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EXHIBIT 10.1
FITZGERALDS GAMING CORPORATION
as issuer
and the Guarantors referred to herein
$255,000,000
12 1/4% Senior Secured Notes due 2004
--------------------------------------------
INDENTURE
Dated as of December 30, 1997
--------------------------------------------
THE BANK OF NEW YORK,
Trustee
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CROSS-REFERENCE TABLE*Trust Indenture
Act 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).............................................................................7.8; 7.10
(c)...................................................................................N/A
311(a)....................................................................................7.11
(b)..................................................................................7.11
(c)...................................................................................N/A
312(a).....................................................................................2.5
(b)..................................................................................11.3
(c)..................................................................................11.3
313(a).....................................................................................7.6
(b)(1)................................................................................7.6
(b)(2)................................................................................7.6
(c)...................................................................................7.6
(d)...................................................................................7.6
314(a)................................................................................4.3; 4.4
(b)...................................................................................N/A
(c)(1)...............................................................................11.4
(c)(2)...............................................................................11.4
(c)(3)................................................................................N/A
(d)...................................................................................N/A
(e)..................................................................................11.5
(f)...................................................................................N/A
315(a).....................................................................................7.1
(b)...................................................................................7.5
(c)...................................................................................7.1
(d)...................................................................................7.1
(e)..................................................................................6.11
316(a)(last sentence)......................................................................2.9
(a)(1)(A).............................................................................6.5
(a)(1)(B).............................................................................6.4
(a)(2)................................................................................N/A
(b)...................................................................................9.2
(c)...................................................................................9.4
317(a)(1)..................................................................................6.8
(a)(2)................................................................................6.9
(b)...................................................................................2.4
318(a)....................................................................................11.1
(b)...................................................................................N/A
(c)..................................................................................11.1
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.1. Definitions ..........................................................1
Section 1.2. Other Definitions ...................................................22
Section 1.3. Incorporation by Reference of Trust Indenture Act ...................23
Section 1.4. Rules of Construction ...............................................24
ARTICLE 2
THE NOTES
Section 2.1. Form and Dating .....................................................24
Section 2.2. Execution and Authentication ........................................25
Section 2.3. Registrar, Paying Agent and Depository ..............................26
Section 2.4. Paying Agent to Hold Money in Trust .................................26
Section 2.5. Holder Lists ........................................................27
Section 2.6. Transfer and Exchange ...............................................27
Section 2.7. Replacement Notes ...................................................32
Section 2.8. Outstanding Notes ...................................................32
Section 2.9. Treasury Notes ......................................................33
Section 2.10. Temporary Notes ....................................................33
Section 2.11. Cancellation .......................................................34
Section 2.12. Defaulted Interest .................................................34
Section 2.13. Legends ............................................................34
ARTICLE 3
REDEMPTION
Section 3.1. Notices to Trustee ..................................................35
Section 3.2. Selection of Notes to Be Redeemed ...................................36
Section 3.3. Notice of Redemption ................................................36
Section 3.4. Effect of Notice of Redemption. .....................................37
Section 3.5. Deposit of Redemption Price. ........................................37
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Section 3.6. Notes Redeemed in Part. .............................................38
Section 3.7. Optional Redemption. ................................................38
Section 3.8. Redemption in Accordance with Gaming Laws ...........................39
ARTICLE 4
COVENANTS
Section 4.1. Payment of Notes. ...................................................39
Section 4.2. Maintenance of Office or Agency. ....................................40
Section 4.3. Reports .............................................................40
Section 4.4. Compliance Certificate ..............................................42
Section 4.5. Taxes ...............................................................43
Section 4.6. Stay, Extension and Usury Laws ......................................43
Section 4.7. Limitation on Restricted Payments ...................................43
Section 4.8. Limitation on Restrictions on Subsidiary Dividends ..................46
Section 4.9. Limitation on Incurrence of Indebtedness ............................48
Section 4.10. Limitation on Asset Sales ..........................................50
Section 4.11. Limitation on Transactions With Affiliates .........................53
Section 4.12. Limitation on Liens ................................................54
Section 4.13. Corporate Existence ................................................54
Section 4.14. Repurchase Upon a Change of Control ................................55
Section 4.15. Maintenance of Properties ..........................................57
Section 4.16. Maintenance of Insurance ...........................................57
Section 4.17. Restrictions on Sale and Issuance of Subsidiary Stock ..............58
Section 4.18. Line of Business ...................................................58
ARTICLE 5
SUCCESSORS
Section 5.1. When the Company May Merge, etc. ....................................58
Section 5.2. Successor Substituted ...............................................60
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ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.1. Events of Default ...................................................60
Section 6.2. Acceleration ........................................................63
Section 6.3. Other Remedies ......................................................63
Section 6.4. Waiver of Past Defaults .............................................64
Section 6.5. Control by Majority .................................................64
Section 6.6. Limitation on Suits .................................................64
Section 6.7. Rights of Holders to Receive Payment ................................65
Section 6.8. Collection Suit by Trustee ..........................................65
Section 6.9. Trustee May File Proofs of Claim ....................................66
Section 6.10. Priorities ..........................................................66
Section 6.11. Undertaking for Costs ...............................................67
ARTICLE 7
TRUSTEE
Section 7.1. Duties of Trustee ...................................................67
Section 7.2. Rights of Trustee ...................................................69
Section 7.3. Individual Rights of Trustee ........................................70
Section 7.4. Trustee's Disclaimer ................................................70
Section 7.5. Notice of Defaults ..................................................70
Section 7.6. Reports by Trustee to Holders .......................................71
Section 7.7. Compensation and Indemnity ..........................................71
Section 7.8. Replacement of Trustee ..............................................72
Section 7.9. Successor Trustee by Merger, etc. ...................................74
Section 7.10. Eligibility; Disqualification .......................................74
Section 7.11. Preferential Collection of Claims Against Company ...................74
ARTICLE 8
DISCHARGE; LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1. Discharge; Option to Effect Legal Defeasance or
Covenant Defeasance................................................75
Section 8.2. Legal Defeasance and Discharge.......................................75
Section 8.3. Covenant Defeasance..................................................76
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Section 8.4. Conditions to Legal or Covenant Defeasance................................76
Section 8.5. Deposited Cash and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions.........................78
Section 8.6. Repayment to the Company...................................................78
Section 8.7. Reinstatement..............................................................79
ARTICLE 9
AMENDMENTS
Section 9.1. Without Consent of Holders................................................80
Section 9.2. With Consent of Holders...................................................81
Section 9.3. Compliance with Trust Indenture Act.......................................82
Section 9.4. Revocation and Effect of Consents.........................................82
Section 9.5. Notation on or Exchange of Notes..........................................83
Section 9.6. Trustee to Sign Amendments, etc...........................................83
ARTICLE 10
COLLATERAL AND SECURITY AND GUARANTY
Section 10.1. Collateral Documents.....................................................84
Section 10.2. Opinions.................................................................85
Section 10.3. Release of Collateral....................................................85
Section 10.4. Certificates of the Company..............................................86
Section 10.5. Authorization of Actions to be Taken by the Trustee
Under the Security Documents........................................86
Section 10.6. Authorization of Receipt of Funds by the Trustee
Under the Security Documents........................................87
Section 10.7. Guaranty.................................................................87
Section 10.8. Execution and Delivery of Guaranty.......................................89
Section 10.9. Limitation on Guarantor's Liability......................................89
Section 10.10. Rights under the Guaranty...............................................90
Section 10.11. Primary Obligations.....................................................90
Section 10.12. Guarantee by Subsidiary.................................................91
Section 10.13. Release of Guarantors...................................................91
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ARTICLE 11
MISCELLANEOUS
Section 11.1. Trust Indenture Act Controls.............................................92
Section 11.2. Notices..................................................................92
Section 11.3. Communication by Holders with Other Holders..............................93
Section 11.4. Certificate and Opinion as to Conditions Precedent.......................93
Section 11.5. Statements Required in Certificate or Opinion............................94
Section 11.6. Rules by Trustee and Agents..............................................94
Section 11.7. Legal Holidays...........................................................95
Section 11.8. No Recourse Against Others...............................................95
Section 11.9. Governing Law............................................................95
Section 11.10. No Adverse Interpretation of Other Agreements...........................96
Section 11.11. Successors..............................................................96
Section 11.12. Severability............................................................96
Section 11.13. Counterpart Originals...................................................96
Section 11.14. Table of Contents, Headings, etc........................................97
EXHIBIT A FORM OF SECURITY.....................................................A-1
EXHIBIT B CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER OF NOTES....................................B-1
EXHIBIT C FORM OF GUARANTY.....................................................C-1
EXHIBIT D FORM OF INTERCREDITOR AGREEMENT......................................D-1
EXHIBIT E FORM OF SHIP MORTGAGE................................................E-1
Schedule I Existing Liens....................................................Sch -1
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INDENTURE, dated as of December 30, 1997, among Fitzgeralds
Gaming Corporation, a Nevada corporation (the "Company"), the Guarantors (as
defined) named herein and The Bank of New York, a New York banking corporation,
as trustee (the "Trustee").
The Company and the Trustee agree as follows for the benefit of
each other and for the equal and ratable benefit of the Holders (as defined) of
the Company's 12 1/4% Senior Secured Notes due 2004.
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.1. Definitions.
"Acquired Debt" means Indebtedness of a Person existing at the
time such Person is merged with or into the Company or a Restricted Subsidiary
or becomes a Restricted Subsidiary, other than Indebtedness incurred in
connection with, or in contemplation of, such Person merging with or into the
Company or a Restricted Subsidiary or becoming a Restricted Subsidiary.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean (i) the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise,
or (ii) beneficial ownership of 10% or more of the voting securities of such
Person. Notwithstanding the foregoing, neither of the Initial Purchasers nor any
of their respective Affiliates will be deemed to be Affiliates of the Company.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Asset Sale" means any (i) transfer (as hereinafter defined),
other than in the ordinary course of business, of any assets of the Company or
any Restricted Subsidiary or (ii) direct or indirect issuance or sale of any
Capital Stock
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of any Restricted Subsidiary (other than directors' qualifying shares), in each
case to any Person (other than the Company or a Restricted Subsidiary). For
purposes of this definition, (a) any series of transfers that are part of a
common plan shall be deemed a single Asset Sale and (b) the term "Asset Sale"
shall not include (1) any series of transfers that have a fair market value (or
result in gross proceeds) of less than $1 million, until the aggregate fair
market value and gross proceeds of the transfers excluded from the definition of
Asset Sale pursuant to this clause (b)(1) exceed $5 million, (2) any transfer by
the Company of the Tunica Road to the County of Tunica, Mississippi, or any
agency thereof, (3) any transfer of slot machines or other gaming equipment in
connection with the acquisition of similar gaming equipment in the ordinary
course of business, or (4) any disposition of all or substantially all of the
assets of the Company that is governed under and complies with Article V of this
Indenture.
"Bankruptcy Law" means title 11, U.S. Code, or any similar
Federal, state or foreign law for the relief of debtors.
"Board of Directors" means the board of directors or any duly
constituted committee thereof of any corporation or of a corporate general
partner of a partnership and any similar body empowered to direct the affairs of
any other entity.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP, and the amount of such
obligations at any date shall be the capitalized amount of such obligations at
such date, determined in accordance with GAAP.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock, and (ii) with respect to
any other Person, any and all partnership or other equity interests of such
Person.
"Cash Equivalent" means (i) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof), (ii) time deposits and
certificates of deposit and
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commercial paper issued by the parent corporation of any domestic commercial
bank of recognized standing having capital and surplus in excess of $500,000,000
and commercial paper issued by others rated at least A-2 or the equivalent
thereof by Standard & Poor's Corporation or at least P-2 or the equivalent
thereof by Xxxxx'x Investors Service, Inc. and in each case maturing within one
year after the date of acquisition, (iii) investments in money market funds
substantially all of whose assets comprise securities of the types described in
clauses (i) and (ii) above, and (iv) repurchase obligations with a term of not
more than seven days for underlying securities of the types described in clauses
(i) and (ii) above entered into with any financial institution meeting the
financial qualifications specified in clause (ii) above.
"Casino" means a gaming establishment owned, directly or
indirectly, by the Company or one of its Restricted Subsidiaries and any hotel,
building, restaurant, theater, amusement park or other entertainment facility,
parking facilities, retail shops, land, equipment and other property or asset
directly ancillary thereto and used or to be used in connection therewith.
"Casino Square Footage" means, with respect to any Casino, the
floor space of such Casino that is available and used for the generation of
gaming revenues and on which there is conducted (in a manner than is customary
for comparable gaming facilities) table games, slot machines or other gaming
operations, as applicable, but excluding bingo operations.
"Change of Control" means:
(i) the transfer (in one transaction or a series of transactions)
of all or substantially all of the Company's assets (other than by way of merger
or consolidation) to any "person" or "group" (as such terms are used for
purposes of Section 13(d) and 14(d) of the Exchange Act, whether or not
applicable) other than the Existing Equity Holder or his Related Parties;
(ii)the liquidation or dissolution of the Company or the adoption
of a plan by the stockholders of the Company relating to the liquidation or
dissolution of the Company;
(iii) the time that the Company first determines or reasonably
should have known that (A) any "person" or "group" (as such terms are used for
purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not
applicable) is or
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becomes the "beneficial owner" (as such term is used in Rules 13d-3 and 13d-5
under the Exchange Act, whether or not applicable, except that a "person" shall
be deemed to have "beneficial ownership" of all shares that any such person has
the right to acquire, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly (including as a result of a
merger or consolidation), of more than 35% of the total voting power in the
aggregate of all classes of Voting Stock of the Company then outstanding, but
excluding from the percentage of voting power held by any group the voting power
of shares owned by the Existing Equity Holder and his Related Parties who are
deemed to be members of the group, provided that the Existing Equity Holder and
his Related Parties beneficially own a majority of the total voting power of
Voting Stock of the Company held by such group, and (B) the Existing Equity
Holder and his Related Parties together fail to beneficially own, directly or
indirectly, at least the same percentage of the combined voting power of such
Voting Stock as the percentage "beneficially owned" by such person or group;
(iv)the failure of the Company and its Restricted Subsidiaries to
own 80% of the total voting power in the aggregate of all classes of Voting
Stock of any Restricted Subsidiary (other than FAMI or FNYI) then outstanding;
(v) during any period of 12 consecutive months after the Issue
Date, individuals who at the beginning of such period constituted the Board of
Directors of the Company (together with any new directors whose election by such
Board or whose nomination for election by the stockholders of the Company was
approved by a vote of a majority for the directors then still in office who were
either directors at the beginning of such period or whose election or nomination
for election was previously so approved or who were elected by the vote of one
or more of the Existing Equity Holder or his Related Parties) cease for any
reason to constitute a majority of the Board of Directors of the Company then in
office; or
(vi)if the Preferred Stock is then outstanding, a "Change of
Control," as defined in the Certificate of Designation of Preferences and Rights
of Cumulative Redeemable Preferred Stock of the Company filed with the Office of
the Secretary of State of the State of Nevada on December 18, 1995.
"Xxxxx Xxxxxx Casino" means the Xxxxx Xxxxxx Casino in Camp
Verde, Arizona, managed by FAMI.
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"Collateral" means any assets of the Company or any of its
Subsidiaries defined as "Collateral" in any of the Security Documents and assets
from time to time on which a Lien exists as security for any of the Obligations.
"Collateral Agent" shall have the meaning set forth in the
respective Security Documents.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Exchange Act, the Securities
Act or the TIA, as the case may be, then the body performing such duties at such
time.
"Company" means the party named as such above, until a successor
replaces such Person in accordance with the terms of this Indenture, and
thereafter means such successor.
"Company Order" means a written request or order signed in the
name of the Company by its Chairman of the Board, President, Chief Executive
Officer or Senior or Executive Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary and delivered to
the Trustee.
"Consolidated EBITDA" means, with respect to any Person (the
referent Person) for any period, consolidated income (loss) from operations of
such Person and its subsidiaries for such period, determined in accordance with
GAAP, plus (to the extent such amounts are deducted in calculating such income
(loss) from operations of such Person for such period, and without duplication)
amortization, depreciation and other non-cash charges (including, without
limitation, amortization of goodwill, deferred financing fees and other
intangibles but excluding (a) non-cash charges incurred after the date of this
Indenture that require an accrual of or a reserve for cash charges for any
future period, and (b) normally recurring accruals such as reserves against
accounts receivable); provided, that (i) the income from operations of any
Person (including, without limitation, any Unrestricted Subsidiary) that is not
a Wholly Owned Subsidiary or that is accounted for by the equity method of
accounting will be included only to the extent of the amount of dividends or
distributions paid during such period to the referent Person or a Wholly Owned
Subsidiary of the referent Person, (ii) the income from operations of any Person
acquired in a pooling of interests transaction for any period prior to the date
of such acquisition will be excluded, and (iii) the income
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from operations of any Restricted Subsidiary will not be included to the extent
that declarations of dividends or similar distributions by that Restricted
Subsidiary are not at the time permitted, directly or indirectly, by operation
of the terms of its organization documents or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to
that Restricted Subsidiary or its owners.
"Consolidated Interest Expense" means, with respect to any Person
for any period, the consolidated interest expense of such Person and its
subsidiaries for such period, whether paid or accrued (including amortization of
original issue discount, noncash interest payment, and the interest component of
Capital Lease Obligations), to the extent such expense was deducted in computing
Consolidated Net Income of such Person for such period.
"Consolidated Net Income" means, with respect to any Person (the
referent Person) for any period, the aggregate of the Net Income of such Person
and its subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP; provided, that (i) the Net Income of any Person
(including, without limitation, any Unrestricted Subsidiary) that is not a
Wholly Owned Subsidiary or that is accounted for by the equity method of
accounting will be included in calculating the referent Person's Consolidated
Net Income only to the extent of the amount of dividends or distributions paid
during such period to the referent Person or a Wholly Owned Subsidiary of the
referent Person, (ii) the Net Income of any Person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition will
be excluded, and (iii) the Net Income of any Restricted Subsidiary will be
excluded to the extent that declarations of dividends or similar distributions
by that Restricted Subsidiary of such Net Income are not at the time permitted,
directly or indirectly, by operation of the terms of its organization documents
or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Restricted Subsidiary or its owners.
"Consolidated Net Worth" means, with respect to any Person, the
total stockholders' equity of such Person determined on a consolidated basis in
accordance with GAAP, adjusted to exclude (to the extent included in calculating
such equity), (i) the amount of any such stockholders' equity attributable to
Disqualified Capital Stock or treasury stock of such Person, and (ii) all upward
revaluations and other write-ups in the book value of any asset of such Person
or a consolidated subsidiary of such Person subsequent to the Issue Date, and
(iii) all
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Investments in subsidiaries of such Person that are not consolidated
subsidiaries and in Persons that are not subsidiaries of such Person.
"Corporate Trust Office" shall be at the address of the Trustee
specified in Section 11.2 or such other address as the Trustee may specify by
notice to the Company.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Default" means any event that is, or after notice or the passage
of time or both would be, an Event of Default.
"Definitive Notes" means Notes that are in the form of the Notes
attached hereto as Exhibit A, that do not include the information called for by
footnotes 1 and 3 thereof.
"Depository" means the Person specified in Section 2.3 hereof as
the Depository with respect to the Notes issuable in global form, until a
successor shall have been appointed and become such pursuant to the applicable
provision of this Indenture, and, thereafter, "Depository" shall mean or include
such successor.
"Disqualified Stock" means any Equity Interest that (i) either by
its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable) is or upon the happening of an event (other than
pursuant to gaming law requirements) would be required to be redeemed or
repurchased prior to the final stated maturity of the Notes or is redeemable at
the option of the holder thereof at any time prior to such final stated maturity
or (ii) is convertible into or exchangeable at the option of the issuer thereof
or any other Person for debt securities.
"DTC" means The Depository Trust Company.
"Eligible Credit Facility" means a credit facility (and any
related notes, guarantees, collateral documents, instruments and agreements
executed in connection therewith) that (i) has terms and collections (including
with respect to applicable interest rates and fees) customary for similar
facilities extended to borrowers comparable to the Company, (ii) does not permit
the Company to incur Indebtedness under all Eligible Credit Facilities in the
aggregate at any time
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outstanding in excess of $15 million in principal amount, up to $10 million of
which may be used for working capital purposes and up to $5 million of which may
be used solely to finance capital expenditures at Fitzgeralds Black Hawk, and
(iii) may be secured by certain assets of the Company and its Subsidiaries,
subject to the terms and conditions of the Intercreditor Agreement.
"Equity Interests" means Capital Stock or warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" means the offer that may be made by the Company
pursuant to the Registration Rights Agreement to exchange Series B Notes for
Series A Notes.
"Existing Equity Holder" means Xxxxxx X. Xxxxxxxx.
"FAMI" means Fitzgeralds Arizona Management, Inc., a Nevada
corporation.
"FI" means Fitzgeralds, Inc., a Nevada corporation.
"Fitzgeralds Black Hawk" means Fitzgeralds Casino located in
Black Hawk, Colorado.
"Fitzgeralds Las Vegas" means Fitzgeralds Casino Hotel located in
downtown Las Vegas, Nevada.
"Fitzgeralds Reno" means Fitzgeralds Casino Hotel located in
Reno, Nevada.
"Fitzgeralds Tunica" means Fitzgeralds Casino Hotel located in
Tunica, Mississippi.
"FLVI" means Fitzgeralds Las Vegas, Inc., a Nevada corporation.
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"FNYI" means Fitzgeralds New York, Inc., a New York corporation.
"FRI" means Fitzgeralds Reno, Inc., a Nevada corporation.
"FSI" means Fitzgeralds South, Inc., a Nevada corporation.
"gaap" means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession, and in the rules and regulations of the Commission.
"GAAP" means gaap as in effect on the date of this Indenture.
"Gaming Authority" means any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature whatsoever of
the United States of America or foreign government, any state, province or any
city or other political subdivision, whether now or hereafter existing, or any
officer or official thereof, including without limitation, the Nevada Gaming
Commission, the Nevada State Gaming Control Board, the Colorado Limited Gaming
Control Commission, the Mississippi Gaming Commission and any other agency with
authority to regulate any gaming operation (or proposed gaming operation) owned,
managed or operated by the Company or any of its Subsidiaries.
"Gaming License" means every material license, franchise or other
approval or authorization on the date of the Indenture or thereafter required to
own, lease, operate or otherwise conduct gaming in any jurisdiction in which the
Company or any of its Subsidiaries conducts or proposes in good faith to conduct
gaming business, including any applicable liquor licenses.
"Global Note" means any Note that contains the paragraph referred
to in footnote 1 and the additional schedule referred to in footnote 3 in the
form of the Note attached hereto as Exhibit A.
"Guarantee" means any guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and xxxx-
9
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bursement agreements in respect thereof), of all or any part of any Indebtedness
or other obligation. "Guarantee," when used as a verb, has a correlative
meaning.
"Guarantor" means any Restricted Subsidiary that has executed and
delivered in accordance with this Indenture an unconditional and irrevocable
Guarantee of the Company's obligations under the Notes on a senior secured basis
and such Person's successors and assigns.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" of any Person means (without duplication) (1) all
liabilities and obligations, contingent or otherwise, of such Person (i) in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such Person or only to a portion thereof), (ii) evidenced
by bonds, debentures, notes or other similar instruments, (iii) representing the
deferred purchase price of property or services (other than liabilities incurred
in the ordinary course of business which are not more than 90 days past due),
(iv) created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (v) as lessee
under capitalized leases, (vi) under bankers' acceptance and letter of credit
facilities, (vii) to purchase, redeem, retire, defease or otherwise acquire for
value any Disqualified Stock, or (viii) in respect of Hedging Obligations, (2)
all Indebtedness of others that is Guaranteed by such Person, and (3) all
Indebtedness of others that is secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on property (including, without limitation, accounts and contract
rights) owned by such Person; provided, that the amount of such Indebtedness
shall (to the extent such Person has not assumed or become liable for the
payment of such Indebtedness in full) be the lesser of (x) the fair market value
of such property at the time of determination and (y) the amount of such
Indebtedness. The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and the
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maximum liability, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations at such date.
"Indenture" means this Indenture as amended or supplemented from
time to time.
"Initial Purchasers" means Xxxxxxxxx & Company, Inc. and Xxxxxxx
Xxxxx, Xxxxxx Xxxxxx & Xxxxx Incorporated.
"Intercreditor Agreement" means that certain Intercreditor
Agreement among the Trustee and one or more Lenders, substantially in the form
attached hereto as Exhibit D, which may be entered into after the Issue Date, as
amended or supplemented from time to time.
"Interest Coverage Ratio" means, for any period, the ratio of (i)
Consolidated EBITDA of the Company for such period, over (ii) Consolidated
Interest Expense of the Company for such period. In calculating the Interest
Coverage Ratio for any period, pro forma effect shall be given to: (a) the
incurrence, assumption, guarantee, repayment, repurchase, redemption or
retirement by the Company or any of its Subsidiaries of any Indebtedness
subsequent to the commencement of the period for which the Interest Coverage
Ratio is being calculated but on or prior to the date on which the event for
which the calculation is being made, as if the same had occurred at the
beginning of the applicable period; and (b) the occurrence of any Asset Sale
during such period by reducing Consolidated EBITDA for such period by an amount
equal to the Consolidated EBITDA (if positive) directly attributable to the
assets sold and by reducing Consolidated Interest Expense by an amount equal to
the Consolidated Interest Expense directly attributable to any Indebtedness
assumed by third parties or repaid with the proceeds of such Asset Sale, in each
case as if the same had occurred at the beginning of the applicable period. For
purposes of making the computation referred to above, acquisitions that have
been made by the Company or any of its Restricted Subsidiaries, including all
mergers and consolidations, subsequent to the commencement of such period but on
or prior to the date on which the event for which the calculation is being made
shall be calculated on a pro forma basis, assuming that all such acquisitions,
mergers and consolidations had occurred on the first day of such period. Without
limiting the foregoing, the financial information of the Company with respect to
any portion of such four fiscal quarters that falls before the Issue Date shall
be adjusted to give pro forma
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effect to the issuance of the Notes and the application of the proceeds
therefrom as if they had occurred at the beginning of such four fiscal quarters.
"Investments" means, with respect to any Person, all investments
by such Person in other Persons (including Affiliates) in the forms of loans,
Guarantees, advances or capital contributions (excluding (i) commission, travel
and similar advances to officers and employees of such Person made in the
ordinary course of business and (ii) bona fide accounts receivable arising from
the sale of goods or services in the ordinary course of business consistent with
past practice), purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities, and any other items that are
or would be classified as investments on a balance sheet prepared in accordance
with GAAP.
"Issue Date" means the date upon which the Series A Notes are
first issued.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed.
"Lender" means a Person that is not an Affiliate of the Company
and is a lender under an Eligible Credit Facility or under an instrument
governing the Permitted Tunica Debt.
"Lien" means any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or other
agreement to sell or give a security interest in and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction).
"Liquidated Damages" has the meaning set out in the Registration
Rights Agreement.
"NCI" means Nevada Club Inc., a Nevada corporation.
"Net Income" means, with respect to any Person for any period,
the net income (loss) of such Person for such period, determined in accordance
with GAAP, excluding (i) any gain or loss, together with any related provision
for taxes
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on such gain or loss, realized in connection with any Asset Sales and
dispositions pursuant to sale and leaseback transactions, and (ii) any
extraordinary gain or loss, together with any related provision for taxes on
such gain or loss.
"Net Proceeds" means the aggregate proceeds received in the form
of cash or Cash Equivalents in respect of any Asset Sale (including payments in
respect of deferred payment obligations when received), net of (i) the
reasonable and customary direct out-of-pocket costs relating to such Asset Sale
(including, without limitation, legal, accounting and investment banking fees
and sales commissions), other than any such costs payable to an Affiliate of the
Company, (ii) taxes actually payable directly as a result of such Asset Sale
(after taking into account any available tax credits or deductions (to the
extent reasonably allocable thereto) and any tax sharing arrangements), (iii)
amounts required to be applied to the permanent repayment of Indebtedness in
connection with such Asset Sale, and (iv) appropriate amounts provided as a
reserve by the Company or any Restricted Subsidiary, in accordance with GAAP,
against any liabilities associated with such Asset Sale and retained by the
Company or such Restricted Subsidiary, as the case may be, after such Asset
Sale, including, without limitation, as applicable, pension and other
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations arising from such
Asset Sale.
"Non-Recourse Indebtedness" means Indebtedness of a Restricted
Subsidiary as to which none of the Company or any of its Restricted
Subsidiaries, other than the Restricted Subsidiary that is the obligor of such
Indebtedness, provides any credit support or is directly or indirectly liable
for the payment of principal or interest thereof and a default with respect to
which would not entitle any party to cause any other Indebtedness of the Company
or any other Restricted Subsidiary to be accelerated.
"Notes" means, collectively, the Series A Notes and the Series B
Notes.
"Obligations" means any principal, interest, premiums, penalties,
fees, indemnifications, reimbursements, damages and other obligations and
liabilities of the Company or any of the Restricted Subsidiaries under this
Indenture, the Security Documents, the Notes or the Guarantees of the Notes.
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"Officers" means the Chairman of the Board, the President, the
Chief Financial Officer, Chief Operating Officer, the Treasurer, any Assistant
Treasurer, Controller, Secretary, any Assistant Secretary or Senior Vice
President of the Company.
"Officers' Certificate" means a certificate signed on behalf of
the Company by two Officers of the Company, one of whom must be the Chairman of
the Board, President, Chief Executive Officer, Chief Financial Officer,
Treasurer, Controller or a Senior or Executive Vice President of the Company.
"Oneida Settlement Agreement" means the settlement agreement
between FNYI and the Oneida Indian Nation of New York and the related note
payable to FNYI.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee. Such counsel may be an employee of or
counsel to the Company, any Subsidiary of the Company or the Trustee.
"Other Expenses" means cash disbursements to, or cash payments on
behalf of, unconsolidated Affiliates of the Company to the extent such amounts
do not reduce Consolidated EBITDA of the Company during the period made.
"Permitted Investments" means (i) Investments in the Company or
in any Guarantor (including without limitation, Guarantees of Indebtedness of
any such Person), (ii) Investments in Cash Equivalents, (iii) Investments in a
Person, if as a result of such Investment (a) such Person becomes a Guarantor,
or (b) such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is liquidated into,
the Company or a Guarantor, (iv) Hedging Obligations, (v) Investments as a
result of consideration received in connection with an Asset Sale made in
compliance with Section 4.10 of this Indenture, (vi) Investments existing on the
date of this Indenture, (vii) credit extensions to gaming customers in the
ordinary course of business consistent with industry practices and (viii)
Investments paid for solely with Capital Stock (other than Disqualified Stock)
of the Company.
"Permitted Liens" means:
(i) Liens arising by reason of any judgment, decree or order of
any court for an amount and for a period not resulting in an Event of Default
with
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respect thereto, so long as such Lien is being contested in good faith and is
adequately bonded, and any appropriate legal proceedings that may have been duly
initiated for the review of such judgment, decree or order shall not have been
finally adversely terminated or the period within which such proceedings may be
initiated shall not have expired;
(ii) security for the performance of bids, tenders, trade,
contracts (other than contracts for the payment of money) or leases, surety
bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business, consistent with industry practice;
(iii) Liens (other than Liens arising under ERISA) for taxes,
assessments or other governmental charges not yet due or that are being
contested in good faith and by appropriate proceedings if adequate reserves with
respect thereto are maintained on the books of the Company in accordance with
gaap;
(iv) Liens of carriers, warehousemen, mechanics, landlords,
material men, repairmen or other like Liens arising by operation of law in the
ordinary course of business consistent with industry practices (other than Liens
arising under ERISA) and Liens on deposits made to obtain the release of such
Liens if (a) the underlying obligations are not overdue for a period of more
than 30 days or (b) such Liens are being contested in good faith and by
appropriate proceedings and adequate reserves with respect thereto are
maintained on the books of the Company in accordance with gaap;
(v) easements, rights of way, zoning and similar restrictions and
other similar encumbrances or title defects incurred in the ordinary course of
business, consistent with industry practices that, in the aggregate, are not
substantial in amount, and that do not in any case materially detract from the
value of the property subject thereto (as such property is used by the Company
or a Subsidiary) or interfere with the ordinary conduct of the business of the
Company or any of its Subsidiaries; provided, that such Liens are not incurred
in connection with any borrowing of money or any commitment to loan any money or
to extend any credit;
(vi) pledges or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other types
of social security legislation;
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(vii) Liens securing Refinancing Indebtedness incurred in
compliance with the Indenture to refinance Indebtedness secured by Liens,
provided, (a) such Liens do not extend to any additional property or assets; (b)
if the Liens securing the Indebtedness being refinanced were subordinated to or
pari passu with the Liens securing the Notes, the Guaranty or any intercompany
loan, as applicable, such new Liens are subordinated to or pari passu with such
Liens to the same extent, and any related subordination or intercreditor
agreement is confirmed; and (c) such Liens are no more adverse to the interests
of holders of the Notes than the Liens replaced or extended thereby;
(viii) Liens that secure Acquired Debt, provided, that such Liens
do not extend to or cover any property or assets other than those of the Person
being acquired and were not put in place in anticipation of such acquisition;
(ix) Liens that secure Purchase Money Obligations or Capital
Lease Obligations permitted to be incurred under the Indenture, provided that
such Liens do not extend to or cover any property or assets other than those
being acquired;
(x) Liens under the Security Documents;
(xi) Liens in favor of the Company or any Guarantor, which are
assigned to the Trustee as Collateral for the Notes or a Guaranty, as
applicable;
(xii) Liens of the Company or its Restricted Subsidiaries in
existence on the Issue Date, and set forth in Schedule I hereto;
(xiii) with respect to any vessel included in the Collateral,
maritime liens for crew's wages, general average, salvage and damages arising
out of maritime torts permitted to exist pursuant to the related Ship Mortgage;
(xiv) Liens that secure Indebtedness incurred pursuant to Section
4.9(b)(i) hereof, which Liens shall not attach to any assets other than the
assets financed thereby;
(xv) Liens on assets of the Company and its Subsidiaries securing
Permitted Tunica Debt; provided, that (a) the Indebtedness under outstanding
Notes are equally and ratably secured by such assets and (b) the Lender
thereunder and the Trustee enter into the Intercreditor Agreement; and
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(xvi) Liens securing Indebtedness of the Company under an
Eligible Credit Facility; provided that the Lender thereunder and the Trustee
enter into the Intercreditor Agreement.
"Permitted Tunica Debt" means Indebtedness incurred solely to
finance construction of a hotel at Fitzgeralds Tunica to be owned by the Company
or any Guarantor in an aggregate principal amount not to exceed the lesser of
(i) $30 million and (ii) 80% of the total actual out-of-pocket cost of such
construction (including the cost of all permits, approvals, assessments, fees
and other expenses); provided, that immediately after giving effect to the
incurrence of such Indebtedness, on a pro forma basis as if such transaction had
occurred at the beginning of the applicable four-quarter period, the Company
would be permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Interest Coverage Ratio test set forth in Section 4.9(a) hereof.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof, or any other entity.
"Preferred Stock" means the 800,000 shares of Cumulative
Redeemable Preferred Stock, par value $0.01 per share, of Fitzgeralds Gaming
Corporation, issued in December 1995.
"Public Equity Offering" means a bona fide underwritten public
offering of Qualified Capital Stock of the Company, pursuant to a registration
statement filed with and declared effective by the Commission in accordance with
the Securities Act.
"Purchase Money Obligations" means Indebtedness representing, or
incurred to finance, the cost (i) of acquiring any assets and (ii) of
construction or build-out of facilities (including Purchase Money Obligations of
any other Person at the time such other Person is merged with or into or is
otherwise acquired by the Company), provided, that (a) the principal amount of
such Indebtedness does not exceed 80% of such cost, including construction
charges, (b) any Lien securing such Indebtedness does not extend to or cover any
other asset or property other than the asset or property being so acquired and
(c) such Indebtedness is incurred, and any Liens with respect thereto are
granted, within 180 days of the acquisition of such property or asset.
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"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Qualified Capital Stock" means, with respect to any Person,
Capital Stock of such Person other than Disqualified Capital Stock.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the Issue Date, by and among the Company, the Guarantors
and the Initial Purchaser as such agreement may be amended, modified or
supplemented from time to time.
"Related Business" means gaming operations and the development of
games and marketing activities relating thereto conducted or proposed in good
faith to be conducted by the Company or any Subsidiary and any and all
materially related businesses conducted or proposed in good faith to be
conducted by the Company or any Subsidiary in support of and ancillary to the
foregoing.
"Related Party" means (i) any spouse or immediate family member
of the Existing Equity Holder, (ii) any trust set up for the benefit of the
Existing Equity Holder or any of the Persons specified in clause (i), or (iii)
in the case of the death of the Existing Equity Holder, his estate.
"Responsible Officer" when used with respect to the Trustee,
means any officer within the corporate trust department of the Trustee located
at the Corporate Trust Office (or any successor group of the Trustee) or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the designated officers, and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Investment" means any Investment other than a
Permitted Investment.
"Restricted Securities" means Notes that bear or are required to
bear the legends set forth in Exhibit A hereto.
"Restricted Subsidiary" means a Subsidiary other than an
Unrestricted Subsidiary.
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"Rule 144A" means Rule 144A under the Securities Act, as such
Rule may be amended from time to time, or under any similar rule or regulation
hereafter adopted by the Commission.
"Settlement Debt" means Indebtedness of FRI in an aggregate
amount not to exceed $2 million issued in consideration for, and concurrently
with, a dismissal with prejudice of all claims against FRI arising out of FRI's
purchase and subsequent sale of Harolds Club.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreement" means the Security and Pledge Agreement,
dated as of the date hereof, by and among the Company and certain of the
Subsidiaries, on the one hand, and the Collateral Agent on the other, as amended
or supplemented from time to time.
"Security Documents" means, collectively, the Security Agreement,
the Intercreditor Agreement, any deeds of trust or mortgages, including any
vessel mortgages, and any other document, instrument or agreement executed or
delivered by the Company or any of its Subsidiaries from time to time pursuant
to which the Company or any such Subsidiary shall xxxxx x Xxxx on any of their
respective properties, assets or revenues to secure payment of the Obligations
hereunder and under the Notes or relating to intercreditor matters.
"Series A Notes" means the Company's 12 1/4% Series A Senior
Notes due 2004, as authenticated and issued under this Indenture.
"Series B Notes" means the Company's 12 1/4% Series B Senior
Notes due 2004, as authenticated and issued under this Indenture.
"Ship Mortgage" means a preferred ship mortgage by the Company or
any Restricted Subsidiary granting a Lien on any vessel and related personal
property for the benefit of the Collateral Agent or the Collateral Agent and the
Company or the Restricted Subsidiary, as applicable, as from time to time
amended. Such ship mortgage shall be substantially in the form of Exhibit E,
except that such form shall be modified in a manner acceptable to the Collateral
Agent as required under applicable law to grant a valid Lien on such vessel of
the priority required hereby.
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"Significant Casino" means any Casino that has a Casino Square
Footage of at least 9,000 square feet.
"Significant Restricted Subsidiary" means any Restricted
Subsidiary (i) that, at any time, has (A) assets with a book or fair market
value of $1,000,000 or more or (B) net income, for the last four full fiscal
quarters for which internal financial statements are available immediately
preceding such time, of $250,000 or more, or (ii) in which the Company and the
Restricted Subsidiaries have made Investments aggregating $250,000 or more.
Notwithstanding the foregoing, neither FAMI nor FNYI shall be a Significant
Restricted Subsidiary so long as it is not a Wholly Owned Subsidiary.
"subsidiary" means, with respect to any Person, (i) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Voting Stock thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or more of the other
subsidiaries of that Person or a combination thereof and (ii) any partnership in
which such Person or any of its subsidiaries is a general partner.
"Subsidiary" means any subsidiary of the Company.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb), as amended, as in effect on the date hereof until such
time as this Indenture is qualified under the TIA, and thereafter as in effect
on the date on which this Indenture is qualified under the TIA, unless the
context requires reference thereto as in effect from time to time.
"transfer" means any direct or indirect sale, assignment,
transfer, lease, conveyance, or other disposition (including, without
limitation, by way of merger or consolidation).
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Tunica Road" means that certain road connecting Fitzgeralds
Tunica to Highway 304 in Tunica, Mississippi.
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"Unrestricted Subsidiary" means NCI and any Subsidiary of the
Company that, at or prior to the time of determination, shall have been
designated by the Board of Directors of the Company (by written notice to the
Trustee as provided below) as an Unrestricted Subsidiary; provided that such
Subsidiary (i) is not a Subsidiary in existence on the Issue Date, (ii) does not
hold any Indebtedness or Capital Stock of, or any Lien on any assets of, the
Company or any Restricted Subsidiary, and (iii) does not own or operate or
possess any material asset license, franchise or right used in connection with
the ownership or operation of any material portion of Fitzgeralds Las Vegas,
Fitzgeralds Reno, Fitzgeralds Tunica or Fitzgeralds Black Hawk. The Company
shall be deemed to make an Investment in each Subsidiary designated as an
Unrestricted Subsidiary immediately following such designation in an amount
equal to the Investment in such Subsidiary and its subsidiaries immediately
prior to such designation; provided, that if such Subsidiary is subsequently
redesignated as a Restricted Subsidiary, the amount of such Investment shall be
deemed to be reduced (but not below zero) by the fair market value of the net
consolidated assets of such Subsidiary on the date of such redesignation.
If, at any time, any Unrestricted Subsidiary would fail to meet
the foregoing requirements as an Unrestricted Subsidiary, it shall thereafter
cease to be an Unrestricted Subsidiary for purposes of the Indenture and any
indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted
Subsidiary of the Company as of such date.
The Board of Directors of the Company may at any time (by written
notice to the Trustee as provided below) designate any Unrestricted Subsidiary
to be a Restricted Subsidiary; provided, that such designation shall be deemed
to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of
any outstanding Indebtedness of such Unrestricted Subsidiary and such
designation shall only be permitted if (i) such Indebtedness is permitted under
Section 4.9(a) hereof calculated on a pro forma basis as if such designation had
occurred at the beginning of the four-quarter reference period, and (ii) no
Default or Event of Default would be in existence following such designation.
Any designation by the Board of Directors permitted by this
definition shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complies with the
foregoing conditions and is permitted by Section 4.9(a) hereof.
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"U.S. Government Obligations" means direct obligations of the
United States of America, or any agency or instrumentality thereof for the
payment of which the full faith and credit of the United States of America is
pledged.
"Voting Stock" means, with respect to any Person, (i) one or more
classes of the Capital Stock of such Person having general voting power to elect
at least a majority of the board of directors, managers or trustees of such
Person (irrespective of whether or not at the time Capital Stock of any other
class or classes have or might have voting power by reason of the happening of
any contingency) and (ii) any Capital Stock of such Person convertible or
exchangeable without restriction at the option of the holder thereof into
Capital Stock of such Person described in clause (i) above.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years (rounded to the nearest
one-twelfth) obtained by dividing (i) the then outstanding principal amount of
such Indebtedness into (ii) the total of the product obtained by multiplying (x)
the amount of each then remaining installment, sinking fund, serial maturity or
other required payments of principal, including payment at final maturity, in
respect thereof, by (y) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such payment.
"Wholly Owned Subsidiary" means a Restricted Subsidiary all the
Capital Stock of which (other than directors' qualifying shares) is owned by the
Company or one or more Wholly Owned Subsidiaries.
Section 1.2. Other Definitions.
Defined in
Term Section
---- -------
"Affiliate Transaction"............................ 4.11
"Change of Control Offer".......................... 4.14
"Change of Control Payment"........................ 4.14
"Change of Control Payment Date"................... 4.14
"Covenant Defeasance".............................. 8.3
"Definitive Notes"................................. 2.1
"Event of Default"................................. 6.1
"Excess Proceeds".................................. 4.10
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"Excess Proceeds Offer"............................ 4.10
"Excess Proceeds Offer Period"..................... 4.10
"Excess Proceeds Payment Date"..................... 4.10
"Guaranty"......................................... 10.7
"Legal Defeasance"................................. 8.2
"Paying Agent"..................................... 2.3
"Purchase Amount".................................. 4.10
"Refinance"........................................ 4.9(b)
"Refinancing Indebtedness"......................... 4.9(b)
"Registrar"........................................ 2.3
"Regulatory Redemption"............................ 3.8
"Regulatory Redemption Offer Price"................ 3.8
"Restricted Payments".............................. 4.7
Section 1.3. 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:
"indenture securities" means the Notes;
"indenture security holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Notes means the Company, the Guarantors and any
successor obligor upon the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute, or defined by Commission rule
under the TIA have the meanings so assigned to them.
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Section 1.4. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(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 2
THE NOTES
Section 2.1. Form and Dating.
The Notes and the Trustee's certificate of authentication shall
be substantially in the form of Exhibit A attached hereto, the terms of which
are incorporated in and made a part of this Indenture. Each Note shall include
the Guaranty executed by each of the Guarantors in the form of Exhibit C
attached hereto, the terms of which are incorporated in and made a part of this
Indenture. The Notes may have notations, legends or endorsements required by
law, stock exchange rule, agreements to which the Company is subject or usage.
Each Note shall be dated the date of its authentication. The Notes shall be
issued in denominations of $1,000 and integral multiples thereof.
The Notes will be issued (i) in global form (the "Global Notes"),
substantially in the form of Exhibit A attached hereto (including the text
referred to in footnotes 1 and 2 thereto) and (ii) under certain circumstances,
in definitive form (the "Definitive Notes"), substantially in the form of
Exhibit A attached hereto (excluding the text referred to in footnotes 1 and 2
thereto). Each Global Note shall represent the aggregate amount of outstanding
Notes from time to time endorsed thereon; provided, that the aggregate amount of
outstanding Notes
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represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the amount of
outstanding Notes represented thereby shall be made by the Trustee, in
accordance with instructions given by the Holder thereof, as required by Section
2.6 hereof.
Section 2.2. Execution and Authentication.
Two Officers shall sign the Notes for the Company by manual or
facsimile signature. If an Officer whose signature is on a Note no longer holds
that office at the time the Note is authenticated, the Note shall nevertheless
be valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature of the Trustee shall be conclusive
evidence that the Note has been authenticated under this Indenture. The form of
Trustee's certificate of authentication to be borne by the Notes shall be
substantially as set forth in Exhibit A attached hereto.
The Trustee shall, upon a Company Order, authenticate for
original issue up to $255,000,000 aggregate principal amount of the Notes. The
aggregate principal amount of Notes outstanding at any time may not exceed
$255,000,000, except as provided in Section 2.7 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. Unless limited by the terms of such appointment,
an authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authenticating by the Trustee includes
authenticating by such agent. An authenticating agent has the same rights as an
Agent to deal with the Company or an Affiliate of the Company.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name any Note is registered as the owner
of such Note for the purpose of receiving payment of principal of and (subject
to the provisions of this Indenture and the Notes with respect to record dates)
interest on such Note and for all other purposes whatsoever, whether or not such
Note is overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
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Section 2.3. Registrar, Paying Agent and Depository.
The Company shall maintain (i) an office or agency where Notes
may be presented for registration of transfer or for exchange ("Registrar") and
(ii) an office or agency where Notes may be presented for payment ("Paying
Agent"). The Company initially appoints the Trustee as Registrar and Paying
Agent. The Registrar shall keep a register of the Notes and of their transfer
and exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and the
term "Paying Agent" includes any additional paying agent. The Company may change
any Paying Agent or Registrar without notice to any Holder. The Company shall
notify the Trustee of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar, except that for purposes
of Articles Three and Eight and Sections 4.1, 4.10 and 4.14, neither the Company
nor any of its Subsidiaries shall act as Paying Agent.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture, which shall incorporate the provisions
of the TIA. The agreement shall implement the provisions of this Indenture that
relate to such Agent.
The Company initially appoints DTC to act as Depository with
respect to the Global Notes. The Trustee shall act as custodian for the
Depository with respect to the Global Notes.
Section 2.4. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent shall hold in trust for the
benefit of the Holders or the Trustee all money held by the Paying Agent for the
payment of principal, premium, if any, or interest on the Notes and shall notify
the Trustee in writing of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a Paying Agent to pay
all money held by it to the Trustee. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent (if other than the Company or a Subsidiary of the
Company) shall have no further liability for the money delivered to the Trustee.
If the Company or
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a Subsidiary of the Company acts as Paying Agent (subject to Section 2.3), it
shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent.
Section 2.5. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders,
including the aggregate principal amount thereof, and the Company shall
otherwise comply with TIA Section 312(a).
Section 2.6. Transfer and Exchange.
(a) Transfer and Exchange of Definitive Notes. When Definitive
Notes are presented by a Holder to the Registrar with a request (1) to register
the transfer of the Definitive Notes or (2) to exchange such Definitive Notes
for an equal principal amount of Definitive Notes of other authorized
denominations, the Registrar shall register the transfer or make the exchange as
requested if its requirements for such transactions are met; provided, that the
Definitive Notes so presented (A) have been duly endorsed or accompanied by a
written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by his attorney, duly authorized in writing; and (B)
in the case of a Restricted Security, such request shall be accompanied by the
following additional documents:
(i) if such Restricted Security is being delivered to the
Registrar by a Holder for registration in the name of such Holder,
without transfer, a certification to that effect (in substantially the
form of Exhibit B attached hereto); or
(ii) if such Restricted Security is being transferred to a QIB in
accordance with Rule 144A or pursuant to an effective registration
statement under the Securities Act, a certification to that effect (in
substantially the form of Exhibit B attached hereto); or
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(iii) if such Restricted Security is being transferred in
reliance on another exemption from the registration requirements of the
Securities Act, a certification to that effect (in substantially the
form of Exhibit B attached hereto) and an opinion of counsel reasonably
acceptable to the Company and the Registrar to the effect that such
transfer is in compliance with the Securities Act.
(b) Transfer of a Definitive Note for a Beneficial Interest in a
Global Note. A Definitive Note may be exchanged for a beneficial interest in a
Global Note only upon receipt by the Trustee of a Definitive Note, duly endorsed
or accompanied by appropriate instruments of transfer, in form satisfactory to
the Trustee, together with:
(i) written instructions directing the Trustee to make an
endorsement on the appropriate Global Note to reflect an increase in the
aggregate principal amount of the Notes represented by such Global Note,
and
(ii) if such Definitive Note is a Restricted Security, a
certification (in substantially the form of Exhibit B attached hereto)
and, if applicable, a legal opinion, in each case similar to that
required pursuant to Section 2.6(a)(i)-(iii), as applicable;
in which case the Trustee shall cancel such Definitive Note and cause the
aggregate principal amount of Notes represented by the appropriate Global Note
to be increased accordingly. If no Global Note is then outstanding, the Company
shall issue and the Trustee shall authenticate a new Global Note in the
appropriate principal amount.
(c) Transfer and Exchange of Global Notes. The transfer and
exchange of Global Notes or beneficial interests therein shall be effected
through the Depository in accordance with this Indenture and the procedures of
the Depository therefor, which shall include restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act.
(d) Transfer of a Beneficial Interest in a Global Note for a
Definitive Note. Upon receipt by the Trustee of written transfer instructions
(or such other form of instructions as is customary for the Depository), from
the Depository (or its nominee) on behalf of any Person having a beneficial
interest in a Global Note, the Trustee shall, in accordance with the standing
instructions and proce-
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dures existing between the Depository and the Trustee, cause the aggregate
principal amount of Global Notes to be reduced accordingly and, following such
reduction, the Company shall execute and the Trustee shall authenticate and
deliver to the transferee a Definitive Note in the appropriate principal amount;
provided, that in the case of a Restricted Security, such instructions shall be
accompanied by the following additional documents:
(i) if such beneficial interest is being transferred to the
Person designated by the Depository as being the beneficial owner, a
certification to that effect (in substantially the form of Exhibit B
attached hereto); or
(ii) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A or pursuant to an effective registration
statement under the Securities Act, a certification to that effect (in
substantially the form of Exhibit B attached hereto); or
(iii) if such beneficial interest is being transferred in
reliance on another exemption from the registration requirements of the
Securities Act, a certification to that effect (in substantially the
form of Exhibit B attached hereto) and an opinion of counsel reasonably
acceptable to the Company and to the Registrar to the effect that such
transfer is in compliance with the Securities Act.
Definitive Notes issued in exchange for a beneficial interest in
a Global Note shall be registered in such names and in such authorized
denominations as the Depository shall instruct the Trustee.
(e) Transfer and Exchange of Global Notes. Notwithstanding any
other provision of this Indenture, the Global Note may not be transferred as a
whole except by the Depository to a nominee of the Depository or by a nominee of
the Depository to the Depository or another nominee of the Depository or by the
Depository or any such nominee to a successor Depository or a nominee of such
successor Depository; provided, that if:
(i) the Depository notifies the Company that the Depository is
unwilling or unable to continue as Depository and a successor Depository
is not appointed by the Company within 90 days after delivery of such
notice; or
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(ii) the Company, at its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of Definitive Notes under
this Indenture,
then the Company shall execute and the Trustee shall authenticate and deliver,
Definitive Notes in an aggregate principal amount equal to the aggregate
principal amount of the Global Note in exchange for such Global Note.
(f) Cancellation and/or Adjustment of Global Notes. At such time
as all beneficial interests in the Global Note have either been exchanged for
Definitive Notes, redeemed, repurchased or cancelled, the Global Note shall be
returned to (or retained by) and cancelled by the Trustee. At any time prior to
such cancellation, if any beneficial interest in the Global Note is exchanged
for Definitive Notes, redeemed, repurchased or cancelled, the aggregate
principal amount of Notes represented by such Global Note shall be reduced
accordingly and an endorsement shall be made on such Global Note by the Trustee
to reflect such reduction.
(g) General Provisions Relating to Transfers and Exchanges. To
permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Definitive Notes and Global Notes at the
Registrar's request. All Definitive Notes and Global Notes issued upon any
registration of transfer or exchange of Definitive Notes or Global Notes shall
be legal, valid and binding obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Definitive
Notes or Global Notes surrendered upon such registration of transfer or
exchange.
No service charge shall be made to a Holder for any registration
of transfer or exchange, but the Company may require payment of a sum sufficient
to cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar governmental charge
payable upon exchange (without transfer to another person) pursuant to Sections
2.10, 3.7, 4.10, 4.14 and 9.5 of this Indenture).
The Company shall not be required to (i) issue, register the
transfer of or exchange Notes during a period beginning at the opening of
business 15 days before the day of any selection of Notes for redemption under
Section 3.2 hereof and ending at the close of business on the day of selection;
or (ii) register the transfer of or exchange any Note so selected for redemption
in whole or in part,
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except the unredeemed portion of any Note being redeemed in part; or (iii)
register the transfer of or exchange a Note between a record date and the next
succeeding interest payment date.
Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Company may deem and treat the Person
in whose name any Note is registered as the absolute owner of such Note for all
purposes, and neither the Trustee, any Agent nor the Company shall be affected
by notice to the contrary.
(h) Exchange of Series A Notes for Series B Notes. The Series A
Notes may be exchanged for Series B Notes pursuant to the terms of the Exchange
Offer. The Trustee and Registrar shall make the exchange as follows:
The Company shall present the Trustee with an Officers'
Certificate certifying the following:
(A) upon issuance of the Series B Notes, the transactions
contemplated by the Exchange Offer have been consummated;
and
(B) the principal amount of Series A Notes properly tendered
in the Exchange Offer that are represented by a Global
Note and the principal amount of Series A Notes properly
tendered in the Exchange Offer that are represented by
Definitive Notes; the name of each Holder of such
Definitive Notes; the principal amount properly tendered
in the Exchange Offer by each such Holder; and the name
and address to which Definitive Notes for Series B Notes
shall be registered and sent for each such Holder.
The Trustee, upon receipt of (i) such Officers' Certificate, (ii)
an Opinion of Counsel (x) to the effect that the Series B Notes have been
registered under Section 5 of the Securities Act and this Indenture has been
qualified under the TIA and (y) with respect to the matters set forth in Section
6(p) of the Registration Rights Agreement and (iii) a Company Order, shall
authenticate (A) a Global Note for Series B Notes in aggregate principal amount
equal to the aggregate principal amount of Series A Notes represented by a
Global Note indicated in such Officers' Certificate as having been properly
tendered and (B) Definitive Notes
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representing Series B Notes registered in the names of, and in the principal
amounts indicated in such Officers' Certificate.
The Trustee shall make available for delivery such Definitive
Notes for Series B Notes to the Holders thereof as indicated in such Officers'
Certificate.
Section 2.7. Replacement Notes.
If any mutilated Note is surrendered to the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee
shall authenticate a replacement Note if the Trustee's requirements for
replacements of Notes are met. If required by the Trustee or the Company, an
indemnity bond must be supplied by the Holder that is sufficient in the judgment
of the Trustee and the Company to protect the Company, the Trustee, any Agent or
any authenticating agent from any loss that any of them may suffer if a Note is
replaced. The Company or the Trustee may charge for its expenses in replacing a
Note.
Every replacement Note is an obligation of the Company and shall
be entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.
Section 2.8. Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated
by the Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section as not outstanding.
If a Note is replaced pursuant to Section 2.7 hereof, the
replaced Note ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under
Section 4.1 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
Subject to Section 2.9 hereof, a Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Note.
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Section 2.9. Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company or any Affiliate of the Company shall be considered as though not
outstanding, except that for purposes of determining whether the Trustee shall
be protected in relying on any such direction, waiver or consent, only Notes
that a Trustee knows to be so owned shall be considered as not outstanding.
Section 2.10. Temporary Notes.
Pending the preparation of definitive Notes, the Company (and the
Guarantors) may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Notes that are printed, lithographed, typewritten,
mimeographed or otherwise reproduced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Notes may determine, as conclusively
evidenced by their execution of such Notes.
If temporary Notes are issued, the Company (and the Guarantors)
shall cause definitive Notes to be prepared without unreasonable delay. The
definitive Notes shall be printed, lithographed or engraved, or provided by any
combination thereof, or in any other manner permitted by the rules and
regulations of any principal national securities exchange, if any, on which the
Notes are listed, all as determined by the Officers executing such definitive
Notes. After the preparation of definitive Notes, the temporary Notes shall be
exchangeable for definitive Notes upon surrender of the temporary Notes at the
office or agency maintained by the Company for such purpose pursuant to Section
4.2 hereof, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Notes, the Company (and the Guarantors) shall execute, and
the Trustee shall authenticate and make available for delivery, in exchange
therefor the same aggregate principal amount of definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as definitive Notes.
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Section 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment and
not previously received by the Trustee. The Trustee and no one else shall cancel
all Notes surrendered for registration of transfer, exchange, payment,
replacement or cancellation and shall retain or destroy cancelled Notes in
accordance with its normal practices (subject to the record retention
requirement of the Exchange Act) unless the Company directs them to be returned
to it. The Company may not issue new Notes to replace Notes that have been
redeemed or paid or that have been delivered to the Trustee for cancellation.
All such Notes cancelled by the Trustee and returned to the Company pursuant to
a written order, signed by one Officer of the Company.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, which date shall be at the earliest
practicable date but in all events at least ten Business Days prior to the
payment date, in each case at the rate provided in the Notes and in Section 4.1
hereof. The Company shall, with the consent of the Trustee, fix or cause to be
fixed each such special record date and payment date. At least 30 days before
the special record date, the Company (or the Trustee, in the name of and at the
expense of the Company, upon 15 days written notice to the Trustee) shall mail
to the Holders a notice that states the special record date, the related payment
date and the amount of such interest to be paid.
Section 2.13. Legends.
(a) Except as permitted by subsections (b) or (c) hereof, each
Note shall bear legends relating to restrictions on transfer pursuant to the
securities laws in substantially the form set forth on Exhibit A attached
hereto.
(b) Upon any sale or transfer of a Restricted Security (including
any Restricted Security represented by a Global Note) pursuant to Rule 144 under
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the Securities Act or pursuant to an effective registration statement under the
Securities Act:
(i) in the case of any Restricted Security that is a Definitive
Note, the Registrar shall permit the Holder thereof to exchange such
Restricted Security for a Definitive Note that does not bear the legends
required by subsection (a) above; and
(ii) in the case of any Restricted Security represented by a
Global Note, such Restricted Security shall not be required to bear the
legends required by subsection (a) above, but shall continue to be
subject to the provisions of Section 2.6(c) hereof; provided, that with
respect to any request for an exchange of a Restricted Security that is
represented by a Global Note for a Definitive Note that does not bear
the legends required by subsection (a) above, which request is made in
reliance upon Rule 144, the Holder thereof shall certify in writing to
the Registrar that such request is being made pursuant to Rule 144.
(c) The Company (and the Guarantors) shall issue and the Trustee
shall authenticate Series B Notes in exchange for Series A Notes accepted for
exchange in the Exchange Offer. The Series B Notes shall not bear the legends
required by subsection (a) above unless the Holder of such Series A Notes is
either (A) a broker-dealer who purchased such Series A Notes directly from the
Company to resell pursuant to Rule 144A or any other available exemption under
the Securities Act, (B) a Person participating in the distribution of the Series
A Notes or (C) a Person who is an affiliate (as defined in Rule 144A) of the
Company.
ARTICLE 3
REDEMPTION
Section 3.1. Notices to Trustee.
If the Company elects to redeem Notes pursuant to Section 3.7
hereof, it shall furnish to the Trustee, at least 30 days but not more than 60
days before a redemption date, an Officers' Certificate setting forth (i) the
clause of Section 3.7 pursuant to which the redemption shall occur, (ii) the
redemption date, (iii) the principal amount of Notes to be redeemed and (iv) the
redemption price.
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Section 3.2. Selection of Notes to Be Redeemed.
If less than all the Notes are to be redeemed pursuant to Section
3.7 hereof, the Trustee shall select the Notes to be redeemed in compliance with
the requirements of the principal national securities exchange, if any, on which
the Notes are listed, or, if the Notes are not so listed, pro rata, by lot or by
such method as the Trustee deems to be fair and reasonable.
The Trustee shall promptly notify the Company in writing of the
Notes selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 or whole multiples of $1,000.
Provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
Section 3.3. Notice of Redemption.
At least 30 days but not more than 60 days before a redemption
date, the Company shall mail a notice of redemption by first class mail to each
Holder whose Notes are to be redeemed at such Holder's registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part only, the
portion of the principal amount of such Note to be redeemed and that,
after the redemption date, upon cancellation of the original Note, a new
Note or Notes in principal amount equal to the unredeemed portion shall
be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
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(6) that, unless the Company defaults in making such
redemption payment, interest on Notes or portions of Notes called for
redemption ceases to accrue on and after the redemption date;
(7) the paragraph of the Notes and/or the section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(8) the CUSIP number of the Notes to be redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the name of the Company and at its expense; provided that the
Company shall deliver to the Trustee, at least 45 days (unless a shorter period
is acceptable to the Trustee) 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.
Section 3.4. Effect of Notice of Redemption.
Once notice of redemption has been mailed to the Holders in
accordance with Section 3.3 herein, Notes called for redemption become due and
payable on the redemption date at the redemption price. At any time prior to the
mailing of a notice of redemption to the Holders pursuant to Section 3.3, the
Company may withdraw, revoke or rescind any notice of redemption delivered to
the Trustee without any continuing obligation to redeem the Notes as
contemplated by such notice of redemption.
Section 3.5. Deposit of Redemption Price.
At or before 12:00 p.m. immediately prior to the redemption date,
the Company shall deposit with the Trustee (to the extent not already held by
the Trustee) or with the Paying Agent money in immediately available funds
sufficient to pay the redemption price of and accrued interest on all Notes to
be redeemed on that date. The Trustee or the Paying Agent shall return to the
Company any money deposited with the Trustee or the Paying Agent by the Company
in excess of the amounts necessary to pay the redemption price of, and accrued
interest on, all Notes to be redeemed.
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Interest on the Notes to be redeemed shall cease to accrue on the
applicable redemption date, whether or not such Notes are presented for payment,
if the Company makes or deposits the redemption payment in accordance with this
Section 3.5. If any Note called for redemption shall not be paid upon surrender
for redemption because of the failure of the Company to comply with the
preceding paragraph, interest shall be paid on the unpaid principal, from the
redemption date until such principal is paid, and to the extent lawful on any
interest not paid on such unpaid principal, in each case at the rate provided in
the Notes.
Section 3.6. Notes Redeemed in Part.
Upon surrender of a Note 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 Note equal in principal amount to the unredeemed portion of
the Note surrendered.
Section 3.7. Optional Redemption.
(a) Except as set forth in Sections 3.7(b) and 3.8 hereof, the
Notes are not redeemable at the Company's option prior to December 15, 2001.
Thereafter, the Notes will be subject to redemption at the option of the
Company, in whole or in part, at the redemption prices (expressed as percentages
of principal amount) set forth below, plus accrued and unpaid interest thereon,
if any, to the applicable redemption date, if redeemed during the 12-month
period beginning on December 15 of the years indicated below:
Year Percentage
---- ----------
2001.........................106.250%
2002.........................104.166%
2003 ........................102.083%
2004 ........................100.000%
(b) At any time or from time to time prior to December 15, 2001,
the Company may, at its option, redeem up to 35% of the original principal
amount of the Notes, at a redemption price of 112.5% of the principal amount
thereof, plus accrued and unpaid interest, if any, to the applicable redemption
date, with the net cash proceeds of one or more Public Equity Offerings;
provided, that (a) such redemption shall occur within 90 days of the date of
closing of such public
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offering and (b) at least $133,250,000 aggregate principal amount of Notes
remains outstanding immediately after giving effect to each such redemption.
Section 3.8. Redemption in Accordance with Gaming Laws.
Each Holder and beneficial owner of the Notes, by accepting the
Notes, shall be deemed to have agreed (to the extent permitted by applicable
law) 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 a beneficial owner of any of the Notes must be
licensed or found suitable under applicable gaming laws, such Holder or
beneficial owner shall apply for a license or a finding of suitability within
the required time period. If such Person fails to apply or become licensed or is
found unsuitable, the Company shall have the right, at its option, (i) to
require such Person to dispose of its Notes or beneficial interest therein
within 30 days of receipt of notice of the Company's election or such earlier
date as may be ordered by such Gaming Authority, or (ii) to redeem such Notes (a
"Regulatory Redemption") at a price of 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 date of redemption and the date of the finding of
unsuitability (the "Regulatory Redemption Offer Price"), which may be less than
30 days following the notice of redemption if so ordered by the Gaming
Authority. The Holder or beneficial owner applying for a license or finding of
suitability must pay all costs of the licensure or investigation for such
finding.
ARTICLE 4
COVENANTS
Section 4.1. Payment of Notes.
The Company shall pay the principal and premium, if any, of, and
interest on, the Notes on the dates and in the manner provided in the Notes.
Principal, premium, if any, and interest shall be considered paid on the date
due if the Paying Agent, other than the Company or a Subsidiary of the Company,
holds on or before that date money deposited by the Company in immediately
available funds and designated for and sufficient to pay all principal, premium,
if any, and interest then due. Such Paying Agent shall return to the Company, no
later than three Business Days following the date of payment, any money that
exceeds such amount of principal, premium, if any, and interest then due and
payable on the
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Notes. The Company shall pay any and all amounts, including, without limitation,
Liquidated Damages, if any, on the dates and in the manner required under the
Registration Rights Agreement.
The Company shall pay interest (including post-petition interest)
on overdue principal at the rate equal to 1% per annum in excess of the then
applicable interest rate on the Notes to the extent lawful; it shall pay
interest (including post-petition interest) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
Section 4.2. Maintenance of Office or Agency.
The Company shall maintain an office or agency (which may be an
office of the Trustee, Registrar or co-registrar) in the Borough of Manhattan,
the City of New York, where Notes may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency for such purposes.
The Company shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.3.
Section 4.3. Reports.
(a) The Company shall file with the Trustee, within 15 days after
the time of filing with the Commission, copies of the reports, information and
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other documents (or copies of such portions of any of the foregoing as the
Commission may by rules and regulations prescribe) that the Company is required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
If the Company is not subject to the requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall file with the Trustee all such reports,
information and other documents as it would be required to file if it were
subject to the requirements of Section 13 or 15(d) of the Exchange Act, within
such 15-day period. From and after the time the Company files a registration
statement with the Commission with respect to the Notes, the Company shall file
such information with the Commission; provided, that the Company shall not be in
default of the provisions of this Section 4.3 for any failure to file reports
with the Commission solely by refusal by the Commission to accept the same for
filing. The Company shall deliver (or cause the Trustee to deliver) copies of
all reports, information and documents required to be filed with the Trustee
pursuant to this Section 4.3 to the Holders at their addresses appearing in the
register of Notes maintained by the Registrar. The Company shall also comply
with the provisions of TIA Section 314(a).
(b) If the Company is required to furnish annual, quarterly or
current reports to its stockholders pursuant to the Exchange Act, the Company
shall cause any annual, quarterly, current or other financial report furnished
by it generally to its stockholders to be filed with the Trustee and mailed to
the Holders by the Company at their addresses appearing in the register of Notes
maintained by the Registrar. If the Company is not required to furnish annual,
quarterly or current reports to its stockholders pursuant to the Exchange Act,
the Company shall cause the financial statements of the Company and its
consolidated Subsidiaries, including any notes thereto (and, with respect to
annual reports, an auditors' report by an accounting firm of established
national reputation), and a "Management's Discussion and Analysis of Financial
Condition and Results of Operations," comparable to that which would have been
required to appear in annual or quarterly reports filed under Section 13 or
15(d) of the Exchange Act to be so filed with the Trustee and mailed to the
Holders by the Company promptly, but in any event, within 90 days after the end
of each of the fiscal years of the Company and within 45 days after the end of
each of the first three quarters of each such fiscal year.
(c) So long as is required for an offer or sale of the Notes to
qualify for an exemption under Rule 144A, the Company (and the Guarantors)
shall, upon request, provide the information required by clause (d)(4)
thereunder to
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each Holder and to each beneficial owner and prospective purchaser of Notes
identified by any Holder of Restricted Securities.
Section 4.4. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, an Officers' Certificate (provided, that one
of the signatories to such Officers' Certificate shall be the Company's
principal executive officer, principal financial officer or principal accounting
officer) stating that a review of the activities of the Company and its
Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determine whether each has
kept, observed, performed and fulfilled its obligations under this Indenture,
and further stating, as to each such Officer signing such certificate, that each
of the Company and its Subsidiaries has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions hereof
or thereof (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which he may have knowledge and what
action each is taking or proposes to take with respect thereto).
(b) The year-end financial statements delivered pursuant to
Section 4.3 above shall be accompanied by a written statement of the independent
public accountants of the Company (which shall be a firm of established national
reputation reasonably satisfactory to the Trustee) that in making the
examination necessary for certification of such financial statements nothing has
come to their attention which would lead them to believe that either the Company
or any of its Subsidiaries has violated any provisions of this Indenture or, if
any such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable directly
or indirectly to any Person for any failure to obtain knowledge of any such
violation.
(c) So long as any of the Notes are outstanding, the Company
shall deliver to the Trustee forthwith upon any Officer becoming aware of (i)
any Default or Event of Default or (ii) any event of default under any mortgage,
indenture or instrument referred to in Section 6.1(5) hereof, an Officers'
Certificate specifying such Default, Event of Default or other event of default
and what action the Company is taking or proposes to take with respect thereto.
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Section 4.5. Taxes.
The Company shall, and shall cause its Subsidiaries to, file all
tax returns required to be filed and to pay prior to delinquency all material
taxes, assessments and governmental levies except as contested in good faith and
by appropriate proceedings and for which reserves have been established in
accordance with GAAP.
Section 4.6. Stay, Extension and Usury Laws.
The Company (and each Guarantor) covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company and
each Guarantor (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it shall not,
by resort to any such law, hinder, delay or impede the execution of any power
herein granted to the Trustee but shall suffer and permit the execution of every
such power as though no such law has been enacted.
Section 4.7. Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any distribution
on account of any Equity Interests of the Company or any of its
Subsidiaries (other than (x) dividends or distributions payable in
Equity Interests (other than Disqualified Stock) of the Company or (y)
dividends or distributions payable to the Company or any Restricted
Subsidiary);
(ii) purchase, redeem or otherwise acquire or retire for
value any Equity Interest of the Company, any Subsidiary or any other
Affiliate of the Company (other than any such Equity Interest owned by
the Company or any Restricted Subsidiary and other than redemption of
the Preferred Stock required as a result of an order of any Gaming
Authority);
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(iii) make any principal payment on, or purchase, redeem,
defease or otherwise acquire or retire for value any Indebtedness of the
Company or any Guarantor that is pari passu with (other than any pari
passu secured Indebtedness) or subordinated in right of payment to the
Notes or such Guarantor's Guaranty, as the case may be, prior to any
scheduled principal payment, sinking fund payment or other payment at
the stated maturity thereof; or
(iv) make any Restricted Investment;
(all such payments and other actions set forth in clauses (i) through
(iv) above being collectively referred to as "Restricted Payments"),
unless, at the time of such Restricted Payment:
(1) no Default or Event of Default has occurred and is
continuing or would occur as a consequence thereof,
(2) immediately after giving effect to such Restricted
Payment on a pro forma basis, the Company could incur at least $1.00 of
additional Indebtedness under Section 4.9(a) hereof, and
(3) such Restricted Payment (the value of any such
payment, if other than cash, being determined in good faith by the Board
of Directors and evidenced by a resolution set forth in an Officers'
Certificate delivered to the Trustee), together with the aggregate of
all other Restricted Payments made after the date of this Indenture
(including Restricted Payments permitted by clauses (i), (ii) and (vii)
of Section 4.7(b) and excluding Restricted Payments permitted by the
other clauses therein), is less than the sum of (x) 50% of the
Consolidated Net Income of the Company for the period (taken as one
accounting period) from the beginning of the first quarter commencing
immediately after the date of this Indenture to the end of the Company's
most recently ended fiscal quarter for which internal financial
statements are available at the time of such Restricted Payment (or, if
such Consolidated Net Income for such period is a deficit, 100% of such
deficit), plus (y) 100% of the aggregate net cash proceeds (or of the
net cash proceeds received upon the conversion of non-cash proceeds into
cash) received by the Company from the issuance or sale, other than to a
Subsidiary, of Equity Interests of the Company (other than Disqualified
Stock) after the date of this Indenture and on or prior to the time of
such
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Restricted Payment, plus (z) 100% of the aggregate net cash proceeds (or
of the net cash proceeds received upon the conversion of non-cash
proceeds into cash) received by the Company from the issuance or sale,
other than to a Subsidiary, of any convertible or exchangeable debt
security of the Company that has been converted or exchanged into Equity
Interests of the Company (other than Disqualified Stock) pursuant to the
terms thereof after the date of this Indenture and on or prior to the
time of such Restricted Payment (including any additional net cash
proceeds received by the Company upon such conversion or exchange).
(b) The provisions of subsection (a) above shall not prohibit:
(i) the payment of any dividend within 60 days after the
date of declaration thereof, if at said date of declaration such payment
would not have been prohibited by the provisions of this Indenture;
(ii) the redemption, purchase, retirement or other
acquisition of any Equity Interests of the Company or Indebtedness of
the Company or any Restricted Subsidiary in exchange for, or out of the
proceeds of, the substantially concurrent sale (other than to a
Subsidiary) of, other Equity Interests of the Company (other than
Disqualified Stock);
(iii) the redemption, repurchase or payoff of any
Indebtedness of the Company or a Restricted Subsidiary with proceeds of
any Refinancing Indebtedness permitted to be incurred pursuant to the
provisions of Section 4.9(b)(ix) hereof;
(iv) the repurchase or redemption of the Preferred Stock
outstanding on the Issue Date; provided, that if such redemption or
repurchase is in connection with a Change of Control, the Company has
first complied with its obligations under the provisions of Section 4.14
hereof;
(v) the redemption, purchase or other acquisition of the
Equity Interests of FAMI or FNYI outstanding on the Issue Date and not
owned, directly or indirectly, by the Company;
(vi) Restricted Payments to acquire options or other
rights with respect to the management of Casinos by the Company or any
of its Subsidiaries; provided, that the aggregate amount of such
Restricted
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Payments in any calendar year shall not exceed $500,000 plus the portion
of such $500,000 that was not used in the immediately preceding calendar
year;
(vii) pro rata cash dividends paid by either FAMI or FNYI,
as the case may be, solely out of its Net Income for the quarter
immediately preceding the quarter in which such dividend is declared, to
its minority stockholders contemporaneously with a cash dividend so paid
to the Company or a Restricted Subsidiary;
(viii) the prepayment or other retirement of the
Settlement Debt;
(ix) Restricted Investments in an aggregate amount not to
exceed $10 million less the sum of all Other Expense of the Company for
the period (taken as one accounting period) from the beginning of the
first quarter commencing immediately after the date of the Indenture to
the end of the Company's most recently ended fiscal quarter for which
internal financial statements are available at the time of such
Restricted Investment; and
(x) other Restricted Payments in an aggregate amount not
to exceed $5 million;
provided, that with respect to clauses (iv), (v), (vi), (viii), (ix) and
(x) above, no Default or Event of Default shall have occurred and be
continu ing at the time, or shall occur as a consequence thereof.
(c) Not later than the date of making each Restricted Payment
(other than Restricted Payments contemplated by Section 4.7(b)), the Company
shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted, and setting forth the basis upon which the
calculations required by this Section 4.7 were computed, which calculations may
be based upon the Company's latest available financial statements.
Section 4.8. Limitation on Restrictions on Subsidiary Dividends.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist or
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become effective any encumbrance or restriction on the ability of any Restricted
Subsidiary
(a) to (1) pay dividends or make any other distributions to the
Company or any of its Restricted Subsidiaries (A) on such Restricted
Subsidiary's Capital Stock or (B) with respect to any other interest or
participation in, or measured by, such Restricted Subsidiary's profits or (2)
pay any indebtedness owed to the Company or any of its Restricted Subsidiaries,
or (b) to make loans or advances to the Company or any of its Restricted
Subsidiaries, or (c) to transfer any of its assets to the Company or any of its
Restricted Subsidiaries, except for such encumbrances or restrictions:
(i) existing under or by reason of this Indenture, the
Intercreditor Agreement, the Security Documents and the Notes,
(ii) existing under or by reason of applicable law
(including restrictions imposed by applicable Gaming Authorities),
(iii) contained in Acquired Debt; provided, that such
encumbrances and restrictions are not applicable to any Person or the
properties or assets of any Person, other than the Person or the
property or assets of the Person so acquired,
(iv) existing under or by reason of customary
non-assignment and net worth provisions of any contract or lease entered
into in the ordinary course of business,
(v) existing under or by reason of customary restrictions
on the transfer of assets subject to a Permitted Lien imposed by the
holder of such Lien,
(vi) existing under or by reason of Liens imposed by or in
connection with the incurrence of Indebtedness pursuant to Section
4.9(b)(i) hereof; provided, that such Lien is applicable only to the
assets acquired or leased; and
(vii) imposed pursuant to permitted Refinancing
Indebtedness, provided, that such restrictions contained in any
agreement governing
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such Refinancing Indebtedness are no more restrictive than those
contained in any agreements governing the Indebtedness being Refinanced.
Section 4.9. Limitation on Incurrence of Indebtedness.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, (1) create, incur, issue,
assume, guaranty or otherwise become directly or indirectly liable, with respect
to, contingently or otherwise (collectively, "incur"), any Indebtedness or (2)
issue any Disqualified Stock; provided, that the Company may incur Indebtedness
or issue shares of Disqualified Stock and any Restricted Subsidiary may incur
Acquired Debt, in each case if (x) no Default or Event of Default shall have
occurred and be continuing at the time of, or would occur after giving effect on
a pro forma basis to, such incurrence or issuance, and (y) the Interest Coverage
Ratio for the Company's most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the date on
which such additional Indebtedness (or Acquired Debt) is incurred or such
Disqualified Stock is issued would have been at least equal to the ratio set
forth below opposite the period in which such incurrence or issuance occurs,
determined on a pro forma basis (including a pro forma application of the net
proceeds therefrom), as if the additional Indebtedness (including, without
limitation, Acquired Debt) had been incurred, or the Disqualified Stock had been
issued, as the case may be, at the beginning of such four-quarter period:
PERIOD ENDING RATIO
------------- -----
December 15, 1999............................... 2.00:1
Thereafter...................................... 2.25:1;
provided, that in the case of Indebtedness (other than Purchase Money
Obligations or Acquired Debt), the Weighted Average Life to Maturity and final
stated maturity of such Indebtedness exceeds the Weighted Average Life to
Maturity and final stated maturity of the Notes.
(b) The limitations of Section 4.9(a) shall not prohibit the
incurrence of:
(i) Non-Recourse Indebtedness of a Restricted Subsidiary
incurred to finance the acquisition or lease after the Issue Date of (i)
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furniture, fixtures or equipment to be used in connection with the
operations of any Significant Casino owned by such Restricted Subsidiary
or (ii) a parking structure at Fitzgeralds Reno; provided, that (x) the
aggregate amount of such Indebtedness outstanding with respect to any
such Signifi cant Casino (including such parking structure with respect
to Fitzgeralds Reno) shall not exceed $7.0 million at any time and (y)
the aggregate amount of such Indebtedness outstanding with respect to
such parking structure shall not exceed $3.0 million at any time;
(ii) performance bonds, appeal bonds, surety bonds,
insurance obligations or bonds and other similar bonds or obligations
(including obligations under letters of credit) incurred in the ordinary
course of business;
(iii) Hedging Obligations incurred to fix the interest
rate on any variable rate Indebtedness otherwise permitted by this
Indenture;
(iv) Indebtedness owed by the Company to any Guarantor or
by any Guarantor to the Company or any other Guarantor;
(v) Indebtedness outstanding on the date of this
Indenture, including $205 million aggregate principal amount of the
Notes and the Guaranty
(vi) Settlement Debt;
(vii) additional Indebtedness of the Company under an
Eligible Credit Facility in an aggregate principal amount not to exceed
$15 million outstanding at any time (up to $10 million of which may be
used for working capital purposes and up to $5 million of which may be
used solely to finance capital expenditures at Fitzgeralds Black Hawk),
and the guarantee of such Indebtedness by the Guarantors;
(viii) Permitted Tunica Debt; provided that the Weighted
Average Life to Maturity and final stated maturity of such Indebtedness
is equal to or greater than the Weighted Average Life to Maturity and
final stated maturity of the Notes; and
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(ix) Indebtedness issued in exchange for, or the proceeds
of which are contemporaneously used to extend, refinance, renew,
replace, or refund (collectively, "Refinance") Indebtedness referred to
in clause (v) above or this clause (ix) or Indebtedness incurred
pursuant to the Interest Coverage Ratio test set forth in subsection (a)
above ("Refinancing Indebtedness"); provided, that (A) the principal
amount of such Refinancing Indebtedness does not exceed the principal
amount of Indebtedness so Refinanced (plus the premiums required to be
paid, and the out-of-pocket expenses (other than those payable to an
Affiliate of the Company) reasonably incurred, in connection
therewith), (B) the Refinancing Indebtedness has a final scheduled
maturity that is the same as or exceeds the final stated maturity, and a
Weighted Average Life to Maturity that is equal to or greater than the
Weighted Average Life to Maturity, of the Indebtedness being Refinanced,
and (C) the Refinancing Indebtedness ranks, in right of payment, no more
favorable to the Notes than the Indebtedness being Refinanced.
Section 4.10. Limitation on Asset Sales.
The Company shall not, and shall not permit any Restricted
Subsidiary to, make any Asset Sale unless (i) the Company or such Restricted
Subsidiary receives consideration at the time of such Asset Sale at least equal
to the fair market value of the assets subject to such Asset Sale, (ii) at least
80% of the consideration for such Asset Sale is in the form of cash, Cash
Equivalents or liabilities of the Company or any Restricted Subsidiary (other
than liabilities that are by their terms subordinated to the Notes or any
Guaranty) that are assumed by the transferee of such assets (provided, that
following such Asset Sale there is no further recourse to the Company or its
Restricted Subsidiaries with respect to such liabilities), or (iii) within 180
days of such Asset Sale, the Net Proceeds thereof are (a) invested in assets
related to the business of the Company or its Restricted Subsidiaries, (b)
applied to repay Indebtedness under Purchase Money Obligations incurred in
connection with the asset so sold or (c) to the extent not used as provided in
clauses (a) or (b), applied to make an offer to purchase Notes as described
below (an "Excess Proceeds Offer"); provided, that if the amount of Net Proceeds
from any Asset Sale not invested pursuant to clause (a) above is less than $5.0
million, the Company shall not be required to repay Indebtedness pursuant to
clause (b) or make an offer pursuant to clause (c) above. Pending the final
application of any such Net Proceeds, the Company or any Restricted Subsidiary
may temporarily invest such Net Proceeds in Cash Equivalents.
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The amount of Net Proceeds not invested or applied as set forth
in the preceding clauses (a) and (b) constitutes "Excess Proceeds." If the
Company elects, or becomes obligated to make an Excess Proceeds Offer, the
Company shall offer to purchase Notes having an aggregate principal amount equal
to the Excess Proceeds (the "Purchase Amount"), at a purchase price equal to
100% of the aggregate principal amount thereof, plus accrued and unpaid
interest, if any, to the purchase date. The Company must commence such Excess
Proceeds Offer not later than 30 days after the expiration of the 12-month
period following the Asset Sale that produced such Excess Proceeds. If the
aggregate purchase price for the Notes tendered pursuant to the Excess Proceeds
Offer is less than the Excess Proceeds, the Company and its Restricted
Subsidiaries may use the portion of the Excess Proceeds remaining after payment
of such purchase price for general corporate purposes.
Each Excess Proceeds Offer shall remain open for a period of 20
Business Days and no longer, unless a longer period is required by law (the
"Excess Proceeds Offer Period"). Promptly after the termination of the Excess
Proceeds Offer Period (the "Excess Proceeds Payment Date"), the Company shall
purchase and mail or deliver payment for the Purchase Amount for the Notes or
portions thereof tendered, pro rata or by such other method as may be required
by law, or, if less than the Purchase Amount has been tendered, all Notes
tendered pursuant to the Excess Proceeds Offer. The principal amount of Notes to
be purchased pursuant to an Excess Proceeds Offer may be reduced by the
principal amount of Notes acquired by the Company through purchase or redemption
(other than pursuant to a Change of Control Offer) subsequent to the date of the
Asset Sale and surrendered to the Trustee for cancellation.
Each Excess Proceeds Offer shall be conducted in compliance with
all applicable laws, including without limitation, Regulation 14E of the
Exchange Act and the rules thereunder and all other applicable Federal and state
securities laws. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Section 4.10, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.10 by virtue
thereof. The Company shall not, and shall not permit any of its Subsidiaries to,
create or suffer to exist or become effective any restriction that would impair
the ability of the Company to make an Excess Proceeds Offer upon an Asset Sale
or, if such Excess Proceeds Offer is made, to pay for the Notes tendered for
purchase.
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The Company shall, no later than 30 days following the expiration
of the 12-month period following the Asset Sale that produced Excess Proceeds,
commence the Excess Proceeds Offer by mailing to the Trustee and each Holder, at
such Holder's last registered address, a notice, which shall govern the terms of
the Excess Proceeds Offer, and shall state:
(1) that the Excess Proceeds Offer is being made pursuant
to this Section 4.10, the principal amount of Notes which shall be
accepted for payment and that all Notes validly tendered shall be
accepted for payment on a pro rata basis;
(2) the purchase price and the date of purchase;
(3) that any Notes not tendered or accepted for payment
pursuant to the Excess Proceeds Offer shall continue to accrue interest;
(4) that, unless the Company defaults in the payment of
the purchase price with respect to any Notes tendered, Notes accepted
for payment pursuant to the Excess Proceeds Offer shall cease to accrue
interest after the Excess Proceeds Payment Date;
(5) that Holders electing to have Notes purchased pursuant
to an Excess Proceeds Offer shall be required to surrender their Notes,
with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Note completed, to the Company prior to the close of
business on the third Business Day immediately preceding the Excess
Proceeds Payment Date;
(6) that Holders shall be entitled to withdraw their
election if the Company receives, not later than the close of business
on the second Business Day preceding the Excess Proceeds Payment Date, a
telegram, telex, facsimile transmission or letter setting forth the name
of the Holder, the principal amount of Notes the Holder delivered for
purchase and a statement that such Holder is withdrawing his election to
have such Notes purchased;
(7) that Holders whose Notes are purchased only in part
shall be issued Notes representing the unpurchased portion of the Notes
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surrendered; provided that each Note purchased and each new Note issued
shall be in principal amount of $1,000 or whole multiples thereof; and
(8) the instructions that Holders must follow in order to
tender their Notes.
On or before the Excess Proceeds Payment Date, the Company shall
(i) accept for payment the Notes or portions thereof (or an allocable amount
thereof) tendered pursuant to the Excess Proceeds Offer, (ii) deposit with the
Paying Agent money sufficient to pay the purchase price of all Notes or portions
thereof so accepted and (iii) deliver to the Trustee the Notes so accepted,
together with an Officers' Certificate stating that the Notes or portions
thereof (or an allocable amount thereof) tendered to the Company are accepted
for payment. The Paying Agent shall promptly mail to each Holder of Notes so
accepted payment in an amount equal to the purchase price of such Notes, and the
Trustee shall promptly authenticate and mail to such Holders new Notes equal in
principal amount to any unpurchased portion of the Notes surrendered.
The Company shall make a public announcement of the results of
the Excess Proceeds Offer as soon as practicable after the Excess Proceeds
Payment Date. For the purposes of this Section 4.10, the Trustee shall act as
the Paying Agent.
Section 4.11. Limitation on Transactions With Affiliates.
The Company shall not, and shall not permit any of the Restricted
Subsidiaries to, directly or indirectly, transfer any of its properties or
assets to, or purchase any property or assets from, or enter into any contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an "Affiliate Transaction"), except
for (i) Affiliate Transactions that, together with all Affiliate Transactions
entered into after the date hereof that are part of a common plan, have an
aggregate value of not more than $1.0 million; provided, that such transactions
are conducted in good faith and on terms that are no less favorable to the
Company or the relevant Restricted Subsidiary than those that would have been
obtained in a comparable transaction at such time on an arm's-length basis from
a Person that is not an Affiliate of the Company or such Restricted Subsidiary,
(ii) Affiliate Transactions that, together with all Affiliate Transactions that
are part of a common plan, have an aggregate value of not more than $7.0
million; provided, that a majority of the disinterested members
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of the Board of Directors of the Company determine that such transactions are
conducted in good faith and on terms that are no less favorable to the Company
or the relevant Restricted Subsidiary than those that would have been obtained
in a comparable transaction at such time on an arm's-length basis from a Person
that is not an Affiliate of the Company or such Restricted Subsidiary, and (iii)
Affiliate Transactions for which the Company delivers to the Trustee an opinion
as to the fairness to the Company or such Restricted Subsidiary from a financial
point of view, issued by an investment banking firm of national standing with
recognized experience in the gaming industry.
Notwithstanding the foregoing, the following will be deemed not
to be Affiliate Transactions: (a) employment agreements or arrangements entered
into by the Company or any Restricted Subsidiary in the ordinary course of
business with the approval of the disinterested members of the Company's Board
of Directors or, if none, unanimously by such Board of Directors, (b)
transactions between or among the Company and/or any or all of the Guarantors,
(c) Restricted Payments permitted by Section 4.7 hereof, and (d) reasonable and
customary fees and compensation paid to, and indemnity provided on behalf of,
directors of the Company.
Section 4.12. Limitation on Liens.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist
any Lien on any asset (including, without limitation, all real, tangible or
intangible property) of the Company or any Restricted Subsidiary, whether now
owned or hereafter acquired, or on any income or profits therefrom, or assign or
convey any right to receive income therefrom, except (a) Permitted Liens and (b)
prior to the earlier of the consummation of the Exchange Offer or the
effectiveness of the Initial Shelf Registration (as defined in the Registration
Rights Agreement), Liens on the Capital Stock of FSI, FLVI and FRI.
Section 4.13. Corporate Existence.
Subject to Article 5 of this Indenture, the Company shall do or
cause to be done all things necessary to preserve and keep in full force and
effect (i) its corporate existence, and the corporate, partnership or other
existence of each of its respective Subsidiaries, in accordance with their
respective organizational documents (as the same may be amended from time to
time) and (ii) its (and its
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Subsidiaries') rights (charter and statutory), licenses (including gaming and
related licenses) and franchises; provided, that the Company shall not be
required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any Subsidiary, if the Board of Directors on
behalf of the Company shall determine in good faith that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
its Subsidiaries taken as a whole and that the loss thereof is not adverse in
any material respect to the Holders.
Section 4.14. Repurchase Upon a Change of Control.
Upon the occurrence of a Change of Control, the Company shall
notify the Trustee in writing thereof and shall make an offer to purchase all of
the Notes then outstanding as described below (the "Change of Control Offer") at
a purchase price equal to 101% of the aggregate principal amount thereof, plus
accrued and unpaid interest, if any, to the date of repurchase (the "Change of
Control Payment").
The Change of Control Offer shall be made in compliance with all
applicable laws, including without limitation, Regulation 14E of the Exchange
Act and the rules thereunder and all other applicable Federal and state
securities laws. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Section 4.14, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.14 by virtue
thereof.
Within 20 days following any Change of Control, the Company shall
commence the Change of Control Offer by mailing to the Trustee and each Holder a
notice, which shall govern the terms of the Change of Control Offer, and shall
state that:
(i) the Change of Control Offer is being made pursuant to
this Section 4.14 and that all Notes tendered will be accepted for
payment,
(ii) the purchase price and the purchase date, which shall
be a Business Day no earlier than 30 days nor later than 45 days from
the date such notice is mailed (the "Change of Control Payment Date"),
(iii) that any Note not tendered for payment pursuant to
the Change of Control Offer shall continue to accrue interest,
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(iv) that, unless the Company defaults in the payment of
the Change of Control Payment, all Notes accepted for payment pursuant
to the Change of Control Offer shall cease to accrue interest on the
Change of Control Payment Date,
(v) that any Holder electing to have Notes purchased
pursuant to a Change of Control Offer shall be required to surrender
such Notes, with the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Notes completed, to the Paying Agent at the
address specified in the notice prior to the close of business on the
third Business Day preceding the Change of Control Payment Date,
(vi) that any Holder shall be entitled to withdraw such
election if the Paying Agent receives, not later than the close of
business on the second Business Day preceding the Change of Control
Payment Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Notes such
Holder delivered for purchase, and a statement that such Holder is
withdrawing his election to have such Notes purchased,
(vii) that a Holder whose Notes are being purchased only
in part shall be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered, which unpurchased portion
must be equal to $1,000 in principal amount or an integral multiple
thereof,
(viii) the instructions that Holders must follow in order
to tender their Notes, and
(ix) the circumstances and relevant facts regarding such
Change of Control.
On the Change of Control Payment Date, the Company shall, to the
extent lawful, (i) accept for payment the Notes or portions thereof tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent an
amount equal to the Change of Control Payment in respect of all Notes or
portions thereof so tendered and not withdrawn, and (iii) deliver or cause to be
delivered to the Trustee the Notes so accepted together with an Officers'
Certificate stating that the Notes or portions thereof tendered to the Company
are accepted for payment. The Paying Agent shall promptly mail to each Holder of
Notes so accepted
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payment in an amount equal to the purchase price for such Notes, and the Trustee
shall authenticate and mail to each Holder a new Note equal in principal amount
to any unpurchased portion of the Notes surrendered, if any, provided, that each
such new Note will be in principal amount of $1,000 or an integral multiple
thereof.
The Company shall make a public announcement of the results of
the Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date. For the purposes of this Section 4.14, the Trustee shall
act as the Paying Agent.
The Company shall not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.14 and purchases all Notes validly
tendered and not withdrawn under such Change of Control Offer.
Section 4.15. Maintenance of Properties.
The Company shall, and shall cause each of its Subsidiaries to,
maintain their properties and assets in normal working order and condition as on
the date of this Indenture (reasonable wear and tear excepted) and make all
necessary repairs, renewals, replacements, additions, betterments and
improvements thereto, as shall be reasonably necessary for the proper conduct of
the business of the Company and its Subsidiaries taken as a whole; provided,
that nothing herein shall prevent the Company or any of its Subsidiaries from
discontinuing any maintenance of any such properties if the Company determines
that such discontinuance is desirable in the conduct of the business of the
Company and its Subsidiaries taken as a whole.
Section 4.16. Maintenance of Insurance.
The Company shall, and shall cause each of its Subsidiaries to,
maintain liability, casualty and other insurance (including self-insurance
consistent with prior practice) with responsible insurance companies in such
amounts and against such risks as is in accordance with customary industry
practice in the general areas in which the Company and its Subsidiaries operate.
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Section 4.17. Restrictions on Sale and Issuance of Subsidiary Stock.
The Company shall not sell, and shall not permit any of its
Restricted Subsidiaries to issue or sell, any Equity Interests of any Restricted
Subsidiary (other than directors' qualifying shares) to any Person other than
the Company or a Wholly Owned Subsidiary; provided, that (i) the Company and its
Restricted Subsidiaries may sell all (but not less than all) of the Capital
Stock of a Restricted Subsidiary owned by the Company and its Restricted
Subsidiaries if the Net Proceeds from such sale are used in accordance with the
provisions of Section 4.10 of this Indenture, and (ii) FSI may issue shares of
common stock upon the exercise of warrants outstanding on the Issue Date in
accordance with the terms thereof, provided, that immediately following such
exercise the Company owns at least 94.3% of the common stock of FSI.
Section 4.18. Line of Business.
The Company will not, and will not permit any Subsidiary to,
directly or indirectly engage in any business other than a Related Business.
Without limiting the foregoing, (a) FNYI shall not engage in any activity other
than holding and collecting amounts due and payable under the Oneida Settlement
Agreement and activities incidental thereto, and (b) FAMI shall not engage in
any activity other than the management of the Xxxxx Xxxxxx Casino pursuant to
the FAMI Management Agreement and activities reasonably related thereto. The
Company will cause FNYI to distribute to the holders of its Capital Stock
(including FI), promptly after receipt thereof, all amounts received from time
to time under the Oneida Settlement Agreement, to the extent permitted by law.
ARTICLE 5
SUCCESSORS
Section 5.1. When the Company May Merge, etc.
The Company shall not consolidate or merge with or into (whether
or not the Company is the surviving corporation), or transfer all or
substantially all of its properties or assets (determined on a consolidated
basis for the Company and its Restricted Subsidiaries) in one or more related
transactions to, any other Person unless:
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(i) the Company is the surviving Person or the Person
formed by or surviving any such consolidation or merger (if other than
the Company) or to which such transfer has been made is a corporation
organized and existing under the laws of the United States, any state
thereof or the District of Columbia,
(ii) the Person formed by or surviving any such
consolidation or merger (if other than the Company) or the Person to
which such transfer has been made assumes all the Obligations of the
Company, pursuant to a supplemental indenture and Security Documents in
a form reasonably satisfactory to the Trustee and the Collateral Agent,
under the Notes, this Indenture, the Security Documents and the
Registration Rights Agreement,
(iii) immediately after giving effect to such transaction
on a pro forma basis, no Default or Event of Default exists or would
occur, and
(iv) the Company, or any Person formed by or surviving any
such consolidation or merger, or to which such transfer has been made,
(A) has a Consolidated Net Worth (immediately after the transaction but
prior to any purchase accounting adjustments resulting from the
transaction) equal to or greater than the Consolidated Net Worth of the
Company immediately preceding the transaction and (B) shall be
permitted, at the time of such transaction and after giving pro forma
effect thereto as if such transaction had occurred at the beginning of
the applicable four-quarter period, to incur at least $1.00 of
additional Indebtedness pursuant to Section 4.9(a) hereof.
The Company shall deliver to the Trustee prior to the
consummation of any proposed transaction an Officers' Certificate to the
foregoing effect, an Opinion of Counsel, stating that all conditions precedent
to the proposed transaction provided for in this Indenture have been complied
with, and a written statement from a firm of independent public accountants of
established national reputation reasonably satisfactory to the Trustee stating
that the proposed transaction complies with clause (iv).
For purposes of this Section 5.1, the transfer of all or
substantially all of the properties and assets of one or more Subsidiaries of
the Company, which properties and assets, if held by the Company instead of such
Subsidiaries, would
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constitute all or substantially all of the properties and assets of the Company
on a consolidated basis, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.
Section 5.2. Successor Substituted.
In the event of any transaction (other than a lease) contemplated
by Section 5.1 hereof in which the Company is not the surviving Person, the
successor formed by such consolidation or into or with which the Company is
merged or to which such transfer is made, or formed by such reorganization, as
the case may be, shall succeed to, and be substituted for, and may exercise
every right and power of, the Company, and the Company shall be discharged from
its Obligations under this Indenture, the Notes, the Security Documents and the
Registration Rights Agreement with the same effect as if such successor Person
had been named as the Company herein or therein. The Trustee shall have the
right to require any such Person to ensure, by executing and delivering
appropriate instruments and Opinions of Counsel, that the Trustee continues to
hold a first priority Lien on all Collateral for the benefit of the Holders.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.
An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest on any
Note when the same becomes due and payable and the Default continues
for a period of 30 days;
(2) the Company defaults in the payment of the principal
(or premium, if any) on any Note when the same becomes due and payable
at maturity, upon redemption, by acceleration, in connection with an
Excess Proceeds Offer, a Change of Control Offer or otherwise;
(3) the Company defaults in the performance of or breaches
the provisions of Sections 4.7, 4.8, 4.9, 4.10 or 4.14, or Article 5
hereof;
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(4) the Company or any Guarantor fails to comply with any
of its other agreements or covenants in, or provisions of, the Notes or
this Indenture or the Security Documents and the Default continues for
30 days after written notice thereof has been given to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least
25% in aggregate principal amount of the then outstanding Notes, such
notice to state that it is a "Notice of Default;"
(5) a default occurs under (after giving effect to any
waivers, amendments, applicable grace periods or any extension of any
maturity date) any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any Restricted
Subsidiary (or the payment of which is guaranteed by the Company or any
Restricted Subsidiary), whether such Indebtedness or guarantee now
exists or is created after the date of this Indenture, if (a) either
(i) such default results from the failure to pay principal of or
interest on such Indebtedness or (ii) as a result of such default the
maturity of such Indebtedness has been accelerated, and (b) either (i)
such default is under an Eligible Credit Facility or Permitted Tunica
Debt or (ii) the principal amount of such Indebtedness, together with
the principal amount of any other such Indebtedness with respect to
which such a payment default (after the expiration of any applicable
grace period or any extension of the maturity date) has occurred, or
the maturity of which has been so accelerated, exceeds $5.0 million in
the aggregate;
(6) a final non-appealable judgment or judgments for the
payment of money (other than judgments as to which a reputable insurance
company has accepted full liability) is or are entered by a court or
courts of competent jurisdiction against the Company or any Restricted
Subsidiary and such judgment or judgments remain undischarged, unbonded
or unstayed for a period of 60 days after entry, provided that the
aggregate of all such judgments exceeds $5.0 million;
(7) repudiation by the Company or any Restricted
Subsidiary of its obligations under this Indenture, the Notes, the
Security Documents or the Guaranty, or the unenforceability of the
Indenture, the Security Documents, the Notes, or the Guaranty against
the Company or any of the Restricted Subsidiaries for any reason;
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(8) the revocation or suspension of a Gaming License
resulting in the cessation of operations of a Significant Casino for a
period of 60 consecutive days or more;
(9) the Company or any Guarantor 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,
(e) admits in writing its inability to pay debts
as the same become due; or
(10) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(a) is for relief against the Company or any
Guarantor in an involuntary case,
(b) appoints a Custodian of the Company or any
Guarantor or for all or substantially all of
their property,
(c) orders the liquidation of the Company, or
any Guarantor,
and the order or decree remains unstayed and in effect for 60 days.
The Company shall, upon becoming aware that a Default or Event of
Default has occurred, deliver to the Trustee a statement specifying such Default
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or Event of Default and what action the Company is taking or proposes to take
with respect thereto.
Section 6.2. Acceleration.
If an Event of Default (other than an Event of Default specified
in clauses (9) and (10) of Section 6.1) occurs and is continuing, the Trustee by
written notice to the Company, or the Holders of at least 25% in principal
amount of the then outstanding Notes by written notice to the Company and the
Trustee, may declare the unpaid principal of and any accrued interest on all the
Notes to be due and payable. Upon such declaration the principal and interest
shall be due and payable immediately. If an Event of Default specified in clause
(9) or (10) of Section 6.1 with respect to the Company occurs, all outstanding
Notes shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. At any time
after a declaration of acceleration, but before a judgment or decree for payment
of the money due has been obtained by the Trustee, the Holders of a majority in
aggregate principal amount of the Notes outstanding, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if (a) the Company has paid or deposited with the Trustee a sum
sufficient to pay (i) all sums paid or advanced by the Trustee and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, (ii) all overdue interest (including any interest
accrued subsequent to an Event of Default specified in clauses (9) and (10) of
Section 6.1) on all Notes, (iii) the principal of and premium, if any, on any
Notes that have become due otherwise than by such declaration or occurrence of
acceleration and interest thereon at the rate borne by the Notes, and (iv) to
the extent that payment of such interest is lawful, interest upon overdue
interest at the rate borne by the Notes; (b) all Events of Default, other than
the non-payment of principal of and interest on the Notes that have become due
solely by such declaration or occurrence of acceleration, have been cured or
waived; and (c) the rescission would not conflict with any judgment, order or
decree of any court of competent jurisdiction.
Section 6.3. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy (under this Indenture or otherwise) to collect the
payment of principal or interest on the Notes to enforce the performance of any
provision of the Notes, this Indenture or the Security Documents.
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The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy 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. All remedies are cumulative
to the extent permitted by law.
Section 6.4. Waiver of Past Defaults.
Holders of a majority of the aggregate principal amount of the
then outstanding Notes by written notice to the Trustee may on behalf of the
Holders of all of the Notes (a) waive any existing Default or Event of Default
and its consequences under this Indenture except a continuing Default or Event
of Default in the payment of the principal of, or interest on, any Note or a
Default or an Event of Default with respect to any covenant or provision which
cannot be modified or amended without the consent of the Holder of each
outstanding Note affected, and/or (b) rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default (except nonpayment of principal or
interest that has become due solely because of the acceleration) have been cured
or waived. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
Section 6.5. Control by Majority.
The Holders of a majority in principal amount of the then
outstanding Notes 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. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture, that the Trustee determines may be
unduly prejudicial to the rights of other Holders, or that may involve the
Trustee in personal liability.
Section 6.6. Limitation on Suits.
A Holder may pursue a remedy with respect to this Indenture or
the Notes only if:
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(a) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(c) such Holder or Holders offer and, if requested, provide to
the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or
to obtain a preference or priority over another Holder.
Section 6.7. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right
of any Holder of a Note to receive payment of principal and interest on the
Note, on or after the respective due dates expressed in the Note, 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 6.8. Collection Suit by Trustee.
If an Event of Default specified in Section 6.1(1) or (2) occurs
and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount of
principal and interest remaining unpaid on the Notes and interest on overdue
principal (and premium, if any) and, to the extent lawful, interest or overdue
interest and such further amount as shall be sufficient to cover the costs and
expenses of collection,
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including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
Section 6.9. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company (or any
other obligor under the Notes), their creditors or their property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.7 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.7 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders of the Notes
may be entitled to receive in such proceeding whether in liquidation or under
any plan of reorganization or arrangement or otherwise. Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.7, including payment of all compensation, expense and
liabilities
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incurred, and all advances made, by the Trustee and the costs and expenses of
collection;
Second: to Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal and
interest, respectively;
Third: without duplication, to Holders for any other Obligations
owing to the Holders under the Notes or this Indenture; and
Fourth: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders.
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 a 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 6.6, or a suit by Holders of more than 10% in principal
amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.1. Duties of Trustee.
(1) If an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent person
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would exercise or use under the circumstances in the conduct of his or her own
affairs.
(2) Except during the continuance of an Event of Default:
(a) The duties of the Trustee shall be determined
solely by the express provisions of this Indenture, and the Trustee need
perform only those duties that are specifically set forth in this
Indenture and the Security Documents, and no others, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee.
(b) 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 and the Security Documents. However, the Trustee shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture and the Security Documents
(but need not confirm the accuracy of mathematical calculations or other
facts stated therein).
(3) The Trustee may not be relieved from liabilities for
its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(a) This paragraph does not limit the effect of
paragraph (2) of this Section.
(b) The Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts.
(c) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.5.
(4) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (1), (2) and (3) of this Section.
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(5) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability. The Trustee may
refuse to perform any duty or exercise any right or power unless it receives
indemnity satisfactory to it against any loss, liability or expense.
(6) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
(7) The Trustee is hereby appointed to act as Collateral
Agent and, in connection therewith, to enter into the Intercreditor Agreement
upon execution thereof by the other parties thereto.
Section 7.2. Rights of Trustee.
(1) The Trustee may conclusively rely and shall be
protected in acting or refraining from acting upon 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.
(2) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel or both. 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. The
Trustee may consult with counsel of its selection and the advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection from liability in respect of any action taken, suffered or omitted by
it hereunder in good faith and in reliance thereon.
(3) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(4) 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 powers conferred upon it by this Indenture.
(5) Unless otherwise specifically provided in this
Indenture or the Security Documents, any demand, request, direction or notice
from the
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Company shall be sufficient if signed by an Officer of the Company, on behalf of
the Company.
(6) Except with respect to Section 4.1, the Trustee shall
have no duty to inquire as to the performance of the Company's covenants in
Article 4 hereof. In addition, the Trustee shall not be deemed to have knowledge
of any Default or Event of Default except (i) any Event of Default occurring
pursuant to Sections 6.1(1), 6.1(2) and 4.1, or (ii) any Default or Event of
Default of which the Trustee shall have received written notification or
obtained actual knowledge.
Section 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company or an
Affiliate of the Company with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to Sections 7.10 and 7.11.
Section 7.4. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Company's use of the proceeds from the Notes or
any money paid to the Company or upon the Company's direction under any
provision hereof, it shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.5. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if
the Trustee has actual knowledge thereof (within the meaning of Section 7.2(6)),
the Trustee shall mail to the Holders a notice of the Default or Event of
Default within 30 days after it occurs.
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Section 7.6. Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, the Trustee shall mail to the Holders a
brief report dated as of such reporting date that complies with TIA Section
313(a) (but if no event described in TIA Section 313(a) has occurred within the
twelve months preceding the reporting date, no report need be transmitted). The
Trustee also shall comply with TIA Section 313(b). The Trustee shall also
transmit by mail all reports as required by TIA Section 313(c).
Commencing at the time this Indenture is qualified under the TIA,
a copy of each report at the time of its mailing to the Holders shall be filed
with the Commission and each stock exchange on which the Notes are listed. The
Company shall promptly notify the Trustee when the Notes are listed on any
stock exchange.
Section 7.7. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed to in writing by the Company and the Trustee for
its acceptance of this Indenture and services hereunder. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee promptly upon request for
all reasonable disbursements, advances and expenses incurred or made by it in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel, except such disbursements, advances and expenses as may be attributable
to its negligence or bad faith.
The Company shall indemnify the Trustee and any predecessor
against any and all losses, liabilities, damages, claims or expenses incurred by
it without negligence or bad faith on its part arising out of or in connection
with the acceptance or administration of its duties under this Indenture, except
as set forth below. The Trustee shall notify the Company promptly of any claim
for which it may seek indemnity. Failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations hereunder. The Company shall
defend the claim and the Trustee shall cooperate in the defense. In the event
that a conflict of interest or conflicting defenses would arise in connection
with the representation of the Company and the Trustee by the same counsel, the
Trustee may have separate
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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,
which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.7 shall
survive the satisfaction and discharge of this Indenture.
The Company need not reimburse any expense or indemnify against
any loss or liability incurred by the Trustee through its own negligence or bad
faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal of (and
premium, if any) and interest on particular Notes. Such Lien shall survive the
satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(9) or (10) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section shall survive the termination of
this Indenture.
Section 7.8. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section and upon the Company's
receipt of notice from the successor Trustee of such appointment.
The Trustee may resign at any time and be discharged from the
trust hereby created by so notifying the Company. The Holders of a majority in
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
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(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or
its property;
(d) the Trustee becomes incapable of acting; or
(e) the Trustee is found unsuitable or unqualified by any Gaming
Authority.
If 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. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the then outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee after written request by any Holder who has been a
Holder for at least six months fails to comply with Section 7.10, such Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, 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. The successor Trustee shall mail a notice of its
succession to the Holders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, provided that all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.7. Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Company's obligations under Section 7.7 hereof shall continue
for the benefit of the retiring Trustee, and
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the Company shall pay to any such replaced or removed Trustee all amounts owed
under Section 7.7 upon such replacement or removal.
Section 7.9. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation or banking association, the successor corporation without any
further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that shall (a) be
a corporation organized and doing business under the laws of the United States
of America or of any state thereof or of the District of Columbia authorized
under such laws to exercise corporate trustee power, (b) be subject to
supervision or examination by Federal or state or the District of Columbia
authority, and (c) have a combined capital and surplus of at least $100,000,000
as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1), 310(a)(2) and 310(a)(5). The Trustee is
subject to TIA Section 310(b); provided, however, that there shall be excluded
from the operations of TIA Section 310(b)(1) any indenture or indentures under
which other securities, or certificates of interest or participation in other
securities, of the Company are outstanding, if the requirements for such
exclusion set forth in TIA Section 310(b)(1) are met.
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein. The provisions of TIA Section 311 shall apply to the Company, as
obligor on the Notes.
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ARTICLE 8
DISCHARGE; LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1. Discharge; Option to Effect Legal Defeasance or Covenant
Defeasance.
This Indenture shall cease to be of further effect (except that
the Company's and the Guarantors' obligations under Section 7.7 and the
Trustee's and the Paying Agent's obligations under Sections 8.6 and 8.7 shall
survive) when all outstanding Notes theretofore authenticated and issued have
been delivered (other than destroyed, lost or stolen Notes that have been
replaced or paid) to the Trustee for cancellation and the Company or the
Guarantors have paid all sums payable hereunder. In addition, the Company may
elect at any time to have Section 8.2 or Section 8.3, at the Company's option,
of this Indenture applied to all outstanding Notes upon compliance with the
conditions set forth below in this Article 8.
Section 8.2. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.2, except as set forth below, the Company
and the Guarantors shall be deemed to have been discharged from their respective
obligations with respect to all outstanding Notes on the date the conditions
set forth below are satisfied (hereinafter, "Legal Defeasance"). Following such
Legal Defeasance, (a) the Company shall be deemed to have paid and discharged
the entire indebtedness outstanding hereunder, and this Indenture shall cease to
be of further effect as to all outstanding Notes and Guarantees, and (b) the
Company and the Guarantors shall be deemed to have satisfied all other of their
respective obligations under the Notes, the Guaranty and this Indenture (and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder:
(i) the rights of Holders to receive payments in respect
of the principal of, premium, if any, and interest (and Liquidated
Damages, if any) on such Notes when such payments are due from the trust
described in Section 8.5;
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(ii) the Company's obligations under Sections 2.4, 2.6,
2.7, 2.10, 4.2, 8.5, 8.6 and 8.7 hereof; and
(iii) the rights, powers, trusts, duties and immunities of
the Trustee hereunder and the Company's and the Guarantors' obligations
in connection therewith.
Section 8.3. Covenant Defeasance.
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.3, the Company and the Guarantors shall be
released from their respective obligations under the covenants contained in
Sections 4.3, 4.4, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.14, 4.15, 4.16, 4.17, 4.18
and Article V hereof on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter
be deemed not "outstanding" for the purposes of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder. Following such Covenant Defeasance, (a)
neither the Company nor any Guarantor need comply with, and none of them shall
have any liability in respect of, any term, condition or limitation set forth in
any such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document, but, except as
specified above, the remainder of this Indenture, the Notes and the Guaranty
shall be unaffected thereby, and (b) Sections 6.1(3) through 6.1(8) hereof shall
not constitute Events of Default with respect to the Notes.
Section 8.4. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of
either Section 8.2 or 8.3 hereof to the outstanding Notes:
(i) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 7.10 hereof who shall agree to comply with the provisions of this
Article 8 applicable to it), in trust, for the benefit of the Holders, cash,
U.S. Government Obligations, or a combination thereof, in such amounts as will
be sufficient, in the opinion of a nationally recognized firm of independent
public accountants, to pay
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the principal of, premium, if any, and interest (and Liquidated Damages, if any)
on such outstanding Notes on the stated date for payment thereof or on the
redemption date of such principal or installment of principal of, premium, if
any, or interest on such Notes, and the holders of Notes must have a valid,
perfected, exclusive security interest in such trust;
(ii) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an opinion of counsel in the United States reasonably
acceptable to the trustee confirming that (A) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling or (B) since
the date of this Indenture, there has been a change in the applicable Federal
income tax law, in either case to the effect that, and based thereon such
opinion of counsel shall confirm that, the Holders will not recognize income,
gain or loss for Federal income tax purposes as a result of such Legal
Defeasance and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
(iii) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an opinion of counsel in the United States reasonably
acceptable to such Trustee confirming that the Holders will not recognize
income, gain or loss for Federal income tax purposes as a result of such
Covenant Defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such Covenant Defeasance had not occurred;
(iv) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit;
(v) such Legal Defeasance or Covenant Defeasance will not result
in a breach or violation of, or constitute a default under any material
agreement or instrument to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound;
(vi) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders over the other creditors of the Company with the
intent of defeating, hindering, delaying or defrauding other creditors of the
Company; and
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(vii) the Company shall have delivered to the Trustee an
Officers' Certificate and an opinion of counsel, each stating that the
conditions precedent provided for in, in the case of the Officers' Certificate,
(i) through (vi) and, in the case of the opinion of counsel, clauses (i) (with
respect to the validity and perfection of the security interest), (ii), (iii)
and (v) of this paragraph, have been complied with.
Section 8.5. Deposited Cash and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
Subject to Section 8.6 hereof, all cash and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.5, the
"Paying Agent") pursuant to Section 8.4 hereof in respect of the outstanding
Notes shall be held in trust and applied by the Paying Agent, in accordance with
the provisions of such Notes and this Indenture, to the payment, either directly
or through any other Paying Agent as the Trustee may determine, to the Holders
of such Notes of all sums due and to become due thereon in respect of principal,
premium, if any, and interest (and Liquidated Damages, if any).
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 8.4 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of Outstanding Notes.
Section 8.6. Repayment to the Company.
(a) The Trustee or the Paying Agent shall deliver or pay to the
Company from time to time upon the request of the Company any cash or U.S.
Government Obligations held by it as provided in Section 8.4 hereof which in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee (which may
be the opinion delivered under Section 8.4(a) hereof), are in excess of the
amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
(b) Any cash and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee or any Paying Agent, or then held
by
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the Company, in trust for the payment of the principal of, premium, if any, or
interest (and Liquidated Damages, if any) on any Note and remaining unclaimed
for two years after such principal, and premium, if any, or interest has become
due and payable shall be paid to the Company on its request; and the Holder of
such Note shall thereafter look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money
shall thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, shall at the expense of the
Company cause to be published once, in the New York Times and The Wall Street
Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 8.7. Reinstatement.
If the Trustee or Paying Agent is unable to apply any cash or
U.S. Government Obligations in accordance with Section 8.2 or 8.3 hereof, as the
case may be, of this Indenture by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, or if any event occurs at any time in the period ending on the 91st
day after the date of deposit pursuant to Section 8.2 or 8.3 hereof which event
would constitute an Event of Default under Section 6.1 (9) or (10) had Legal
Defeasance or Covenant Defeasance, as the case may be, not occurred, then the
Company's and the Guarantors' obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.2 or 8.3 hereof until such time as the Trustee or Paying Agent is
permitted to apply such money in accordance with Sections 8.2 and 8.3 hereof, as
the case may be; provided, however, that, if the Company makes any payment of
principal of, premium, if any, or interest (and Liquidated Damages, if any) on
any Note following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the cash or U.S. Government Obligations held by the Trustee or Paying
Agent.
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ARTICLE 9
AMENDMENTS
Section 9.1. Without Consent of Holders.
The Company, the Guarantors and the Trustee may amend or
supplement this Indenture and the Notes without the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or
in place of certificated Notes;
(3) to comply with Article 5 and Section 10.12 hereof;
(4) to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights hereunder or thereunder of any Holder;
(5) to comply with requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the TIA;
or
(6) to release any Guarantee of the Notes permitted to be
released under Section 10.7 hereof.
Upon the request of the Company, accompanied by a resolution of
the Board of Directors of the Company authorizing the execution of any such
supplemental indenture or amendment, and upon receipt by the Trustee of the
documents described in Section 9.6 hereof required or requested by the Trustee,
the Trustee shall join with the Company in the execution of any supplemental
indenture or amendment authorized or permitted by the terms of this Indenture
and shall make any further appropriate agreements and stipulations which may be
therein contained, but the Trustee shall not be obligated to enter into such
supplemental indenture or amendment that affects its own rights, duties or
immunities under this Indenture or otherwise.
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Section 9.2. With Consent of Holders.
Subject to Sections 6.4 and 6.7 hereof, the Company and the
Trustee, as applicable, may amend, or waive any provision of, this Indenture or
the Notes, with the written consent of the Holders of at least a majority of the
principal amount of the then outstanding Notes (including consents obtained in
connection with a tender offer or exchange offer for Notes).
Upon the request of the Company, accompanied by a resolution of
the Board of Directors of the Company authorizing the execution of any such
supplemental indenture or amendment, and upon filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders as aforesaid,
and upon receipt by the Trustee of the documents described in Section 9.6
hereof, the Trustee shall join with the Company in the execution of such
supplemental indenture or amendment unless such supplemental indenture or
amendment affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed supplemental
indenture or amendment, but it shall be sufficient if such consent approves the
substance thereof.
After a supplemental indenture or amendment under this Section
becomes effective, the Company shall mail to the Holders of each Note affected
thereby a notice briefly describing the amendment or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture, amendment
or waiver.
Notwithstanding any other provision hereof, without the consent
of each Holder affected, an amendment or waiver under this Section may not (with
respect to any Notes held by a non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders
must consent to an amendment, supplement or waiver;
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(2) reduce the rate of or change the time for payment of
interest, including default interest, on any Note;
(3) reduce the principal of, or the premium (including,
without limitation, redemption premium) on, or change the fixed maturity
of any Note or alter the provisions with respect to payment on
redemption of the Notes or the price at which the Company shall offer to
purchase such Notes pursuant to Section 4.10 or 4.14 hereof;
(4) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on, or redemption payment
with respect to, any Note (other than a Default in the payment of an
amount due as a result of an acceleration if the Holder rescinds such
acceleration pursuant to Section 6.2);
(5) make any Note payable in money other than that stated
in the Notes;
(6) make any change in Section 6.4 or 6.7 hereof or in
this Section 9.2 with respect to the requirement for the consent of any
affected Holder; or
(7) make any change adversely affecting the contractual
ranking of the Obligations.
Section 9.3. Compliance with Trust Indenture Act.
If, at the time of an amendment to this Indenture or the Notes,
this Indenture shall be qualified under the TIA, every amendment to this
Indenture or the Notes shall be set forth in a supplemental indenture that
complies with the TIA as then in effect.
Section 9.4. Revocation and Effect of Consents.
Until a supplemental indenture, an amendment or waiver becomes
effective, a consent to it by a Holder of a Note is a continuing consent by the
Holder and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is
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not made on any Note. A supplemental indenture, amendment or waiver becomes
effective in accordance with its terms and thereafter binds every Holder.
The Company may fix a record date for determining which Holders
must consent to such supplemental indenture, amendment or waiver. If the Company
fixes a record date, the record date shall be fixed at (i) the later of 30 days
prior to the first solicitation of such consent or the date of the most recent
list of Holders furnished to the Trustee prior to such solicitation pursuant to
Section 2.5, or (ii) such other date as the Company shall designate.
Section 9.5. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about a
supplemental indenture, amendment or waiver on any Note thereafter
authenticated. The Company in exchange for all Notes may issue and the Trustee
shall authenticate new Notes that reflect the amendment or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment or waiver.
Section 9.6. Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment or supplemental indenture
authorized pursuant to this Article 9 if the amendment does not adversely affect
the rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign it. In signing or refusing to sign such
amendment or supplemental indenture, the Trustee shall be entitled to receive,
if requested, an indemnity reasonably satisfactory to it and to receive and,
subject to Section 7.1, shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that such amendment
or supplemental indenture is authorized or permitted by this Indenture, that it
is not inconsistent herewith, and that it shall be valid and binding upon the
Company in accordance with its terms. The Company may not sign an amendment or
supplemental indenture until the Board of Directors of the Company approves it.
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ARTICLE 10
COLLATERAL AND SECURITY AND GUARANTY
Section 10.1. Collateral Documents.
The due and punctual payment of the principal and premium, if
any, of, and interest on, the Notes when and as the same shall be due and
payable, whether on an interest payment date, at maturity, by acceleration,
repurchase, redemption or otherwise, interest on the overdue principal of and
interest (to the extent permitted by law), if any, on the Notes and performance
of all other Obligations, shall be secured as provided in the Security
Documents.
The Company shall, and shall cause each of its Restricted
Subsidiaries to, do or cause to be done all such acts and things as may be
necessary or proper, or as may be required by the provisions of the Security
Documents, to assure and confirm to the Collateral Agent the security interest
in the Collateral contemplated hereby and by the Security Documents, as from
time to time constituted, so as to render the same available for the security
and benefit of this Indenture and of the Notes secured hereby, according to the
intent and purposes herein and therein expressed. The Company shall, and shall
cause each of its Restricted Subsidiaries to, take, upon request of the Trustee
or the Collateral Agent, any and all actions required to cause the Security
Documents to create and maintain, as security for the Obligations, valid and
enforceable, perfected (except as expressly provided herein or therein), Liens
in and on all the Collateral, in favor of the Collateral Agent, superior to and
prior to the rights of all third Persons, and subject to no other Liens, other
than as provided herein and therein.
Without limiting the foregoing, the Company shall, and shall
cause each of its Restricted Subsidiaries to (i) do all things necessary or
advisable to obtain the consent of the Gaming Authorities in Nevada to the
pledge of, and the negative pledge on, the stock of FRI, FSI and FLVI prior to
the Exchange Offer; and (ii) use its best efforts to obtain all necessary
consents from the respective lessors and others to the grant of a first priority
Lien on the Company's interest in the Nevada Ground Leases (as defined in the
Offering Circular) and to the foreclosure by the Collateral Agent thereon
following an Event of Default as promptly as practicable following the Issue
Date. If the consents referred to in either clause (i) or (ii) above are
received, the Company shall, and shall cause the respective Subsidiaries to,
take such steps as may be necessary or advisable to pledge or create a negative
pledge on such stock as set forth in clause (i), or grant such first
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priority Lien as set forth in clause (ii), as the case may be, in either case,
in accordance with this Indenture and the Security Documents.
Section 10.2. Opinions.
The Company shall furnish to the Trustee within three months
after each anniversary of the Issue Date, an Opinion of Counsel, dated as of
such date, stating either that (i) in the opinion of such counsel, all action
has been taken with respect to the recording, registering, filing, re-recording,
re-registering and refiling of all supplemental indentures, financing
statements, continuation state ments or other instruments of further assurance
as is necessary to maintain the Liens of the Security Documents and reciting the
details of such action or (ii) in the opinion of such Counsel, no such action is
necessary to maintain such Liens, which Opinion of Counsel also shall state what
actions it then believes are neces sary to maintain the effectiveness of such
liens during the next two years.
Section 10.3. Release of Collateral.
(a) Unless a Default or Event of Default shall have occurred and
be continuing, Collateral shall be released from the Liens created by the
Security Documents from time to time at the sole cost and expense of the
Company:
(i) upon payment in full of the Notes and all other Obligations
then due and owing, or
(ii) upon Legal Defeasance or Covenant Defeasance of the Notes,
or
(iii) upon the sale or other disposition of such Collateral
pursuant to an Asset Sale made in accordance with Section 4.10 hereof,
or
(iv) upon a Guarantor (as to Collateral owned by it) being
released from its obligations hereunder pursuant to Section 10.13;
provided, that the Trustee shall not release any Lien on any Collateral unless
and until it shall have received an Officers' Certificate certifying that all
conditions precedent hereunder have been met and such other documents required
by Section 10.4 hereof. Upon compliance with the above provisions, the Trustee
shall execute, deliver or acknowledge any necessary or proper instruments of
termina-
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tion, satisfaction or release to evidence the release of any Collateral
permitted to be released pursuant to this Indenture or the Security Documents.
(b) The release of any Collateral from the terms of the Security
Documents shall not be deemed to impair the security under this Indenture in
contravention of the provisions hereof and of the Security Documents if and to
the extent the Collateral is released pursuant to the terms of this Indenture
and the Security Documents.
Section 10.4. Certificates of the Company.
The Company shall furnish to the Trustee, prior to each proposed
release of Collateral, all documents required by TIA Section 314(d). The Trustee
may, to the extent permitted by Sections 7.1 and 7.2 hereof, accept as
conclusive evidence of compliance with the foregoing provisions the appropriate
statements contained in such instruments. Any certificate or opinion required by
TIA Section 314(d) may be made by an Officer of the Company except in cases
where TIA Section 314(d) requires that such certificate or opinion be made by an
independent engineer, appraiser or other expert within the meaning of TIA
Section 314(d).
Section 10.5. Authorization of Actions to be Taken by the Trustee Under the
Security Documents.
The Trustee may, in its sole discretion and without the consent
of the Holders, on behalf of the Holders, take all actions it deems necessary or
appropriate in order to (a) enforce any of the terms of the Security Documents
and (b) collect and receive any and all amounts payable in respect of the
Obligations of the Company and the Guarantors hereunder. The Trustee shall have
the power to institute and to maintain such suits and proceedings as it may deem
expedient to prevent any impairment of the Collateral by any acts that may be
unlawful or in violation of the Security Documents or this Indenture, and such
suits and proceedings as the Trustee may deem expedient to preserve or protect
its interest and the interests of the Holders in the Collateral (including power
to institute and maintain suits or proceedings to restrain the enforcement of or
compliance with any legislative or other governmental enactment, rule or order
that may be unconstitutional or otherwise invalid if the enforcement of, or
compliance with, such enactment, rule or order would impair the security
interest hereunder or be prejudicial to the interests of the Holders or the
Trustee).
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Section 10.6. Authorization of Receipt of Funds by the Trustee Under the
Security Documents.
The Trustee is authorized to receive any funds for the benefit of
the Holders distributed under the Security Documents, and to make further
distributions of such funds to the Holders according to the provisions of this
Indenture and the Security Documents.
Section 10.7. Guaranty.
For good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, subject to Section 10.9 hereof, each Guarantor,
jointly and severally, hereby unconditionally guarantees (such guarantees,
together with further guarantees granted from time to time pursuant to Section
10.12, being the "Guaranty") to each Holder, the Trustee and the Collateral
Agent, irrespective of the validity or enforceability of this Indenture, the
Notes, the Security Documents or the Obligations hereunder or thereunder: (i)
the due and punctual payment of the principal and premium, if any, of, and
interest on, the Notes (including, without limitation, interest after the
filing of a petition initiating any proceedings referred to in clause (9) or
(10) of Section 6.1 hereof), whether at maturity or on an interest payment date,
by acceleration, call for redemption or otherwise; (ii) the due and punctual
payment of interest on the overdue principal and premium, if any, of, and
interest on, the Notes, if lawful; (iii) the due and punctual payment and
performance of all other Obligations, all in accordance with the terms set forth
herein and in the Notes and the Security Documents; and (iv) in case of any
extension of time of payment or renewal of any Notes or any of such other
Obligations, the due and punctual payment or performance thereof in accordance
with the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.
Failing payment when due by the Company of any amount so
guaranteed for whatever reason, the Guarantors shall be jointly and severally
obligated to pay the same immediately.
Each Guarantor hereby agrees that (i) its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes, this Indenture, the Security Documents or the
Obligations hereunder or thereunder, the absence of any action to enforce the
same, any waiver or consent by any Holder with respect to any provisions hereof
or thereof, any releases of
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Collateral, any amendment of the Indenture, the Notes or Security Documents, any
delays in obtaining or realizing upon or failures to obtain or realize upon
Collateral, the recovery of any judgment against the Company or any of its
Subsidiaries, any action to enforce the same, or any other circumstance that
might otherwise constitute a legal or equitable discharge or defense of a
guarantor and (ii) this Guaranty will not be discharged except by complete
performance of the Obligations.
Each Guarantor hereby agrees that it shall not be entitled to and
irrevocably waives (i) diligence, presentment, demand of payment, filing of
claim with a court in the event of insolvency or bankruptcy of the Company, any
Guarantor, any other Subsidiary of the Company or any other obligor under the
Notes, any right to require a proceeding first against the Company, any
Guarantor, any other Subsidiary of the Company or any other obligor under this
Indenture, the Notes or the Security Documents, protest, notice and all demands
whatsoever, (ii) any right of subrogation, reimbursement, exoneration,
contribution or indemnification in respect of any Obligations guaranteed hereby
and (iii) any claim or other rights that it may now or hereafter acquire against
the Company or any of its Subsidiaries that arise from the existence or
performance of its Obligations under this Guaranty, including, without
limitation, any right to participate in any claim or remedy of a Holder against
the Company or any of its Subsidiaries or any Collateral that a Holder now has
or hereafter acquires, whether or not such claim, remedy or right arises in
equity or under contract, statute or common law, by any payment made hereunder
or otherwise, and including, without limitation, the right to take or receive
from the Company or any of its Subsidiaries, directly or indirectly, in cash or
other property, by setoff or in any other manner, payment or security on account
of such claim or other rights.
If any Holder or the Trustee is required by any court or
otherwise to return to the Company, any Guarantor, any other Subsidiary of the
Company or any other obligor under this Indenture, the Notes or the Security
Documents, trustee, liquidator, or other similar official, any amount paid by
the Company, any Guarantor, any other Subsidiary of the Company or any other
obligor under this Indenture, the Notes or the Security Documents to the Trustee
or such Holder, this Guaranty, to the extent theretofore discharged, shall be
reinstated in full force and effect.
Each Guarantor agrees that, as between the Guarantors, on the one
hand, and the Holders and the Trustee, on the other hand, (i) the maturity of
the
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Obligations guaranteed hereby may be accelerated as provided in Section 6.2 for
the purposes of this Guaranty, notwithstanding any stay, injunction or other
prohibition preventing such acceleration as to the Company of the Obligations
guaranteed hereby, and (ii) in the event of any declaration of acceleration of
those Obligations as provided in Section 6.2, those Obligations (whether or not
due and payable) will forthwith become due and payable by each of the Guarantors
for the purpose of this Guaranty.
Section 10.8. Execution and Delivery of Guaranty.
To evidence the Guaranty set forth in Section 10.7, the Company
and each Guarantor hereby agrees that (a) a notation of such Guaranty
substantially as set forth on Exhibit C hereto shall be endorsed on each Note
authenticated and delivered by the Trustee, (b) such endorsement shall be
executed on behalf of each Guarantor by its Chairman of the Board, President,
Chief Financial Officer, Chief Operating Officer, Treasurer, Secretary or any
Vice President and (c) a counterpart signature page to this Indenture shall be
executed on behalf of each Guarantor by its Chairman of the Board, President or
one of its Vice Presidents and attested to by another officer acknowledging such
Guarantor's agreement to be bound by the provisions hereof and thereof.
Each Guarantor hereby agrees that its Guaranty set forth in
Section 10.7 shall remain in full force and effect notwithstanding any failure
to endorse on each Note a notation of such Guaranty.
If an officer whose signature is on this Indenture no longer
holds that office at the time the Trustee authenticates the Notes on which a
Guaranty is endorsed, the Guaranty shall nevertheless be valid.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guaranty set forth in
this Indenture on behalf of the Guarantor.
Section 10.9. Limitation on Guarantor's Liability.
Each Guarantor and by its acceptance hereof each Holder hereby
confirms that it is the intention of all such parties that the guarantee by such
Guarantor pursuant to its Guaranty not constitute a fraudulent transfer or
conveyance for purposes of any Federal or state law. To effectuate the
foregoing inten-
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tion, the Holders and the Guarantors hereby irrevocably agree that the
obligations of each Guarantor under its Guaranty shall be limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor and to any collections from or payments made by
or on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Guaranty, result in the Obligations of such Guarantor under
the Guaranty not constituting a fraudulent conveyance or fraudulent transfer
under Federal or state law.
Section 10.10. Rights under the Guaranty.
(a) No payment by any Guarantor pursuant to the provisions hereof
shall entitle such Guarantor to any payment out of any Collateral or give rise
to any claim of the Guarantors against the Trustee or any Holder.
(b) Each Guarantor waives notice of the issuance, sale and
purchase of the Notes and notice from the Trustee or the Holders from time to
time of any of the Notes of their acceptance and reliance on this Guaranty.
(c) No set-off, counterclaim, reduction or diminution of any
obligation or any defense of any kind or nature (other than performance by the
Guarantors of their obligations hereunder) that any Guarantor may have or assert
against the Trustee or any Holder shall be available hereunder to such
Guarantor.
(d) Each Guarantor shall pay all costs, expenses and fees,
including all reasonable attorneys' fees, that may be incurred by the Trustee in
enforcing or attempting to enforce the Guaranty or protecting the rights of the
Trustee or the Holder, if any, in accordance with this Indenture.
Section 10.11. Primary Obligations.
The Obligations of each Guarantor hereunder shall constitute a
guaranty of payment and not of collection. Each Guarantor agrees that it is
directly liable to each Holder hereunder, that the Obligations of each Guarantor
hereunder are independent of the Obligations of the Company or any other
Guarantor, and that a separate action may be brought against each Guarantor,
whether such action is brought against the Company or any other Guarantor or
whether the Company or any other Guarantor is joined in such action. Each
Guarantor agrees that its liability hereunder shall be immediate and shall not
be contingent upon the exercise or enforcement by the Trustee or the Holders of
whatever remedies they
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may have against the Company or any other Guarantor, or the enforcement of any
lien or realization upon any security Trustee may at any time possess. Each
Guarantor agrees that any release that may be given by the Trustee or the
Holders to the Company or any other Guarantor shall not release such Guarantor.
Section 10.12. Guarantee by Subsidiary.
The Company shall cause (i) each Significant Restricted
Subsidiary that is formed or acquired after the date hereof and (ii) each
Subsidiary that becomes a Significant Restricted Subsidiary after the date
hereof, in each case concurrently therewith, to (i) become a Guarantor hereunder
and execute and deliver to the Trustee a Guaranty in the form of Exhibit C
attached hereto and a supplemental indenture in form reasonably satisfactory to
the Trustee pursuant to which such Restricted Subsidiary shall unconditionally
guarantee all of the Company's Obligations as set forth in Section 10.7 of this
Indenture; and (ii) execute a Security Agreement (substantially in the form of
the Security Agreement entered into on the Issue Date) and other Security
Documents necessary or reasonably requested by the Trustee to grant the Trustee
a valid, enforceable, perfected Lien on the Collateral described therein,
subject only to Liens permitted under Section 4.12; and (iii) cause such
Restricted Subsidiary to deliver to the Trustee an Opinion of Counsel, in form
reasonably satisfactory to the Trustee, that (i) such Security Agreement,
supplemental indenture and Guaranty have been duly authorized, executed and
delivered by such Restricted Subsidiary and (ii) such Security Agreement, this
Indenture and such Guaranty constitute a legal, valid, binding and enforceable
obligation of such Restricted Subsidiary, subject to customary exceptions for
bankruptcy, fraudulent transfer and equitable principles.
Each Note issued after the date of execution by any Guarantor of
a Guaranty shall be endorsed with a form of Guaranty that has been executed by
such Guarantor. However, the failure of any Note to have endorsed thereon a
Guaranty executed by such Guarantor shall not affect the validity or
enforceability of such Guaranty against such Guarantor.
Section 10.13. Release of Guarantors.
If all of the Capital Stock of any Guarantor is sold to a Person
(other than the Company or any of its Restricted Subsidiaries) and the Net
Proceeds from such Asset Sale are used in accordance with Section 4.10, then
such Guarantor will
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be released and discharged from all of its obligations under its Guaranty of the
Notes and this Indenture.
ARTICLE 11
MISCELLANEOUS
Section 11.1. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA Section 318(c), the imposed duties shall control.
Section 11.2. Notices.
Any notice or communication by the Company or the Trustee to the
others is duly given if in writing and delivered in Person or mailed by
first-class mail (registered or certified, return receipt requested), telecopier
or overnight air courier guaranteeing next day delivery, to the others'
addresses:
If to the Company:
Fitzgeralds Gaming Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Chief Executive Officer
Telecopier No.: (000) 000-0000
If to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx - 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Telecopier No.: (000) 000-0000
The Company or the Trustee by notice to the others may designate
additional or different addresses for subsequent notices or communications.
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All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; upon receipt, if deposited in the mail, postage prepaid;
when receipt acknowledged, if telecopied; and the next Business Day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next day
delivery. All notices and communications to the Trustee shall be deemed to have
been duly given only if actually received by the Trustee.
Any notice or communication to a Holder shall be mailed by
first-class mail, to his address shown on the register kept by the Registrar.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
Section 11.3. Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and any other person shall have the
protection of TIA Section 312(c).
Section 11.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 11.5) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
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(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 11.5) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been complied with.
Section 11.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he has made
such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with,
provided that with respect to matters of fact, an Opinion of Counsel may rely
upon an Officers' Certificate or a certificate of a public official.
Section 11.6. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
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Section 11.7. Legal Holidays.
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 11.8. No Recourse Against Others.
No director, officer, employee, incorporator, stockholder or
controlling person of the Company or any Guarantor, as such, shall have any
liability for any obligations of the Company or any Guarantor under the Notes,
this Indenture, the Security Documents or the Registration Rights Agreement or
for any claim based on, in respect of, or by reason of such obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release shall be part of the consideration for the
issuance of the Notes and the Guaranty. Notwithstanding the foregoing, nothing
in this provision shall be construed as a waiver or release of any claims under
the Federal securities laws.
Section 11.9. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED AND THE RIGHTS OF
THE PARTIES DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY HEREBY IRREVOCABLY SUBMITS
TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF
THE AFORESAID COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT
MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN
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ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE COMPANY
IRREVOCABLY CONSENTS, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO THE COMPANY AT ITS ADDRESS SET FORTH HEREIN,
SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF ANY PURCHASER TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
THE COMPANY IN ANY OTHER JURISDICTION.
Section 11.10. 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 of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 11.11. Successors.
All agreements of the Company and any Guarantors in this
Indenture and the Notes shall bind their respective successors. All agreements
of the Trustee in this Indenture shall bind its successor.
Section 11.12. Severability.
In case any provision in this Indenture or in the Notes 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 11.13. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
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Section 11.14. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
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INDENTURE
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Indenture as of the date first written above.
FITZGERALDS GAMING CORPORATION
and each of:
FITZGERALDS SOUTH, INC.
FITZGERALDS RENO, INC.
FITZGERALDS INCORPORATED
FITZGERALDS MISSISSIPPI, INC.
FITZGERALDS LAS VEGAS, INC.
FITZGERALDS BLACK HAWK, INC.
FITZGERALDS BLACK HAWK II, INC.
FITZGERALDS FREMONT EXPERIENCE
CORPORATION
000 XXXX XXXXXX LIMITED LIABILITY
COMPANY,
as Guarantors
By: /s/ XXXXXX X. XXXXXXXX
----------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
of each of the above named entities
Attest:
/s/ XXXXXXX X. XXXXXXXXX
--------------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: Secretary
S-1
000
XXX XXXX XX XXX XXXX, as Trustee
By:/s/ XXXXXX X. XXXXXXXXXX
------------------------------------
Name: XXXXXX X. XXXXXXXXXX
Title: Assistant Vice President
S-2
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EXHIBIT A
(Face of Security)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST
COMPANY (THE "DEPOSITORY") TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE
DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DEPOSITORY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR
SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DEPOSITORY), 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.(1)
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE WHICH IS TWO YEARS (OR SUCH
SHORTER PERIOD THAT MAY HEREAFTER BE PROVIDED UNDER RULE 144(k) AS PERMITTING
RESALES BY NON-AFFILIATES OF RESTRICTED SECURITIES WITHOUT RESTRICTION) AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY
PREDECESSOR OF SUCH NOTE) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN
THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT THAT IS PURCHASING THE NOTE FOR ITS OWN ACCOUNT, OR FOR
THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
TRUSTEE.
--------
(1) This paragraph should be included only if the Note is issued in global form.
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108
FITZGERALDS GAMING CORPORATION
12 1/4% SENIOR SECURED NOTE
DUE 2004
NO. $___________
CUSIP NO.
Fitzgeralds Gaming Corporation, a Nevada corporation (the
"Company"), as obligor, for value received promises to pay to ______________ or
registered assigns, the principal sum of [ ] Dollars on December 15, 2004.
Interest Payment Dates: June 15 and December 15 and on the
maturity date. Record Dates: June 1 and December 1 (whether or not a Business
Day).
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
Dated:
FITZGERALDS GAMING CORPORATION
By:
-----------------------------------------
Name:
Title:
By:
-----------------------------------------
Name:
Title:
Trustee's Certificate of Authentication:
Dated:
This is one of the Notes referred to
in the within-mentioned Indenture:
THE BANK OF NEW YORK, as Trustee
By:
-------------------------------
Authorized Signatory
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(Back of Security)
12 1/4% SENIOR SECURED NOTE
DUE 2004
1. Interest. Fitzgeralds Gaming Corporation, a Nevada corporation
(the "Company"), as obligor, promises to pay interest on the principal amount of
this Note at the rate and in the manner specified below.
The Company shall pay, in cash, interest on the principal amount
of this Note, at the rate of 12 1/4% per annum. The Company shall pay interest
semi-annually on June 15 and December 15 of each year, and on the maturity date,
commencing on June 15, 1998, or if any such day is not a Business Day, on the
next succeeding Business Day (each an "Interest Payment Date").
Interest shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. Interest shall accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from
December 30, 1997. To the extent lawful, the Company shall pay interest on
overdue principal at the rate of 1% per annum in excess of the then applicable
interest rate on the Notes; the Company shall pay interest on overdue
installments of interest (without regard to any applicable grace periods) at the
same rate to the extent lawful.
2. Method of Payment. The Company shall pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the record date next preceding the Interest Payment
Date, even if such Notes are cancelled after such record date and on or before
such Interest Payment Date. The Holder must surrender this Note to a Paying
Agent to collect principal payments. The Company shall pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. The Company may pay principal
and interest by check to a Holder's registered address.
3. Paying Agent and Registrar. Initially, the Trustee shall act
as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-registrar without notice to any Holder. Subject to certain
exceptions, the Company or any of its Subsidiaries may act in any such capacity.
4. Indenture. The Company has issued the Notes under an
Indenture dated as of December 30, 1997 (the "Indenture") among the Company, the
Guarantors named therein and the Trustee. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (the "TIA") (15 U.S. Code Sections 77aaa-77bbbb) as
in effect on the date of the Indenture until such time as the Indenture is
qualified under the TIA and thereafter as in effect on the date the Indenture is
so qualified. The Notes are subject to all such terms, and Holders are referred
to the Indenture and such Act for a statement of such terms. The terms of the
Indenture shall govern any inconsistencies between the Indenture and the Notes.
Terms not otherwise defined herein shall have the meanings assigned in the
Indenture. The Notes are limited to $255 million in aggregate principal amount.
5. Optional Redemption. The Notes are not redeemable at the
Company's option prior to December 15, 2001. Thereafter, the Notes will be
subject to redemption at the option of the Company, in whole or in part, at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued
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110
and unpaid interest thereon, if any, to the applicable redemption date, if
redeemed during the 12-month period beginning on December 15 of the years
indicated below:
Year Percentage
---- ----------
2001............................ 106.250%
2002............................ 104.166%
2003 ........................... 102.083%
2004 and thereafter............. 100.000%
Notwithstanding the foregoing, at any time or from time to time
prior to December 15, 2001, the Company may, at its option, redeem up to 35% of
the original principal amount of the Notes, at a redemption price of 112.5% of
the principal amount thereof, plus accrued and unpaid interest, if any, to the
applicable redemption date, with the net cash proceeds of one or more Public
Equity Offerings; provided, that (a) such redemption shall occur within 90 days
of the date of closing of such public offering and (b) at least $133,250,000
aggregate principal amount of Notes remains outstanding immediately after giving
effect to each such redemption.
Each holder, by accepting the Notes, shall be deemed to have
agreed (to the extent permitted by applicable law) 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 a
beneficial owner of any of the Notes must be licensed or found suitable under
applicable gaming laws, such holder shall apply for a license or a finding of
suitability within the required time period. If such Person fails to apply or
become licensed or is found unsuitable, the Company shall have the right, at its
option, (i) to require such Person to dispose of its Notes or beneficial
interest therein within 30 days of receipt of notice of the Company's election
or such earlier date as may be ordered by such Gaming Authority, or (ii) to
redeem such Notes at a price of 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 date of redemption and the date of the finding of unsuitability,
which may be less than 30 days following the notice of redemption if so ordered
by the Gaming Authority. The holder or beneficial owner applying for a license
or finding of suitability must pay all costs of the licensure or investigation
for such finding.
6. Mandatory Redemption. There shall be no mandatory redemption
of the Notes.
7. Denominations, Transfer, Exchange. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and the Company may require a Holder to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar and the Company need not exchange
or register the transfer (i) of any Note or portion of a Note selected for
redemption or (ii) of any Notes for a period of 15 days before a selection of
Notes to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
8. Persons Deemed Owners. The registered Holder of a Note may be
treated as its owner for all purposes, subject to the provisions of the
Indenture with respect to the record dates for the payment of interest.
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9. Amendments and Waivers. Subject to certain exceptions, the
Indenture or the Notes may be amended with the written consent of the Holders of
at least a majority in principal amount of the then outstanding Notes (including
consents obtained in connection with a tender offer or exchange offer for
Notes), and any existing Default or Event of Default (except certain payment
defaults) may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes (including consents obtained in
connection with a tender offer or exchange offer for Notes). Without the consent
of any Holders, the Indenture and the Notes may be amended or supplemented to
cure any ambiguity, defect or inconsistency, to provide for assumption of the
Company's obligations to the Holders in the case of a merger or consolidation,
to provide for uncertificated Notes in addition to or in place of certificated
Notes, to make any change that would provide any additional rights or benefits
to the Holders of the Notes, or that does not adversely affect the legal rights
under the Indenture of any Holder, to release any Guarantee of the Notes
permitted to be released under the terms of the Indenture or to comply with
requirements of the Commission in order to effect or maintain the qualification
of the Indenture under the TIA.
10. Defaults and Remedies. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare by written notice to the Company and the
Trustee all the Notes to be due and payable immediately, except that in the case
of an Event of Default arising from certain events of bankruptcy or insolvency,
all outstanding Notes become due and payable immediately without further action
or notice. Holders may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Notes. Subject to certain limitations, Holders of
a majority in principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power. The Company must furnish an
annual compliance certificate to the Trustee.
11. Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not Trustee.
12. No Recourse Against Others. No director, officer, employee,
incorporator, stockholder or controlling person of the Company or Guarantor, as
such, shall have any liability for any obligations of the Company or any
Guarantor under the Notes, the Indenture or the Registration Rights Agreement or
for any claim based on, in respect of, or by reason of such obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes and the Guarantees. Notwithstanding the foregoing, nothing in this
provision shall be construed as a waiver or release of any claims under the
Federal securities laws.
13. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
14. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
15. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes
A-5
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and has directed the Trustee to use CUSIP numbers in notices of redemption as a
convenience to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.
[16. Holders' Compliance with Registration Rights Agreement. Each
Holder of a Note, by his acceptance thereof, acknowledges and agrees to the
provisions of the Registration Rights Agreement, dated as of December 30, 1997,
among the Company and the parties named on the signature page thereof (the
"Registration Rights Agreement"), including but not limited to the obligations
of the Holders with respect to a registration and the indemnification of the
Company and the Purchasers (as defined therein) to the extent provided
therein.(2)
17. Governing Law. This Note and the Indenture shall be
construed, interpreted and the rights of the parties determined in accordance
with the laws of the State of New York, without regard to principles of
conflicts of law.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to: Fitzgeralds Gaming Corporation, 000 Xxxxxxx Xxxxxx,
Xxx Xxxxx, Xxxxxx, 00000, Attention: Chief Executive Officer.
--------
(2) This paragraph should only be included in the Series A Notes.
A-6
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign
and transfer this Note to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint______________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
--------------------------------------------------------------------------------
Date:
--------------------
Your Signature:
--------------------------
(Sign exactly as your name appears
on the face of this Note)
Tax Identification Number:
---------------
Signature Guarantee*
----------------
* NOTICE: The signature must be guaranteed by an institution which is a member
of one of the following recognized signature guarantee programs:
(1) The Securities Transfer Agent Medallian Program (STAMP);
(2) The New York Stock Exchange Medallian Program (MSP);
(3) The Stock Exchange Medallian Program (SEMP).
A-7
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note purchased by
the Company pursuant to Section 4.10 or Section 4.14 of the Indenture, as the
case may be, state the amount you elect to have purchased (if all, write "ALL"):
$
--------------
Date:
--------------------------
Your Signature:
--------------------------
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee*
--------------
* NOTICE: The signature must be guaranteed by an institution which is a member
of one of the following recognized signature guarantee programs:
(1) The Securities Transfer Agent Medallian Program (STAMP);
(2) The New York Stock Exchange Medallian Program (MSP);
(3) The Stock Exchange Medallian Program (SEMP).
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SCHEDULE OF EXCHANGES OF DEFINITIVE NOTES(3)
The following exchanges of a part of this Global Note for
Definitive Notes have been made:
Amount of decrease in Amount of increase in Principal Amount of this
Principal Amount of this Principal Amount of this Global Note following Signature of authorized
Date of Exchange Global Note Global Note such decrease (or increase) officer of Trustee
-----------------------------------------------------------------------------------------------------------------------------------
--------
(3) This should only be included if the Note is issued in global form.
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EXHIBIT B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF NOTES
Re: [Series A] [Series B]12 1/4% Senior Secured Notes due 2004 (the "Notes")
of Fitzgeralds Gaming Corporation
This Certificate relates to $______ principal amount of Notes held in *
[ ] book-entry or * [ ] definitive form by _______________________ (the
"Transferor").
The Transferor, by written order, has requested the Trustee:
[ ] to deliver in exchange for its beneficial interest in the Global Note
held by the depository, a Note or Notes in definitive, registered form
of authorized denominations and an aggregate principal amount equal to
its beneficial interest in such Global Note (or the portion thereof
indicated above); or
[ ] to exchange or register the transfer of a Note or Notes. In connection
with such request and in respect of each such Note, the Transferor does
hereby certify that Transferor is familiar with the Indenture relating
to the above captioned Notes and, the transfer of this Note does not
require registration under the Securities Act of 1933, as amended (the
"Securities Act") because such Note:
[ ] is being acquired for the Transferor's own account, without transfer;
[ ] is being transferred pursuant to an effective registration statement;
[ ] is being transferred to a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act), in reliance on such Rule 144A;
[ ] is being transferred pursuant to an exemption from registration in
accordance with Rule 904 under the Securities Act;**
[ ] is being transferred pursuant to Rule 144 under the Securities Act;** or
[ ] is being transferred pursuant to another exemption from the registration
requirements of the Securities Act (explain:
----------------------------
--------------------------------------------------------------------).**
---------------------------
[INSERT NAME OF TRANSFEROR]
By:
-------------------------------
Date:
---------------------
* Check applicable box.
** If this box is checked, this certificate must be accompanied by
an opinion of counsel to the effect that such transfer is in
compliance with the Securities Act.
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EXHIBIT C
[FORM OF GUARANTY]
GUARANTY
For good and valuable consideration received from the Company by
the undersigned (hereinafter referred to as the "Guarantors," which term
includes any successor or additional Guarantors), the receipt and sufficiency of
which is hereby acknowledged, subject to Section 10.9 of the Indenture, each
Guarantor, jointly and severally, hereby unconditionally guarantees,
irrespective of the validity or enforceability of the Indenture, the Notes, the
Security Documents or the Obligations, (a) the due and punctual payment of the
principal and premium, if any, of and interest on the Notes (including, without
limitation, interest after the filing of a petition initiating any proceedings
referred to in Sections 6.1(9) or (10) of the Indenture), whether at maturity or
on an interest payment date, by acceleration, call for redemption or otherwise,
(b) the due and punctual payment of interest on the overdue principal and
premium, if any, of and interest, if any, on the Notes, if lawful, (c) the due
and punctual payment and performance of all other Obligations, all in accordance
with the terms set forth in the Indenture, the Notes and the Security Documents,
and (d) in case of any extension of time of payment or renewal of any Notes or
any of such other Obligations, the due and punctual payment or performance
thereof in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise.
No director, officer, employee, incorporator, stockholder or
controlling person of the Guarantor, as such, shall have any liability under
this Guaranty for any obligations of the Guarantor under the Notes, the
Indenture or the Registration Rights Agreement or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of
the Notes by accepting a Note waives and releases all such liability.
FITZGERALDS SOUTH, INC. FITZGERALDS MISSISSIPPI, INC.
By: By:
----------------------------- -----------------------------
Name: Name:
--------------------------- ---------------------------
Title: Title:
-------------------------- --------------------------
FITZGERALDS LAS VEGAS, INC. FITZGERALDS FREMONT
EXPERIENCE CORPORATION
By:
----------------------------- By:
Name: -----------------------------
--------------------------- Name:
Title: ---------------------------
-------------------------- Title:
--------------------------
FITZGERALDS RENO, INC. FITZGERALDS INCORPORATED
By: By:
----------------------------- -----------------------------
Name: Name:
--------------------------- ---------------------------
Title: Title:
-------------------------- --------------------------
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FITZGERALDS BLACK HAWK, INC. FITZGERALDS BLACK HAWK II, INC.
By: By:
----------------------------- -----------------------------
Name: Name:
--------------------------- ---------------------------
Title: Title:
-------------------------- --------------------------
000 XXXX XXXXXX LIMITED
LIABILITY COMPANY
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
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119
EXHIBIT E
[FORM OF SHIP MORTGAGE]
E-1
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[Tunica]
FIRST PREFERRED VESSEL MORTGAGE
ON THE WHOLE OF THE FITZGERALDS TUNICA
(U.S.C.G. Official Number 262757)
Maximum Amount of $255,000,000.00
FITZGERALDS MISSISSIPPI, INC., a Mississippi corporation,
having an address of
000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000,
Owner and Mortgagor
In Favor of
THE BANK OF NEW YORK, a New York banking association,
having an address of
000 Xxxxxxx Xxxxxx - 00X
Xxx Xxxx, Xxx Xxxx 00000
in its capacity as Trustee
under that certain Indenture dated as of
December 30, 1997 by and among
Fitzgeralds Gaming Corporation,
a Nevada corporation,
the Guarantors named therein and
The Bank of New York,
Trustee-Mortgagee
Dated as of December 30, 1997
Discharge amount: $255,000,000.00 (or such lesser amount of principal
as shall have been advanced) Together WithInterest, Expenses,
Attorneys' Fees And Costs And Performance of Mortgage Covenants
121
TABLE OF CONTENTS
Page
----
ARTICLE 1.
DEFINITIONS AND RULES OF CONSTRUCTION................................5
1.1 Certain Definitions...........................................6
1.2 Rules of Construction.........................................6
ARTICLE 2.
GENERAL MORTGAGE PROVISIONS..........................................6
ARTICLE 3.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF MORTGAGOR...............7
3.1 Corporate Status of Mortgagor.................................7
3.2 Outstanding Liens.............................................7
3.3 Compliance with Law...........................................7
3.4 Operation of Vessel...........................................8
3.5 Payment of Taxes, Etc.........................................8
3.6 Notice of Mortgage............................................8
3.7 Release from Arrest...........................................9
3.8 Care of the Vessel............................................9
3.9 Access to Vessel..............................................9
3.10 Documentation of Vessel.......................................9
3.11 Sale, Charter or Mortgage of Vessel...........................9
3.12 Insurance....................................................10
3.13 Requisition of Title to Vessel...............................11
3.14 Requisition of Vessel but Not Title..........................11
3.15 Execution of Additional Documents............................12
ARTICLE 4.
EVENTS OF DEFAULT AND REMEDIES......................................12
4.1 Events of Default............................................12
4.2 Remedies.....................................................13
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122
4.3 Sale of Vessel by Mortgagee..................................14
4.4 Mortgagee to Sign for Mortgagor..............................15
4.5 Mortgagee to Collect Hire, Etc...............................15
4.6 Right to a Receiver..........................................15
4.7 Suits to Protect the Vessel..................................15
4.8 Costs of Mortgagee...........................................16
4.9 Right of Mortgagee...........................................16
4.10 Restoration of Position......................................16
4.11 Proceeds of Sale.............................................17
4.12 Gaming Approvals.............................................17
ARTICLE 5.
MISCELLANEOUS PROVISIONS............................................17
5.1 Addresses for Notices, Etc...................................17
5.2 Mortgagee's Expenses, Including Attorney's Fees..............18
5.3 Counterparts.................................................19
5.4 Interest of Mortgagee........................................19
5.5 Survivorship of Covenants....................................19
5.6 Amendments...................................................19
5.7 Discharge of Lien............................................19
5.8 Incorporation into Mortgage..................................19
5.9 GOVERNING LAW................................................19
5.10 Conflict.....................................................20
- iii -
123
FIRST PREFERRED VESSEL MORTGAGE
THIS FIRST PREFERRED VESSEL MORTGAGE (as same may be amended,
replaced or supplemented from time to time hereafter, this "Mortgage") dated as
of December 30, 1997, is granted by:
FITZGERALDS MISSISSIPPI, INC.
000 Xxxxx Xxxx
Xxxxxxxxxxx, XX 00000
a corporation organized and existing under and by virtue of the laws of the
State of Mississippi ("Mortgagor") in favor of: The Bank of New York, whose
address is 000 Xxxxxxx Xxxxxx - 00X, Xxx Xxxx, Xxx Xxxx 00000, as Trustee under
that certain Indenture (as same may be amended or supplemented from time to time
hereafter, the "Indenture") dated December 30, 1997, by and among Fitzgeralds
Gaming Corporation, a Nevada corporation (the "Company"), Mortgagor and the
other Guarantors named therein and The Bank of New York, as Trustee-Mortgagee
("Mortgagee").
WHEREAS:
A. Mortgagor is the sole owner of the whole of the vessel identified and
described in the Granting Clause of this Mortgage.
B. Pursuant to the terms and conditions of the Indenture, the Company
has executed certain 12 1/4% Senior Secured Notes (together with any
replacements thereof contemplated in the Indenture and as same may be amended or
supplemented from time to time hereafter, the "Notes") dated as of December 30,
1997, and due in 2004, in the aggregate stated maximum principal amount of TWO
HUNDRED FIFTY FIVE MILLION DOLLARS AND NO/100 ($255,000,000.00).
C. Mortgagor is a wholly-owned subsidiary of the Company and has
guaranteed (as same may be amended, replaced or supplemented from time to time
hereafter, "Mortgagor's Guaranty"), pursuant to the terms of the Indenture,
payment by the Company of the indebtedness evidenced by the Notes and
performance by the Company of the obligations of the Company under the Notes and
the Indenture.
D. Mortgagor has entered into that certain Deed of Trust, Security
Agreement And Fixture Filing With Assignment of Rents of even date herewith (as
same may be amended, replaced or supplemented from time to time hereafter, the
2
124
"Deed of Trust"), recorded in Tunica County, Mississippi covering certain fee
estates, improvements and other real and personal property owned by Mortgagor;
which Deed of Trust secures payment and performance of the Subsidiary Guarantee
Obligations, as defined in the Deed of Trust.
E. In order to further secure the due and punctual payment and
performance of all of the Subsidiary Guarantee Obligations, Mortgagor has agreed
to execute and deliver this Mortgage as follows:
WITNESSETH:
IN CONSIDERATION OF THE FOREGOING PREMISES AND FOR OTHER GOOD AND
VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY
ACKNOWLEDGED, MORTGAGOR DOES HEREBY IRREVOCABLY GRANT, BARGAIN, SELL, TRANSFER,
MORTGAGE, CONVEY AND ASSIGN UNTO AND IN FAVOR OF MORTGAGEE, its successors and
assigns, as agent and representative for the equal and ratable benefit of the
Holders, the following (but excluding in each and every case all Excluded
Assets, as defined in the Deed of Trust), whether now owned or hereafter
acquired:
GRANTING CLAUSE ONE
[VESSEL]
The whole of the following named and described vessel and appurtenances (the
"Vessel") to wit:
OFFICIAL
NAME NUMBER TYPE
---- ------ ----
FITZGERALDS TUNICA 262757 Barge
TOGETHER WITH, all of the following now owned or hereafter acquired by Mortgagor
or in which Mortgagor has any rights or interest and now or hereafter located in
or on, or attached to, or used or intended to be used or which are now or may
hereafter be appropriated for use on or in connection with the operation of the
Vessel and the business being conducted or which may be conducted thereon, or in
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125
connection with any construction being conducted or which may be conducted
thereon: boilers, engines, machinery, masts, spars, boats, cables, motors,
tools, anchors, chains, booms, cranes, rigs, pumps, pipe, tanks, tackle,
apparel, furniture, fixtures, rigging, supplies, fittings and gaming machinery,
equipment and accessories relating to the Vessel and the gaming operations now
or hereafter conducted thereon, including but not limited to communication
systems, visual and electronic surveillance systems and transportation systems,
tools, utensils, food and beverage, liquor, uniforms, linens, housekeeping and
maintenance supplies, fuel, all gaming equipment and devices, financial
equipment, computer equipment, calculators, adding machines, video game and slot
machines, and any other electronic equipment of every nature used in connection
with the operation of the Vessel and the business conducted thereon, all
machinery, equipment, engines, appliances and fixtures for generating or
distributing air, water, heat, electricity, light, fuel or refrigeration, or for
ventilating or sanitary purposes, or for the exclusion of vermin or insects, or
for the removal of dust, refuse or garbage, all wall-beds, wallsafes, built-in
furniture and installations, shelving, lockers, partitions, doorstops, vaults,
motors, elevators, dumb-waiters, awnings, window shades, Venetian blinds, light
fixtures, fire hoses and brackets and boxes for the same, fire sprinklers,
alarm, surveillance and security systems, drapes, drapery rods and brackets,
mirrors, mantels, screens, linoleum, carpets and carpeting, plumbing, bathtubs,
sinks, basins, pipes, faucets, water closets, laundry equipment, washers,
dryers, ice-boxes and heating units, all kitchen and restaurant equipment,
including but not limited to silverware, dishes, menus, cooking utensils,
stoves, refrigerators, ovens, ranges, dishwashers, disposals, water heaters,
incinerators, furniture, fixtures and furnishings, all cocktail lounge supplies,
including but not limited to bars, glassware, bottles and tables used in
connection with the Vessel, all chaise lounges, hot tubs, swimming pool heaters
and equipment, and all other recreational equipment (computerized and
otherwise), beauty and xxxxxx equipment, and maintenance supplies used in
connection with the Vessel, all specifically designed installations and
furnishings, and all furniture, furnishings and personal property of every
nature whatsoever; and all extensions, additions, accessions, improvements,
betterments, renewals, substitutions, and replacements to any of the foregoing,
all of which (to the fullest extent permitted by law) shall be conclusively
deemed appurtenances to the Vessel, and all other appurtenances to the Vessel
appertaining or belonging, whether now owned or hereafter acquired, whether on
board or not at any time of determination, and all additions, improvements and
replacements hereafter made in or to the Vessel and all proceeds of any of the
foregoing, including without limitation, any claim for compensation, purchase
price reimbursement or award for a requisition pursuant to Section 3.13 hereof
and any charter hire or other compensation resulting from a requisition pursuant
to Section
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126
3.14 hereof. Mortgagor and Mortgagee acknowledge that significant structures,
improvements, additions, equipment and other appurtenances may be added to the
Vessel after the execution of this Mortgage, and Mortgagor specifically affirms
and agrees that all such appurtenances to the Vessel shall be subject to this
Mortgage.
TOGETHER WITH, all extensions, improvements, betterments,
renewals, substitutes for and replacements of, and all additions, accessions,
and appurtenances to, any of the foregoing that Mortgagor may subsequently
acquire, and all conversions of any of the foregoing; Mortgagor agrees that all
property hereafter acquired by Mortgagor and required by the Indenture, this
Mortgage or any other Security Document to be subject to the Lien and/or
security interests created by this Mortgage shall forthwith upon the acquisition
thereof by Mortgagor be subject to the Lien and security interests of this
Mortgage as if such property were now owned by Mortgagor and were specifically
described in this Mortgage and granted hereby or pursuant hereto, and the
Mortgagee is hereby authorized to receive any and all such property as and for
additional security for the Subsidiary Guarantee Obligations.
TO HAVE AND HOLD the same unto Mortgagee, its successors and assigns,
forever upon the terms herein set forth to secure payment of the Subsidiary
Guarantee Obligations, including the performance and observance of and
compliance with the covenants, terms and conditions herein contained.
PROVIDED, only, and the condition of these presents is such, that if the
Subsidiary Guarantee Obligations shall be indefeasibly paid and performed in
full, then, these presents and the rights hereunder shall cease, terminate and
be void in the manner provided in Section 5.6 hereof.
AND NOW, THE PARTIES HEREBY FURTHER AGREE, COVENANT AND DECLARE that the
Vessel is to be held subject to the following covenants, conditions, provisions,
terms and uses:
ARTICLE 1.
DEFINITIONS AND RULES OF CONSTRUCTION
For all purposes of this Mortgage, unless the context otherwise
requires:
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127
1.1 Certain Definitions. Capitalized terms used herein and not
otherwise defined herein but defined in the Indenture or the Deed of Trust shall
have the definitions provided in the Indenture or the Deed of Trust, as the case
may be.
1.2 Rules of Construction. Unless the context otherwise requires:
1.2.1 A term has the meaning assigned to it;
1.2.2 "or" is not exclusive;
1.2.3 Words in the singular include the plural, and in the
plural include the singular;
1.2.4 All references herein to particular articles or sections,
unless otherwise provided, are references to articles or sections of this
Mortgage.
1.2.5 The headings herein are solely for convenience of
reference and shall not constitute a part of this Mortgage nor shall they affect
its meaning, construction or effect.
ARTICLE 2.
GENERAL MORTGAGE PROVISIONS
For purposes of this Mortgage and in order to comply with Title 46,
Section 31321(b)(3) of the United States Code, the parties to this Mortgage
hereby declare that the indebtedness which is now or will in the future be owed
under the Notes, the Guarantees and the other Subsidiary Guarantee Obligations
is an amount up to the maximum sum of TWO HUNDRED FIFTY FIVE MILLION DOLLARS AND
NO/100 ($255,000,000), as the total of all possible advances that may be made
under the loan evidenced by the Notes, together with interest, attorneys' fees
and costs of performance of the Subsidiary Guarantee Obligations and the
covenants of this Mortgage, the Notes, the Guarantees, the Deed of Trust and the
other Note Documents. The discharge amount is the same as such total amount,
together with interest, expenses, attorneys' fees and costs and performance of
the Subsidiary Guarantee Obligations and the covenants of this Mortgage, the
Notes, the Guarantees, the Deed of Trust and the other Note Documents.
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128
ARTICLE 3.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF MORTGAGOR
Mortgagor represents, warrants, covenants and agrees with Mortgagee as
follows:
3.1 Corporate Status of Mortgagor. Mortgagor is a corporation organized
and existing under and by virtue of the laws of the State of Mississippi and is
and will remain a citizen of the United States of America within the meaning of
Title 46, Xxxxxxx 000, xx xxx Xxxxxx Xxxxxx Code, entitled to own and document
the Vessel to engage in the trade in which the Vessel is operating under the
laws of the United States of America.
3.2 Outstanding Liens. Mortgagor lawfully owns and is lawfully possessed
of the Vessel free and clear of all Liens, except the Permitted Liens under the
Indenture; and Mortgagor will and does hereby warrant and defend the title and
possession thereto and to every part thereof for the benefit of Mortgagee
against the claims and demands of all persons whomsoever subject to the
Permitted Liens and other matters permitted under the Indenture.
3.3 Compliance with Law. Mortgagor will comply with and satisfy all
applicable formalities and provisions of the laws and regulations of the United
States of America in order to perfect, establish and maintain this Mortgage, any
supplement or amendment hereto and any assignment hereof by Mortgagee as a first
priority mortgage upon the Vessel and upon all additions, improvements and
replacements made in or to the same subject only to the Permitted Liens.
Mortgagor shall furnish to Mortgagee, from time to time, such proofs as
Mortgagee may reasonably request with respect to Mortgagor's compliance with the
foregoing covenant. Mortgagor shall promptly pay and discharge all United States
Coast Guard fees and expenses in connection with the recordation of this
Mortgage, any supplement or amendment thereto and any assignment thereof by
Mortgagee. In the event that any provisions hereof shall be deemed invalidated
in whole or in part by reason of any present or future law or any decision of
any court, Mortgagor will execute such other and further assurances and
documents as in the reasonable opinion of Mortgagee may be required to more
effectually subject the Vessel to the payment and performance of the Subsidiary
Guarantee Obligations.
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In addition, Mortgagor covenants that at all times it will comply with
all applicable formalities and provisions of the laws and regulations of the
State of Mississippi, including but not limited to the Mississippi Gaming Laws,
including the Mississippi Gaming Control Act and the regulations promulgated
thereunder.
3.4 Operation of Vessel. Mortgagor will not cause or permit the Vessel
to be operated in any manner contrary to law and Mortgagor will not engage in
any unlawful trade or violate any law or expose the Vessel to penalty or
forfeiture, and will not do, or suffer or permit to be done, anything which can
or may injuriously affect the registration or flag of the Vessel under the laws
and regulations of the United States of America. Mortgagor will not allow the
Vessel to leave the continental United States nor permit the Vessel to operate
outside the navigation limits of the insurance required pursuant to Section 3.12
of this Mortgage. Mortgagor will keep the Vessel duly documented as a Vessel of
the United States of America, entitled to engage in the coast wide trade.
Mortgagor will not operate the Vessel in any manner other than as a stationary
casino.
3.5 Payment of Taxes, Etc. Subject to the provisions of Section 4.5 of
the Indenture, Mortgagor will pay or cause to be paid prior to delinquency, all
taxes, assessments, governmental levies, fines and penalties lawfully imposed on
Mortgagor or on the Vessel.
3.6 Notice of Mortgage. Mortgagor will place, and at all times will
retain, properly certified copies of this Mortgage and a notice of this Mortgage
with the Certificate of Documentation of the Vessel on board the Vessel. In
addition, Mortgagor shall display a notice reading as follows, printed in plain
type of such size that each paragraph of reading matter shall cover a space not
less than six (6) inches wide by nine (9) inches high, and framed under glass,
shall be placed and kept prominently displayed on the Vessel:
NOTICE OF MORTGAGE
This Vessel is owned by Fitzgeralds Mississippi, Inc., a Mississippi
corporation, and is covered by a First Preferred Vessel Mortgage in favor of
The Bank of New York, a New York banking association, as mortgagee, to secure
payment of indebtedness. Under the terms of said Mortgage, no owner, operator,
charterer, cargo owner, subcharterer or the master of this vessel, or any other
person or persons has the right, power, or authority to create, incur or permit
to exist on this Vessel any
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lien whatsoever other than liens for crew's wages and salvage and certain other
liens permitted by Mortgagee.
3.7 Release from Arrest. If a complaint be filed against the Vessel, or
if the Vessel is otherwise attached, arrested, levied upon or taken into custody
by virtue of any legal proceeding in any court, Mortgagor will promptly notify
Mortgagee thereof by telephone facsimile, confirmed by letter, and within
fifteen (15) days will cause the Vessel to be released by posting security and
will promptly notify Mortgagee thereof in the manner aforesaid.
3.8 Care of the Vessel. On the date hereof and at all times thereafter,
the Vessel is, and shall be, tight, staunch and strong and well and sufficiently
tackled, appareled, furnished and equipped and in all respects seaworthy. Except
as otherwise expressly permitted by Section 4.15 of the Indenture, Mortgagor
shall preserve and maintain the Vessel in good condition, repair and working
order (reasonable wear and tear excepted) and supplied with all necessary
equipment and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof. At the request of
Mortgagee, Mortgagor shall certify monthly that all wages and other claims
whatsoever which might give rise to a Lien upon the Vessel were promptly and
duly paid.
3.9 Access to Vessel. Mortgagor at all reasonable times will afford
Mortgagee or its authorized representatives full and complete access to the
Vessel for the purpose of inspecting the same and Mortgagor's papers and records
with respect thereto.
3.10 Documentation of Vessel. Mortgagor will keep the Vessel duly
documented in the name of Mortgagor as a vessel of the United States of America,
under the flag of the United States of America, entitled to engage in the
operations conducted by Mortgagor and eligible for the trade in which the Vessel
is operating.
3.11 Sale, Charter or Mortgage of Vessel.
3.11.1 Prohibitions. Except as otherwise expressly permitted by
the Indenture, Mortgagor covenants that at all times prior to the indefeasible
payment in full of the Subsidiary Guarantee Obligations, Mortgagor shall neither
make nor suffer to exist, nor enter into any agreement for, any sale, charter,
assignment, exchange, mortgage, transfer, Lien, hypothecation or encumbrance of
all or any part of the Vessel. As used herein, "transfer" includes the actual
transfer or other disposi-
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tion, whether voluntary or involuntary, by law, or otherwise, except those
transfers specifically permitted herein, provided, however, that "transfer"
shall not include the granting of utility or other beneficial easements with
respect to the Vessel which are granted by Mortgagor and are reasonably
necessary to the construction or operation of the Property, as defined in the
Deed of Trust.
3.11.2 Pari-Passu Liens. Mortgagor may xxxxx x Xxxx on all or any
portion of the Vessel, which Lien (a "Pari Passu Encumbrance") shall,
notwithstanding the date of filing, rank "equally and ratably with" or "pari
passu" (as such terms are used herein or in the Indenture) with the Lien created
by this Mortgage, provided all of the following conditions are satisfied:
(i) the Lien is permitted by the terms of the Indenture to secure
Indebtedness equally and ratably with or pari passu with the Notes;
(ii) The instrument creating the applicable Lien (A) contains the
following statement: "Pursuant to Section 3.11.2 of that certain First
Preferred Vessel Mortgage dated as of December 30, 1997 from
Fitzgeralds Mississippi, Inc., as Mortgagor, to The Bank of New York, as
Mortgagee, the lien created by this instrument ranks equally and ratably
with or pari passu with the lien created by said First Preferred Vessel
Mortgage," and (B) provides for rights and remedies no greater than
those contained in the Note Documents; and
(iii) Mortgagor has complied with all other applicable terms and
provisions of the Indenture.
Mortgagee agrees to execute any additional documents which may be reasonably
required to confirm and establish that the lien of any Pari Passu Encumbrance is
pari passu with the Lien of this Mortgage; provided that, Mortgagee shall have
no liability thereunder and all costs and expenses thereof shall be paid by
Mortgagor.
3.12 Insurance. Mortgagor shall, at its sole expense, obtain, deliver to
and assign and maintain for the benefit of Mortgagee, during the term of this
Mortgage, insurance policies insuring the Vessel and liability insurance
policies, all in accordance with the requirements of Section 4.16 of the
Indenture. Mortgagor shall pay promptly when due any premiums on such insurance
policies and on any renewals thereof. All such policies and renewals thereof
shall contain a noncontributory standard mortgagee or beneficiary endorsement
(Form 438 BFU or its equivalent)
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making losses payable to Mortgagee as its interest may appear. In the case of
any loss or damage to the Vessel covered by insurance, Mortgagor shall give
immediate notice to Mortgagee thereof and all insurance monies, awards or other
payments shall be included in Net Proceeds and shall be applied in the same
manner and in accordance with terms and conditions contained in Section 4.10 of
the Indenture. Mortgagor shall not, without the prior written permission of
Mortgagee to be given in Mortgagee's sole and absolute discretion, do any act,
or voluntarily suffer or permit any act to be done, whereby any insurance
required by this Section 3.12 shall or may be suspended, impaired or defeated,
or suffer or permit the Vessel to engage in any voyage, to carry any cargo, or
engage in any other activity not permitted under the policies of insurance then
in effect without procuring insurance covering the Vessel in all respects for
such voyage or the carriage of such voyage.
3.13 Requisition of Title to Vessel. In the event that the title or
ownership of the Vessel shall be requisitioned, purchased or taken by the United
States of America or any government of any state of the United States or any
other country or any department, agency or representative thereof, pursuant to
any present or future law, proclamation, decree, order or otherwise, the lien of
this Mortgage shall be deemed to attach to the claim for compensation, and the
compensation, purchase price, reimbursement or award for such requisition,
purchase or other taking of such title or ownership shall be included in Net
Proceeds and shall be payable to Mortgagee, who shall be entitled to receive
the same and hold and apply such compensation, purchase price, reimbursement or
award in the same manner and in accordance with terms and conditions contained
in Section 4.10 of the Indenture. In the event of any such requisition, purchase
or taking, Mortgagor shall promptly execute and deliver to Mortgagee such
documents, if any, as in the opinion of counsel for Mortgagee may be necessary
or useful to facilitate or expedite the collection by Mortgagee of such
compensation, purchase price, reimbursement or award.
3.14 Requisition of Vessel but Not Title. In the event that the United
States of America or any government of any other country or any department,
agency or representative thereof shall not take the title or ownership of the
Vessel but shall requisition, charter, or in any manner take over the use of the
Vessel pursuant to any present or future law, proclamation, decree, order or
otherwise, all charter hire and compensation resulting therefrom and any sum
payable by reason of the loss of or injury to or depreciation of the Vessel
resulting from such requisitioning, chartering or taking of the use of the
Vessel shall be included in Rents and shall be the property of Mortgagor,
subject to the Assignment of Rents contained in the Deed of Trust.
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3.15 Execution of Additional Documents. Mortgagor agrees to execute all
additional documents, instruments, UCC Financing Statements and other agreements
that Mortgagee may reasonably deem necessary and appropriate, in form and
substance satisfactory to Mortgagee, to keep this Mortgage in effect, to better
reflect the true intent of this Mortgage, and to consummate fully all of the
transactions contemplated hereby and by the Deed of Trust, the Notes, the
Guarantees and the other Note Documents.
ARTICLE 4.
EVENTS OF DEFAULT AND REMEDIES
4.1 Events of Default. Subject to any applicable cure period provided
for in the Indenture or in this Mortgage, or if no cure period has been
specified then 30 days after Mortgagee has provided written notice to Mortgagor
with respect thereto (any such cure periods to run concurrently and not
consecutively), any of the following shall be deemed to be an Event of Default
hereunder:
4.1.1 The occurrence of one or more "Events of Default" (as
defined in the Indenture) shall constitute an "Event of Default" under this
Mortgage.
4.1.2 The occurrence of one or more "Events of Default" (as
defined in the Deed of Trust) shall constitute an "Event of Default" under this
Mortgage.
4.1.3 Failure to perform any of the terms, covenants and
conditions in this Mortgage or any of the other Collateral Documents or Note
Documents.
4.1.4 Any statement, representation or warranty given by
Mortgagor to Mortgagee in any of the Note Documents, in connection with the
Indenture or in any other document provided by Mortgagor, including this
Mortgage, is found to be materially false or misleading.
4.1.5 A default under, or the institution of foreclosure or other
proceedings to enforce, any Lien or Permitted Lien of any kind upon the Property
or any portion thereof.
4.1.6 Any transfer of the Property or any portion thereof without
the prior consent of Beneficiary as provided in Section 3.11 hereof.
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4.2 Remedies. In each and every Event of Default, Mortgagee shall have
the right to:
4.2.1 Accelerate the maturity date(s) of any or all of the
Subsidiary Guarantee Obligations (except that such acceleration shall be
automatic if the Event of Default is caused by any of the events described in
Sections 6.1 (9) and 6.1 (10) of the Indenture), declare the outstanding
principal amount of the Notes and the interest accrued thereon, and all other
Subsidiary Guarantee Obligations, to be due and payable immediately, and upon
such declaration such principal and interest and other Subsidiary Guarantee
Obligations shall immediately become due and payable without demand,
presentment, notice or other requirements of any kind (all of which Mortgagor
waives);
4.2.2 Exercise all the rights and remedies in foreclosure and
otherwise given to Mortgagee by the laws and regulations of the United States of
America or of the country wherein the Vessel shall then be found or of any
country wherein the Vessel may thereafter be found or of any other applicable
jurisdiction;
4.2.3 Bring suit at law, in equity or in admiralty, as it may be
advised, to recover judgment for any and all amounts secured hereby and collect
the same from Mortgagor and/or out of any and all property of Mortgagor covered
by this Mortgage;
4.2.4 Take the Vessel without legal process wherever the same may
be; and Mortgagor or other person in possession, forthwith upon demand of
Mortgagee shall surrender to Mortgagee possession of the Vessel and Mortgagee
may, without being responsible for loss or damage, hold, lay up, lease, charter,
operate or otherwise use the Vessel for such time and upon such terms as it may
deem to be for its best advantage, accounting only for the net profits, if any,
arising from such use of the Vessel and charging upon all receipts from the use
of the Vessel or from the sale thereof by court proceedings or pursuant to the
provisions set forth in 4.3 below, all costs, expenses, charges, damages or
losses by reason of such use; and if at any time Mortgagee shall avail itself of
the right herein given it to take the Vessel, Mortgagee shall have the right to
dock the Vessel for a reasonable time at any dock, pier, or other premises of
Mortgagor or leased by Mortgagor without charge, or to dock it at any other
place at the cost and expense of Mortgagor;
4.2.5 Without being responsible for loss or damage, sell the
Vessel at any place and at such time as Mortgagee may specify and in such manner
as
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Mortgagee may deem advisable free from any claim by Mortgagor in admiralty, in
equity, at law or by statute, after first giving notice of the time and place of
sale with a general description of the Vessel in the following manner:
(a) By publishing such notice three times a week for two
consecutive weeks, with the last date of publication not more than 20 nor less
than five days immediately preceding the sale, in a daily newspaper of general
circulation published in Tunica, Mississippi and in the Journal of Commerce;
(b) If the place of sale should not be Tunica,
Mississippi, then also by publication of a similar notice in a daily newspaper,
if any, published at the place of sale; and
(c) By mailing a similar notice to Mortgagor on the day of
first publication.
4.2.5.1 Mortgagor may, for any cause it deems expedient,
postpone the sale of all or any portion of the Vessel until it shall be
completed and, in every case, notice of postponement shall be given by public
announcement thereof at the time and place last appointed for the sale and from
time to time thereafter Mortgagor may postpone such sale by public announcement
at the time fixed by the preceding postponement.
4.2.5.2 Any such sale may be conducted without bringing the
Vessel to be sold to the place designated for such sale and in such manner as
Mortgagee may deem to be for its best advantage.
4.2.6 Mortgagor hereby consents to the appointment of a consent
keeper or substitute custodian by Mortgagee with the costs thereof to be a cost
of the sale to be paid from the proceeds of the sale or by Mortgagor.
4.3 Sale of Vessel by Mortgagee. Any sale of the Vessel made by
Mortgagee in pursuance of this Mortgage, whether under the power of sale hereby
granted or any judicial proceedings, shall operate to divest all right, title
and interest of any nature whatsoever of Mortgagor therein and thereto, and
shall bar Mortgagor, its successors and assigns, and all persons claiming by,
through or under them. At any such sale Mortgagee or any other holders of the
Notes may bid for and purchase the Vessel and upon compliance with the terms of
sale may hold, retain and dispose of the Vessel without further accountability
therefor.
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4.4 Mortgagee to Sign for Mortgagor. For purposes of any sale of the
Vessel made by Mortgagee in pursuance of this Mortgage, whether under the power
of sale hereby granted or any judicial proceedings, Mortgagee is hereby
appointed attorney-in-fact of Mortgagor to execute and deliver to any purchaser
aforesaid and is hereby vested with full power and authority to make, in the
name and on behalf of Mortgagor, a good conveyance of the title to the Vessel.
With respect to the foregoing power of attorney and each and every other power
of attorney granted elsewhere herein (including without limitation Section 4.5
hereof)or in the other Note Documents, Mortgagee, by its acceptance hereof,
acknowledges and understands that the Gaming Authorities may require that
Mortgagee or any other person granted a right to act for or on behalf of the
Company, Mortgagor or any other Guarantor obtain Gaming Approvals before, during
or after the exercise thereof.
4.5 Mortgagee to Collect Hire, Etc. Mortgagee is hereby appointed
attorney-in-fact of Mortgagor upon the happening of and during, but only during,
the continuance of any Event of Default, in the name of Mortgagor (a) to demand,
collect, receive, compromise and xxx for, so far as may be permitted by law, all
Rents of the Vessel and all amounts due from underwriters under any insurance
thereon as payment of losses or as return premiums or otherwise, and all other
sums, due or to become due at the time of the happening of and during, but only
during, the continuance of any Event of Default in respect of the Vessel, or in
respect of any insurance thereof from any person whomsoever, and (b) to make,
give and execute in the name of Mortgagor acquittance, receipts, releases, or
other discharges for the same, whether under seal or otherwise, and (c) to
endorse and accept in the name of Mortgagor all checks, notes, drafts, warrants,
agreements and all other instruments with respect to the foregoing. The rights
of Mortgagee provided in this Section 4.5 are in addition to all other rights of
Mortgagee provided in this Mortgage and in the other Note Documents (including,
without limitation, Section 3.12 of this Mortgage) and the provisions of this
Section 4.5 shall not be construed to limit any of such other rights.
4.6 Right to a Receiver. If any legal proceedings shall be taken to
enforce any right under this Mortgage, Mortgagee shall be entitled as a matter
of right to the appointment of a receiver of the Vessel and the Rents due or to
become due and arising from the operation thereof.
4.7 Suits to Protect the Vessel. Mortgagee shall have the power and
authority to institute and maintain any suits and proceedings as Mortgagee, in
its sole and absolute discretion, may deem expedient (a) to prevent any
impairment of the
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Vessel by any acts which may be unlawful or in violation of the terms of this
Mortgage or any of the other Note Documents, or (b) to restrain the enforcement
of or compliance with any legislation or other Applicable Laws that may be
unconstitutional or otherwise invalid or if the enforcement of or compliance
with such enactment, rule or order would impair the security hereunder or be
prejudicial to the interest of Mortgagee or the holders of the Notes. Mortgagee
shall give notice to Mortgagor promptly following institution of any such suit
or proceeding.
4.8 Costs of Mortgagee. Mortgagee shall be entitled to recover judgment
against Mortgagor for the amount of Mortgagee's reasonable costs and expenses of
enforcement of the terms and provisions of this Mortgage, including reasonable
attorneys' fees and costs and any necessary advances, expenses and liabilities
made or incurred by Mortgagee in exercising its rights and remedies hereunder,
after the occurrence of and during, but only during, the continuance of an Event
of Default.
4.9 Right of Mortgagee. Each and every power and remedy herein given to
Mortgagee shall be cumulative and shall be in addition to every other power and
remedy herein given or given in the Deed of Trust or the other Note Documents or
now or hereafter existing at law, in equity, in admiralty or by statute, and
each and every power and remedy whether herein given or otherwise existing may
be exercised from time to time and as often and in such order as may be deemed
expedient by Mortgagee, and the exercise or the beginning of the exercise of any
power to remedy shall not be construed to be a waiver of the right to exercise
at the same time or thereafter any other power or remedy. No delay or omission
by Mortgagee in the exercise of any right or power or in the pursuance of any
remedy accruing upon any Event of Default shall impair any such right, power or
remedy or be construed to be a waiver of any Event of Default or be construed to
be any acquiescence therein; nor shall the acceptance by Mortgagee of any
security or of any payment of or on account of any of the Subsidiary Guarantee
Obligations after any Event of Default or of any payment on account of any past
Event of Default be construed to be a waiver of any right to take advantage of
any future Event of Default or of any past Event of Default not completely cured
thereby.
4.10 Restoration of Position. If Mortgagee shall have proceeded to
enforce any right or remedy under this Mortgage by foreclosure, entry or
otherwise and such proceedings shall have been discontinued or abandoned for any
reason, then, and in every such case Mortgagor and Mortgagee shall be restored
to their former positions and rights hereunder, and all rights, powers and
remedies of Mortgagee shall continue as if no such proceedings had occurred or
had been taken.
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4.11 Proceeds of Sale. The proceeds of any sale of the Vessel and the
net earnings from the hire or from any operation or use of the Vessel by
Mortgagee under any of the powers herein specified and any and all other money
received by Mortgagee pursuant to or under the terms of this Mortgage or in any
proceedings hereunder, the application of which has not elsewhere been
specifically provided, shall be applied as follows:
4.11.1 To the payment of all reasonable expenses and charges,
including the expenses of any sale, and expenses of any retaking, attorneys'
fees, court costs, keepers' fees, necessary repairs and any other expenses or
advances made or incurred by Mortgagee in the protection of its rights or the
pursuance of its remedies hereunder; then
4.11.2 To the payment in full of any amounts then due and unpaid
under the Subsidiary Guarantee Obligations; then
4.11.3 To Mortgagor or to whomsoever may be then entitled
thereto.
4.12 Gaming Approvals. By its acceptance hereof, Mortgagee acknowledges
that Mortgagor's right to xxxxx x Xxxx on, and Mortgagee's right to enforce a
Lien on and foreclose on, sell, possess and/or exercise any other rights or
remedies pursuant to the terms hereof with respect to certain gaming equipment
or other property used in the gaming business of Mortgagor and included in the
Vessel and Gaming Approvals and any liquor and liquor licenses and permits
included in the Vessel may be limited, proscribed or prohibited under Gaming Law
or applicable liquor laws and regulations of the State of Mississippi or other
Government Authorities and that Mortgagor and Mortgagee are subject to Gaming
Law and such other laws and regulations with respect to such assignment,
granting, enforcement, foreclosure, sale and/or possession.
ARTICLE 5.
MISCELLANEOUS PROVISIONS
5.1 Addresses for Notices, Etc. Any notices or other communications to
Mortgagor or Mortgagee required or permitted hereunder shall be in writing, and
shall be sufficiently given if made by hand delivery, by telex, by telecopier or
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
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Mortgagee: The Bank of New York,
A New York banking association
000 Xxxxxxx Xxxxxx - 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Mortgagor: FITZGERALDS MISSISSIPPI, INC.
a Mississippi corporation
000 Xxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxxxx 00000
with a copy to: XXXXXXXXXX GAMING CORPORATION
000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Mortgagor or Mortgagee by notice to each other may designate additional or
different addresses as shall be furnished in writing by such party. Any notice
or communication to Mortgagor or Mortgagee shall be deemed to have been given
or made as of the date so delivered, if personally delivered; when answered
back, if telexed; when receipt is acknowledged, if telecopied; and five Business
Days after mailing if sent by registered or certified mail, postage prepaid
(except that a notice of change of address shall not be deemed to have been
given until actually received by the addressee).
5.2 Mortgagee's Expenses, Including Attorney's Fees. Regardless of the
occurrence of a Default or Event of Default, Mortgagor agrees to pay to
Mortgagee any and all advances, charges, costs and expenses, including
reasonable fees and expenses of counsel and any experts or agents, that
Mortgagee may reasonably incur in connection with (i) the administration of this
Mortgage, including any amendment thereto or any workout or restructuring, (ii)
the creation, perfection, or continuation of the Lien created by this Mortgage
in the Vessel or the protection of its first priority in the Vessel, including
the discharging of any prior or junior lien or adverse claim against the Vessel
or any part thereof that is not permitted hereby or by the Indenture, (iii) the
custody, preservation or sale of, collection from, or other realization upon,
any part of the Vessel, (iv) the exercise or enforcement of any of the rights,
powers, or remedies of Mortgagee under this Mortgage or under any Applicable
Laws (including attorneys' fees and expenses actually incurred by Mortgagee in
the maintenance or foreclosure of the Lien of this Mortgage) or bankruptcy
proceed-
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ing, (v) Mortgage's due inscription and recordation in the National Vessel
Documentation Center, (vi) the failure by Mortgagor to perform or observe any
of the provisions hereof or (vii) any payments or advances made by Mortgagee in
order to prevent or protect the Vessel from harm or damage. All such amounts and
all other amounts payable hereunder shall be payable upon demand, together with,
if paid after the due date, interest at the Default Rate.
5.3 Counterparts. This Mortgage may be executed in any number of
counterparts and all such counterparts executed and delivered each as an
original shall constitute but one and the same instrument.
5.4 Interest of Mortgagee. The interest of Mortgagor in the Vessel and
the interest mortgaged by this Mortgage is 100% absolute and sole ownership.
5.5 Survivorship of Covenants. All of the covenants, promises,
stipulations and agreements of Mortgagor contained herein shall bind Mortgagor
and its successors and assigns and shall inure to the benefit of Mortgagee and
its successors and assigns.
5.6 Amendments. This Mortgage may not be modified, supplemented or
amended in any respect, or any waiver given in regard to any of the provisions
hereof, except with the written consent of Mortgagee.
5.7 Discharge of Lien. When the Subsidiary Guarantee Obligations have
been indefeasibly paid and satisfied in full, Mortgagee shall, at Mortgagor's
expense, execute and deliver to Mortgagor such documents as Mortgagor shall
reasonably request to evidence the surrender and discharge of the lien hereof
upon the Vessel.
5.8 Incorporation into Mortgage. The Whereas Clauses and the Granting
Clause of this Mortgage are incorporated in and are made a part of this
Mortgage.
5.9 GOVERNING LAW. THIS MORTGAGE SHALL BE GOVERNED BY AND CONSTRUED
ACCORDING TO THE LAWS OF THE STATE OF NEW YORK, EXCEPT (1) TO THE EXTENT THAT
THE PROVISIONS OF CHAPTER 000 XX XXXXX 00 XX XXX XXXXXX XXXXXX CODE AND THE
GENERAL MARITIME LAW OF THE UNITED STATES ARE APPLICABLE, AND (2) THE PROVISIONS
FOR THE CREATION, PERFECTION AND ENFORCEMENT OF THE LIEN AND SECURITY INTEREST
CREATED PURSU-
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ANT TO THIS MORTGAGE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MISSISSIPPI.
5.10 Conflict. In the event that the provisions of this Mortgage shall
conflict with or be inconsistent with the provisions of the Indenture, the terms
and provisions of the Indenture shall control and govern the obligations, rights
and responsibilities of the parties hereto.
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IN WITNESS WHEREOF, Mortgagor has executed this Mortgage as of
the day and year first above written.
FITZGERALDS MISSISSIPPI, INC.,
a Mississippi corporation
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
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ACKNOWLEDGMENT
STATE OF )
) SS.
COUNTY OF )
On the ____________ day of December, 1997, before me
personally came ______________________to me known, who, being by me duly sworn,
did depose and say that he resides at _________________; that he is the
_____________________ of Fitzgeralds Mississippi, Inc., the corporation
described in and which executed the above instrument; that knows the seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by order of the Board of Directors of said
corporation, and acknowledged that _________________ signed ______________ name
thereto by like order.
-------------------------------------------
NOTARY PUBLIC
My Commission expires:
22
144
EXHIBIT A
LEGAL DESCRIPTION OF LAND
- i -
145
BOOK 141 PAGE 377
TRACT 1
A tract of land situated in Sections 9 and 10, Township 3 South, Range 11 West,
Tunica County, Mississippi and more particularly described as follows:
Commencing from a railroad spike set in Commerce Road, said railroad spike
represents the southeast corner of Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 00 Xxxx,
Xxxxxx Xxxxxx, Mississippi, thence North 90 degrees, 00 minutes, 00 seconds
West for 4201.45 feet to a point; thence North 9 degrees, 09 minutes, 00
seconds East for 7728.13 feet to the "Point of Beginning" of Tract 1 herein
described; thence
South 74 degrees, 23 minutes, 00 seconds West for 4442.00 feet to a point on
the existing slope of the Mississippi River Commaree Trenchfill Investment
Project (said slope being on the southern or eastern side of the Mississippi
River), thence
North 59 degrees, 14 minutes, 00 seconds East along the said existing slope for
2549.00 feet to a point; thence
North 55 degrees, 32 minutes, 06 seconds, 00 seconds East and continuing along
the said existing slope for 1751.00 feet to a point; thence
North 53 degrees, 45 minutes, 00 seconds East and continuing along the said
existing slope for 1049.02 feet to a point; thence
South 45 degrees, 17 minutes, 48 seconds East for 2113.63 feet to a found
concrete monument representing the center of Xxxxxxx 00, Xxxxxxxx 0 Xxxxx,
Xxxxx 00 Xxxx, Xxxxxx Xxxxxx, Mississippi, thence
North 89 degrees, 45 minutes, 12 seconds East for 122.36 feet to a point; thence
South 50 degrees, 13 minutes, 00 seconds West for 360.83 feet to a point, thence
South 54 degrees, 09 minutes, 04 seconds West for 483.00 feet to a point; thence
South 49 degrees, 09 minutes, 00 seconds West for 225.00 feet to a point; thence
North 47 degrees, 14 minutes, 08 seconds West for 314.00 feet to a point; thence
North 23 degrees, 95 minutes, 08 seconds West for 870.00 feet to the said
"Point of Beginning", containing 132.82 acres, more or less.
Bearings in the above description have an origin of TRUE NORTH based on
computations from celestial observations.
146
BOOK 141 PAGE 378
TRACT 2*
A tract of land situated in the Southeast 1/4 of the Southeast 1/4, the
Northeast 1/4 of the Southeast 1/4, the Northwest 1/4 of the Southeast 1/4 and
the Northeast 1/4 of the Southwest 1/4, all in Sections 00, Xxxxxxxx 0 Xxxxx,
Xxxxx 11 West, Tunica County, Mississippi and more particularly described as
follows:
Commencing from an iron bar in the present Yazoo-Mississippi Delta Levee
Commission baseline at mile post 22/23, also referred to as station 21/53+03 and
said iron bar being further described as being located 2959.97 feet South of and
369.80 feet West of a concrete monument representing the northeast corner of
Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 00 Xxxx, Xxxxxx Xxxxxx, Mississippi; thence
South 23 degrees, 06 minutes, 34 seconds West for 948.29 feet to an feet to a
point on the southern line of the Yazoo-Mississippi Delta Levee Commission
boundary and the "Point of Beginning" of the Tract 2 herein described; thence
South 50 degrees, 44 minutes, 06 seconds West for 249.86 feet to a point;
thence
North 57 degrees, 04 minutes, 05 seconds West for 461.24 feet to a point; thence
North 71 degrees, 16 minutes, 09 seconds West for 354.34 feet to a point; thence
North 77 degrees, 33 minutes, 19 seconds West for 320.25 feet to a point; thence
North 65 degrees, 43 minutes, 51 seconds West for 287.55 feet to a point; thence
North 48 degrees, 24 minutes, 20 seconds West for 276.87 feet to a point; thence
North 41 degrees, 07 minutes, 03 seconds West for 177.13 feet to a point; thence
North 27 degrees, 20 minutes, 85 seconds West for 140.25 feet to a point on the
northern line of the Yazoo-Mississippi Delta Levee Commission boundary; thence
North 54 degrees, 09 minutes, 08 seconds East along said northern line for
22.30 feet to a point; thence
North 50 degrees, 18 minutes, 09 seconds East and continuing along said
northern line for 149.65 feet to a point; thence
South 32 degrees, 18 minutes, 13 seconds East for 204.92 feet to a point; thence
South 41 degrees, 36 minutes, 46 seconds East for 147.74 feet to a point; thence
South 48 degrees, 34 minutes, 22 seconds East for 388.74 feet to a point; thence
South 82 degrees, 34 minutes, 59 seconds East for 202.68 feet to a point;
thence
South 82 degrees, 39 minutes, 27 seconds East for 258.65 feet to a point; thence
South 68 degrees, 25 minutes, 20 seconds East for 136.39 feet to a point; thence
South 79 degrees, 38 minutes, 22 seconds East for 163.38 feet to a point; thence
South 63 degrees, 57 minutes, 04 seconds East for 199.25 feet to a point; thence
South 47 degrees, 30 minutes, 27 seconds East for 621.41 feet to the said
"Point of Beginning", containing 13.95 acres, more or less.
Bearings in the above description have an origin of TRUE NORTH based on
computations from celestial observations.
147
BOOK 141 PAGE 379
TRACT 3
A tract of land situated in Section 00, Xxxxxxxx 0 Xxxxx, Xxxxx 11 West, Tunica
County, Mississippi and more particularly described as follows:
Commencing from an iron pin representing the southeast corner of Section 00,
Xxxxxxxx 0 Xxxxx, Xxxxx 00 Xxxx, Xxxxxx Xxxxxx, Xxxxxxxxxxx; thence North 0
degrees, 14 minutes, 36 seconds West along the east line of said Section 10 for
198.42 feet to the "Point of Beginning" of the tract herein described; thence
North 0 degrees, 14 minutes, 36 seconds West and continuing along the said east
line of Section 10 for 848.14 feet to a point; thence
South 72 degrees, 54 minutes, 40 seconds West for 236.34 feet to a point;
thence
North 51 degrees, 57 minutes, 56 seconds West for 272.93 feet to a point; thence
North 44 degrees, 31 minutes, 48 seconds West for 476.17 feet to the northern
most boundary (also referred to as the landside boundary) of the
Yazoo-Mississippi Delta Levee Commission property; thence
South 50 degrees, 44 minutes, 06 seconds West along the said southern boundary
of the Yazoo-Mississippi Delta Levee Commission property for 249.77 feet to a
point; thence
South 97 degrees, 57 minutes, 16 seconds East for 560.07 feet to a point; thence
South 44 degrees, 02 minutes, 26 seconds East for 431.02 feet to a point; thence
South 29 degrees, 52 minutes, 26 seconds East for 145.96 feet to a point; thence
South 31 degrees, 16 minutes, 14 seconds East for 487.57 feet to the said
"Point of Beginning", containing 6.04 acres, more or less.
Bearings in the above description have an origin of TRUE NORTH based on
computations from celestial observations.
148
BOOK 141 PAGE 380
TRACT 4*
A tract of land situated in the Southwest 1/4 of Section 11, Township 3 South,
Range 11 West, Tunica County, Mississippi and more particularly described as
follows:
Commencing from a point representing the southwest corner of Xxxxxxx 00,
Xxxxxxxx 0 Xxxxx, Xxxxx 00 Xxxx, Xxxxxx Xxxxxx, Mississippi, thence North 0
degrees, 14 minutes, 36 seconds West along a line representing the western line
of said Section 14 for 130.00 feet to the "Point of Beginning" of the tract
herein described; thence
North 6 degrees, 14 minutes, 14 seconds West along a line representing the west
line of said Section 11 for 346.00 feet to a point; thence
North 89 degrees, 39 minutes, 36 seconds East for 20.00 feet to a point; thence
South 0 degrees, 14 minutes, 36 seconds East for 948.09 feet to a point; thence
South 89 degrees, 39 minutes, 36 seconds West for 36.00 feet to the said
"Point of Beginning", containing 0.4339 acres, more or less.
Bearings in the above description have an origin of TRUE NORTH based on
computation from celestial observations.
149
BOOK 141 PAGE 381
TRACT 8*
A tract of land situated in Section 00, Xxxxxxxx 0 Xxxxx, Xxxxx 11 West, Tunica
County, Mississippi and more particularly described as follows:
Commencing from an iron pin representing the southwest corner of Section 00,
Xxxxxxxx 0 Xxxxx, Xxxxx 11 West, Tunica County, Mississippi, North 19 degrees,
39 minutes, 34 seconds East for 20.08 feet to the said "Point of Beginning" of
the tract herein described; thence
North 39 degrees, 39 minutes, 36 seconds East for 120.01 feet to a point; thence
North 8 degrees, 14 minutes, 36 seconds West for 1124.29 feet to a point; thence
North 11 degrees, 45 minutes, 30 seconds East for 190.77 feet to a point; thence
North 1 degree, 08 minutes, 48 seconds East for 600.56 feet to a point; thence
North 7 degrees, 37 minutes, 18 seconds East for 401.94 feet to a point on the
northern boundary of the Yazoo-Mississippi Delta Levee Commission property;
thence
North 83 degrees, 08 minutes, 40 seconds West along the said southern boundary
for 38.02 feet to a point; thence
South 30 degrees, 23 minutes, 00 seconds West and continuing along the said
southern boundary for 223.42 feet to a point; thence
South 0 degrees, 14 minutes, 36 seconds East for 4083.02 feet to the said
"Point of Beginning", containing 6.82 acres, more or less.
Bearings in the above description have an origin of TRUE NORTH based on
computations from celestial observations.
150
Schedule 1
Existing Liens
Sch-1
151
SCHEDULE 1 TO THE INDENTURE
EXISTING LIENS
Principal outstanding as of
Fitzgeralds Las Vegas, Inc. December 31, 1997
--------------------------- ---------------------------
Bally: slot equipment $ 13,490
Xxxxxxxxxxx: slot equipment 455,354
IGT: slot equipment 64,699
IGT: slot equipment 71,608
IGT Smart System 783,803
Holidex System 20,209
IBM: computer hardware 105,731
Colonial Pacific: Micros system 86,673
WilTel Communications: phone system 167,431
Xpertx: Keno system 13,983
Young Electric: exterior signs 434,567
PDS Financial Corporation Equipment
NTFC Capital corporation Equipment
152
Principal outstanding as of
Fitzgeralds Mississippi, Inc. December 31, 1997
----------------------------- ---------------------------
CIT: slot equipment $400,000
Xxxxxxxx: slot equipment 35,530
IGT: slot equipment 36,276
IGT: slot equipment 11,995
IGT: slot equipment 15,089
CFS Leasing: Micro System 76,617
IBM: computer hardware 140,382
River Bend: sewer system 273,964
Young Electric: marquee sign 62,527
153
Principal outstanding as of
Fitzgeralds Reno December 31, 1997
---------------- ---------------------------
IGT: SMART equipment $ 381,978
IGT: slot equipment 14,336
IGT: slot equipment 40,906
IGT: slot equipment 39,332
IGT: slot equipment 39,332
Xxxxxxxxxxx: slot equipment 377,972
Bally: slot equipment 6,229
Bally: slot equipment 41,913
Bally: slot equipment 13,719
Bally: slot equipment 76,594
IBM: computer hardware 84,981
Kronos: T&A system 12,997
Tru-Measur: F&B equipment 14,923
Lincoln Partners Note 327,742
Harolds Club settlement 1,525,000
First National Bank of Glencoe/Minnetonka, N.A. Equipment
Xxxxxx & Xxxxxxxxx Investment Corporation Equipment
NFTC Capital Corporation Equipment
IDS Financial Corporation Equipment
Ecolab (Dish machine 5355192)
Ecolab (Dish machine 5620195)
154
Fitzgeralds Black Hawk/ Principal outstanding as of
000 Xxxx Xxxxxx Limited Liability Company December 31, 1997
----------------------------------------- ---------------------------
CIT: slot equipment $107,853
IGT: slot equipment 54,718
GE Capital: gaming equipment 645,572
PDS 132,292
ITT Commercial Finance Corp. (Various)
CIT Group/Equipment Finance (Equipment)
Young Electric Sign Company (Marquee Sign)
155
Principal outstanding as of
Fitzgeralds Gaming Corporation December 31, 1997
------------------------------ ---------------------------
Business Credit Leasing (Toshiba Copying Systems)
Bally Gaming, Inc. (Equipment)
