" means, with respect to any
Resort Property, the aggregate costs required to complete
such construction project in accordance with the plans
therefor and applicable legal requirements, as set forth in
an Officers' Certificate submitted to the Trustee, setting
forth in reasonable detail all amounts theretofore
expended and any anticipated costs and expenses
estimated to be incurred and reserves to be established in
connection with the construction and development of
such future addition or improvement, including direct
costs related thereto such as construction management,
architectural engineering and interior design fees, site
work, utility installations and hook-up fees, construction
permits, certificates and bonds, land acquisition costs and
the cost of furniture, fixtures, furnishings, machinery and
equipment, but excluding the following: principal or
interest payments on any Indebtedness (other than interest
which is required to be capitalized in accordance with
generally accepted accounting principal, which shall be
included in determining Project Cost), or costs related to
the operation of the Resort Property including, but not
limited to, non-construction supplies and pre-operating
payroll.
"Registrar" shall have the meaning provided
in Section 3.03.
"Resort Property" means any property owned
or to be owned by the Company or any of its subsidiaries
that is, or will be upon completion, a casino (including a
riverboat casino), casino-hotel, destination resort or a
theme park.
"Sale and Lease-Back Transaction" means any
arrangement with any person (other than the Company or
a subsidiary of the Company), or to which any such
person is a party, providing for the leasing to the
Company or a subsidiary of the Company for a per
in the ordinary course of business of such person.
Notwithstanding anything to the contrary in the
foregoing, "Indebtedness" shall not include (i) any
contracts providing for the completion of
construction or other payment or performance with
which funds have been or are to be
advanced by such person on the security of the leased
property.
"SEC" means the Securities and Exchange
Commission.
"Securities" has the meaning specified in the
first recital of this Indenture and more particularly means
any Securities authenticated and delivered under this
Indenture.
of which at least a majority in interest of the
outstanding stock having by the terms thereof voting
power under ordinary circumstances to elect a majority
of the directors of such corporation, irrespective of
whether or not at the time stock of any other class or
classes of such corporation shall have or might have
voting power by reason of the happening of any
contingency, is at the time, directly or indirectly, owned
or controlled by such person, or by one or more other
corporations a majority in interest of such stock of which
is similarly owned or controlled, or by such person and
one or more other corporations a majority in interest of
such stock of which is similarly owned or controlled and
(ii) any other person (other than a corporation, or a
partnership, corporation or other entity described in
clause (ii) of the definition of Joint Venture) in which
such person or any subsidiary, directly or indirectly, has
greater than a 50% ownership interest.
"TIA" means the Trust Indenture Act of 1939
(15 U.S. Code Sections 77aaa-77bbbb) as in effect on the
date of this Indenture.
"Trustee" means the party named as such in
this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and thereafter
means the successor.
"Trust Officer" means the Chairman of the
Board, the President or any other officer or assistant
officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"U.S. Government Obligations" means direct
non-cancelable obligations of the United States of
America for the payment of which the full faith and
credit of the United States is pledged.
"Value" means, with respect to a Sale and
Lease-Back Transaction, as of any time, the amount
equal to the greater of (i) the net proceeds of the sale or
transfer of property leased pursuant to such Sale and
Lease-Back Transaction or (ii) the fair value, in the
opinion of the Board of Directors as evidenced by a
board resolution, of such property at the time of entering
into such Sale and Lease Back Transaction.
SECTION 1.02. INCORPORATION BY REFERENCE
OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision
of the TIA, the provision is incorporated by reference in
and made a part of this Indenture. The following TIA
terms used in this Indenture have the following
meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder
or Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means
the Trustee.
"obligor" on the indenture securities means the
Company.
All other TIA terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another
statute or defined by SEC rule have the meanings
assigned to them.
SECTION 1.03. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined
has the meaning as signed to it in accordance with
generally accepted accounting principles;
(3) "or" is not exclusive;
(4) words in the singular include the plural,
and in the plural include the singular; and
(5) provisions apply to successive events and
transactions.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. FORMS GENERALLY.
The Securities of each series shall be in such
form as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate provisions as
are required or permitted by this Indenture, and may
have such letters, numbers or other marks of
identification and such legends or endorsements placed
thereon as may be required by any Gaming Authority or
as may be required to comply with the rules of any
securities exchange or depositary therefor or as may,
consistently herewith, be determined by the officers
executing such Securities, as evidenced by their
execution thereof. If the form of any series of Securities
is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or any Assistant
Secretary of the Company and delivered to the Trustee at
or prior to the delivery of a written order signed by two
Officers or by and Officer and an Assistant Treasurer of
the Company for the authentication and delivery of such
Securities.
The definitive Securities shall be printed,
lithographed or engraved on steel engraved borders or
may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by
their execution of such Securities.
The terms and provisions in the Securities
shall constitute, and are hereby expressly made, a part of
this Indenture.
SECTION 2.02. FORM OF TRUSTEE'S
CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates of authentication
shall be in substantially the following form:
This is one of the Securities of the series
designated herein referred to in the within-mentioned
Indenture.
As Trustee
By
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 3.01. AMOUNT UNLIMITED, ISSUABLE
IN SERIES.
The aggregate principal amount of Securities
which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more
series. There shall be established in or pursuant to a
Board Resolution and, subject to Section 3.02, set forth,
or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of any series
of Securities:
(1) the title of the Securities of the series
(which shall distinguish the Securities of the series
from Securities of any other series);
(2) any limit upon the aggregate principal
amount of the Securities of the series which may
be authenticated and delivered under this
Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.06, 3.07, 3.09 or
9.05 and except for any Securities which,
pursuant to Section 3.02, are deemed never to
have been authenticated and delivered hereunder);
(3) the person to whom any interest on a
Security of the series shall be payable, if other
than the person in whose name that Security (or
one or more Predecessor Securities) is registered
at the close of business on the record date for
such interest;
(4) the date or dates on which the
principal of any Securities of the series is
payable;
(5) the rate or rates at which any
Securities of the series shall bear interest, if any,
the date or dates from which any such interest
shall accrue, the dates on which any such interest
shall be payable and the record date for any such
interest payable on any such payment date;
(6) the place or places where the principal
of and any premium and interest on any Securities
of the series shall be payable;
(7) the period or periods within which,
the price or prices at which and the terms and
conditions upon which any Securities of the series
may be redeemed, in whole or in part, at the
option of the Company and, if other than by a
Board Resolution, the manner in which any
election by the Company to redeem the Securities
shall be evidenced;
(8) the obligation, if any, of the Company
to redeem or purchase any Securities of the series
pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof
and the period or periods within which, the price
or prices at which and the terms and conditions
upon which any Securities of the series shall be
redeemed or purchased, in whole or in part,
pursuant to such obligation;
(9) if other than denomination of $1,000
and any integral multiple thereof, the
denominations in which any Securities of the
series shall be issuable;
(10) if the amount of principal of or any
premium or interest on any Securities of the series
may be determined with reference to an index or
pursuant to a formula, the manner in which such
amounts shall be determined;
(11) if other than the currency of the
United States of America, the currency,
currencies or currency units in which the principal
of or any premium or interest on any Securities of
the series shall be payable and the manner of
determining the equivalent thereof in the currency
of the United States of America for any purpose;
(12) if the principal of or any premium or
interest on any Securities of the series is to be
payable, at the election of the Company or the
Holder thereof, in one or more currencies or
currency units other than that or those in which
such Securities are stated to be payable, the
currency, currencies or currency units in which
the principal of or any premium or interest on
such Securities as to which such election is made
shall be payable, the periods within which and the
terms and conditions upon which such election is
to be made and the amount so payable (or the
manner in which such amount shall be
determined);
(13) if other than the entire principal
amount thereof the portion of the principal
amount of any Securities of the series which shall
be payable upon declaration of acceleration of the
maturity thereof pursuant to Section 6.02;
(14) if the principal amount payable at the
maturity of any Securities of the series will not be
determinable as of any one or more dates prior to
maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any
such date for any purpose thereunder or
hereunder, including the principal amount thereof
which shall be due and payable upon any maturity
date other than the stated maturity or which shall
be deemed to be outstanding as of any date prior
to the stated maturity (or, in any such case, the
manner in which such amount deemed to be the
principal amount shall be determined);
(15) if applicable, that the Securities of the
series, in whole or any specified part, shall be
defeasible pursuant to Section 4.11, and, if other
than by a Board Resolution, the manner in which
any election by the Company to defease such
Securities shall be evidenced;
(16) any addition to or change in the
Events of Default which applies to any Securities
of the series and any change in the right of the
Trustee or the requisite Holders of such Securities
to declare the principal amount thereof due and
payable pursuant to Section 6.02;
(17) any addition to or change in the
covenants set forth in Article Four which applies
to Securities of the series;
(18) whether the Securities of the series
shall be issued in whole or in part in the form of
a Global Security or Securities; the terms and
conditions, if any, upon which such Global
Security or Securities may be exchanged in whole
or in part for other individual Securities, and the
depositary for such Global Security and
Securities; and
(19) any other terms of the series (which
terms shall not be inconsistent with the provisions
of this Indenture, but which may modify or delete
any provision of this Indenture with respect to
such series, provided that no such term may
modify or delete any provision hereof if imposed
by the Trust Indenture Act, and provided, further
that any modification or deletion of the rights,
duties or immunities of the Trustee hereunder
shall have been consented to in writing by the
Trustee).
If any of the foregoing terms are not available at
the time such Board Resolution is adopted, or such
officers' Certificate or any supplemental indenture is
executed, such resolutions, Officers' Certificate or
supplemental indenture may reference the document or
documents to be created in which such terms will be set
forth prior to the issuance of such Securities.
All Securities of any one series shall be
substantially identical except as to denomination and
except as may otherwise be provided in or pursuant to
the Board Resolution referred to above and (subject to
Section 3.02) set forth, or determined in the manner
provided, in the Officers' Certificate referred to above or
in any such indenture supplemental hereto.
If any of the terms of the series are established by
action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
SECTION 3.02. EXECUTION AND
AUTHENTICATION; DENOMINATIONS;
DELIVERY AND DATING.
Two Officers shall sign the Securities for the
Company by facsimile signature. The Company's seal
shall be reproduced on the Securities.
If an Officer whose signature is on a Security no
longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid
nevertheless.
A Security shall not be valid until the Trustee
manually signs the certificate of authentication on the
Security. The signature shall be conclusive evidence that
the Security has been authenticated under this Indenture.
Upon a written order of the Company signed by
two Officers or by an Officer and an Assistant Treasurer
of the Company, the Trustee shall authenticate the
Securities.
The Securities shall be issuable only in registered
form without coupons and only in minimum
denominations of $100,000 and in integral multiples of
$1,000 in denominations above $100,000.
The Company and the Trustee, by their execution
and authentication, respectively, of the Securities,
expressly agree to the terms and conditions stated therein
and to be bound thereby.
SECTION 3.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency
where Securities of a series may be presented for
registration of transfer or for exchange ("Registrar") and
an office or agency where Securities of that series may
be presented for payment ("Paying Agent"). At all times
the Registrar and the Paying Agent shall each maintain
an office or agency in the State of New York where
Securities of a series may be presented for the above
purposes. The Registrar shall keep a register of the
Securities of that series and of their registration of
transfer and exchange. The Company may have one or
more co-registrars and one or more additional paying
agents for each series of Securities. The term "Paying
Agent" includes any additional paying agent. The term
"Registrar" includes any co-registrar.
The Company shall enter into an appropriate
agency agreement with any Registrar, Paying Agent or
co-registrar not a party to this Indenture. The agreement
shall implement the provisions of this Indenture that
relate to such agent. The Company shall notify the
Trustee of the name and address of any such agent. If
the Company fails to maintain a Registrar or Paying
Agent for any series of Securities, the Trustee shall act
as such.
The Company initially appoints the Trustee as
Registrar and Paying Agent.
SECTION 3.04. PAYING AGENT TO HOLD MONEY
IN TRUST.
Subject to the provisions of Section 8.03 hereof,
each Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all money held by the
Paying Agent for the payment of principal of or interest
on any series of Securities, and shall notify the Trustee
of any default by the Company in making any such
payment. If the Company or a subsidiary of the
Company acts as Paying Agent, it shall, on or before
each due date of principal of or interest on that series of
Securities, segregate the money and hold it as a separate
trust fund. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee.
Upon doing so the Paying Agent shall have no further
liability for the money.
SECTION 3.05. SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as
is reasonably practicable the most recent list available to
it of the names and addresses of Securityholders,
separately by series, and shall otherwise comply with
TIA Section 312(a). If the Trustee is not the Registrar,
the Company shall furnish to the Trustee on or before
each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as
of such date as the Trustee may reasonably require of the
names and addresses of Securityholders, separately by
series, relating to such interest payment date or request,
as the case may be.
SECTION 3.06. TRANSFER AND EXCHANGE.
Where a Security is presented to the Registrar or
a co-registrar with a request to register a transfer, the
Registrar shall register the transfer as requested if the
requirements of Section 8-401(1) of the Nevada Uniform
Commercial Code are met. Where Securities are
presented to the Registrar or a co-registrar with a request
to exchange them for an equal principal amount of
Securities of other denominations, the Registrar shall
make the exchange as requested if the same requirements
are met. To permit registration of transfers and
exchanges, the Trustee shall authenticate Securities at the
Registrar's request. The Company may charge a
reasonable fee for any transfer or exchange but not for
any exchange pursuant to Section 3.09 or 9.05.
The Company need not issue, and the Registrar or
co- Registrar need not register the transfer or exchange
of, (i) any Security of a series during a period beginning
at the opening of business 15 days before the day of any
selection of Securities of that series for redemption under
Section 11.02 and ending at the close of business on the
day of selection, or (ii) any Security so selected for
redemption in whole or in part, except the unredeemed
portion of any Security of that series being redeemed in
part.
SECTION 3.07. REPLACEMENT SECURITIES.
If the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken,
the Company shall issue and the Trustee shall
authenticate and make available for delivery a
replacement Security of like series if the requirements of
Section 8-405 of the Nevada Uniform Commercial Code
are met. Before any Security is replaced, an indemnity
bond must be provided sufficient in the judgment of the
Company and the Trustee to protect the Company, the
Trustee, the Paying Agent, the Registrar or any
co-registrar from any loss which any of them may suffer
if a Security is replaced. The Company may charge for
its expenses in replacing a Security. Every replacement
Security shall constitute a contractual obligation of the
Company and shall be entitled to all the benefits of this
Indenture equally with all other Securities of the same
series issued hereunder.
SECTION 3.08. OUTSTANDING SECURITIES.
The Securities of any series outstanding at any
time are all the Securities of that series authenticated by
the Trustee except for those canceled by it and those
described in this Section. Subject to the provisions of
Section 12.06 hereof, a Security does not cease to be
outstanding because the Company or an Affiliate holds
the Security.
If a Security is replaced pursuant to Section 3.07,
it ceases to be outstanding unless the Trustee receives
proof satisfactory to it that the replaced Security is held
by a bona fide purchaser.
If the Paying Agent holds on the maturity date
money sufficient to pay Securities payable on that date,
then on and after that date such Securities shall cease to
be outstanding and interest on them shall cease to accrue.
For each series of Original Issue Discount
Securities, the principal amount of such Securities that
shall be deemed to be outstanding and used to determine
whether the necessary Holders have given any request,
demand, authorization, direction, notice, consent or
waiver shall be the principal amount of such Securities
that could be declared to be due and payable upon
acceleration upon an Event of Default as of the date of
such determination. When requested by the Trustee, the
Company will advise the Trustee of such amount,
showing its computations in reasonable detail.
SECTION 3.09. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery,
the Company may prepare and the Trustee shall
authenticate temporary Securities upon a written order of
the Company signed by two officers of the Company.
Temporary Securities shall be substantially in the form of
definitive Securities, but may have variations that the
Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare
and the Trustee shall authenticate definitive Securities in
exchange for temporary Securities.
SECTION 3.10. CANCELLATION.
The Company at any time may deliver Securities
to the Trustee for cancellation. The Registrar and the
Paying Agent shall cancel and destroy any Securities
surrendered to them for registration of transfer,
exchange, payment or cancellation. Certification of the
destruction of all cancelled securities shall be delivered
to the Company. The Company may not issue new
Securities to replace Securities it has paid or delivered to
the Trustee for cancellation.
SECTION 3.11. DEFAULTED INTEREST.
If the Company defaults in a payment of interest
on any series of Securities, it shall pay the defaulted
interest to the persons who are Securityholders of that
series on a subsequent special record date. After the
deposit by the Company with the Trustee of money
sufficient to pay such defaulted interest, the Trustee shall
fix the record date and payment date. At least 15 days
before the record date, the Company shall mail to each
Securityholder of that series a notice that states the
record date, the payment date, and the amount of
defaulted interest to be paid. The Company may pay
defaulted interest in any other lawful manner.
SECTION 3.12. MANDATORY DISPOSITION OF
SECURITIES PURSUANT TO
GAMING LAWS.
Each Holder and beneficial owner, by accepting
or otherwise acquiring an interest in the Securities, shall
be deemed to have agreed that if the Gaming Authority
of any jurisdiction in which the Company or any of its
subsidiaries conducts or proposes to conduct gaming
requires that a person who is a Holder or beneficial
owner must be licensed, qualified or found suitable under
the applicable Gaming Laws, such Holder or beneficial
owner shall apply for a license, qualification or a finding
of suitability within the required time period. If such
person fails to apply or become licensed or qualified or
is found unsuitable, the Company shall have the right, at
its option, (i) to require such person to dispose of its
Securities or beneficial interest therein within 30 days of
receipt of notice of the Company's election or such
earlier date as may be requested or prescribed by such
Gaming Authority or (ii) to redeem such Securities at a
redemption price equal to the lesser of (A) such person's
cost and (B) 100% of the principal amount thereof, plus
accrued and unpaid interest to the earlier of the
redemption date and the date of the finding of
unsuitability, which may be less than 30 days following
the notice of redemption if so requested or prescribed by
the Gaming Authority. The Company shall notify the
Trustee in writing of any such redemption as soon as
practicable. The Company shall not be responsible for
any costs or expenses any such Holder or beneficial
owner may incur in connection with its application for a
license, qualification or a finding of suitability.
ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay the principal of and
interest on the Securities on the dates and in the manner
provided in the Securities. An installment of principal of
or interest on the Securities shall be considered paid on
the date it is due if the Trustee or Paying Agent holds on
that date money designated for and sufficient to pay the
installment.
The Company shall pay interest on overdue
principal at the rate borne by the Securities; it shall pay
interest on overdue installments of interest at the same
rate to the extent lawful.
SECTION 4.02. CORPORATE EXISTENCE.
Subject to Article Five, the Company will do or
cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and
the corporate, partnership or other existence of each
subsidiary in accordance with the respective
organizational documents of each subsidiary and the
rights (charter and statutory), licenses and franchises of
the Company and its subsidiaries; provided, however,
that the Company shall not be required to preserve, with
respect to itself, any right, license or franchise, and with
respect to the subsidiaries, any such existence, right,
license or franchise, if the Board of Directors, or the
board of directors or managing partners of the subsidiary
concerned, shall determine that the preservation thereof
is no longer desirable in the conduct of the business of
the Company or any subsidiary and that the loss thereof
is not disadvantageous in any material respect to the
Holders.
SECTION 4.03. PAYMENT OF TAXES AND OTHER
CLAIMS.
The Company will pay or discharge or cause to
be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any
subsidiary or upon the income, profits or property of the
Company or any subsidiary, and (2) all lawful claims for
labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or
any subsidiary; provided, however, that the Company
shall not be required to pay or discharge or cause to be
paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings; and
provided, further, that the Company shall not be required
to cause to be paid or discharged any such tax,
assessment, charge or claim if the Board of Directors, or
the board of directors or managing partners of the
subsidiary concerned, shall determine that such payment
is not advantageous to the conduct of the business of the
Company or any subsidiary and that the failure so to pay
or discharge is not disadvantageous in any material
respect to the Holders.
SECTION 4.04. MAINTENANCE OF PROPERTIES.
The Company will cause all properties used in the
conduct of its business or the business of any subsidiary
to be maintained and kept in such condition, repair and
working order as in the judgment of the Company may
be necessary, so that the business carried on in
connection therewith may be properly and
advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the
Company from discontinuing the operation or
maintenance of any of such properties, or disposing of
any of them, if such discontinuance or disposal is, in the
judgment of the Board of Directors or of the board of
directors or managing partners of the subsidiary
concerned, desirable in the conduct of the business of the
Company or any subsidiary and not disadvantageous in
any material respect to the Holders; and provided
further, that property may be disposed of in the ordinary
course of the business of the Company or its subsidiaries
at the discretion of the appropriate officers of the
Company and its subsidiaries.
SECTION 4.05. MAINTENANCE OF OFFICE OR
AGENCY.
The Company will maintain in the Borough of
Manhattan, The City of New York, an office or agency
where Securities may be presented or surrendered for
payment, where Securities may be surrendered for
registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the
Securities and this Indenture may be served. Unless the
Trustee serves as Paying Agent or Registrar, the
Company will give prompt written notice to the Trustee
of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be
made or served at the address of the Trustee set forth in
Section 12.02.
The Company may also from time to time
designate one or more other offices or agencies where
the Securities may be presented or surrendered for any or
all such purposes and may from time to time rescind
such designations; provided, however, that no such
designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New
York for such purposes.
SECTION 4.06. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee within
120 days after the end of each fiscal year of the
Company an Officers' Certificate stating whether or not
the signers know of any default by the Company in
performing its covenants in Sections 4.02, 4.03, 4.04,
4.05, 4.09 and 4.10. If they do know of such a default,
the certificate shall describe the default in detail.
SECTION 4.07. REPORTS.
The Company shall file with the Trustee within
15 days after it files them with the SEC copies of the
quarterly and annual reports and of the information,
documents, and other reports (or copies of such portions
of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Company is required to
file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act. The Company also shall comply with the
other provisions of TIA Section 314(a).
So long as any of the Securities remain
outstanding the Company shall cause to be mailed to the
Holders of such outstanding Securities at their addresses
appearing in the register of Securities maintained by the
Registrar all annual, quarterly or other reports which the
Company mails or causes to be mailed to its stockholders
generally, concurrently with such mailing to
stockholders, and will cause to be disclosed in such
annual reports as of the date of the most recent financial
statements in each such report the amount available for
dividends and other payments pursuant to the most
restrictive covenant therefor as of such date.
SECTION 4.08. WAIVER OF STAY, EXTENSION
OF USURY LAWS.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in an manner whatsoever claim, and will resist
any and all efforts to be compelled to take the benefit or
advantage of, any stay or extension law or any usury law
or other law which would prohibit or forgive the
Company from paying all or any portion of the interest
on the Securities as contemplated herein, whenever
enacted, now or at any time hereafter in force, or which
may affect the covenants or the performance of this
Indenture; and (to the extent that it may lawfully do so)
the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law
had been enacted.
SECTION 4.09. LIMITATION ON LIENS.
Nothing in this Indenture or in the Securities shall
in any way restrict or prevent the Company or any of its
subsidiaries from incurring any Indebtedness; provided,
however, that neither the Company nor any of its
subsidiaries may issue, assume or guarantee any
Indebtedness secured by a Lien upon any Consolidated
Property without effectively providing that the Securities
shall be secured equally and ratably with (or prior to)
such Indebtedness so long as such Indebtedness shall be
so secured, except that this restriction will not apply to:
(a) Liens existing on the date of original
issuance of the Securities;
(b) Liens affecting property of a
corporation or other entity existing at the time it
becomes a subsidiary of the Company or at the
time it is merged into or consolidated with the
Company or a subsidiary of the Company;
(c) Liens on property existing at the time
of acquisition thereof or incurred to secure
payment of all or a part of the purchase price
thereof or to secure Indebtedness incurred prior
to, at the time of, or within 24 months after the
acquisition thereof for the purpose of financing all
or part of the purchase price thereof;
(d) Liens on any property to secure all or
part of the cost of improvements or construction
thereon or Indebtedness incurred to provide funds
for such purpose in a principal amount not
exceeding the cost of such improvements or
construction;
(e) Liens which secure Indebtedness
owing by a subsidiary of the Company to the
Company or to a subsidiary of the Company;
(f) Liens securing Indebtedness of the
Company the proceeds of which are used
substantially simultaneously with the incurrence of
such Indebtedness to retire Funded Debt;
(g) purchase money security Liens on
personal property;
(h) Liens securing Indebtedness of the
Company the proceeds of which are used within
24 months of the incurrence of such Indebtedness
for the Project Cost of the construction and
development or improvement of a Resort
Property;
(i) Liens on the stock, partnership or
other equity interest of the Company or any
subsidiary in any Joint Venture or any subsidiary
which owns an equity interest in such Joint
Venture to secure Indebtedness, provided the
amount of such Indebtedness is contributed and/or
advanced solely to such Joint Venture;
(j) Liens securing any Indebtedness that
ranks pari passu with the Securities;
(k) Liens in favor of the United States or
any state thereof, or any department, agency,
instrumentality, or political subdivision of any
such jurisdiction, to secure partial, progress,
advance or other payments pursuant to any
contract or statute or to secure any indebtedness
incurred for the purpose of financing all or any
part of the purchase price or cost of constructing
or improving the property subject thereto,
including, without limitation, Liens to secure
Indebtedness of the pollution control or industrial
revenue bond type;
(l) Liens required by any contract or
statute in order to permit the Company or a
subsidiary of the Company to perform any
contract or subcontract made by it with or at the
request of the United States of America, any state
or any department, agency or instrumentality or
political subdivision of either;
(m) mechanic's, xxxxxxxxxxx's, xxxxxxx's
or other like Xxxxx, arising in the ordinary course
of business;
(n) Liens for taxes or assessments and
similar charges other (x) not delinquent or (y)
contested in good faith by appropriate proceedings
and as to which the Company or a subsidiary of
the Company shall have set aside on its books
adequate reserves;
(o) zoning restrictions, easements,
licenses, covenants, reservations, restrictions on
the use of real property and minor irregularities
of title incident thereto which do not in the
aggregate materially detract from the value of the
property or assets of the Company and its
subsidiaries taken as a whole or impair the use of
such property in the operation of the Company's
or any of its subsidiary's business; and
(p) any extension, renewal, replacement
or refinancing of any Lien referred to in the
foregoing clauses (a) through (j) inclusive or of
any Indebtedness secured thereby, provided, that
the principal amount of Indebtedness secured
thereby shall not exceed the principal amount of
Indebtedness so secured at the time of such
extension, renewal, replacement or refinancing,
and that such extension, renewal, replacement or
refinancing Lien shall be limited to all or part of
substantially the same property which secured the
Lien extended, renewed, replaced or refinanced
(plus improvements on such property).
Notwithstanding the foregoing provisions of this
Section 4.09, the Company and any one or more of its
subsidiaries may, without securing the Securities, issue,
assume or guarantee Indebtedness which would otherwise
be subject to the foregoing restrictions in an aggregate
principal amount which, together with all other such
Indebtedness of the Company and its subsidiaries which
would otherwise be subject to the foregoing restrictions
(not including Indebtedness permitted to be secured under
clauses (a) through (j) inclusive above) and the aggregate
Value of Sale and Lease-Back Transactions (other than
those in connection with which the Company has
voluntarily retired Funded Debt) does not at any one time
exceed 15% of Consolidated Net Tangible Assets of the
Company and its consolidated subsidiaries.
SECTION 4.10. LIMITATION ON SALE AND
LEASE-BACK TRANSACTIONS.
Neither the Company nor any of its subsidiaries
shall enter into any Sale and Lease-Back Transaction
unless either (a) the Company or such subsidiary would
be entitled, pursuant to the provisions of Section 4.09, to
incur Indebtedness in a principal amount equal to or
exceeding the Value of such Sale and Lease-Back
Transaction, secured by a Lien on the property to be
leased, without equally and ratably securing the
Securities or (b) the Company (and in any such case the
Company covenants and agrees that it will do so) within
120 days after the effective date of such Sale and
Lease-Back Transaction (whether made by the Company
or a subsidiary of the Company) applies to the voluntary
retirement of its Funded Debt an amount equal to the
Value of the Sale and Lease-Back Transaction less the
principal amount of other Funded Debt voluntarily
retired by the Company within four months after the
effective date of such arrangement, excluding retirements
of Funded Debt as a result of conversions or pursuant to
mandatory sinking fund or prepayment provisions or by
payment at maturity.
SECTION 4.11. DEFEASANCE OF CERTAIN
OBLIGATIONS.
The Company may omit to comply with any term,
provision or condition set forth in Sections 4.03, 4.04,
4.09 and 4.10 and Article Five and Section 6.01(3) (with
respect to Sections 4.03, 4.04, 4.09 and 4.10 and Article
Five) and, in each case with respect to any series of
Securities, such omission shall be deemed not to be an
Event of Default, provided, that the following conditions
have been satisfied with respect to such series:
(1) the Company has irrevocably
deposited or caused to be deposited with the
Trustee, as trust funds in trust, specifically
pledged as security for, and dedicated solely to,
the benefit of the Holders of such series of
Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the
payment of interest and principal in respect
thereof in accordance with their terms will,
without consideration of any reinvestment of such
interest, provide not later than the opening of
business on the relevant due date, money in an
amount, or (C) a combination thereof, in the
opinion of a nationally recognized firm of
independent certified public accountants expressed
in a written certification thereof delivered to the
Trustee, sufficient to pay and discharge the
principal of, and each installment of interest on,
such series of Securities then outstanding on the
date of maturity of such principal or installment
of interest or on the redemption date, as the case
may be;
(2) Such deposit shall not cause the
Trustee with respect to such series of Securities to
have a conflicting interest for purposes of the TIA
with respect to such series of Securities;
(3) Such deposit will not result in a
breach or violation of, or constitute a default
under, this Indenture;
(4) No Event of Default or event which
with the giving of notice or lapse of time, or
both, would become an Event of Default with
respect to such series of Securities shall have
occurred and be continuing on the date of such
deposit and no Event of Default under Section
6.01(5) or Section 6.01(6) or event which with
the giving of notice or lapse of time, or both,
would become an Event of Default under Section
6.01(5) or Section 6.01(6) shall have occurred
and be continuing at any time during the period
ending on the 91st day after such date or, if
longer, ending on the day following the expiration
of the longest preference period applicable to the
Company in respect of such deposit (it being
understood that this condition shall not be deemed
satisfied until the expiration of such period);
(5) the deposit shall not result in the
Company, the Trustee or the trust becoming or
being deemed to be an "investment company"
under the Investment Company Act of 1940;
(6) The Company has delivered to the
Trustee an Opinion of Counsel, reasonably
satisfactory to the Trustee, to the effect that (i)
Holders of such series of Securities will not
recognize income, gain or loss for federal income
tax purposes as a result of such deposit and
defeasance of certain obligations and will be
subject to federal income tax on the same amount
and in the same manner and at the same times, as
would have been the case if such deposit and
defeasance had not occurred and (ii) after the
passage of 90 days following the deposit, the trust
funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights
generally, provided, that if a court were to rule
under any such law in any case or proceeding that
the trust funds remained property of the
Company, no opinion need be given as to the
effect of such laws on the trust funds except the
following: assuming such trust funds remained in
the Trustee's possession prior to such court ruling
to the extent not paid to Holders of such series of
Securities, the Trustee will hold, for the benefit of
the Holders of such series of Securities, a valid
and perfected security interest in such trust funds
that is not avoidable in bankruptcy or otherwise;
and
(7) The Company has delivered to the
Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent
provided for herein relating to the defeasance
contemplated by this Section have been complied
with.
ARTICLE FIVE
SUCCESSOR CORPORATION
The Company shall not consolidate with or merge
into any other person or transfer its properties and assets
substantially as an entirety to any person unless:
(1) either the Company shall be the
continuing corporation, or the person (if other
than the Company) formed by such consolidation
or into which the Company is merged or to which
the properties and assets of the Company
substantially as an entirety are transferred shall be
a corporation, partnership or trust organized and
existing under the laws of the United States of
America or any State thereof or the District of
Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to
the Trustee, all the obligations of the Company
under the Securities and this Indenture;
(2) immediately after giving effect to such
transaction, no Default or Event of Default exists;
and
(3) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation,
merger or transfer and such supplemental
indenture comply with this Article and that all
conditions precedent herein provided for relating
to such transaction have been complied with.
The successor corporation formed by such
consolidation or into which the Company is merged or to
which such transfer is made shall succeed to, and be
substituted for, and may exercise every right and power
of, the Company under this Indenture with the same
effect as if such successor corporation had been named as
the Company herein, and thereafter the predecessor
corporation shall be relieved of all obligations and
covenants under the Indenture and the Securities, and in
the event of such transfer any such predecessor
corporation may be dissolved and liquidated.
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "Event of Default" with respect to any series
of Securities occurs if:
(1) the Company defaults in the payment
of interest on such series of Securities when the
same becomes due and payable and the default
continues for a period of 30 days; or
(2) the Company defaults in the payment
of principal of such series of Securities when the
same becomes due and payable at maturity, upon
redemption or otherwise; or
(3) the Company fails to comply with any
of its other agreements in such series of
Securities or this Indenture, and the default
continues for the period and after the notice
specified below; or
(4) an event or events of default, as
defined in any one or more mortgages, indentures
or instruments under which there may be issued,
or by which there may be secured or evidenced,
any Indebtedness of the Company or a subsidiary,
whether such Indebtedness now exists or shall
hereafter be created, shall happen and shall entitle
the holders of such Indebtedness to declare an
aggregate principal amount of at least
$10,000,000 of such Indebtedness due and
payable and such event of default shall not have
been cured or waived in accordance with the
provisions of such instrument, or such
Indebtedness shall not have been discharged,
within a period of 30 days after there shall have
been given, by registered or certified mail, to the
Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in
principal amount of such series of Securities then
outstanding a written notice specifying such event
or events of default and requiring the Company to
cause such event of default to be cured or such
Indebtedness to be discharged and stating that
such notice is a "Notice of Default" hereunder,
provided, however, that the Company is not in
good faith contesting in appropriate proceedings
the occurrence of such an event of default; or
(5) a court of competent jurisdiction
enters a judgment, decree or order for relief in
respect of the Company or any subsidiary in an
involuntary case or proceeding under any
Bankruptcy Law which shall (A) approve as
properly filed a petition seeking reorganization,
arrangement, adjustment or composition in respect
of the Company or any subsidiary, (B) appoint a
Custodian of the Company or any subsidiary or
for any substantial part of its property or (C)
order the winding-up or liquidation of its affairs;
and such judgment, decree or order shall remain
unstayed and in effect for a period of 60
consecutive days; or any bankruptcy or insolvency
petition or application is filed, or any bankruptcy
or insolvency proceeding is commenced, against
the Company or any subsidiary and such petition,
application or proceeding is not dismissed within
60 days; or any warrant of attachment is issued
against any substantial portion of the property of
the Company or any subsidiary which is not
released within 60 days of service; or
(6) the Company or any subsidiary shall
(A) become insolvent, (B) generally fail to pay its
debts as they become due, (C) make any general
assignment for the benefit of creditors, (D) admit
in writing its inability to pay its debts generally as
they become due, (E) commence a voluntary case
or proceeding under any Bankruptcy Law, (F)
consent to the entry of a judgment, decree or
order for relief in an involuntary case or
proceeding under any Bankruptcy Law, (G)
consent to the institution of bankruptcy or
insolvency against it, (H) apply for, consent to or
acquiesce in the appointment of or taking
possession by a Custodian of the Company or any
subsidiary or for any substantial part of its
property or (I) take any corporate action in
furtherance of any of the foregoing.
The term "Bankruptcy Law" means Title 11, U.S.
Code or any similar federal or state law for the relief of
debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
A default under clause (3) (other than a Default
under Section 4.02 or Article Five which Default shall be
an Event of Default without the notice or passage of time
specified in this paragraph) is not an Event of Default
with respect to a series of Securities until the Trustee or
the Holders of at least 25% in principal amount of such
series of Securities then outstanding notify the Company
of the default and the Company does not cure the default
within 30 days after receipt of the notice. The notice
must specify the default, demand that it be remedied and
state that the notice is a "Notice of Default."
SECTION 6.02. ACCELERATION.
If an Event of Default relating to any series of
Securities occurs and is continuing, the Trustee by notice
in writing to the Company, or the Holders of not less
than 25% in principal amount of such series of Securities
then outstanding by notice in writing to the Company and
the Trustee, may declare the unpaid principal (or, in the
case of Original Issue Discount Securities, such lesser
amount as may be provided for in such Securities) of and
any accrued interest on such series of Securities, (but in
no event more than the maximum amount of principal
and interest thereon allowed by law) to be due and
payable immediately. Upon any such declaration such
principal and interest shall be payable immediately.
At any time after such a declaration of
acceleration has been made and before a judgment or
decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of such series
of Securities then outstanding, by written notice to the
Company and the Trustee, may rescind and annul such
declaration as to such series of Securities, and its
consequences if:
(1) the Company has paid or deposited
with the Trustee a sum sufficient to pay
(A) the principal of such series of
Securities that has become due otherwise
than by such declaration of acceleration
(together with interest, if any, payable
thereon); and
(B) all sums paid or advanced by
the Trustee hereunder and the reasonable
compensation, expenses, disbursements
and advances of the Trustee and its agents,
attorneys and counsel; and
(2) all existing Events of Default relating
to such series of Securities have been cured or
waived and the rescission would not conflict with
any judgment or decree.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default relating to any series of
Securities occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in
equity to collect the payment of principal of or interest
on such series of Securities or to enforce the
performance of any provisions of such series of
Securities or this Indenture.
The Trustee may maintain a proceeding even if it
does not possess any of the subject series of Securities or
does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Securityholder
in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of
Default. No remedy is exclusive of any other remedy.
All available remedies are cumulative to the extent
permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Subject to Section 9.02, the Holders of a majority
in principal amount of any series of Securities then
outstanding by notice to the Trustee may waive an
existing Default or Event of Default with respect to such
series of Securities, and its consequences. When a
Default or Event of Default is waived, it is cured and
stops continuing.
SECTION 6.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of
any series of Securities then outstanding may direct the
time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any
trust or power conferred on it with respect to any default
under such series of Securities. However, subject to
Section 7.01, the Trustee may refuse to follow any
direction that conflicts with any rule of law or this
Indenture, that is unduly prejudicial to the rights of
another Holder of such series of Securities, or that would
involve the Trustee in personal liability.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of any series of Securities may not
pursue any remedy with respect to this Indenture or such
series of Securities unless:
(1) the Holder gives to the Trustee written
notice of a continuing Event of Default with
respect to such series;
(2) the Holders of at least 25% in
principal amount of such series of Securities then
outstanding make a written request to the Trustee
to pursue the remedy;
(3) such Holder or Holders offer to the
Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(4) the Trustee does not comply with the
request within 60 days after receipt of the request
and the offer of indemnity; and
(5) during such 60-day period the Holders
of a majority of principal amount of such series of
Securities then outstanding do not give the
Trustee a direction inconsistent with the request.
A Holder of any series of Securities may not use
this Indenture to prejudice the rights of another Holder of
such series of Securities or to obtain a preference or
priority over another Holder of such series of Securities.
SECTION 6.07. RIGHTS OF HOLDERS TO
RECEIVE PAYMENT.
Notwithstanding any other provision of this
Indenture, the right of any Holder of a Security to
receive payment of principal of or interest on the
Security on or after the respective due dates expressed in
the Security or to bring suit for the enforcement of any
such payment on or after such respective dates shall not
be impaired or affected without the consent of the
Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of interest or
principal specified in Section 6.01(1) or (2) occurs and is
continuing with respect to any series of Securities, the
Trustee may recover judgment in its own name and as
trustee of an express trust against the Company for the
whole amount of principal (or such portion of the
principal as may be specified as due upon acceleration at
that time in the terms of that series of Securities) and
interest, if any, remaining unpaid on such series of
Securities then outstanding.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF
CLAIM.
The Trustee may file such proofs of claim and
other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and
the Securityholders allowed in any judicial proceedings
relative to the Company, its creditors or its property.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this
Article with respect to any series of Securities, it shall
pay out the money in the following order:
First: to the Trustee for amounts due
under Section 7.07;
Second: to Securityholders for amounts
due and unpaid on such series of Securities for
principal and interest, ratably, without preference
or priority of any kind, according to the amounts
due and payable on such series of Securities for
principal and interest, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment
date for any payment to Holders of any series of
Securities pursuant to this Section. The Trustee shall
notify the Company in writing reasonably in advance of
any such record date and payment date.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the
Trustee for any action taken or omitted by it as Trustee,
a court in its discretion may require the filing by any
party litigant in the suit of an undertaking to pay the
costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section does
not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by Holders of more
than 10% in principal amount of the Securities then
outstanding.
ARTICLE SEVEN
TRUSTEE
The Trustee hereby accepts the trust imposed
upon it by this Indenture and covenants and agrees to
perform the same, as herein expressed.
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred
and is known to the Trustee (and is not cured),
the Trustee shall exercise its rights and powers
and use the same degree of care and skill in their
exercise as a prudent man would exercise or use
under the circumstances in the conduct of his own
affairs.
(b) Except during the continuance of an
Event of Default:
(1) The Trustee need perform only
those duties that are specifically set forth
in this Indenture or in the TIA and no
covenants or obligations shall be implied
in this Indenture which bind the Trustee.
(2) In the absence of bad faith on
its part, the Trustee may conclusively rely,
as to the truth of the statements and the
correctness of the opinions expressed
therein, upon certificates or opinions
furnished to the Trustee and conforming to
the requirements of this Indenture.
However, the Trustee shall examine the
certificates and opinions which by any
provision of this Indenture are specifically
required to be furnished to the Trustee to
determine whether or not they conform in
form to the requirements of this Indenture.
(c) The Trustee may not be relieved from
liability for its own negligent action, its own
negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit
the effect of paragraph (b) of this Section;
(2) The Trustee shall not be liable
for any error of judgment made in good
faith by a Trust Officer, unless it is proved
that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) The Trustee shall not be liable
with respect to any action it takes or omits
to take in good faith in accordance with a
direction received by it pursuant to Section
6.05.
(d) Every provision of this Indenture that
in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform
any duty or exercise any right or power unless it
receives security and indemnity satisfactory to it
against any loss, liability or expense.
(f) The Trustee shall not be liable for
interest on any money received by it except as the
Trustee may agree with the Company.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may rely on any
document believed by it to be genuine and to have
been signed or presented by the proper person.
The Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains
from acting, it may require an Officer's
Certificate or an Opinion of Counsel. The
Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through its
attorneys or agents (which shall not include its
employees) and shall not be responsible for the
misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any
action it takes or omits to take in good faith
which it believes to be authorized or within its
rights or power.
SECTION 7.03. INDIVIDUAL RIGHTS OF
TRUSTEE.
The Trustee in its individual or any other capacity
may become the owner or pledgee of Securities and may
otherwise deal with the Company or its subsidiaries or
Affiliates with the same rights it would have if it were
not Trustee. Any Paying Agent, Registrar or co-registrar
may do the same with like rights. However, the Trustee
must comply with Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the
validity or adequacy of this Indenture or the Securities, it
shall not be accountable for the Company's use of the
proceeds from the Securities, and it shall not be
responsible for any statement in the Securities other than
its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default occurs with respect to any series of
Securities and is continuing and if it is known to the
Trustee, the Trustee shall mail to each Holder of such
series of Securities, notice of the Default within 90 days
after it occurs. Except in the case of a default in the
payment of principal of or interest on such series of
Securities, the Trustee may withhold the notice if and so
long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interests
of the Holders of such series of Securities.
SECTION 7.06. REPORTS BY TRUSTEE.
Within 60 days after each May 15 beginning with
the May 15 following the date of this Indenture, the
Trustee shall mail to each Securityholder a brief report
dated as of such May 15 that complies with TIA
SECTION 313(a). The Trustee also shall comply with
TIA SECTION 313(b).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each
stock exchange on which the Securities are listed. The
Company shall notify the Trustee when the Securities are
listed on any stock exchange.
To the extent requested by the Company, the
Trustee shall cooperate with the Gaming Authorities in
order to provide such Gaming Authorities with any
information and documentation that they may request and
as otherwise required by law.
SECTION 7.07. COMPENSATION AND
INDEMNITY.
The Company shall pay to the Trustee from time
to time reasonable compensation for its services. The
Company shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses incurred by it. Such
expense may include the reasonable compensation and
expenses of the Trustee's agents and counsel. The
Company shall indemnify the Trustee against any loss or
liability incurred by it, without negligence or bad faith on
its part, arising out of or in connection with the
acceptance or administration of this trust. The Trustee
shall notify the Company promptly of any claim for
which it may seek indemnity. The Company shall
defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any
settlement made without its consent. The Company need
not reimburse any expense or indemnify against any loss
or liability incurred by the Trustee through negligence or
bad faith.
To secure the Company's payment obligations in
this Section, the Trustee shall have a lien prior to the
Securities on all money or property held or collected by
the Trustee, except that held in trust to pay principal and
interest on particular Securities.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the
Company in writing. The Holders of a majority in
principal amount of any series of Securities then
outstanding may remove the Trustee with respect to such
series of Securities by so notifying the removed Trustee
and may appoint a successor Trustee with the Company's
consent. The Company may remove the Trustee with
respect to one or more or all series of Securities if:
(1) the Trustee fails to comply with
Section 7.10;
(2) the Trustee is adjudged a bankrupt or
an insolvent;
(3) a receiver or other public officer takes
charge of the Trustee or its property; or
(4) the Trustee becomes incapable of
acting.
If, as to any series of Securities, the Trustee
resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly
appoint a successor Trustee for that series.
A successor Trustee as to any series of Securities
shall deliver a written acceptance of its appointment to
the retiring Trustee and to the Company. Immediately
after that, the retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee,
the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this
Indenture as to such series. A successor Trustee shall
mail notice of its succession to the Holders of such series
of Securities.
If a successor Trustee as to any series of
Securities does not take office within 60 days after the
retiring Trustee resigns or is removed, then (i) the
retiring Trustee or the Company may petition any court
of competent jurisdiction for the appointment of a
successor Trustee and (ii) the Holders of a majority in
principal amount of such series of Securities then
outstanding may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10
with respect to any series of Securities, any Holder of
such series of Securities who satisfies the requirements of
TIA Section 310(b) may petition any court of competent
jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee for such series.
In case of appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but
not all) series, the Company, the retiring Trustee and
each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those
series to which the appointment of such successor
Trustee relates, (2) shall contain such provisions as shall
be necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to
be vested in the retiring Trustee, and (3) shall add to or
change any of the provisions of this Indenture as shall be
necessary or desirable to provide for or facilitate the
administration of the trusts hereunder by more than one
Trustee; provided, however, that nothing herein or in
such supplemental Indenture shall constitute such Trustee
co-trustees of the same trust and that each such Trustee
shall be a trustee of a trust hereunder separate and apart
from any trust hereunder and administered by any other
such Trustee.
Upon the execution and delivery of such
supplemental Indenture the resignation or removal of the
retiring Trustee shall become effective to the extent
provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the
Securities of that or those series to which the
appointment of such successor Trustee relates.
SECTION 7.09. SUCCESSOR TRUSTEE BY
MERGER, ETC.
If the Trustee as to any series of Securities
consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust assets to,
another corporation, the resulting, surviving or transferee
corporation shall, if such resulting, surviving or
transferee corporation is otherwise eligible hereunder,
without any further act, be the successor Trustee as to
such series.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
Each series of Securities shall always have a
Trustee who satisfies the requirements of TIA SECTION
310(a). The Trustee as to any series of Securities shall
have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published
annual report of condition. The Trustee shall comply
with TIA SECTION 310(b), including the optional
provision permitted by the second sentence of TIA
SECTION 310(b)(9).
SECTION 7.11. PREFERENTIAL COLLECTION OF
CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA SECTION
311(a), excluding any creditor relationship listed in TIA
SECTION 311(b). A Trustee who has resigned or been
removed shall be subject to TIA SECTION 311(a) to the
extent indicated.
SECTION 7.12. AUTHENTICATING AGENT.
If the Company so requests, there shall be an
Authenticating Agent appointed by the Trustee with
power to act on its behalf and subject to its direction in
the authentication and delivery of any series of Securities
in connection with the exchange or registration of
transfer thereof as fully to all intents and purposes as
though the Authenticating Agent had been expressly
authorized by the relevant Sections hereof to authenticate
and deliver such series of Securities, and such series of
Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all
purposes as though authenticated by the Trustee
hereunder, and for all purposes of this Indenture, the
authentication and delivery of such series of Securities by
the Authenticating Agent pursuant to this Section shall be
deemed to be the authentication and delivery of such
series of Securities "by the Trustee." Notwithstanding
anything to the contrary contained in Section 3.02, or in
any other Section hereof, all authentication in connection
with exchange or registration of transfer thereof shall be
effected either by the Trustee or an Authenticating Agent
and such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws
of the United States or of any State, with a combined
capital and surplus of at least $5,000,000 and authorized
under such laws to exercise corporate trust powers and
subject to supervision or examination by Federal or State
authority. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner
and with the effect herein specified in this Section. If
such corporation publishes reports of condition at least
annually pursuant to law or the requirements of such
authority, then for the purposes of this Section the
combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published.
Any corporation into which any Authenticating
Agent may be merged or converted or with which it may
be consolidated, or any corporation resulting from any
merger, consolidation or conversion to which any
Authenticating Agent shall be a party, or any
corporation succeeding to the corporate trust business of
any Authenticating Agent, shall be the successor of the
Authenticating Agent hereunder, if such successor
corporation is otherwise eligible under this Section,
without the execution or filing of any paper or any
further act on the part of the parties hereto or the
Authenticating Agent or such successor corporation.
Any Authenticating Agent may at any time resign
by giving written notice of resignation to the Trustee and
to the Company. The Trustee may at any time terminate
the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to
the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any
time any Authenticating Agent shall cease to be eligible
under this Section, the Trustee shall promptly appoint a
successor Authenticating Agent, shall give written notice
of such appointment to the Company and shall mail
notice of such appointment to all Holders of the
Securities as the names and addresses of such Holders
appear on the register of Securities, and shall publish
notices of such appointment at least once in a newspaper
of general circulation in the place where such successor
Authenticating Agent has its principal office.
Any Authenticating Agent by the acceptance of its
appointment shall be deemed to have agreed with the
Trustee that: it will perform and carry out the duties of
an Authenticating Agent as herein set forth, including,
without limitation, the duties to authenticate and deliver
the Securities when presented to it in connection with
exchanges or registrations of transfer thereof; it will
furnish from time to time, as requested by the Trustee,
appropriate records of all transactions carried out by it as
Authenticating Agent and will furnish the Trustee such
other information and reports as the Trustee may
reasonably require; it is eligible for appointment as
Authenticating Agent under this Section and will notify
the Trustee promptly if it shall cease to be so qualified;
and it will indemnify the Trustee against any loss,
liability or expense incurred by the Trustee and will
defend any claim asserted against the Trustee by reason
of any act or failure to act of the Authenticating Agent
but it shall have no liability for any action taken by it at
the specific written direction of the Trustee.
The Company agrees that it will pay to the
Authenticating Agent from time to time reasonable
compensation for its services.
The provisions of Sections 7.02, 7.03 and 7.04
shall bind and inure to the benefit of any Authenticating
Agent to the same extent that they bind and inure to the
benefit of the Trustee.
If an appointment is made pursuant to this
Section, the Securities may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following
form:
This is one of the Securities referred to in the
within mentioned Indenture.
as Trustee
By
As Authenticating Agent
By
Authorized Signatory
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. TERMINATION OF COMPANY'S
OBLIGATIONS.
The Company may terminate its obligations under
any series of Securities and this Indenture with respect to
such series, except those obligations referred to in the
immediately succeeding paragraph, if:
(a) all such series of Securities previously
authenticated and delivered (other than mutilated,
destroyed, lost or stolen Securities which have
been replaced or such series of Securities which
are paid for pursuant to Section 4.01 or such
series of Securities for whose payment money or
securities have theretofore been held in trust and
thereafter repaid to the Company, as provided in
Section 8.03) have been delivered to the Trustee
for cancellation and the Company has paid all
sums payable by it hereunder with respect to such
series; or
(b)(1) such series of Securities mature
within one year or all of them are to be called for
redemption within one year after arrangements
satisfactory to the Trustee for giving the notice of
redemption; and
(b)(2) the Company has irrevocably
deposited or caused to be deposited with the
Trustee, during such one- year period, as trust
funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders
of such series of Securities, (A) money in an
amount, or (B) U.S. Government Obligations
which through the payment of interest and
principal in respect thereof in accordance with
their terms will, without consideration of any
reinvestment of such interest, provide not later
than the opening of business on the relevant due
date, money in an amount, or (C) a combination
thereof, in the opinion of a nationally recognized
firm of independent certified public accountants
expressed in a written certification thereof
delivered to the Trustee, sufficient to pay and
discharge the principal of, and each installment of
interest on, such series of Securities then
outstanding on the date of maturity of such
principal or installment of interest or the
redemption date, as the case may be; or
(c)(1) the Company has irrevocably
deposited or caused to be deposited with the
Trustee, as trust funds in trust, specifically
pledged as security for, and dedicated solely to,
the benefit of the Holders of such series of
Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the
payment of interest and principal in respect
thereof in accordance with their terms will,
without consideration of any reinvestment of such
interest, provide not later than the opening of
business on the relevant due date, money in an
amount, or (C) a combination thereof, in the
opinion of a nationally recognized firm of
independent certified public accountants expressed
in a written certification thereof delivered to the
Trustee, sufficient to pay and discharge the
principal of and each installment of interest on
such series of Securities then outstanding on the
date of maturity of such principal or installment
of interest, or, on the redemption date, as the case
may be; and
(c)(2) the Company delivers to the
Trustee an Officers' Certificate and an Opinion of
Counsel each stating that all conditions precedent
provided for in clause (c) and in Section 4.11
relating to the satisfaction and discharge of this
Indenture with respect to such series of Securities
have been complied with.
Notwithstanding the foregoing clause (c), prior to
the end of the 90-day period referred to in clause (6)(ii)
of Section 4.11, none of the Company's obligations
under this Indenture shall be discharged, and subsequent
to the end of the 90-day period only the Company's
obligations in Sections 3.03, 3.04, 3.05, 3.06, 3.07,
4.01, 4.02, 7.07, 7.08, 8.03 and 8.04 shall survive until
such series of Securities are no longer outstanding.
Thereafter, the Company's obligations in Sections 7.07,
8.03 and 8.04 shall survive; provided, that the Company
shall pay any taxes or other costs and expenses incurred
by any trust created pursuant to this Article Eight.
After any such irrevocable deposit and after
satisfaction of all the conditions of this Section 8.01, the
Trustee, upon the Company's request, shall acknowledge
in writing the discharge of the Company's obligations
under the subject Securities and this Indenture, except for
those surviving obligations specified above. The Trustee
shall not be responsible for any calculations made by the
Company in connection with the deposit of funds
pursuant to clauses (b)(2) or (c)(1) of this Section 8.01.
SECTION 8.02. APPLICATION OF TRUST MONEY.
The Trustee or Paying Agent shall, with respect
to any series of Securities, hold in trust any money or
U.S. Government Obligations deposited with it pursuant
to Section 8.01, and shall apply the deposited money and
the money from U.S. Government Obligations in
accordance with this Indenture, to the payment of
principal of and interest on such series of Securities.
SECTION 8.03. REPAYMENT TO THE COMPANY.
Subject to Section 8.02, the Trustee and the
Paying Agent shall promptly pay to the Company upon
request any excess money or U.S. Government
Obligations held by them at any time and thereupon shall
be relieved from all liability with respect to such money.
The Trustee and the Paying Agent shall pay to the
Company upon request any money held by them for the
payment of principal or interest that remains unclaimed
for two years; provided, however, that the Company
shall, if requested by the Trustee or such Paying Agent,
give the Trustee or such Paying Agent satisfactory
indemnification against any and all liability which may
be incurred by it by reason of such payment; and
provided, further, that the Trustee or such Paying Agent
before being required to make any payment shall at the
expense of the Company cause to be published once in a
newspaper or newspapers printed in the English
language, customarily published at least five days a week
and of general circulation in the City of Las Vegas,
Nevada and in the Borough of Manhattan, The City of
New York and mail to each Securityholder entitled to
such money notice that such money remains unclaimed
and that, after a date specified therein which shall be at
least 30 days from the date of such publication or
mailing, any unclaimed balance of such money then
remaining will be repaid to the Company. After
payment to the Company, Securityholders entitled to
such money must look to the Company for payment as
general creditors unless an applicable law designates
another person.
SECTION 8.04. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply
any money or U.S. Government Obligations in
accordance with Section 8.01 by reason of any legal
proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's
obligations under this Indenture and the Securities shall
be revived and reinstated as though no deposit had
occurred pursuant to Section 8.01 until such time as the
Trustee or Paying Agent is permitted to apply all such
money or U.S. Government Obligations in accordance
with Section 8.01; provided, however, that if the
Company has made any payment of interest on or
principal of any series of Securities because of the
reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such series of
Securities to receive such payment from the money or
U.S. Government Obligations held by the Trustee or
Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF
HOLDERS.
The Company and the Trustee as to any series of
Securities may amend or supplement this Indenture or the
Securities without notice to or consent of any
Securityholder:
(1) to cure any ambiguity, defect or
inconsistency;
(2) to comply with Article Five;
(3) to provide, to the extent permitted by
law, that all or a portion of the obligations of the
Company hereunder shall be represented only by
appropriate records maintained by the Company
or the Trustee in addition to or in place of the
issue of Securities;
(4) to comply with any requirements of the
SEC in connection with the qualification of this
Indenture under the TIA;
(5) to add to, change or eliminate any of
the provisions of this Indenture in respect of one
or more series of Securities, provided, however,
that any such addition, change or elimination (A)
shall neither (i) apply to any series of Securities
created prior to the execution of such
supplemental indenture and entitled to the benefit
of such provision nor (ii) modify the rights of the
Holder of any such Security with respect to such
provision or (B) shall become effective only when
there is no outstanding Security of such series
created prior to the execution of such
supplemental indenture and entitled to the benefit
of such provision;
(6) to make any change that does not
adversely affect the rights of any Securityholder
of any series; or
(7) to establish additional series of
Securities as permitted by Section 3.01.
SECTION 9.02. WITH CONSENT OF HOLDERS.
The Company and the Trustee as to any series of
Securities may amend or supplement this Indenture or
such series of Securities without notice to any
Securityholder but with the written consent of the
Holders of at least a majority in principal amount of the
then outstanding Securities of each series affected by
such amendment or supplement. The Holders of a
majority in principal amount of any series of Securities
then outstanding may also waive compliance in a
particular instance by the Company with any provision of
this Indenture with respect to that series of Securities;
provided, however, that without the consent of each
Securityholder affected, an amendment, supplement or
waiver, including a waiver pursuant to Section 6.04, may
not:
(1) reduce the amount of Securities whose
Holders must consent to an amendment,
supplement or waiver;
(2) reduce the rate, or extend the time for
payment of interest on, any Security in a manner
adverse to the Holders thereof;
(3) reduce the principal of, or extend the
fixed maturity or fixed redemption date of any
Securities, in a manner adverse to the Holders
thereof;
(4) waive a default in the payment of the
principal of, or interest on, any Security;
(5) make any Security payable in money
other than that stated in the Security; or
(6) make any changes in Section 6.04,
6.07 and 9.02 (second sentence).
An amendment or waiver under this Section
which waives, changes or eliminates any covenant or
other provision of this Indenture which has expressly
been included solely for the benefit of one or more series
of Securities, or which modifies the rights of the Holders
of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of
any other series.
It shall not be necessary for the consent of the
Holders under this Section to approve the particular form
of any proposed amendment or waiver, but it shall be
sufficient if such consent approves the substance thereof.
After an amendment or waiver under this Section
becomes effective, the Company shall mail to Holders of
Securities of each series affected thereby a notice briefly
describing the amendment or waiver.
SECTION 9.03. COMPLIANCE WITH TRUST
INDENTURE ACT.
Every amendment to or supplement of this
Indenture or the Securities shall comply with the TIA as
then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF
CONSENTS.
Until an amendment, supplement or waiver
becomes effective, a consent to such amendment,
supplement or waiver by a Holder of a Security shall
bind the Holder and every subsequent Holder of a
Security or portion of a Security that evidences the same
debt as the consenting Xxxxxx's Security, even if notation
of the consent is not made on any Security. However,
any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of a Security if the
Trustee receives notice of revocation before the date the
amendment, supplement or waiver becomes effective.
The Company may, but shall not be obligated to,
set a record date for the purpose of determining the
identity of Holders entitled to consent to any amendment,
supplement or waiver permitted by this Indenture. If a
record date is fixed, the Holders of Securities of that
series outstanding on such record date, and no other
Holders, shall be entitled to consent to such amendment,
supplement or waiver or revoke any consent previously
given, whether or not such Holders remain Holders after
such record date. No consent shall be valid or effective
for more than 90 days after such record date unless
consents from Holders of the principal amount of
Securities of that series required hereunder for such
amendment, supplement or waiver to be effective shall
have also been given and not revoked within such 90 day
period.
After an amendment, supplement or waiver
becomes effective, it shall bind the Holder of every
Security unless it makes a change described in clause (1),
(2), (3), (4), (5) or (6) of Section 9.02. In that case the
amendment, supplement or waiver shall bind each Holder
of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Xxxxxx's
Security.
SECTION 9.05. NOTATION ON OR EXCHANGE OF
SECURITIES.
If an amendment, supplement or waiver changes
the terms of a Security, the Trustee may require the
Holder of the Security to deliver it to the Trustee. The
Trustee may place an appropriate notation on the
Security about the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security
shall issue and the Trustee shall authenticate a new
Security that reflects the changed terms.
SECTION 9.06. TRUSTEE TO SIGN
AMENDMENTS, ETC.
The Trustee shall sign any amendment,
supplement or waiver authorized pursuant to this Article
if the amendment, supplement or waiver does not
adversely affect the rights of the Trustee. If it does, the
Trustee may but need not sign it. The Company may not
sign an amendment or supplement until the Board of
Directors approves it. The Trustee, subject to Sections
7.01 and 7.02, shall be entitled to receive, and shall be
fully protected in relying upon an Opinion of Counsel
stating that any amendment, supplement or waiver is
authorized by this Indenture and complies with the
provisions of this Article Nine.
ARTICLE TEN
MEETINGS OF SECURITYHOLDERS
SECTION 10.01. PURPOSES FOR WHICH
MEETINGS MAY BE CALLED.
A meeting of Holders of any series of Securities,
either separately or jointly, may be called at any time
and from time to time pursuant to the provisions of this
Article Ten for any of the following purposes:
(a) to give any notice to the Company or
to the Trustee, or to give any directions to the
Trustee, or to waive or to consent to the waiving
of any Default or Event of Default hereunder and
its consequences, or to take any other action
authorized to be taken by Securityholders pursuant
to any of the provisions of Article Six;
(b) to remove the Trustee or appoint a
successor Trustee pursuant to the provisions of
Article Seven;
(c) to consent to an amendment,
supplement or waiver pursuant to the provisions
of Section 9.02; or
(d) to take any action (i) authorized to be
taken by or on behalf of the Holders of any
specified aggregate principal amount of such
series of Securities under any other provision of
this Indenture, or authorized or permitted by law
or (ii) which the Trustee deems necessary or
appropriate in connection with the administration
of this Indenture.
SECTION 10.02. MANNER OF CALLING
MEETINGS.
The Trustee may at any time call a meeting of
Holders of any series of Securities to take any action
specified in Section 10.01, to be held at such time and at
such place in the City of Las Vegas, Nevada, as the
Trustee shall determine. Notice of every meeting of
Holders of any series of Securities, setting forth the time
and place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be mailed by
the Trustee, first-class postage prepaid, to the Company,
and to the Holders of such series of Securities at their
last addresses as they shall appear on the registration
books of the Registrar, not less than ten nor more than
60 days prior to the date fixed for the meeting.
Any meeting of Holders of the Securities shall be
valid without notice if (i) with respect to a meeting of
any series of Securities, all Holders of such series of
Securities then outstanding are present in person or by
proxy, or if notice is waived before or after the meeting
by all Holders of such series of Securities then
outstanding and (ii) with respect to a meeting of all
Securityholders, all Holders of such Securities then
outstanding are present in person or by proxy, or if
notice is waived before or after the meeting by all
Holders of such Securities then outstanding, and, in each
case, if the Company and the Trustee are either present
by duly authorized representative or have, before or after
the meeting waived notice.
SECTION 10.03. CALL OF MEETINGS BY
COMPANY OR HOLDERS.
In case at any time the Company, pursuant to
resolution of its Board of Directors, or the Holders of
not less than 25% in aggregate principal amount of any
series of Securities then outstanding shall have requested
the Trustee to call a meeting of Securityholders, either
separately or jointly, to take any action specified in
Section 10.01, by written request setting forth in
reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed the notice
of such meeting within 20 days for receipt of such
request, then the Company or the Holders of such series
of Securities in the amount above specified may
determine the time and place in the City of Las Vegas,
Nevada, or in the Borough of Manhattan, The City of
New York, for such meeting and may call such meeting
for the purpose of taking such action, by mailing or
causing to be mailed notice thereof as provided in
Section 10.02, or by causing notice thereof to be
published at least once in each of two successive calendar
weeks (on any day of the week) in a newspaper or
newspapers printed in the English language, customarily
published at least five days a week and of general
circulation in the City of Las Vegas, Nevada and in the
Borough of Manhattan, The City of New York, the first
such publication to be not less than 10 nor more than 60
days prior to the date fixed for the meeting.
SECTION 10.04. WHO MAY ATTEND VOTE AT
MEETINGS.
To be entitled to vote at any meeting of
Securityholders, a person shall (a) be a registered Holder
of one or more Securities, or (b) be a person appointed
by an instrument in writing as proxy for the registered
Holder or Holders of Securities. The only persons who
shall be entitled to be present or to speak at any meeting
of Securityholders shall be the persons entitled to vote at
such meeting and their counsel and any representative of
the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 10.05. REGULATIONS MAY BE MADE
BY TRUSTEE; CONDUCT OF THE MEETING; VOTING RIGHTS; ADJOURNMENT.
Notwithstanding any other provision of this
Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of
Securityholders, in regard to proof of the holding of
Securities and of the appointment of proxies, and in
regard to the appointment and duties of inspectors of
votes, and submission and examination of proxies,
certificates and other evidence of the right to vote, and
such other matters concerning the conduct of the meeting
as it shall think appropriate. Such regulations may fix a
record date and time for determining the Holders of
record of Securities entitled to vote at such meeting, in
which case those and only those persons who are Holders
of Securities at the record date and time so fixed, or their
proxies, shall be entitled to vote at such meeting whether
or not they shall be such Holders at the time of the
meeting.
The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the
meeting shall have been called by the Company or by
Securityholders as provided in Section 10.03, in which
case the Company or the Securityholders calling the
meeting, as the case may be, shall in like manner appoint
a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by
vote of the Holders of a majority in principal amount of
the Securities represented at the meeting and entitled to
vote.
At any meeting each Securityholder or proxy shall
be entitled to one vote for each $1,000 principal amount
of Securities held or represented by him; provided,
however, that no vote shall be cast or counted at any
meeting in respect of any Securities challenged as not
outstanding and ruled by the chairman of the meeting to
be not outstanding. The chairman of the meeting shall
have no right to vote other than by virtue of Securities
held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other
Securityholders. At any meeting of Securityholders, the
presence of persons holding or representing any number
of Securities shall be sufficient for a quorum. Any
meeting of Securityholders duly called pursuant to the
provisions of Section 10.02 or Section 10.03 may be
adjourned from time to time by vote of the Holders of a
majority in aggregate principal amount of the Securities
represented at the meeting and entitled to vote, and the
meeting may be held as so adjourned without further
notice.
SECTION 10.06. VOTING AT THE MEETING AND
RECORD TO BE KEPT.
The vote upon any resolution submitted to any
meeting of Securityholders shall be by written ballots on
which shall be subscribed the signatures of the Holders
of Securities or of their representatives by proxy and the
principal amount of the Securities voted by the ballot.
The permanent chairman of the meeting shall appoint two
inspectors of votes, who shall count all votes cast at the
meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of
each meeting of Securityholders shall be prepared by the
secretary of the meeting and there shall be attached to
such record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one
or more persons having knowledge of the facts, setting
forth a copy of the notice of the meeting and showing
that such notice was mailed as provided in Section 10.02
or published as provided in Section 10.03. The record
shall be signed and verified by the affidavits of the
permanent chairman and the secretary of the meeting and
one of the duplicates shall be delivered to the Company
and the other to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots
voted at the meeting.
Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
SECTION 10.07. EXERCISE OF RIGHTS OF
TRUSTEE OR SECURITYHOLDERS
MAY NOT BE HINDERED OR DELAYED BY CALL
OF MEETING.
Nothing in this Article Ten contained shall be
deemed or construed to authorize or permit, by reason of
any call of a meeting of Securityholders or any rights
expressly or impliedly conferred hereunder to make such
call, any hindrance or delay in the exercise of any right
or rights conferred upon or reserved to the Trustee or to
the Securityholders under any of the provisions of this
Indenture or of the Securities.
ARTICLE ELEVEN
REDEMPTION
SECTION 11.01. NOTICES TO TRUSTEE.
If the Company elects to redeem any series of
Securities pursuant to any optional redemption provisions
thereof, it shall notify the Trustee of the redemption date
and the principal amount of Securities of that series to be
redeemed.
The Company shall give each notice provided for
in this Section in an Officers' Certificate at least 45 days
before the redemption date (unless a shorter notice period
shall be satisfactory to the Trustee), which notice shall
specify the provisions of such Security pursuant to which
the Company elects to redeem such Securities.
If the Company elects to reduce the principal
amount of Securities of any series to be redeemed
pursuant to mandatory redemption provisions thereof, it
shall notify the Trustee of the amount of, and the basis
for, any such reduction. If the Company elects to credit
against any such mandatory redemption Securities it has
not previously delivered to the Trustee for cancellation, it
shall deliver such Securities with such notice.
SECTION 11.02. SELECTION OF SECURITIES TO
BE REDEEMED.
If less than all of the Securities of a series are to
be redeemed, the Trustee shall select the Securities of
that series to be redeemed by a method that complies
with the requirements of any exchange on which the
Securities of that series are listed, or, if the Securities of
that series are not listed on an exchange, on a pro rata
basis or by lot. The Trustee shall make the selection not
more than 75 days and not less than 30 days before the
redemption date from Securities of that series outstanding
and not previously called for redemption. Except as
otherwise provided as to any series of Securities,
Securities and portions thereof that the Trustee selects
shall be in amounts equal to the minimum authorized
denomination for Securities of the series to be redeemed
or any integral multiple thereof. Provisions of this
Indenture that apply to Securities called for redemption
also apply to portions of Securities called for redemption.
The Trustee shall notify the Company promptly in
writing of the Securities or portions of Securities to be
called for redemption.
SECTION 11.03. NOTICE OF REDEMPTION.
Except as otherwise provided as to any series of
Securities, at least 30 days but not more than 60 days
before a redemption date, the Company shall mail a
notice of redemption to each Holder whose Securities are
to be redeemed.
The notice shall identify the Securities to be
redeemed and shall state:
(1) the redemption date;
(2) the redemption price fixed in
accordance with the terms of the Securities of the
series to be redeemed, plus accrued interest, if
any, to the date fixed for redemption (the
"redemption price");
(3) if any Security is being redeemed in
part, the portion of the principal amount of such
Security to be redeemed and that, after the
redemption date, upon surrender of such Security,
a new Security or Securities in principal amount
equal to the unredeemed portion will be issued;
(4) the name and address of the Paying
Agent;
(5) that Securities called for redemption
must be surrendered to the Paying Agent to
collect the redemption price;
(6) that, unless the Company defaults in
payment of the redemption price, interest on
Securities called for redemption ceases to accrue
on and after the redemption date;
(7) The paragraph of the series of
Securities and/or Section of any supplemental
indenture pursuant to which such Securities called
for redemption are being redeemed; and
(8) the CUSIP number, if any, of the
Securities to be redeemed.
At the Company's request, the Trustee shall give
the notice of redemption in the Company's name and at
its expense; provided, however, that the Company shall
have delivered to the Trustee, at least 45 days prior to
the redemption date, an Officers' Certificate requesting
that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the
preceding paragraph. The notice mailed in the manner
herein provided shall be conclusively presumed to have
been duly given whether or not the Holder receives such
notice. In any case, failure to give such notice by mail or
any defect in the notice of the Holder of any Security
shall not affect the validity of the proceeding for the
redemption of any other Security.
SECTION 11.04. EFFECT OF NOTICE OF
REDEMPTION.
Once notice of redemption is mailed in
accordance with Section 11.03 hereof, Securities called
for redemption become due and payable on the
redemption date for the redemption price. Upon
surrender to the Paying Agent, such Securities will be
paid at the redemption price.
SECTION 11.05. DEPOSIT OF REDEMPTION
PRICE.
On or before the redemption date, the Company
shall deposit with the Paying Agent (or, if the Company
or any subsidiary is the Paying Agent, shall segregate
and hold in trust) money sufficient to pay the redemption
price of all Securities called for redemption on that date
other than Securities which have previously been
delivered by the Company to the Trustee for
cancellation. The Paying Agent shall return to the
Company any money not required for that purpose.
SECTION 11.06. SECURITIES REDEEMED IN
PART.
Upon surrender of a Security that is redeemed in
part, the Company shall issue and the Trustee shall
authenticate for the Holder at the expense of the
Company a new Security of like series equal in principal
amount to the unredeemed portion of the Security
surrendered.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies,
or conflicts with another provision which is required to
be included in this Indenture by the TIA or the TIA as
amended after the date hereof, the required provision
shall control.
SECTION 12.02. NOTICES.
Any notice or communication shall be sufficiently
given if in writing and delivered in person or mailed by
first-class mail postage prepaid, addressed as follows:
if to the Company:
Circus Circus Enterprises, Inc.
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: General Counsel
if to the Trustee:
First Interstate Bank of Nevada, N.A.
0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: Corporate Trust Department
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent
notices or communications.
Any notice or communication mailed to a
Securityholder shall be mailed by first-class mail, postage
prepaid, to such Holder at such Holder's address as it
appears on the register maintained by the Registrar and
shall be sufficiently given to such Holder if so mailed
within the time prescribed.
Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its
sufficiency with respect to other Securityholders. If a
notice or communication is mailed in the manner
provided above, it shall be deemed to have been duly
given two days after the data of mailing, whether or not
the addressee receives it.
SECTION 12.03. COMMUNICATION BY HOLDERS
WITH OTHER HOLDERS.
Securityholders may communicate pursuant to
TIA SECTION 312(b) with other Securityholders with
respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and
anyone else shall have the protection of TIA SECTION
312(c).
SECTION 12.04. CERTIFICATES AND OPINION AS
TO CONDITIONS PRECEDENT.
Upon any request or application by the Company
to the Trustee to take any action under this Indenture, the
Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in
the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture
relating to the proposed action have been
complied with; and
(2) an Opinion of Counsel stating that, in
the opinion of such counsel, all such conditions
precedent have been complied with.
SECTION 12.05. STATEMENTS REQUIRED IN
CERTIFICATE OR OPINION.
Each Officers' Certificate or Opinion of Counsel
with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(1) a statement that the person making
such Officers' Certificate or Opinion of Counsel
has read such covenant or condition;
(2) a brief statement as to the nature and
scope of the examination or investigation upon
which the statements or opinions contained in
such Officers' Certificate of Opinion of Counsel
are based;
(3) a statement that, in the opinion of
such person, such person has made such
examination or investigation as is necessary to
enable such person to express an informed
opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not in the
opinion of such person, such condition or
covenant has been complied with; provided,
however, that with respect to matters of fact an
Opinion of Counsel may rely on an Officers'
Certificate.
SECTION 12.06. WHEN TREASURY SECURITIES
DISREGARDED.
In determining whether the Holders of the
required principal amount of Securities have concurred in
any direction, waiver or consent, Securities owned by the
Company or by an Affiliate shall be disregarded, except
that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction,
waiver or consent, only Securities which the Trustee
knows are so owned shall be so disregarded.
SECTION 12.07. RULES BY PAYING AGENT,
REGISTRAR.
The Paying Agent or Registrar each may make
reasonable rules for its functions.
SECTION 12.08. LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday, a
legal holiday or a day on which banking institutions are
not required to be open. If a payment date is a Legal
Holiday at a place of payment, payment may be made at
that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening
period.
SECTION 12.09. GOVERNING LAW.
This Indenture and the Securities shall be
governed by and construct in accordance with the laws of
the State of Nevada.
SECTION 12.10. NO ADVERSE INTERPRETATION
OF OTHER AGREEMENTS.
This Indenture may not be used to interpret
another indenture, loan or debt agreement of the
Company or any subsidiary. Any such indenture, loan
or debt agreement may not be used to interpret this
Indenture.
SECTION 12.11. NO RECOURSE AGAINST
OTHERS.
A past, present or future director, officer,
employee, stockholder or incorporator, as such, of the
Company or any successor corporation shall not have any
liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in
respect of, or by reason of such obligations or their
creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and
release are part of the consideration of issuance of the
Securities. The waiver may not be effective to waive
liabilities under the federal securities laws and it is the
view of the SEC that such a waiver is against public
policy.
SECTION 12.12. SUCCESSORS.
All agreements of the Company in this Indenture
and the Securities shall bind its successor. All
agreements of the Trustee in this Indenture shall bind its
successor.
SECTION 12.13. DUPLICATE ORIGINALS.
The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all
of them together represent the same agreement.
SECTION 12.14. SEVERABILITY.
In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired
thereby.
SECTION 12.15. EFFECT OF HEADINGS, TABLE
OF CONTENTS, ETC.
The Article and Section headings herein and the
table of contents are for convenience only and shall not
affect the construction thereof.
This Indenture has been delivered and adopted by
the parties hereto in the State of Nevada.
[SIGNATURE PAGE TO FOLLOW]
SIGNATURES
CIRCUS
CIRCUS ENTERPRISES, INC.
BY:
Name: Xxxxx X. Xxxxxxxxx
Title: President and Chief
Financial Officer
FIRST INTERSTATE BANK OF NEVADA, N.A.,
as Trustee
BY:
Name:
Title:
