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MIRAGE RESORTS, INCORPORATED, Issuer
AND
PNC BANK, NATIONAL ASSOCIATION, Trustee
$400,000,000
SUPPLEMENTAL INDENTURE
DATED AS OF
FEBRUARY 4, 1998
6.625% NOTES DUE FEBRUARY 1, 2005
6.75% NOTES DUE FEBRUARY 1, 2008
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Exhibit 4(f)
THIS SUPPLEMENTAL INDENTURE is dated and entered into
as of February 4, 1998, between Mirage Resorts, Incorporated,
a Nevada corporation (hereinafter sometimes referred to as the
"Company"), and PNC Bank, National Association, a corporation
organized and existing as a national banking association under
the laws of the United States, as trustee (hereinafter sometimes
referred to as the "Trustee").
WITNESSETH THAT:
WHEREAS, the Company filed on October 30, 1997 a
Registration Statement on Form S-3 (the "Shelf Registration
Statement") with the Securities and Exchange Commission with
respect to certain securities of the Company, and the Shelf
Registration Statement was declared effective on November 3, 1997;
WHEREAS, the form of Indenture (the "Indenture")incorporated
in the Shelf Registration Statement by reference to Exhibit 4 to
the Form S-3 Registration Statement of the Company (File No.
333-07261), sets forth certain terms and provisions of certain
debt securities of the Company;
WHEREAS, for its lawful corporate purposes, the Company
desires to create and authorize the series of 6.625% Notes Due
February 1, 2005, in an aggregate principal amount of
$200,000,000 (the "2005 Notes"), and the series of 6.75% Notes
Due February 1, 2008 in an aggregate principal amount of
$200,000,000 (the "2008 Notes") and to provide the terms and
conditions upon which the 2005 Notes and the 2008 Notes are to
be executed, registered, authenticated, issued and delivered;
WHEREAS, the Company has duly authorized the execution
and delivery of this Supplemental Indenture;
WHEREAS, the 2005 Notes and the certificate of
authentication to be borne by the 2005 Notes are to be
substantially in the forms attached hereto as Exhibit A, and
the 2008 Notes and the certificate of authentication to be
borne by the 2008 Notes are to be substantially in the forms
attached hereto as Exhibit B; and
WHEREAS, all acts and things necessary to make the 2005
Notes and the 2008 Notes when executed by the Company and
authenticated and delivered by or on behalf of the Trustee as
in this Supplemental Indenture provided, the valid, binding
and legal obligations of the Company, and to constitute these
presents a valid indenture and agreement according to its terms,
have been done and performed;
NOW, THEREFORE, in order to declare the terms and
conditions upon which the 2005 Notes and the 2008 Notes are
executed, registered, authenticated, issued and delivered, and in
consideration of the premises, of the purchase and acceptance
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of such 2005 Notes and such 2008 Notes by the Holders thereof and
of the sum of one dollar to it duly paid by the Trustee at the
execution of these presents, the receipt whereof is hereby
acknowledged, the Company covenants and agrees with the Trustee,
for the equal and proportionate benefit of the respective Holders
from time to time of the 2005 Notes and the 2008 Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
1. Capitalized Terms.
Capitalized terms used herein and not otherwise defined
herein are used with the respective meanings ascribed to such
terms in the Indenture.
2. Effectiveness.
This Supplemental Indenture shall become effective, and shall
bind the parties hereto, upon its execution by the parties hereto.
3. Incorporation of Supplemental Indenture into Indenture.
This Supplemental Indenture is executed by the Company and
the Trustee pursuant to the provisions of Section 9.01 of the
Indenture, and the terms and conditions hereof shall be deemed
to be part of the Indenture for all purposes upon the
effectiveness of this Supplemental Indenture. The Indenture,
as amended and supplemented by this Supplemental Indenture, is
in all respects hereby adopted, ratified and confirmed.
4. Effect of Headings.
The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
5. Governing Law.
The internal laws of the State of Nevada shall govern and be
used to construe this Supplemental Indenture, without regard to
the conflicts of laws provisions thereof.
6. Counterparts.
This Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
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7. Recitals.
The recitals contained herein shall be taken as the
statements of the Company and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this
Supplemental Indenture.
ARTICLE TWO
CREATION AND AUTHORIZATION OF SERIES
1. Designation of Series of Securities.
There are hereby created and authorized (i) the series of
Securities entitled "6.625% Notes Due February 1, 2005," which
shall be a closed series limited to $200,000,000 aggregate
Principal Amount (except for 2005 Notes authenticated and
delivered upon registration of transfer of, or in exchange
for, or in lieu of, other 2005 Notes of this series pursuant
to Sections 2.08, 2.09, 2.12 and 3.06 of the Indenture), and
(ii) the series of Securities entitled "6.75% Notes Due
February 1, 2008," which shall be a closed series limited to
$200,000,000 aggregate Principal Amount (except for 2008 Notes
authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other 2008 Notes of this
series pursuant to Sections 2.08, 2.09, 2.12 and 3.06 of the
Indenture). The 2005 Notes and 2008 Notes shall be
substantially in the forms set forth in the fifth recital of
this Supplemental Indenture.
ARTICLE THREE
AMENDMENTS TO PROVISIONS OF INDENTURE
1. Definitions.
Section 1.01 of the Indenture is hereby amended by adding the
following definitions in the appropriate alphabetical order:
"Adjusted Treasury Rate" means, with respect to any redemption
date, the rate per annum equal to the semiannual equivalent yield
to maturity of the Comparable Treasury Issue, assuming a price for
the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such
redemption date, plus 0.20% with respect to the 2005 Notes and
0.25% with respect to the 2008 Notes.
"Attributable Value" in respect of any sale and leaseback
transaction means, as of the time of determination, the total
obligation (discounted to present value at the average interest
rate of the 2005 Notes and 2008 Notes (weighted in proportion
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to the aggregate principal amount of the 2005 Notes and 2008
Notes originally issued) compounded semiannually) of the lessee
for rental payments (other than amounts required to be paid on
account of property taxes as well as maintenance, repairs,
insurance, water rates and other items which do not constitute
payments for property rights) during the remaining portion of the
base term of the lease included in such sale and leaseback
transaction.
"Comparable Treasury Issue" means, with respect to the
2005 Notes or the 2008 Notes, as the case may be, the United
States Treasury security selected by a Quotation Agent as having
a maturity comparable to the remaining term of such 2005 Notes
or 2008 Notes, as the case may be, to be redeemed that would be
utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining term of
such 2005 Notes or 2008 Notes, as the case may be.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) on the third Business Day
preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by
the Federal Reserve Bank of New York and designated "Composite
3:30 p.m. Quotations for U.S. Government Securities" or (ii) if
such release (or any successor release) is not published or does
not contain such prices on such Business Day, (A) the average of
the Reference Treasury Dealer Quotations for such redemption date,
after excluding the highest and lowest such Reference Treasury
Dealer Quotations or (B) if the Company obtains fewer than three
such Reference Treasury Dealer Quotations, the average of all
such Quotations.
"Consolidated Net Tangible Assets" of the Company means the
aggregate amount of assets (less applicable reserves and other
properly deductible items) after deducting therefrom (a) all
current liabilities (excluding any Indebtedness for money borrowed
having a maturity of less than 12 months from the date of the most
recent consolidated balance sheet of the Company but which by its
terms is renewable or extendable beyond 12 months from such date
at the option of the borrower) and (b) all goodwill, trade names,
patents, unamortized debt discount and expense and any other like
intangibles, all as set forth on the most recent consolidated
balance sheet of the Company and computed in accordance with
generally accepted accounting principles.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment,
security interest, lien, encumbrance or other security
arrangement of any kind or nature whatsoever on or with respect
to such property or assets (including any conditional sale or
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other title retention agreement having substantially the same
economic effect as any of the foregoing).
"Principal Property" means any real property of the
Company or any of its subsidiaries, and any equipment located
at or comprising a part of any such real property, having a net
book value, as of the date of determination, in excess of the
greater of $25 million and 5% of Consolidated Net Tangible
Assets of the Company.
"Quotation Agent" means one of the Reference Treasury
Dealers appointed by the Company and certified to the Trustee by
the Company.
"Reference Treasury Dealer" means each of Credit Suisse
First Boston Corporation, BancAmerica Xxxxxxxxx Xxxxxxxx, Bear,
Xxxxxxx & Co. Inc., BT Alex. Xxxxx Incorporated, Xxxxxxxxx,
Lufkin & Xxxxxxxx Securities Corporation and X.X. Xxxxxx
Securities Inc. and their respective successors; provided,
however, that if any of the foregoing shall cease to be a
primary U.S. Government securities dealer in New York City
(a "Primary Treasury Dealer"), the Company shall substitute
therefor another Primary Treasury Dealer and certify same to
the Trustee; and any other Primary Treasury Dealer selected by
the Company and certified to the Trustee by the Company.
"Reference Treasury Dealer Quotations" means, with respect
to each Reference Treasury Dealer and any redemption date, the
average, as determined by the Company and certified to the
Trustee by the Company, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Company by
such Reference Treasury Dealer at 5:00 p.m. on the third Business
Day preceding such redemption date.
2. Redemption and Offer to Purchase.
Section 3.05 of the Indenture is hereby amended and restated
in its entirety as follows:
Section 3.05. Deposit of Redemption Price.
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(a) Prior to or on the redemption date, the
Company shall deposit with the Paying Agent for the 2005 Notes
being redeemed (or if the Company or a subsidiary or an Affiliate
of the Company is the Paying Agent, shall segregate and hold
in trust) money sufficient to pay the redemption price of, and
(except if the redemption date shall be an interest payment date)
accrued interest on, all 2005 Notes to be redeemed on that date
other than 2005 Notes or portions of 2005 Notes called for
redemption which prior thereto have been delivered by the
Company to the Trustee for cancellation. If such money is
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then held by the Company or a subsidiary or an Affiliate of
the Company in trust and is not required for such purpose, it
shall be discharged from such trust.
(b) Prior to or on the redemption date, the
Company shall deposit with the Paying Agent for the 2008 Notes
being redeemed (or if the Company or a subsidiary or an
Affiliate of the Company is the Paying Agent, shall segregate
and hold in trust) money sufficient to pay the redemption price
of, and (except if the redemption date shall be an interest
payment date) accrued interest on, all 2008 Notes to be redeemed
on that date other than 2008 Notes or portions of 2008 Notes
called for redemption which prior thereto have been delivered by
the Company to the Trustee for cancellation. If such money is
then held by the Company or a subsidiary or an Affiliate of the
Company in trust and is not required for such purpose, it shall
be discharged from such trust.
3. Optional Redemption.
The Indenture is hereby amended by adding a
new Section 3.08 as follows:
Section 3.08. Optional Redemption.
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(a) The 2005 Notes are redeemable, in whole
or in part, at the option of the Company at any time at a
redemption price equal to the greater of (i) 100% of the
Principal Amount of 2005 Notes so redeemed or (ii) as determined
by a Quotation Agent, the sum of the present values of the
remaining scheduled payments of Principal and interest thereon
discounted to the redemption date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months)
at the Adjusted Treasury Rate, plus, in each case, accrued
interest thereon to the redemption date.
(b) The 2008 Notes are redeemable, in whole or in
part, at the option of the Company at any time at a redemption
price equal to the greater of (i) 100% of the Principal Amount of
2008 Notes so redeemed or (ii) as determined by a Quotation Agent,
the sum of the present values of the remaining scheduled payments
of Principal and interest thereon discounted to the redemption
date on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate, plus, in
each case, accrued interest thereon to the redemption date.
4. Limitation on Liens.
The Indenture is hereby amended by adding a new Section
4.08 as follows:
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Section 4.08. Limitation on Liens.
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The Company will not, and will not permit any
subsidiary to, create, incur, issue, assume or guarantee any
Indebtedness of the Company or any subsidiary secured by a Lien
upon any Principal Property, or upon shares of capital stock or
evidences of Indebtedness issued by any subsidiary which
owns or leases a Principal Property and which are owned by
the Company or any subsidiary (whether such Principal Property,
shares or evidences of Indebtedness are now owned or are
hereafter acquired by the Company), without making effective
provision to secure all of the 2005 Notes and the 2008 Notes
then outstanding by such Lien, equally and ratably with (or
prior to) any and all other Indebtedness thereby secured, so
long as such Indebtedness shall be so secured.
The foregoing restrictions shall not apply, however,
to: (a) Liens existing on the date of original issuance
of the 2005 Notes and the 2008 Notes; (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 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 another subsidiary of the
Company; (f) purchase money security Liens on personal property;
(g) Liens to secure Indebtedness of joint ventures in which the
Company or a subsidiary has an interest, to the extent such Liens
are solely on property or assets of, or equity interests in,
such joint ventures; (h) Liens in favor of the United States of
America or any State thereof, or any department, agency or
instrumentality or political subdivision thereof, to secure
partial, progress, advance or other payments; and (i) any
extension, renewal, replacement or refunding of any Lien
referred to in the foregoing clauses (a) through (h), provided,
however, that the aggregate principal amount of Indebtedness
secured thereby and not otherwise authorized by the foregoing
clauses shall not exceed the aggregate principal amount of
Indebtedness, plus any premium or fee payable in connection
with any such extension, renewal, replacement or refunding, so
secured at the time of such extension, renewal, replacement or
refunding.
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Notwithstanding the foregoing, the Company and its
subsidiaries may create, incur, issue, assume or guarantee
Indebtedness secured by Liens without equally and ratably
securing the 2005 Notes and the 2008 Notes then outstanding,
provided, that at the time of such creation, incurrence,
issuance, assumption or guarantee, after giving effect thereto
and to the retirement of any Indebtedness which is concurrently
being retired, the aggregate amount of all outstanding
Indebtedness secured by Liens so incurred (other than those
Liens permitted by the preceding paragraph), together with all
outstanding Attributable Value of all sale and leaseback
transactions permitted by the last paragraph of Section
4.09, does not exceed 15% of the Consolidated Net Tangible
Assets of the Company.
5. Limitation on Sale and Leaseback Transactions.
The Indenture is hereby amended by adding a new
Section 4.09 as follows:
Section 4.09. Limitation on Sale and Leaseback Transactions.
------------ ---------------------------------------------
The Company will not, and will not permit any
subsidiary to, enter into any sale and leaseback transaction
involving any Principal Property unless the Company or such
subsidiary shall apply, or cause to be applied, to the retirement
of its secured debt within 120 days after the effective date of
the sale and leaseback transaction, an amount not less than
the greater of (i) the net proceeds of the sale of the Principal
Property leased pursuant to such arrangement or (ii) the fair
market value of the Principal Property so leased. This
restriction will not apply to a sale and leaseback transaction
involving the taking back of a lease for a period of less than
three years.
Notwithstanding the foregoing, the Company or any
subsidiary may enter into a sale and leaseback transaction,
provided, that at the time of such transaction, after giving
effect thereto, the Attributable Value thereof, together with
all Indebtedness secured by Liens permitted pursuant to Section
4.08 (other than those Liens permitted by the second paragraph
of Section 4.08, and other than the Attributable Value of the
sale and leaseback transactions permitted by the preceding
paragraph) does not exceed 15% of the Consolidated Net Tangible
Assets of the Company.
6. Successor Corporation and Assignment.
Section 5.01 of the Indenture is hereby amended
and restated in its entirety as follows:
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Section 5.01. When the Company May Merge, etc.
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The Company shall not consolidate or merge with or
into, or sell, lease, convey or otherwise dispose of all or
substantially all of its assets to, another person unless:
(1) the person formed by or surviving
any such consolidation or merger (if other than the Company),
or to which such disposition shall have been made, is a
corporation organized and existing under the laws of the
United States or any State thereof or the District of Columbia;
(2) the person formed by or surviving
any such consolidation or merger (if other than the Company),
or to which such disposition shall have been made, assumes by
supplemental indenture all of the obligations of the Company
under the 2005 Notes, the 2008 Notes and this Indenture;
(3) immediately after the transaction no
Default or Event of Default exists; and
(4) if, as a result of the transaction,
property of the Company would become subject to a Lien that
would not be permitted under the limitation on Liens contained
in Section 4.08, the Company takes such steps as shall be
necessary to secure the 2005 Notes and the 2008 Notes equally
and ratably with (or prior to) the Indebtedness secured by such
Lien.
The Company shall deliver to the Trustee for the 2005 Notes
and the 2008 Notes prior to the consummation of the proposed
transaction an Officers' Certificate to the foregoing effect and
an Opinion of Counsel stating that the proposed transaction and
such supplemental indenture comply with the provisions of this
Indenture applicable to the 2005 Notes and the 2008 Notes.
7. Events of Default.
Section 6.01 of the Indenture is hereby amended
and restated in its entirety as follows:
Section 6.01. Events of Default.
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(a) An "Event of Default" occurs with respect
to the 2005 Notes in the event of any one of the following:
(1) failure of the Company to pay (whether or
not prohibited by applicable subordination provisions, if any),
interest for 30 days on, or the Principal when due of, any 2005
Notes;
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(2) failure of the Company to comply with any
of its other agreements or covenants contained in the 2005 Notes
or in this Indenture and applicable to the 2005 Notes, and
continuance of such Default for the period and after the notice
specified below;
(3) failure to pay when due (after applicable
grace periods as provided in any applicable instrument governing
such Indebtedness) the principal of, or acceleration of, any
Indebtedness for money borrowed by the Company having an
aggregate principal amount outstanding equal to at least
$25,000,000, if such Indebtedness is not discharged, or such
acceleration is not annulled, and the Default continues for
the period and after the notice specified below;
(4) entry of final judgments against the Company
or any subsidiary or subsidiaries of the Company which remain
undischarged for a period of 60 days, provided that the aggregate
of all such judgments exceeds $25,000,000 and the Default
continues for the period and after the notice specified below;
(5) the Company, pursuant to or within the
meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for
relief against it in an involuntary case,
(C) consents to the appointment of a
Custodian of it or for all or substantially all of its property,
(D) makes a general assignment for the
benefit of its creditors, or
(E) admits in writing its inability
generally to pay its debts as the same become due;
(6) a court of competent jurisdiction enters
an order or decree under any Bankruptcy Law that:
(A) is for relief against the Company or
any Material Subsidiary of the Company in an involuntary case,
(B) appoints a Custodian of the Company
for all or substantially all of the property of the Company or
any Material Subsidiary of the Company, or
(C) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 60
days; or
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(7) a revocation, suspension or involuntary
loss of any Gaming License by the Company or a subsidiary of the
Company (after the same shall have been obtained) which results
in the cessation of operation of the business at a Principal
Property for a period of more than 90 consecutive days.
The term "Bankruptcy Law" means any Federal
or State bankruptcy, insolvency, reorganization or other similar
law. The term "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
A Default under clause (2) (other than a
Default under Section 4.05, 4.07 or 5.01, each of 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
until the Trustee or the Holders of at least 25% in Principal
Amount of the 2005 Notes then outstanding notify the Company of
the Default and the Company does not cure the Default or cause
the Default to be cured 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."
A Default under clause (3) is not an Event of
Default until the Trustee or the Holders of at least 25% in
Principal Amount of the 2005 Notes then outstanding notify the
Company of the Default and the Company has not caused such
Default to be cured or waived or such acceleration to be
rescinded or annulled within 30 days after receipt of the notice.
The notice must specify the Default, demand that it be rescinded
or annulled and state that the notice is a "Notice of Default."
A Default under clause (4) is not an Event of
Default until the Trustee or the Holders of at least 25% in
Principal Amount of the 2005 Notes then outstanding notify the
Company of the Default and the Company does not cure the Default
or cause the Default to be cured within 60 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."
In the case of any Event of Default pursuant to
the provisions of this Section 6.01 occurring with respect to the
2005 Notes by reason of any willful action (or inaction) taken
(or not taken) by or on behalf of the Company with the intention
of avoiding payment of the premium which the Company would have
had to pay if the Company then had elected optionally to redeem
the 2005 Notes, an equivalent premium (or, in the event that the
Company would not be permitted to redeem the 2005 Notes optionally
on such date, the premium payable on the first date thereafter on
which such redemption would be permissible) shall also become and
be immediately due and payable with respect to the 2005 Notes to
the extent permitted by law, anything in this Indenture or in the
2005 Notes contained to the contrary notwithstanding.
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The Trustee shall not be deemed to have knowledge
of any Default under this Section 6.01(a) unless either (A) a
Trust Officer of Trustee shall have actual knowledge of such
Default or (B) the Trustee shall have received written notice
thereof from the Company or from the Holders of at least 25% in
principal amount of the 2005 Notes then outstanding.
(b) An "Event of Default" occurs with respect
to the 2008 Notes in the event of any one of the following:
(1) failure of the Company to pay (whether or
not prohibited by applicable subordination provisions, if any),
interest for 30 days on, or the Principal when due of, any 2008
Notes;
(2) failure of the Company to comply with any
of its other agreements or covenants contained in the 2008 Notes
or in this Indenture and applicable to the 2008 Notes, and
continuance of such Default for the period and after the notice
specified below;
(3) failure to pay when due (after applicable
grace periods as provided in any applicable instrument governing
such Indebtedness) the principal of, or acceleration of, any
Indebtedness for money borrowed by the Company having an
aggregate principal amount outstanding equal to at least
$25,000,000, if such Indebtedness is not discharged, or such
acceleration is not annulled, and the Default continues for the
period and after the notice specified below;
(4) entry of final judgments against the
Company or any subsidiary or subsidiaries of the Company which
remain undischarged for a period of 60 days, provided that the
aggregate of all such judgments exceeds $25,000,000 and the
Default continues for the period and after the notice
specified below;
(5) the Company, pursuant to or within the
meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order
for relief against it in an involuntary case,
(C) consents to the appointment of a
Custodian of it or for all or substantially all of its property,
(D) makes a general assignment for the
benefit of its creditors, or
(E) admits in writing its inability
generally to pay its debts as the same become due;
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(6) a court of competent jurisdiction enters
an order or decree under any Bankruptcy Law that:
(A) is for relief against the Company or
any Material Subsidiary of the Company in an involuntary case,
(B) appoints a Custodian of the Company
for all or substantially all of the property of the Company or
any Material Subsidiary of the Company, or
(C) orders the liquidation of the Company, and
the order or decree remains unstayed and in effect for 60 days; or
(7) a revocation, suspension or involuntary
loss of any Gaming License by the Company or a subsidiary of the
Company (after the same shall have been obtained) which results
in the cessation of operation of the business at a Principal
Property for a period of more than 90 consecutive days.
The term "Bankruptcy Law" means any Federal or State
bankruptcy, insolvency, reorganization or other similar law.
The term "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
A Default under clause (2) (other than a Default
under Section 4.05, 4.07 or 5.01, each of 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 until
the Trustee or the Holders of at least 25% in Principal Amount of
the 2008 Notes then outstanding notify the Company of the
Default and the Company does not cure the Default or cause the
Default to be cured 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."
A Default under clause (3) is not an Event of Default
until the Trustee or the Holders of at least 25% in Principal
Amount of the 2008 Notes then outstanding notify the Company of
the Default and the Company has not caused such Default to be
cured or waived or such acceleration to be rescinded or annulled
within 30 days after receipt of the notice. The notice must
specify the Default, demand that it be rescinded or annulled and
state that the notice is a "Notice of Default."
A Default under clause (4) is not an Event of
Default until the Trustee or the Holders of at least 25% in
Principal Amount of the 2008 Notes then outstanding notify the
Company of the Default and the Company does not cure the Default
or cause the Default to be cured within 60 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."
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In the case of any Event of Default pursuant to the
provisions of this Section 6.01 occurring with respect to the
2008 Notes by reason of any willful action (or inaction) taken
(or not taken) by or on behalf of the Company with the intention
of avoiding payment of the premium which the Company would have
had to pay if the Company then had elected optionally to redeem
the 2008 Notes, an equivalent premium (or, in the event that the
Company would not be permitted to redeem the 2008 Notes
optionally on such date, the premium payable on the first date
thereafter on which such redemption would be permissible) shall
also become and be immediately due and payable with respect to
the 2008 Notes to the extent permitted by law, anything in this
Indenture or in the 2008 Notes contained to the contrary
notwithstanding.
The Trustee shall not be deemed to have knowledge
of any Default under this Section 6.01(b) unless either (A)
a Trust Officer of Trustee shall have actual knowledge of such
Default or (B) the Trustee shall have received written notice
thereof from the Company or from the Holders of at least 25% in
principal amount of the 2008 Notes then outstanding.
IN WITNESS WHEREOF, the Company and the Trustee
have executed this Supplemental Indenture and have caused their
names to be signed hereto by their respective officers thereunto
duly authorized, all as of the day and year first above written.
Dated: As of February 4, 1998 MIRAGE RESORTS, INCORPORATED
XXXXXXX X. XXXX
Attest: By:_________________________
Xxxxxxx X. Xxxx
Chairman of the Board,
XXXXX X. XXXXX President and Chief
___________________________ Executive Officer
Xxxxx X. Xxxxx
Secretary
XXXXXX X. XXX
By:_________________________
Xxxxxx X. Xxx
Senior Vice President-
Finance and Development,
Chief Financial Officer
and Treasurer
(SEAL)
Dated: As of February 4, 1998 PNC BANK, NATIONAL ASSOCIATION
XXXXXX XXXXX
By:___________________________
Name: Xxxxxx Xxxxx
Title: Vice President
(SEAL)
15
EXHIBIT A
CUSIP No.
This Security is a Global Security within the
meaning of the Indenture hereinafter referred to and is
registered in the name of a Depositary or a nominee thereof.
This Security may not be exchanged in whole or in part for a
Security registered, and no transfer of this Security in
whole or in part may be registered, in the name of any person
other than such Depositary or a nominee thereof, except in the
limited circumstances described in the Indenture.
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to Mirage Resorts, Incorporated, or its
agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in
such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
MIRAGE RESORTS, INCORPORATED
6.625% Note Due February 1, 2005
No. A-1 $200,000,000
MIRAGE RESORTS, INCORPORATED, a corporation duly
organized and existing under the laws of the State of Nevada
(herein called the "Company," which term includes any successor
to the Company under the Indenture hereinafter referred to), for
value received, hereby promises to pay to Cede & Co., or
registered assigns, the Principal sum of Two Hundred Million
Dollars ($200,000,000) on February 1, 2005 and to pay interest
thereon from February 4, 1998 or from the most recent interest
payment date to which interest has been paid or duly provided
for, semiannually in arrears on February 1 and August 1,
in each year, commencing August 1, 1998, at the rate of 6.625%
per annum, until the Principal hereof is paid or made available
for payment. The interest so payable, and punctually paid or
duly provided for, on any interest payment date will, as
provided in such Indenture, be paid to the person in whose name
this Security (or one or more Predecessor Securities) is
registered at the close of business on the regular record date
for such interest, which shall be January 15 or July 15 (whether
or not a Business Day), as the case may be, next preceding
such interest payment date. Any such interest not so
A-1
punctually paid or duly provided for will forthwith cease to
be payable to the Holder on such regular record date and may
either be paid to the person in whose name this Security (or
one or more Predecessor Securities) is registered at the
close of business on a special record date for the payment of
such defaulted interest to be fixed by the Trustee, notice
whereof shall be mailed to Holders of the Securities not
less than 10 days prior to such special record date, or be
paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice
as may be required by such exchange, all as more fully provided
in said Indenture. Interest on the Securities shall be computed
on the basis of a 360-day year of twelve 30-day months.
Payment of the Principal of (and premium, if any)
and interest on this Security will be made at the office or
agency of the Company maintained for that purpose, in such coin
or currency of the United States of America as at the time
of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address
of the person entitled thereto as such address shall appear in
the register for the Securities.
Reference is hereby made to the further provisions
of this Security set forth on pages A-4 to A-9 following the
signature page hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the pages following
the signature page hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
[Signature Page to Follow]
A-2
In Witness Whereof, the Company has caused this instrument
to be duly executed.
MIRAGE RESORTS, INCORPORATED
By.........................
Xxxxxxx X. Xxxx
Chairman of the Board,
President and Chief
Executive Officer
By..........................
Xxxxxx X. Xxx
Senior Vice President -
Finance and Development,
Chief Financial Officer
and Treasurer
Attest:
..............................
Xxxxx X. Xxxxx
Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated: PNC BANK, NATIONAL ASSOCIATION
As Trustee
By.............................
____________________________
Authorized Signatory
A-3
This Security is one of a duly authorized series
of securities of the Company (herein called the "Securities"),
issued under an Indenture, dated as of February 4, 1998, as
amended by a Supplemental Indenture, dated as of February 4,
1998 (as so amended, the "Indenture"), each between the
Company and PNC Bank, National Association, as Trustee (herein
called the "Trustee," which term includes any successor trustee
under the Indenture), and reference is hereby made to the
Indenture for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and
delivered. The Securities are subject to, and qualified by, all
of the terms of the Indenture. This Security is one of the
series designated on the face hereof, limited in aggregate
Principal Amount to $200,000,000. The Securities are general
obligations of the Company.
The Securities are subject to redemption upon not
less than 30 days' nor more than 60 days' notice by first
class mail, in whole or in part, at the option of the Company
at any time at a redemption price equal to the greater of (i)
100% of the Principal Amount of the Securities so redeemed or
(ii) as determined by a Quotation Agent, the sum of the present
values of the remaining scheduled payments of principal and
interest thereon discounted to the redemption date on a
semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate, plus,
in each case, accrued interest thereon to the redemption date.
"Adjusted Treasury Rate" means, with respect to
any redemption date, the rate per annum equal to the semiannual
equivalent yield to maturity of the Comparable Treasury Issue,
assuming a price for the Comparable Treasury Issue (expressed
as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date, plus 0.20%.
"Comparable Treasury Issue" means the United States
Treasury security selected by a Quotation Agent as having a
maturity comparable to the remaining term of the Security to be
redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity
to the remaining term of such Security.
"Comparable Treasury Price" means, with respect to
any redemption date, (i) the average of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) on the third Business Day
preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by
the Federal Reserve, Bank of New York and designated "Composite
3:30 p.m. Quotations for U.S. Government Securities" or (ii) if
A-4
such release (or any successor release) is not published or does
not contain such prices on such Business Day, (A) the average
of the Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (B) if the Company obtains fewer
than three such Reference Treasury Dealer Quotations, the average
of all such Quotations.
"Quotation Agent" means one of the Reference Treasury
Dealers appointed by the Company and certified to the Trustee by
the Company.
"Reference Treasury Dealer" means each of Credit
Suisse First Boston Corporation, BancAmerica Xxxxxxxxx Xxxxxxxx,
Bear, Xxxxxxx & Co. Inc., BT Alex. Xxxxx Incorporated, Xxxxxxxxx,
Lufkin & Xxxxxxxx Securities Corporation, and X.X. Xxxxxx
Securities Inc. and their respective successors; provided,
however, that if any of the foregoing shall cease to be a primary
U.S. Government securities dealer in New York City (a "Primary
Treasury Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer and certify same to the Trustee; and any
other Primary Treasury Dealer selected by the Company and
certified to the Trustee by the Company.
"Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer and any redemption date,
the average, as determined by the Company and certified to the
Trustee by the Company, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Company by such
Treasury Reference Dealer at 5:00 p.m. on the third Business
Day preceding such redemption date.
In the event of redemption of this Security in part only,
a new Security or Securities of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof
upon the cancellation hereof.
Notwithstanding any other provision of Article 3 of the
Indenture, if any Gaming Authority requires that a Holder or
beneficial owner of Securities of a Holder must be licensed,
qualified or found suitable under any Gaming Law, such Holder or
such beneficial owner shall apply for a license, qualification or
a finding of suitability, as the case may be, within the required
time period. If such person fails to apply or become licensed or
qualified or is not found suitable (in each case, a "failure of
compliance"), the Company shall have the right, at its option,
(i) to require such Holder or owner to dispose of such Holder's or
owner's Securities 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 within such
30-day or earlier period requested or prescribed by such Gaming
Authority the Securities of such Holder or owner at a redemption
A-5
price equal to the lesser of (A)100% of the Principal Amount
thereof or (B) the price at which such Holder or owner acquired
the Securities, together, in either case, with accrued interest
to the earlier of the redemption date or the date of the failure
of compliance, which may be less than 30 days following the
notice of redemption if so requested or prescribed by such 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
owner may incur in connection with its application for a license,
qualification or finding of suitability.
If there is a Change in Control (the time of a Change
in Control being referred to as the "Change in Control Date"),
then the Company shall (a) commence, within five Business Days
following the Change in Control Date, an offer to repurchase
(the "Repurchase Offer") all of the outstanding Securities at a
repurchase price (the "Repurchase Price") in cash equal to 101%
of the Principal Amount of the Securities plus accrued interest,
if any, to the Repurchase Date (as defined below) and (b) deposit
with the Paying Agent an amount equal to the aggregate Repurchase
Price for all Securities then outstanding so as to be available
for payment to the Holders of Securities who elect to require the
Company to repurchase all or a portion of their Securities.
If the Repurchase Date is on or after an interest
payment record date and on or before the related interest payment
date, any accrued interest will be paid to the person in whose
name a Security is registered at the close of business on such
record date, and no additional interest will be payable to
Holders who tender Securities pursuant to the Repurchase Offer.
Notice of any Repurchase Offer shall be mailed by the
Company to the Trustee and the Holders of the Securities at their
last registered addresses. The Repurchase Offer shall remain
open from the time of mailing until 10 Business Days thereafter,
and no longer, unless a longer period is required by law or stock
exchange rule or unless a majority of the Continuing Directors of
the Company votes in favor of extending such period (the date on
which the Repurchase Offer closes being the "Repurchase Date").
The notice shall contain all instructions and materials necessary
to enable such Holders to tender Securities pursuant to the
Repurchase Offer. The notice, which shall govern the terms of
the Repurchase Offer, shall state:
(1) that the Repurchase Offer is being made pursuant
to Section 4.07 of the Indenture and that Securities will be
accepted for payment either (A) in whole or (B) in part in
integral multiples of $1,000;
A-6
(2) the Repurchase Price and the Repurchase Date;
(3) that any Security not tendered will continue to
accrue interest;
(4) that any Security accepted for payment pursuant
to the Repurchase Offer shall cease to accrue interest from and
after the Repurchase Date;
(5) that Holders electing to have a Security purchased
pursuant to the Repurchase Offer will be required to surrender
the Security, with the form entitled "Option to Elect Purchase"
on the Security completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the
Repurchase Date;
(6) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than three
Business Days before the Repurchase Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the
Holder, the Principal Amount of Securities the Holder delivered
for purchase and a statement that the Holder is withdrawing his
election to have such Securities purchased; and
(7) that Holders whose Securities are purchased only
in part will be issued new Securities equal in Principal Amount
to the unpurchased portion of the Securities surrendered.
On the Repurchase Date, the Company shall, to the
extent lawful, (i) accept for payment Securities or portions
thereof tendered pursuant to the Repurchase Offer; and (ii)
deliver to the Trustee the Securities so tendered, together with
an Officers' Certificate identifying the Securities or portions
thereof so accepted for payment by the Company. The Paying Agent
shall promptly mail or deliver to Holders of the Securities so
accepted payment in an amount equal to the Repurchase Price. The
Trustee shall promptly authenticate and mail or deliver to each
Holder who tendered a Security a new Security or Securities
equal in Principal Amount to any untendered portion of the
Security surrendered. The Paying Agent shall invest funds
deposited with it pursuant to Section 4.07 of the Indenture for
the benefit of, and at the written direction of, the Company to
the Repurchase Date.
"Board of Directors" or "Board" means the Board of
Directors or any authorized committee of the Board of Directors
of the Company, or a Consolidated Subsidiary thereof, as the
context may indicate.
A-7
"Capital Stock" of any person means any and all shares,
interests, participations or other equivalents (however
designated) of corporate stock and any and all forms of
partnership interests or other equity interests in a person,
including but not limited to any type of preference stock which
for other purposes may not be treated as equity.
"Change in Control" means (i) the time the Company
first determines that any person or group, within the meaning of
Section 14(d)(2) of the Exchange Act (other than any person who
was at the date of the Indenture an officer or director of the
Company or a group consisting of persons who were at the date of
the Indenture officers or directors of the Company) have
acquired direct or indirect beneficial ownership (within the
meaning of Rule 13d-3 under the Exchange Act) of 35% or more of
the outstanding voting Capital Stock of the Company, unless a
majority of the Continuing Directors approves the acquisition
not later than 10 business days after the Company makes the
determination, or (ii) the first day on which a majority of
the members of the Board of Directors of the Company are not
Continuing Directors.
"Consolidated Subsidiary" of any specific person
means any subsidiary, all of whose voting Capital Stock (other
than the minimum required number of directors' qualifying shares)
are owned by such person and/or by another Consolidated
Subsidiary of such person, and the accounts of which are, or under
generally accepted accounting principles are required to be,
consolidated with the accounts of such person.
"Continuing Directors" means, as of any date of
determination, any member of the Board of Directors of the
Company who (i) was a member of that Board of Directors on
the date of the Indenture, (ii) had been a member of that
Board of Directors for the two years immediately preceding
such date of determination or (iii) was nominated for election
or elected to that Board of Directors with the affirmative vote
of the greater of (x) a majority of Continuing Directors who
were members of that Board at the time of such nomination or
election or (y) at least three Continuing Directors.
The Indenture contains provisions for defeasance
of the entire Indebtedness of this Security or certain
restrictive covenants with respect to this Security, in each
case upon compliance with certain conditions set forth in
the Indenture.
If an Event of Default with respect to the Securities
shall occur and be continuing, the Principal of the Securities
may be declared due and payable in the manner and with the effect
provided in the Indenture.
A-8
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a
majority in Principal Amount of the Securities at the time
outstanding. The Indenture also contains provisions permitting
the Holders of specified percentages in Principal Amount of the
Securities at the time outstanding, on behalf of the Holders of
all such Securities, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security. The right of
any Holder (or such Holder's duly designated proxy) to
participate in any consent required or sought pursuant to any
provision of the Indenture (and the obligation of the Company to
obtain any such consent otherwise required from such Holder)
may be subject to the requirement that such Holder shall have
been the Holder of record of Securities as of a date set by the
Company and identified by the Trustee in a notice furnished to
Holders in accordance with the terms of the Indenture.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities, the Holders of not less than 25% in
Principal Amount of the Securities at the time outstanding shall
have made written request to the Trustee to institute proceedings
in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in Principal Amount of
the Securities at the time outstanding a direction inconsistent
with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and
offer of indemnity. The foregoing shall not apply to any suit
instituted by the Holder of this Security for the enforcement of
any payment of Principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the Principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
A-9
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registrable in the register for the Securities, upon surrender
of this Security for transfer at the office or agency of the
Company in any place where the Principal of and any premium and
interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Securities of like
tenor, of authorized denominations and for the same aggregate
Principal Amount, will be issued to the designated transferee
or transferees.
The Securities are issuable only in registered form
without coupons in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, the Securities are
exchangeable for a like aggregate Principal Amount of Securities
of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such transfer
or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable
in connection therewith.
Prior to due presentment of this Security for
transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the person in whose name this Security
is registered as the owner hereof for all purposes, whether or
not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the
contrary.
No past, present or future director, officer, employee,
stockholder or incorporator, as such, of the Company or any
successor corporation shall 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 for the issue of the
Securities.
A-10
All terms used in this Security without definition
which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEVADA.
Option to Elect Purchase
The undersigned registered Holder of this Security
hereby irrevocably exercises the option to require the Company to
repurchase this Security or portion thereof (which is $1,000 or an
integral multiple thereof) below designated on the Repurchase Date
and in accordance with the terms set forth in the notice of
Repurchase Offer distributed by the Company in accordance with the
terms of this Security, and directs that payment be made to the
registered Holder hereof unless a different name has been
indicated below. Any amount required to be paid by the
undersigned on account of interest accompanies this Security.
Dated: ________________
Signature(s) must be Holder's Signature:
guaranteed if payment is
to be made other than to
and in the name of the
registered Holder
_________________________
_________________________________ Portion of Security to be
Signature Guarantee repurchased (in integral
multiples of $1,000) if
other than the full
Principal Amount thereof:
Fill in for payment of Repurchase
Price if to be made otherwise than __________________________
to the registered Holder
_________________________________
Name
_________________________________
Address
_________________________________
Please print name and address
(including zip code)
SOCIAL SECURITY OR TAXPAYER
IDENTIFICATION NUMBER
_________________________________
A-11
EXHIBIT B
CUSIP No.
This Security is a Global Security within the
meaning of the Indenture hereinafter referred to and is
registered in the name of a Depositary or a nominee thereof.
This Security may not be exchanged in whole or in part for a
Security registered, and no transfer of this Security in
whole or in part may be registered, in the name of any person
other than such Depositary or a nominee thereof, except in the
limited circumstances described in the Indenture.
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to Mirage Resorts, Incorporated, or its
agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in
such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
MIRAGE RESORTS, INCORPORATED
6.75% Note Due February 1, 2008
No. B-1 200,000,000
MIRAGE RESORTS, INCORPORATED, a corporation duly
organized and existing under the laws of the State of Nevada
(herein called the "Company," which term includes any successor
to the Company under the Indenture hereinafter referred to), for
value received, hereby promises to pay to Cede & Co., or
registered assigns, the Principal sum of Two Hundred Million
Dollars ($200,000,000) on February 1, 2008 and to pay interest
thereon from February 4, 1998 or from the most recent interest
payment date to which interest has been paid or duly provided
for, semiannually in arrears on February 1 and August 1 in each
year, commencing August 1, 1998, at the rate of 6.75% per annum,
until the Principal hereof is paid or made available for payment.
The interest so payable, and punctually paid or duly provided for,
on any interest payment date will, as provided in such Indenture,
be paid to the person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on
the regular record date for such interest, which shall be January
15 or July 15 (whether or not a Business Day), as the case may be,
next preceding such interest payment date. Any such interest not
so punctually paid or duly provided for will forthwith cease to
be payable to the Holder on such regular record date and may either
be paid to the person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a
B-1
special record date for the payment of such defaulted interest to
be fixed by the Trustee, notice whereof shall be mailed to Holders
of the Securities not less than 10 days prior to such special
record date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such
notice as may be required by such exchange, all as more fully
provided in said Indenture. Interest on the Securities shall be
computed on the basis of a 360-day year of twelve 30-day months.
Payment of the Principal of (and premium, if any) and
interest on this Security will be made at the office or agency of
the Company maintained for that purpose, in such coin or currency
of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however,
that at the option of the Company payment of interest may be made
by check mailed to the address of the person entitled thereto as
such address shall appear in the register for the Securities.
Reference is hereby made to the further provisions of
this Security set forth on pages B-4 to B-9 following the
signature page hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the pages following
the signature page hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
[Signature Page to Follow]
In Witness Whereof, the Company has caused this
instrument to be duly executed.
MIRAGE RESORTS, INCORPORATED
By..................................
Xxxxxxx X. Xxxx
Chairman of the Board, President
and Chief Executive Officer
By..................................
Xxxxxx X. Xxx
Senior Vice President - Finance
and Development, Chief Financial
Officer and Treasurer
Attest:
............................
Xxxxx X. Xxxxx
Secretary
B-2
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated: PNC BANK, NATIONAL
ASSOCIATION
As Trustee
By........................
_________________________
Authorized Signatory
This Security is one of a duly authorized series of
securities of the Company (herein called the "Securities"),
issued under an Indenture, dated as of February 4, 1998, as
amended by a Supplemental Indenture, dated as of February 4, 1998
(as so amended, the "Indenture"), each between the Company and
PNC Bank, National Association, as Trustee (herein called the
"Trustee," which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The
Securities are subject to, and qualified by, all of the terms of
the Indenture. This Security is one of the series designated on
the face hereof, limited in aggregate Principal Amount to
$200,000,000. The Securities are general obligations of the
Company.
The Securities are subject to redemption upon not less
than 30 days' nor more than 60 days' notice by first class mail,
in whole or in part, at the option of the Company at any time at
a redemption price equal to the greater of (i) 100% of the
Principal Amount of the Securities so redeemed or (ii) as
determined by a Quotation Agent, the sum of the present values of
the remaining scheduled payments of principal and interest
thereon discounted to the redemption date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at
the Adjusted Treasury Rate, plus, in each case, accrued interest
thereon to the redemption date.
"Adjusted Treasury Rate" means, with respect to any
redemption date, the rate per annum equal to the semiannual
equivalent yield to maturity of the Comparable Treasury Issue,
assuming a price for the Comparable Treasury Issue (expressed
B-3
as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date, plus 0.25%.
"Comparable Treasury Issue" means the United States
Treasury security selected by a Quotation Agent as having a
maturity comparable to the remaining term of the Security to be
redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to
the remaining term of such Security.
"Comparable Treasury Price" means, with respect to
any redemption date, (i) the average of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) on the third Business Day
preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by
the Federal Reserve Bank of New York and designated "Composite
3:30 p.m. Quotations for U.S. Government Securities" or (ii) if
such release (or any successor release) is not published or does
not contain such prices on such Business Day, (A) the average of
the Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (B) if the Company obtains fewer
than three such Reference Treasury Dealer Quotations, the average
of all such Quotations.
"Quotation Agent" means one of the Reference Treasury
Dealers appointed by the Company and certified to the Trustee by
the Company.
"Reference Treasury Dealer" means each of Credit Suisse
First Boston Corporation, BancAmerica Xxxxxxxxx Xxxxxxxx, Bear,
Xxxxxxx & Co. Inc., BT Alex. Xxxxx Incorporated, Xxxxxxxxx,
Lufkin & Xxxxxxxx Securities Corporation and X.X. Xxxxxx
Securities Inc. and their respective successors; provided,
however, that if any of the foregoing shall cease to be a primary
U.S. Government securities dealer in New York City (a "Primary
Treasury Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer and certify same to the Trustee; and any
other Primary Treasury Dealer selected by the Company and
certified to the Trustee by the Company.
"Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer and any redemption
date, the average, as determined by the Company and certified to
the Trustee by the Company, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Company by such
Treasury Reference Dealer at 5:00 p.m. on the third Business Day
preceding such redemption date.
B-4
In the event of redemption of this Security in part
only, a new Security or Securities of like tenor for the
unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
Notwithstanding any other provision of Article 3 of the
Indenture, if any Gaming Authority requires that a Holder or
beneficial owner of Securities of a Holder must be licensed,
qualified or found suitable under any Gaming Law, such Holder or
such beneficial owner shall apply for a license, qualification or
a finding of suitability, as the case may be, within the required
time period. If such person fails to apply or become licensed or
qualified or is not found suitable (in each case, a "failure of
compliance"), the Company shall have the right, at its option,
(i) to require such Holder or owner to dispose of such Holder's
or owner's Securities 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 within
such 30-day or earlier period requested or prescribed by such
Gaming Authority the Securities of such Holder or owner at a
redemption price equal to the lesser of (A) 100% of the
Principal Amount thereof or (B) the price at which such Holder or
owner acquired the Securities, together, in either case, with
accrued interest to the earlier of the redemption date or the
date of the failure of compliance, which may be less than 30 days
following the notice of redemption if so requested or prescribed
by such 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 owner may incur in connection with its application
for a license, qualification or finding of suitability.
If there is a Change in Control (the time of a Change
in Control being referred to as the "Change in Control Date"),
then the Company shall (a) commence, within five Business Days
following the Change in Control Date, an offer to repurchase
(the "Repurchase Offer") all of the outstanding Securities at a
repurchase price (the "Repurchase Price") in cash equal to 101%
of the Principal Amount of the Securities plus accrued interest,
if any, to the Repurchase Date (as defined below) and (b) deposit
with the Paying Agent an amount equal to the aggregate Repurchase
Price for all Securities then outstanding so as to be available
for payment to the Holders of Securities who elect to require the
Company to repurchase all or a portion of their Securities.
If the Repurchase Date is on or after an interest
payment record date and on or before the related interest payment
date, any accrued interest will be paid to the person in whose
name a Security is registered at the close of business on such
record date, and no additional interest will be payable to
Holders who tender Securities pursuant to the Repurchase Offer.
B-5
Notice of any Repurchase Offer shall be mailed by the
Company to the Trustee and the Holders of the Securities at their
last registered addresses. The Repurchase Offer shall remain
open from the time of mailing until 10 Business Days thereafter,
and no longer, unless a longer period is required by law or stock
exchange rule or unless a majority of the Continuing Directors of
the Company votes in favor of extending such period (the date on
which the Repurchase Offer closes being the "Repurchase Date").
The notice shall contain all instructions and materials necessary
to enable such Holders to tender Securities pursuant to the
Repurchase Offer. The notice, which shall govern the terms of
the Repurchase Offer, shall state:
(1) that the Repurchase Offer is being made pursuant to
Section 4.07 of the Indenture and that Securities will be accepted
for payment either (A) in whole or (B) in part in integral
multiples of $1,000;
(2) the Repurchase Price and the Repurchase Date;
(3) that any Security not tendered will continue to
accrue interest;
(4) that any Security accepted for payment pursuant to
the Repurchase Offer shall cease to accrue interest from and
after the Repurchase Date;
(5) that Holders electing to have a Security purchased
pursuant to the Repurchase Offer will be required to surrender
the Security, with the form entitled "Option to Elect Purchase"
on the Security completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the
Repurchase Date;
(6) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than three
Business Days before the Repurchase Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the
Holder, the Principal Amount of Securities the Holder delivered
for purchase and a statement that the Holder is withdrawing his
election to have such Securities purchased; and
(7) that Holders whose Securities are purchased only in
part will be issued new Securities equal in Principal Amount to
the unpurchased portion of the Securities surrendered.
On the Repurchase Date, the Company shall, to the
extent lawful, (i) accept for payment Securities or portions
thereof tendered pursuant to the Repurchase Offer; and (ii)
deliver to the Trustee the Securities so tendered, together with
an Officers' Certificate identifying the Securities or portions
thereof so accepted for payment by the Company. The Paying
B-6
Agent shall promptly mail or deliver to Holders of the Securities
so accepted payment in an amount equal to the Repurchase Price.
The Trustee shall promptly authenticate and mail or deliver to
each Holder who tendered a Security a new Security or Securities
equal in Principal Amount to any untendered portion of the
Security surrendered. The Paying Agent shall invest funds
deposited with it pursuant to Section 4.07 of the Indenture for
the benefit of, and at the written direction of, the Company to
the Repurchase Date.
"Board of Directors" or "Board" means the Board of
Directors or any authorized committee of the Board of Directors
of the Company, or a Consolidated Subsidiary thereof, as the
context may indicate.
"Capital Stock" of any person means any and all shares,
interests, participations or other equivalents (however
designated) of corporate stock and any and all forms of
partnership interests or other equity interests in a person,
including but not limited to any type of preference stock which
for other purposes may not be treated as equity.
"Change in Control" means (i) the time the Company
first determines that any person or group, within the meaning of
Section 14(d)(2) of the Exchange Act (other than any person who
was at the date of the Indenture an officer or director of the
Company or a group consisting of persons who were at the date of
the Indenture officers or directors of the Company) have acquired
direct or indirect beneficial ownership (within the meaning of
Rule 13d-3 under the Exchange Act) of 35% or more of the
outstanding voting Capital Stock of the Company, unless a
majority of the Continuing Directors approves the acquisition not
later than 10 business days after the Company makes the
determination, or (ii) the first day on which a majority of the
members of the Board of Directors of the Company are not
Continuing Directors.
"Consolidated Subsidiary" of any specific person means
any subsidiary, all of whose voting Capital Stock (other than the
minimum required number of directors' qualifying shares) are
owned by such person and/or by another Consolidated Subsidiary of
such person, and the accounts of which are, or under generally
accepted accounting principles are required to be, consolidated
with the accounts of such person.
"Continuing Directors" means, as of any date of
determination, any member of the Board of Directors of the
Company who (i) was a member of that Board of Directors on the
date of the Indenture, (ii) had been a member of that Board of
Directors for the two years immediately preceding such date of
determination or (iii) was nominated for election or elected
B-7
to that Board of Directors with the affirmative vote of the
greater of (x) a majority of Continuing Directors who were
members of that Board at the time of such nomination or election
or (y) at least three Continuing Directors.
The Indenture contains provisions for defeasance of
the entire Indebtedness of this Security or certain restrictive
covenants with respect to this Security, in each case upon
compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to the Securities
shall occur and be continuing, the Principal of the Securities
may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a
majority in Principal Amount of the Securities at the time
outstanding. The Indenture also contains provisions permitting
the Holders of specified percentages in Principal Amount of the
Securities at the time outstanding, on behalf of the Holders of
all such Securities, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the transfer hereof
or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
The right of any Holder (or such Holder's duly designated proxy)
to participate in any consent required or sought pursuant to any
provision of the Indenture (and the obligation of the Company to
obtain any such consent otherwise required from such Holder)
may be subject to the requirement that such Holder shall have
been the Holder of record of Securities as of a date set by the
Company and identified by the Trustee in a notice furnished to
Holders in accordance with the terms of the Indenture.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities, the Holders of not less than 25% in
Principal Amount of the Securities at the time outstanding shall
have made written request to the Trustee to institute proceedings
in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have
B-8
received from the Holders of a majority in Principal Amount of
the Securities at the time outstanding a direction inconsistent
with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and
offer of indemnity. The foregoing shall not apply to any suit
instituted by the Holder of this Security for the enforcement of
any payment of Principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the Principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registrable in the register for the Securities, upon surrender of
this Security for transfer at the office or agency of the Company
in any place where the Principal of and any premium and interest
on this Security are payable, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon
one or more new Securities of like tenor, of authorized
denominations and for the same aggregate Principal Amount, will
be issued to the designated transferee or transferees.
The Securities are issuable only in registered form
without coupons in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, the Securities are
exchangeable for a like aggregate Principal Amount of Securities
of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such transfer
or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable
in connection therewith.
Prior to due presentment of this Security for transfer,
the Company, the Trustee and any agent of the Company or the
Trustee may treat the person in whose name this Security is
registered as the owner hereof for all purposes, whether or not
this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
No past, present or future director, officer, employee,
stockholder or incorporator, as such, of the Company or any
successor corporation shall have any liability for any obligations
of the Company under the Securities or the Indenture or for any
B-9
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 for the issue of the Securities.
All terms used in this Security without definition which
are defined in the Indenture shall have the meanings assigned to
them in the Indenture.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEVADA.
Option to Elect Purchase
The undersigned registered Holder of this Security
hereby irrevocably exercises the option to require the Company to
repurchase this Security or portion thereof (which is $1,000 or
an integral multiple thereof) below designated on the Repurchase
Date and in accordance with the terms set forth in the notice of
Repurchase Offer distributed by the Company in accordance with
the terms of this Security, and directs that payment be made to
the registered Holder hereof unless a different name has been
indicated below. Any amount required to be paid by the
undersigned on account of interest accompanies this Security.
Dated: ________________
Signature(s) must be Holder's Signature:
guaranteed if payment is
to be made other than to
and in the name of the
registered Holder _____________________________
_____________________________ Portion of Security to be
Signature Guarantee repurchased (in integral
multiples of $1,000) if other
than the full Principal
Amount thereof:
Fill in for payment of Repurchase
Price if to be made otherwise _____________________________
than to the registered Holder
_________________________________
Name
_________________________________
Address
_________________________________
Please print name and address
(including zip code)
SOCIAL SECURITY OR TAXPAYER
IDENTIFICATION NUMBER
_________________________________
B-10
